Cju17 v Minister for Immigration
[2018] FCCA 3742
•17 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJU17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3742 |
| Catchwords: MIGRATION – Application for judicial review – no protection visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R, 424A |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| First Applicant: | CJU17 |
| Second Applicant: | CJV17 |
| Third Applicant: | CJW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1170 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 19 September 2018 |
| Date of Last Submission: | 19 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 17 December 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1170 of 2017
| CJU17 |
First Applicant
| CJV17 |
Second Applicant
| CJW17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 17 May 2017. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa.
The applicant is a citizen of India. The applicant’s two children are the secondary applicants: they rely entirely upon the claims of the applicant. The applicant is a single divorced woman, having separated from her husband in India in 2005.
The applicant has resided in Australia since March 2010 when she entered on a tourist visa. The applicant then sought a subclass 835 remaining relative visa. The remaining relative visa was refused on
5 November 2012. The Migration Review Tribunal (as it then was) affirmed the delegate’s decision on 19 March 2013. Thereafter, the applicant sought ministerial intervention on 27 August 2013 which was refused on 25 July 2017.
The applicant applied for a protection visa on 4 September 2014. The delegate refused to grant the visa on 6 February 2015. That decision was upheld by the Tribunal on 17 May 2017. The applicant required the assistance of a Gujarati interpreter, which was provided by the Court for the hearing.
The applicant’s claims
The applicant’s claims are summarised at [23] to [24] of the Tribunal’s decision as follows:
23. The applicants’ claims can be summarised as follows. The applicant, who was born in 1972 in Vadodara/formerly known as Baroda, Gujurat, is 44 years old and is divorced with two children, aged 13 and 11, both of whom are also applicants. The applicant fears that she and the children will be subject to harm from her ex-husband and his family because they want to gain control over her mother’s property. As a single divorced woman in India with no-one but her widowed mother to support her, the applicant fears she will suffer hardship and be the subject to gossip and rumour. The applicants will experience hardship on return to India because they will be separated from their family members, because life in India will be more difficult for her as a person who uses a wheelchair/three wheeler scooter because she lost use of her right leg a result of polio as a child, and that it will be difficult to adapt to life in India after a long period in Australia.
24. In addition, the applicant claims she provides strong support to her sister, who suffers from chronic pain and depression, and her brother-in-law. She claims that the presence of the applicant and the applicant children and the high level of their engagement provides invaluable support to the development of the applicant’s sister’s autistic children.
The Tribunal also had regard to witness evidence on behalf of the applicant. That evidence was provided by the applicant’s older sister and her husband who ‘are both long term residents in Melbourne, and that the applicants live with them’: see [41].
The Tribunal’s findings
The Tribunal first had regard to the applicant’s claims of fear at the hands of her ex-husband or his family. The applicant married her ex-husband in 2002 and divorced in 2006: see [61] and [67]. The Tribunal accepted that since separation in 2005 until divorce ‘the applicant felt threatened and harassed’ by her ex-husband: see [65].
The Tribunal considered that the chance that the applicant’s ex-husband would ‘harass, threaten or harm the applicants in the future is remote’, saying (at [69]):
69. Given the applicant’s ex-husband last approached the applicant before the divorce in 2005, the Tribunal notes that the applicants did not experience harassment or threats in the period of more than six month period after the divorce order and their departure for Australia. The Tribunal also notes that based on the evidence of the applicant, none of the applicants experienced harassment or harm in the period following their return to India in July 2007 and their return to Australia in 2010. The Tribunal concludes from this that while the conduct of the applicant’s ex-husband was abusive and threatening in the period leading to the divorce, for the considerable period of some years, the applicant’s ex-husband demonstrated he respected the police order not to disturb the applicant and the applicant children, and Court arrangements for custody and contact with the children…
With respect to harm arising from the ex-husband’s family, the applicant’s evidence was ‘they used to do a lot of black magic when she was in India’: see [71]. Whilst the Tribunal accepted the applicant’s relationship with her ex-husband’s family was ‘tense’ (at [72]), it was not convinced that ‘fractures she sustained in falls at home… are indicative that her ex-husband’s family intended to harm her’: see [72]. It considered that whilst the applicant experienced ‘psychological abuse’ following separation, it noted that she ‘has experienced no harm since her divorce in 2006’: see [73].
The Tribunal then had regard to the applicant’s claims that ‘in 2006 [her] ex-husband tried to kill her, her son and helper in a contrived car accident’: see [75]. The Tribunal considered it credible that the applicant and her son and helper were in a scooter accident: see [75]. The Tribunal considered the applicant’s evidence that she did not report the matter to police: see [76]. The Tribunal ‘would expect that had the applicant [had] concern that she and the others were the subject of a deliberate attempt on their lives she would have reported the matter to the police, as she had done in the past’: see [76].
