CKU15 v Minister for Immigration

[2016] FCCA 3103

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3103

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – Status – protection visa – refusal – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: CKU15

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 65 of 2015

Judgment of: Judge Vasta

Hearing date: 14 November 2016

Date of Last Submission: 14 November 2016

Delivered at: Brisbane

Delivered on: 14 November 2016

REPRESENTATION

Counsel for the Applicant: Ms B. O’Brien

Solicitors for the Applicant: HopgoodGanim Lawyers

Counsel for the Respondent: Ms A. Wheatley

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Amended Application filed on 17 October 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

DNG 65 of 2015

CKU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 16 November 2015, the Applicant, CKU15, applied to this Court for a judicial review of a decision of the Administrative Appeals Tribunal, which itself affirmed a decision of the delegate of the Minister to refuse a protection visa to the Applicant. 

2. By amended application filed on 17 October 2016, the applicant amended the ground of the application so that it was now a ground that the Tribunal erred in failing to properly consider the evidence and took into account an irrelevant consideration and in doing so made a finding that was illogical or unreasonable. 

3. In very helpful submissions to me, the counsel for the Applicant, Ms O’Brien, has expanded on that ground and has put forward cogent reasons why I should be looking at this matter.

4. The background to the matter is that the Applicant is a national of the Solomon Islands.  She is married and has two daughters.  It seems on the evidence that she was married in 1993 and gave birth to the first daughter in 1995, and it seems about 10 years or 11 years later gave birth to the second daughter.  She appears to have lived with her husband in the Solomon Islands though the exact nature of that relationship with her husband has been the matter that has caused much controversy in this proceeding. 

5. In effect, the Applicant claims that she has a well-founded fear of persecution based on the fact that she fears serious domestic violence from her husband, therefore, she is a member of a particular social group of women in the Solomon Islands who are married and subject to domestic violence.  It may be also that that is because she has been falsely accused of adultery as well by her husband.

6. In the alternative, she claims that complementary protection, because there are substantial grounds for believing that if she is removed from Australia to the Solomon Islands, there is a real risk that she will suffer significant harm. 

7. It was then obvious that the main question before the Tribunal was one of whether or not there had been proved that she was a person who had suffered domestic violence.  The Tribunal gave very thorough reasons and went through all of the claims of the Applicant.  The Tribunal ended up coming to the conclusion that the Applicant was not a credible witness.

8. The Applicant was found by the Tribunal to have been a person who had been married in the Solomon Islands and had begun working at a number of places but was also studying a Bachelor of Accounting and Finance at the University of the South Pacific, Honiara campus.

9. It seems then that she travelled to Fiji in February 2013 where she continued her studies towards her bachelor degree to the University of the South Pacific, Suva campus. 

10. She took her youngest daughter with her to Fiji but left her oldest daughter in Honiara.  She said she left that daughter with her own mother.

11. The Tribunal accepted that the Applicant had a qualification, as a Certificate in Business Finance, a Certificate in Administration, and a Diploma in Accounting, but did not finish her bachelor degree in Fiji. 

12. Instead she returned to the Solomon Islands on 14 April 2014.  She continued to live with her husband.  During the period that she was in Fiji she took a self-funded holiday during her university study break to Australia for a two month period and she left her youngest daughter behind in Fiji, noting that her sister travelled across from Fiji to look after her.

13. After she left the Solomon Islands on 24 April 2014, she came to Australia.  She stayed in Australia for 10 days.  Her visa had been granted on 14 June 2012, so it was still valid it would seem. 

14. Her children remained in the Solomon Islands and are still there.  The eldest daughter has, in fact, given birth to a child of her own.  It seems that the Applicant was later detained by immigration authorities because of the fact that she had overstayed the visa and was working in this country.  It was then that she made the claim that she needed protection.

15. What the Tribunal did was to listen to her claim of domestic violence.  There were six areas in which the Tribunal did not accept her claim.  I will not go through all six of those but they are very thoroughly contained within the reasons of the Tribunal. 

