CMC16 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMC16 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2021] FCCA 276

Catchwords:
MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – protection visa – jurisdictional error – jurisdictional error on basis of legal unreasonableness and irrationality or illogicality – Tribunal failed to consider probative evidence – Tribunal findings were not supported by any probative evidence – Tribunal findings that applicants were not credible – Tribunal made unwarranted assumptions – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476.

Cases cited:

BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Tran v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 297

First Applicant:

CMC16

Second Applicant:

CMD16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1906 of 2016

Judgment of:

Judge Mercuri

Hearing date:

25 May 2020

Date of Last Submission:

25 May 2020

Delivered at:

Melbourne

Delivered on:

19 February 2021

REPRESENTATION

Counsel for the applicants:

Mr Byrne

Solicitors for the applicants:

Nandan Vaityte

Advocate for the respondents:

Ms Ward

Solicitors for the respondents:

Sparke Helmore

ORDERS

The applicants’ application be dismissed.
The applicants pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1906 of 2016

CMC16

First Applicant

CMD16

Second Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made 17 August 2016 in which the Tribunal affirmed a decision of a delegate of the first respondent not to grant a protection visa to the applicants.[1]
[1] Applicants’ originating application filed 6 September 2016.
The applicants are both citizens of India.[2] They applied for a protection visa on 13 August 2014 and the delegate refused that application on 30 March 2015.[3] The first applicant and the second applicant met and married in Australia.[4] The second applicant’s claims rely upon him being a member of the same family unit of the first applicant.
[2] Applicants’ submissions filed 29 April 2020 paragraph 3.
[3] Court book page 1 to 33; see also pages 152 to 161.
[4] Court book page 222.
It is not in dispute that the first applicant arrived in Australia in February 2007 and the second applicant arrived in March 2007. Both applicants were initially in Australia on independently obtained student visas.[5] The second applicant ultimately became a secondary applicant to the first applicant’s student visa.[6]
[5] Applicants’ submissions filed 29 April 2020 paragraph 10; see also court book page 225.
[6] Respondent’s submissions filed 13 May 2020 paragraph 3.
The first applicant subsequently applied for a subclass 485 skilled visa which was refused.[7] The first applicant then applied for a protection visa, with the second applicant named as the secondary applicant in that application, on 13 August 2014.[8]
[7] Respondent’s submissions filed 13 May 2020 paragraph 3.
[8] Respondent’s submissions filed 13 May 2020 paragraph 4.
The applicants were represented throughout the visa application process. In addition to filing submissions in writing prior to the Tribunal hearing, on 16 November 2015, the applicants appeared before the Tribunal and provided oral evidence. The applicants, through their representatives also provided further material in support of their claims after the Tribunal hearing.