The Tribunal concluded on this topic (at [80]), saying that it had:
80.… serious concerns about the credibility of the applicant’s evidence that an attempt was made on her life and the life of the applicant child through a contrived road accident. Given the seriousness of the applicant’s allegation, that is, that she and her children were at risk because her husband was trying to kill them, the Tribunal is not satisfied given the applicant’s other report to the police that she would take no action for the reasons she put forward. In addition, on the evidence before it, the Tribunal considers it is purely speculative to draw the conclusion that her husband was trying to kill her, her son and her helper because a familiar car bumped her from behind and did not stop when she was driving her scooter.
The Tribunal had regard to the applicant’s claim that she feared harm from her neighbour who ‘had a relationship with her ex-husband’: see [82]. Whilst the Tribunal recognised this as ‘an uncomfortable situation … the Tribunal notes that the applicant has not experienced harassment from her ex-husband after 2006 and on the evidence before it, his relationship with the neighbour has not led to harassment or harm of the applicant’: see [83].
Based on the applicant’s claim to fear harm from the applicant’s ex-husband and his family (or anyone else), the Tribunal ‘also assessed the applicants’ access to effective protection from the state’: see [85]. The Tribunal concluded on this topic (at [88]) saying:
88. Considering the applicant’s circumstances and noting the finding above that the state has in the past taken effective steps to eliminate risk to the applicant from her ex-husband, and that subsequent to this action, the applicant experienced no harassment, the Tribunal considers the evidence indicates that that the police and the Court will protect the applicants from harm now and in the foreseeable future.
The Tribunal considered the applicant’s claims that ‘her husband/husband’s family want to take her sons away so they are able to obtain her mother’s property’: see [89]. The Tribunal acknowledged the applicant’s experiences of feeling ‘abused and vulnerable in her ex-husband’s home’: see [90]. Although the Tribunal considered:
90. … in the past her ex-parents-in-law had returned her son safely when they took him out, the Tribunal draws the conclusion that while they had the opportunity to do otherwise, they respected with the custody arrangements made by the Court.
The Tribunal considered whether ‘the applicant’s ex-husband/family will obtain custody of the children to obtain the applicant’s mother’s property or any other reason’: see [91]. The Tribunal noted that the applicant was awarded full custody of the children in 2006 and concluded (at [91]) that:
91. … Given the non-discriminatory approach in the past and given the applicant has now had custody of the children for more than ten years and in the view of the Tribunal is well able to demonstrate she has provided appropriate care for the children, the Tribunal does not accept that any of the applicants face a real chance of serious harm or a real risk of significant harm arising from an attempt to legally contest the Court’s custody decision.
The Tribunal concluded that in the future, ‘the applicant’s rights to custody of the children and the applicant children’s best interests would be protected through a fair judicial process, in the event that this was necessary’: see [92].
The Tribunal considered whether the applicant would, upon return, face ‘social discrimination because she is a single, divorced woman’: see [95]. The Tribunal concluded that whilst she may be subject to ‘gossip’ and this would be ‘an uncomfortable experience’, the Tribunal did not accept that ‘such treatment would amount to serious harm or significant harm’: see [97].
The Tribunal considered the applicant’s ‘strong ties to their family members in Australia’ and accepted that she provided great support to them: see [100]. The Tribunal further considered that the applicant ‘may experience initial difficulties re-establishing support networks’ in India, although the Tribunal ultimately concluded that these matters ‘have no Convention nexus’: see [100].
The Tribunal considered (at [101]) the applicant’s claims that it will be more difficult for her to get around in India because of the use of a wheelchair. The Tribunal concluded on this topic at ([101]) saying:
101. … the Tribunal also notes the applicant’s evidence that before coming to Australia, the applicant used a three wheeler scooter and was able to live independently giving care to her children, had consistent employment and received financial concessions from the government as a handicapped person. The Tribunal finds that the applicant will continue to have access to such resources on return to India.
The Tribunal acknowledged that ‘life in India may be more challenging than in Australia, but [found] that the applicant will be able to support herself and her children as she did in the past’: see [102].
Whilst not a claim by the applicant, the Tribunal considered whether the applicant faced serious or significant harm in India because her health was compromised as a child from polio: see [103]. The Tribunal considered that the applicant ‘is in good health, is very active and mobile in her wheel chair and handicap scooter’: see [103]. The Tribunal concluded that she will have access to health services if required in India.
The Tribunal considered that upon return to India, the applicant will have to look after her aging mother and concluded that there ‘is no Convention nexus to this claim’: see [104].
Finally, the Tribunal had regard to the care provided by the applicant to her sister and her sister’s family in Australia: see [105] to [107]. Whilst accepting that the applicant provided care and is active in the community (at [105]), the Tribunal considered that ‘these matters are outside the scope of the Tribunal’s consideration’: see [106].