16. Upon examination of those six matters the Tribunal said that it was not satisfied that the Applicant was a witness of truth.  The Tribunal then looked at a number of documents that the Applicant had given to the Tribunal.  Again, from paragraphs 70 through to 75, the Tribunal talks about why those documents have not been given any weight as far as they were concerned.

17. There was a witness who was spoken to by the Tribunal who originally gave evidence that he knew the Applicant when she was a basketball coach.  He would often see her as she supported her brother who was playing.  He said that sometimes the Applicant had bruising and scratches and it was fro that he suspected that she was a domestic violence victim.

18. He saw her family when he went to the Solomon Islands in June 2015 and her mother and brother said that she should not return to the Solomon Islands because of the violent nature of her husband, because they fear for her life.

19. I add that when he went to the Solomon Islands, the Applicant was here in Australia.  He gave his evidence by telephone.  He said that he was aware that the Applicant had travelled to Australia for work.

20. The Tribunal put to him this fact:  that the Applicant had travelled to Australia with her husband in the past.  The witness said that that it would have surprised him if they had travelled to Australia together because she wanted to get away from him and she said she did not want her daughter to grow up in those circumstances. 

21. When the Tribunal put to the Applicant that people can provide supportive evidence because they want to assist the Applicant, and the evidence may not necessarily be true, the Tribunal put to the Applicant that they had a concern with the witness, Mr Grantham’s evidence. 

22. The Tribunal asked him whether, because of what the Applicant had told him about the nature of the relationship between her and her husband, he would find it difficult to accept that they had travelled to Australia together and he said yes. 

23. When this was put to the Applicant, noting it was inconsistent with the husband’s travel to Australia with the Applicant, the response of the Applicant was that she knows the witness through her brother playing basketball.  They are not close.  He did not know her husband and he did not know what she had been through, and explained that when she and her husband travelled together it was not so bad at those times, and her husband was excited about coming to Australia.

24. The Tribunal said that they considered this explanation but did not find it persuasive.  So, therefore, when looking at the evidence (both written and oral) of Mr Grantham, the Tribunal found that they were not prepared to give any weight to the evidence or statements.  The Tribunal then looked at a number of other general matters, but eventually came to the conclusion that, considered cumulatively, the concerns the Tribunal holds about the Applicant’s credibility, led the Tribunal to conclude that the Applicant is not a witness of truth. The Tribunal found that she had exaggerated and fabricated accounts of events as well as claimed fears upon which she based her protection claims.

25. That then led the Tribunal to say at paragraph 101 that:

    “… The Tribunal however has not accepted her claims of domestic violence or accusations of adultery, and thus does not accept that she is a member of those particular social groups.  Further, on the evidence before it, it does not accept that she faces a real chance of serious harm for reason of being a woman, or a married woman in the Solomon Islands, for reasons other than domestic violence.”

    Therefore the Tribunal found that the Convention criterion was not satisfied nor had the complementary protection criterion been satisfied.

26. The Applicant, before this Court, submitted to me, in effect, that the finding by the Tribunal that the Applicant was not a victim of domestic violence was a matter that was not open on the evidence, and, that upon finding that she was not a victim of domestic violence, the Tribunal really did not go any further to assess her claims. Therefore, that finding was a jurisdictional error. 

27. What the Applicant has done, in a very good way, is go through the evidence that was there before the Tribunal and lays out a very good case for why it is that the finding that she was not a victim of domestic violence was not a conclusion that should have been made. 

28. There may very well be some merit in that conclusion that the finding that she was not a victim of domestic violence was something that should not have been made, however, that will not lead to a jurisdictional error at all. 

29. The question is, whether the Tribunal’s finding that the Applicant was not a victim of domestic violence could not have been made, rather than should not have been made.

30. For the reasons I have gone through, it seems to me that whether or not I agree with how the Tribunal has found this matter is really irrelevant.  The fact is, they could have found what it is that they did find. 

31. There was sufficient evidence to justify the conclusion that they came to as a conclusion that they could have come to.  In other words, the conclusion was one that was open; therefore, because it was a decision that was open there is no jurisdictional error. 

32. Accordingly, because there is no jurisdictional error I find that the appeal ought be dismissed with costs in the sum of $7,206.00.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  12 December 2016