Background

The following background is largely taken from the applicant’s written submissions for ease of reference.[9]
[9] Applicant’s submissions filed 29 April 2020.
The first applicant was born and raised in India as a Hindu. She grew up in a village of about 2,000 people. Her father was a member of the Bharatiya Janata Party and a well-known political figure.[10]
[10] Applicant’s submissions filed 29 April 2020 paragraph 3.
In 2002, when the first applicant was 18 years old, a man in her village, Baljinder Singh Sonu, began pursuing her and wanted to marry her. Baljinder was of a lower caste and was involved in criminal activities. Consequently, neither the applicant nor her family were in favour of such a marriage.[11]
[11] Applicant’s submissions filed 29 April 2020 paragraph 4.
In August 2002, Baljinder and some 20 armed persons invaded the first applicant’s home and tried to kidnap the first applicant. In the course of this invasion, a number of members of the first applicant’s family, including her father and grandfather were injured and required hospitalisation.[12]
[12] Applicant’s submissions filed 29 April 2020 paragraph 5.
The applicant states that following this incident and ongoing threats, she remained at home for two years and could not continue with her studies.[13]
[13] Court book page 18.
This incident was reported to the local police. Following the attempted kidnapping incident, the first applicant’s father organised a rally in protest of the failure by the police to deal with the attempted kidnapping and assault.[14]
[14] Applicant’s submissions filed 29 April 2020 paragraph 6.
The applicants submitted various newspaper reports which reported on this incident and the police investigation.[15]
[15] Applicant’s submissions filed 29 April 2020 paragraph 6; see also court book page 108.
Ultimately, criminal cases were commenced against some of the assailants, although not against Baljinder, but they were discontinued in 2005.[16]
[16] Applicant’s submissions filed 29 April 2020 paragraph 8.
In 2005, the first applicant’s father and grandfather were hit by a vehicle and the grandfather was killed. The first applicant states that her father said that Baljinder was seen by her father to have been a passenger in the vehicle that struck them.[17]
[17] Applicant’s submissions filed 29 April 2020 paragraph 9.
Also in 2005, the applicant’s brother moved to Australia, she says because he was in fear for his life.[18]
[18] Court book page 18.
The first applicant then left India in 2007 and came to Australia on a student visa where she met and married the second applicant.[19]
[19] Applicant’s submissions filed 29 April 2020 paragraph 10.
In 2012, the first applicant’s uncle was also hit by a vehicle and killed whilst walking in the first applicant’s village. The first applicant maintains that this death was also linked to Baljinder. The first applicant states that following this incident, her parents became fearful and moved to Australia. They remained here for a year although they ultimately decided to return to India even though they continued to hold fears for their safety from Baljinder. Their decision to return was in part based on their age and the consequential difficulty for them in adjusting to a new culture in Australia.[20]
[20] Applicant’s submissions filed 29 April 2020 paragraphs 11 and 12.
As stated, the first applicant sought a protection visa on the grounds that:
a)      her family continued to receive threats from Baljinder (and persons associated with him);
b)      Baljinder was involved in the driving incident which resulted in the death of the first applicant’s grandfather in 2005 and that the first applicant’s father was the intended victim of that incident;
c)      although there is no direct evidence to support this, the first applicant is of the view that Baljinder is also involved in the second incident in 2012 which resulted in the death of the first applicant’s uncle;
d)      the first applicant’s parents have told her to stay away from India because of the ongoing threats to her safety as a result of her refusal to marry Baljinder and his ongoing threats of violence towards her and her family;
e)      the police in the Punjab cannot and will not protect the applicants if they were to return to India; and
f)      the second applicant’s parents do not accept his marriage to the first applicant and a return to India would put their ongoing marriage at risk.
By letter dated 10 November 2015, the applicants’ representative provided some further submissions in support of the applicants’ claim for a protection visa. Relevantly, this letter stated that the applicants:
… face a real risk of persecution by reason of political opinion if forced to return to India. If the Department is not able to conclude that (the applicants) are refugees, it is their contention that they are nonetheless still persons who have been individually subjected to a systemic program of harassment in their home country and thus are owed protection by Australia under Australia’s Complementary Protection regime. (sic)[21]
[21] Court book page 180.
In the 10 November 2015 letter, the applicants’ representative addresses the concerns raised about the fact that the applicants had not applied for a protection visa at an earlier stage, given that they had arrived in Australia in 2007 and did not apply for a protection visa until 2014. This was explained as follows:
a)      it was never the applicants’ intention to remain permanently in Australia;
b)      it was their hope that with time, ‘things would be settled … but it did not work’;[22]
c)      unfortunately, the threats of harm arising from the kidnapping incident, were continuing and they fear that they will ‘be killed as soon as they return to India due to their political links’;[23] and
d)      relevantly, the applicants took issue with the fact that the delegate did not accept the applicant’s claims as credible or genuine in circumstances where they had supplied documents to support their claims which in the applicants’ submission were overlooked.   The applicants’ representative said:
… the delegate has overlooked all those documents and based the decision on presumptions and assumptions. If the delegate had given an opportunity of hearing to applicants in an interview, then they must have explained each and every fact to raise all the clouds. These valuable genuine documents cannot be discarded to make an adverse finding, which appears not justified.[24]
[22] Court book page 184.
[23] Court book page 184.
[24] Court book page 185.
In a further written submission dated 27 November 2015, the applicants’ representative confirmed that notwithstanding efforts made, the applicants ‘could not find any direct evidence to show participation of Baljinder … in these well planned crimes’ being a reference to the ‘accidents’ which killed the first applicant’s grandfather in 2005 and her uncle in 2007.[25] The applicants’ representative further reiterated that the first applicant’s parents continue to receive threats from Baljinder and ‘his men’.[26]
[25] Court book page 190.
[26] Court book page 190.