Ultimately, the Tribunal concluded (at [109]) that the applicant does not satisfy the criteria for a protection visa.
Grounds of Application
Despite orders made on 24 January 2018 which provided for the filing of further material, the applicant filed nothing further and simply relied on her application filed 2 June 2017.
The applicant seeks orders that the Tribunal’s decision be quashed and writs of mandamus and certiorari issue against that decision. She further seeks an injunction restraining the first respondent from acting on an invalid decision.
The application sets out three grounds as follows:
1. The decision of the Tribunal is affected by jurisdictional error as it failed to comply with section 414 of the Migration Act 1958 (the Act).
Particulars
a. The delegate (reviewer) was under a duty to accord the applicants procedural fairness when determining whether to recommend the applicants are not entitled to protection.
b. The duty to accord procedural fairness required the delegate to notify the applicants that one of the issues the delegate intended to consider was whether the applicants met the criterion specified in s.36(2)(aa) of the Act.
c. The delegate proceeds to assess the applicants’ application and refused the Protection visa on 6 Feb 2015 without inviting the applicants to respond.
d. The delegate failed to properly notify the applicants whether the application will be considered as a refugee under the 1951 Refugees Conventions or under the complementary protection
e. The delegate failed to invite the applicants to comment and present evidence before refusing the protection visa. See SZSRX v Minister for Immigration & Anor [2014] FCCA 2447.
f. Tribunal failed to assess the applicant’s claim under the complementary protection criteria s.36(2)(aa) the Act.
g. Although accepting the applicant’s husband and harassed the applicant and the applicant had sought police protection the Tribunal refused to grant the applicants Protection visa.
2. In the alternative to ground 1 above, the Tribunal misconstrued and misapplied s 91R (1) of the Act.
Particulars
a. Although accepting the applicant’s husband abused and harassed the applicant and the applicant has sought police protection the Tribunal refused to grant the applicants Protection visa (paragraph 65 of the AAT decision), the Tribunal then went on to decide at paragraph 69 of the decision that ‘’The Tribunal does not accept any of the applicants faces a real chance of serious harm or real risk of significant harm at the hands of her ex-husband for this reason’’. Applying Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 2016 CLR 323, the Tribunal is required in a written statement to set out (inter alia) the reasons for the decision, the findings on any material questions of fact, and to refer to the evidence or any other material on which the findings of fact are based.
b. The Tribunal also made references to US Department of State and UK Home office in relation to effective protection from the authorities without referring to any references or authorities from India.
3. The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied ss5 and 36(2) (aa) of the Act.
Particulars
a. The Tribunal although accepts there are some grounds which meets the criteria in s36 (2)(aa) as necessary and foreseeable consequence of being removed from Australia to India failed to consider there is a real risk that the applicants will suffer significant harm.
Submissions at Hearing
In the hearing before this Court, the applicant was unable to address any of the grounds set out in her written application.
In her oral submissions, she complained that the delegate did not hear her. However, the applicant accepted that the decision showed that the Tribunal did consider her evidence and arguments.
The applicant complained about the merits of the decision, however, this is not a ground for judicial review.
The applicant also raised a complaint that the Tribunal member was not ready to listen to her or give her time to tell her story. There is no transcript that has been provided, nor was the applicant able to give any particular examples of this alleged conduct by the Tribunal member. There were directions made by a registrar on 24 January 2018 to the effect that evidence of the contents of any sound recording be presented as transcript verified by affidavit: see Order 7. In the absence of a transcript the applicant cannot succeed on this ground. As the applicant could give no example there appeared no point in required the first respondent to provide a transcript.
I turn, then, to consider the specific grounds raised in the applicant’s written application.
Ground 1
Ground 1(a) simply sets out a claim that the applicants were entitled to some degree of procedural fairness. This is uncontroversial. The Migration Act 1958 provides a number of specific provisions relating to the process before the reviewer.
Ground 1(b) claims that a delegate was required to notify the applicants of the issues before the delegate, and similarly, grounds (c), (d) and (e) complain about conduct of the delegate. As the Tribunal decision was a review on the merits, it makes no real difference in this case whether the delegate erred or not. As a result, these particulars cannot advance the applicant’s case.
Particular (f) claims that the Tribunal did not assess the applicant’s case under the complementary protection criteria in s.36(2)(aa). Yet, clearly, from the terms of the decision of the Tribunal, this issue was squarely addressed: see [99] to [104].
The final particular, paragraph (g), appears to be seeking merits review referring to the facts that the Tribunal had accepted, and complaining that the Tribunal, nonetheless, failed to conclude that the applicant was at real risk of serious harm. The Tribunal addressed these issues in their decision. It was open to them to reach the view that they did.