Preliminary issue

The applicants sought to rely upon an affidavit of Nilesh Nandan sworn 29 April 2020 (“Nandan affidavit”) which annexed to it, a copy of a transcript of the hearing before the Tribunal.[27]
[27] Affidavit of Nishel Nandan sworn and filed on 29 April 2020.
In the course of submission, the first respondent conceded that they had been served with a copy of the Nandan affidavit and the attached transcript shortly after it was sworn. The applicant also sought to rely upon an affidavit of Krishlyn Chetty sworn 22 May 2020 in which she gave a history of communications between the applicant’s representative and the first respondent about the transcript.
The first respondent objected to the admission of the transcript on the basis that:
a) it was not an official transcript and was not independently prepared;
b) it was not clear which parts of the transcript were to be relied upon.
In circumstances where a transcript was prepared by the applicant’s representatives and the first respondent was provided with a copy of the transcript and invited to confirm whether they had any concerns with its accuracy or otherwise, well in advance of the hearing, I formed the view that it was appropriate to allow the applicant to rely upon the transcript itself. I also note that counsel for the first respondent did not seek to cross-examine Mr Nanda about the transcript nor did they seek to lead any independent evidence to impugn the transcription provided.
I therefore granted leave for the applicant to rely upon the transcript annexed to the Nandan affidavit and also granted leave to rely upon the affidavit of Krishlyn Chetty.

Grounds one and two

Ground One

Ground one is made as follows:
The Tribunal fell into jurisdictional error, on the basis of legal unreasonableness and irrationality or illogicality, by failing to consider probative evidence.
Particulars
(a)In finding that there would be ‘no logic’ in Baljinder Singh Sonu (Baljinder) targeting the first applicant’s older male relatives in violence in 2005 and 2012, and that it was ‘highly implausible’, given the passage of time since 2002, the Baljinder would continue to threaten, or pose a threat of, violence to the first applicant or her family, the Tribunal failed to consider, or give any weight to evidence that:
(i)Baljinder was a member of a crime family and had background of involvement in illegal activities (including drug smuggling, theft and murder);
(ii)Baljinder was involved with extremist groups;
(iii)the failed attempted kidnapping of the first applicant was arranged and directed by Baljinder;
(iv)during the kidnapping attempt, the assailants attempted to kill, with weapons, members of the first applicant’s family;
(v)during the kidnapping attempt, the assailants caused, with weapons, violent and severe injuries to members of the first applicant’s family;
(vi)the first applicant’s father spoke out publicly against Baljinder in relation to the kidnapping attempt;
(vii)Baljinder was charged, and held in jail on remand for four days, in relation to the kidnapping; and
(viii)Several of the assailants (involved in the kidnapping attempt) had criminal proceedings brought against them, and these remained on foot until 2005; and
(b)In not accepting that Baljinder was involved in the deaths of the first applicant’s grandfather (in 2005) and uncle (in 2012) (each hit by a vehicle whilst walking with the first applicant’s father), the Tribunal failed to consider, or give any weight, to the evidence referred to in paragraph (a) above or evidence that:
(i)The first applicant’s grandfather and uncle were run down by vehicles in the same area (and in both cases, whilst walking with the first applicant’s father);
(ii)criminal proceedings were on foot against certain of the attempted kidnapping assailants up to 2005;
(iii)the vehicle that killed the first applicant’s grandfather was owned by a friend of Baljinder, and the driver of the vehicle was an associate of Baljinder;
(iv)Baljinder was a passenger in the vehicle that killed the first applicant’s grandfather (when the death occurred); and
(v)Following the death of the first applicant’s grandfather, Blajinder said to the first applicant’s father ‘you are lucky to survive’, ‘you are the one need to worry’ and ‘next time I am going to kill you’.

Ground Two

Ground two is made as follows:
The Tribunal fell into jurisdictional error, on the basis of legal unreasonableness and irrationality, or illogicality, in that the following findings were not supported by any probative evidence.
(a)that there would be ‘no logic’ in Baljinder targeting the first applicant’s older male relatives with violence in 2005 and 2012;
(b)that it was ‘highly implausible’ that, given the passage of time since 2002, Baljinder would continue to threaten, or pose a threat of, violence to the first applicant or her family; and
Particulars – (a) and (b)
The applicants refer the particulars of Ground 1 above.0
(c)that ‘state protection is available’ to the applicants.
Particulars – (c)
(i)The applicants repeat the particulars of Ground 1 above.
(ii)Notwithstanding witness statements concerning the failed kidnapping attempt (and attempted killing of members of the first applicant’s family), none of the assailants was convicted of any crimes.[28]
[28] Applicants’ amended originating application filed 30 April 2020.
By grounds one and two the applicants take issue with certain critical findings and submit that in making those findings, the Tribunal;
a) failed to consider or give weight to probative evidence which was inconsistent with or undermined those findings; and
b) in making those findings, engaged in illogical or irrational reasoning.
There is agreement between the applicants and the first respondent as to the legal principles which apply to a claim such as this where the issue is one of illogicality, irrationality or unreasonableness. The dispute between them is how those principles are to apply to the facts in this case. Those principles were recently summarised by the Full Court of the Federal Court in BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [31] onwards where the Full Court summarised a number of the leading cases in this area. The Full Court noted at [31] that ‘in the context of judicial review, the language of acting reasonably or rationally are often used collectively or interchangeably.’[29]
[29] BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 (“BFH16”).
At [32] the Full Court referred to the comments by Crennan and Bell J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 where they said at [130]:
… “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s65, is one which no rational or logical decision maker could arrive on the same evidence. … Not every lapse in logic will give rise to jurisdictional error. A court should be slow although not unwilling, to interfere in an appropriate case.[30]
In addition at [41], the Full Court stated in BFH16 (citations omitted):
A fact is rationally probative of another fact … if the fact, according to the ordinary course of events and either taken by itself or in connection with other facts, proves or renders probable the past, present or future or non-existence of the other fact: … Two aspects of the foregoing definitions should be highlighted. First, the assessment is based on the ordinary course of events. It is an ‘objective test grounded in human experience’ … Second, while an individual fact taken by itself may not be probative of a fact in issue, it may be probative when considered with other facts and the assessment must be made in the context of all other evidence.[31]
[31] [2020] FCAFC 54.
It was submitted for the applicants that the findings made by the Tribunal that it was implausible that Baljinder would have targeted the first applicant’s family after the incidents in 2002, were based on an assumption that following the first applicant’s rejection of his proposal in 2002, he would have, with time, moved on and ‘mended his heart’.[32]
[32] Applicant’s submissions filed 29 April 2020 at paragraph 24.
It is submitted that this characterisation was in stark contrast to the probative evidence led by the applicants about:
a)      Baljinder’s involvement with extremist groups, and in criminal activities;
b)      the fact that Baljinder in fact did engage in violent acts towards the applicant and her family when he (and his armed associates) invaded her home and attempted to kidnap her and in the course of which members of her family were physically injured;
c)      after the attempted kidnapping, Baljinder was remanded in jail for some days and the first applicant’s father organised rallies to protest the police’s failure to take action; and
d)      criminal proceedings did ensue against Baljinder’s associates, which were ultimately discontinued in 2005.[33]
[33] Applicant’s submissions filed 29 April 2020 at paragraph 24.