I’m not persuaded that any of the particulars establish a ground for judicial review.
Ground 2
Ground 2 is described as an alternative to ground 1. It is based upon a claim that the Tribunal misconstrued or misapplied s.91R of the Act. The particulars do not address the reasoning of the Tribunal as a matter of law, but make complaint as to the extent of the reasons that the Tribunal gave in its decision which runs to 110 paragraphs. The Tribunal is required to give written reasons for the decision, extensive reasons were given in this case. The applicant has not identified a complete failure to give reasons, nor any specific area in which the reasons are inadequate.
Particular (b) claims that the Tribunal erred by relying upon country information from the US State Department and the UK Home Office rather than authorities or references from India. It is a matter for the Tribunal as to which country information it relies upon. The applicant does not allege that she provided country information that was ignored. In the circumstances, it was open to the Tribunal to rely upon this country information.
Ground 3
Ground 3 also alleges an error of law in the application of provisions of the Act. The first particular alleges that the Tribunal accepted that some of the applicant’s grounds met the criteria of s.36(2)(aa) and that the Tribunal failed to consider whether there was a real risk that the applicants would suffer significant harm. However, the Tribunal did consider the applicants’ claims by reference to the complementary protection provisions in its decision. In substance, this ground goes to the merits review. The applicant cannot succeed on this ground.
Section 424A Issues
In this matter, the Minister identified that there was a possible argument as to whether or not the Tribunal had complied with s.424A of the Act with respect to evidence given by a witness (AB, the applicant’s older sister’s husband). The Tribunal set out a summary of the evidence at [46] to [56] of its reasons. In particular, the Tribunal recounted his evidence, saying:
50. [AB] told the Tribunal that the applicant's ex-husband's family had a past history and that the applicant's ex-husband's had a previous wife who was killed. He believed that the previous wife had lost her life because of dowry issues, but that at the time the applicant married she was not aware of this incident but someone informed her as a warning to her to take care.
The applicant’s evidence on this topic differed from that of the witness, which the Tribunal member identified (at [74]) saying:
74. In further explanation, and in response to information put to her about issues raised by [AB] in his witness testimony, the applicant confirmed that her ex-husband was previously married. She stated that his first wife died six months after the marriage and while the reason given for her death was miscarriage, she had in fact been forced to undergo an abortion because her ex-husband did not want children. The Tribunal notes the significant discrepancy between the applicant's explanation of these events and those of [AB] who understood that the previous wife had been killed over dowry issues. The Tribunal considers the evidence before it that the ex-applicant's family harmed his previous wife to be insubstantial and marked by discrepancy. The Tribunal does not accept the claim that the applicant's ex-husbands family have a history of perpetrating harm on others as credible. The Tribunal does not accept that any of the applicants face a real chance of serious harm or real risk of significant harm at the hands of her ex-husband/family on this basis.
The solicitors for the Minister have reviewed the audio recording of the hearing, and the Minister now concedes that the Tribunal did not put this information to the applicant in accordance with s.424AA. A letter was not sent to the applicant pursuant to s.424A addressing this discrepancy in the evidence of the applicant and her witness. As such, quite properly, the Minister identifies for consideration of the Court whether or not there may be an error in the potential failure of the Tribunal to provide a letter in accordance with s 424A of the Act, although arguing no error actually occurred.
The relevance of this evidence did not go to the central question of whether or not the applicant’s ex-husband had harmed her in the past, or would be likely to harm her in the future. It went to the related question of whether or not he had harmed a previous wife. The information, of itself, would not be a reason for refusing to grant the protection application as it did not go to a central question before the Tribunal. It amounted to inconsistent information as to a factual claim that was not central to the case.
In isolation, the information does not tend towards granting or rejecting the visa. In this sense, it does not appear to be information within the ambit of s.424A, on the tests discussed by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 and Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16. The discrepancy in the evidence did not even go to whether or not the ex-husband may have harmed his previous wife, but merely the mechanism of that harm as explained in [74] of the reasons (quoted above).
For these reasons, I am not persuaded that the Tribunal was required under s.424A to provide a notice to the applicant in accordance with that section and, therefore, I am not persuaded that the Tribunal has erred in this regard.
In the circumstances, I therefore refuse the current application.
Costs
I heard argument as to costs at the end of the application. As the applicant was unrepresented, she had no costs. The Minister sought costs (if successful) in the sum of $7,467 should the Minister be successful. The applicant opposed a costs order on the basis that she did not have any money. A lack of funds is not a basis for refusing to make a costs order.
In the circumstances, costs ought to follow the event. The amount sought by the Minister is the scale fee and one which, in the circumstances of this case, I find to be reasonable. Accordingly, I order the applicant pay the Minister’s costs fixed at $7,467.00.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 17 December 2018
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