It was further submitted that these facts which were supported by documentary evidence provided by the applicants did not permit on any logical or reasonable basis, a finding that it was highly implausible that Baljinder targeted the first applicant’s family after 2002 or that there was no logic in him doing so.[34] Indeed, it was submitted that these factual matters provided a strong basis on which the Tribunal ought to conclude that he did, or at least it was plausible that he did, continue to threaten the first applicant and her family after 2002.[35]
[34] Applicant’s submissions filed 29 April 2020 at paragraph 25.
[35] Applicant’s submissions filed 29 April 2020 at paragraph 25.
Moreover, in finding that Baljinder had no involvement in the vehicle deaths of the applicant’s grandfather and uncle in 2005 and 2012 respectively, it was submitted that the Tribunal failed to take into account the applicant’s evidence as set out in paragraph 32 above.[36] Nor did the Tribunal give consideration to the other evidence that the applicants submitted which pointed to the Baljinder being in the car which struck the first applicant’s grandfather in 2005, that that car was owned by a friend of Baljinder and that an associate of Baljiner was driving the car. Further it was submitted that the timing of the death of the first applicant’s grandfather coincided with the prosecution of some of the participants of the home invasion.
[36] Applicant’s submissions filed 29 April 2020 at paragraph 26.
It was further submitted that the Tribunal’s finding that state protection was available to the applicants at [157] of the decision record was also inconsistent with the evidence just referred to.[37] It was submitted that this was particularly so, having regard to the fact that no convictions were recorded in respect of the home invasion and attempted kidnapping in 2002, notwithstanding numerous witness statements attesting to Baljinder’s involvement in the attack. It was submitted that this fact makes it illogical for the Tribunal to have found that the applicants had state protection available to them.[38]
[37] Applicant’s submissions filed 29 April 2020 at paragraph 27.
[38] Applicant’s submissions filed 29 April 2020 at paragraph 27.
It is therefore submitted that the Tribunal’s findings referred to above, were ‘without a rational or logical basis, simply ignored or disregarded directly probative evidence …’[39]
[39] Applicant’s submissions filed 29 April 2020 at paragraph 28.
In response, it was submitted for the first respondent that to establish jurisdictional error on the basis of an illogical or irrational finding of fact or reasoning, it is necessary to point to ‘extreme’ illogicality ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions.’[40] Moreover, it is well established that the weight to be attributed to evidence is a matter for the Tribunal and it is not for a court in a judicial review application. It is further submitted for the first respondent that a fair reading of the Tribunal’s reasons clearly show that the Tribunal had regard to the evidence before it.[41]
[40] First respondent’s submissions filed 13 May 2020 at paragraph 24; see also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [56]; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7].
[41] First respondent’s submissions filed 13 May 2020 at paragraph 24.
As noted by the Full Court in BFH16, it is not the court’s role to ‘assess the merits of the Tribunal’s decision, including the weight to be given to the evidence. The Court will only intervene if there is no logical connection between the fact proved by the evidence … and the fact in issue.’[42]
[42] [2020] FCAFC 54 at [55].
At [137] of the Tribunal’s decision record, the Tribunal noted that the media reports produced by the applicants about the kidnapping incident were consistent with the evidenced provided by the first applicant.[43] At [140] the Tribunal accepted that on 8 August 2002, an attempt was made by Baljdinder and his associates to kidnap the first applicant, that members of the first applicant’s family were injured in the process.[44] At [141], the Tribunal also accepted that a number of people were arrested in relation to this incident, but that Baljinder was not.[45]
[43] Court book page 229.
[44] Court book page 229.
[45] Court book page 229.
At [142], the Tribunal also accepted that the first applicant’s grandfather was killed in a road accident in May 2005, and that the first applicant’s uncle was killed by another road accident in late 2012.[46]
[46] Court book page 229.
Relevantly at [143] however, the Tribunal went on to say that it did not:
… accept that these two accidents were related to Baljinder Singh Sonu and his interest in pursuing Applicant 1. Whilst appreciating that India is a patriarchal society and that the applicant’s father may be blamed for the rejection of the marriage proposal and hence targeted, this is only speculative and no evidence exists to suggest that this is the case or that he was responsible. Furthermore, the Tribunal places weight on the high degree of road accidents which occur in India and finds that this is the most likely and logical explanation. There is no logic in why Baljinder Singh Sonu would target the applicant’s older male relative in 2005 or in 2012. In 2005, Applicant 1 was still in India and she could have been the target. The accidents occurred three and ten years after the attempted kidnapping. The media had reported widely on the attempted kidnapping and in spite of the applicant’s families dismay that few were arrested, some of those in the attack were brought before the courts. The attempted kidnapping has been presented to the tribunal as newsworthy in the applicant’s home town and as such any persons likely to perpetrate such crimes would likely to be afraid of the repercussions and the fact that they would be under suspicion.[47]
[47] Court book page 229.
The Tribunal goes on to say at [144] that it did not accept that after the attempted kidnapping, the first applicant remained at home for two years and stopped her studies to avoid danger.[48] It went on to conclude that it was highly implausible that she would hide for two years and then live openly for a further 3 year period if she were being targeted. The Tribunal came to this conclusion on the basis of the implausibility of the first applicant’s claims together with the fact that the applicant’s responses to questions about what she did during that period as being vague and lacking in detail.[49]
[48] Court book page 230.
[49] Court book page 230.
At [145] the Tribunal further noted that in circumstances where the first applicant’s father had organised protests and attracted media attention to the attempted kidnapping, it would be reasonable to assume that if there had been a subsequent and related murder; that would equally attract some media attention.[50] Moreover, the Tribunal considered the country information regarding the number of road fatalities and concluded that the first applicant’s grandfather and uncle were killed as a result of unfortunate road accidents. These findings were all reasonably open to the Tribunal.
[50] Court book page 230.
In coming to this conclusion, the Tribunal also had regard at [146] to the fact that there was a significant delay in the applicant lodging an application for a protection visa.[51] This together with the fact that the first applicant’s brother who came to Australia ‘to save his life’ according to the first applicant, returned to India for a short period of time.[52] It was entirely open to the Tribunal to have regard to the inconsistency between the first applicant’s claim that her family had been threatened, that her brother had fled India ‘to save his live’ and his voluntary return to India putting his life in danger, in concluding that it did not accept the first applicant’s claims that members of her family had been killed because of Baljinder.
[51] Court book page 230.
[52] Court book page 230.
The Tribunal also gave consideration to the fact that the first applicant’s parents, who had allegedly been the subject of ongoing threats to their lives, had come to Australia and travelled back to India on numerous occasions before permanently returning to live in India. At [147] the Tribunal concluded that having regard to the behaviour of the first applicant’s family (in particular in relation to their travel between Australia and India), that they did not receive threats ‘on a regular and constant basis from Baljinder … or his supporters and are not in fear of their own lives or that of their daughter or son-in-law.’[53]
[53] Court book page 230.
Relevantly, the Tribunal also made the following findings:
a)      having regard to the fact that the witnesses were family members who stepped in during the attempted kidnapping to protect the first applicant and her family, it did not accept that they were harassed and too afraid to give evidence;[54]
b)      accepted that the first applicant’s father was issued with a gun licence but was not satisfied that this lead to the inference that the first applicant and her family were under threat as alleged;[55]
c)      did not accept that the first applicant came to Australia for safety reasons, particularly in circumstances where she remained in India for five years after the attempted kidnapping;[56]
d)      accepted that the second applicant is from a different caste and religion and that his family does not accept the first applicant and the marriage, however, did not accept that the second applicant’s parents pose any threat of harm to either applicant;[57]
e)      found that the chances that the first applicant’s parents would have received threats arising from the first applicant’s marriage to the second applicant to be remote.[58]
[54] Court book page 230 at [148].
[55] Court book page 231 at [149].
[56] Court book page 231 at [150].
[57] Court book page 231 at [151].
[58] Court book page 231 at [152].
Of particular relevance, found that Baljinder was ‘an undesirable character’ who attempted to kidnap the first applicant when she was eighteen years of age.[59] However, the Tribunal went on to say that fourteen years had since passed, that the first applicant had since married the second applicant and ‘given…the passage of time, it is highly implausible that Baljinder Sing Sonu would continue to try and pursue, marry or threaten Applicant 1 or her family (including Applicant 2)’.[60]
[59] Court book page 231.
[60] Court book page 231.
Whilst accepting that there are weaknesses to the Indian judicial system, the Tribunal, having regard to country information, did not accept that state protection was not available to the applicants. Whilst the fact that Baljinder was ultimately not convicted of any offences arising from the attempted kidnapping may speak to the limitations within the Indian judicial system, there is no illogicality or irrationality in the legal sense, in the conclusion that there is some, albeit imperfect, state protection available to the applicants.
Ultimately, the Tribunal did not accept that the first applicant faced a real chance of serious harm for a convention or a non-convention reason nor was the Tribunal satisfied that Australia’s complementary protection obligations were engaged.[61]
[61] Court book page 232 at [159] and [160].
The facts in this case are distinguishable from those which led the majority in BFH16 to conclude that the ground or illogicality or irrationality had been made out. In that case, the majority found that the Tribunal’s ‘reasoning with respect to the immediate aftermath of the appellant’s first sexual experience is logically flawed and thereby irrational.’[62] In BFH16, the Tribunal did not accept that the applicants were homosexual. This was a central issue because he claimed that he would face persecution if returned to India given that he was homosexual. In concluding that the applicants were not homosexual, the Tribunal had regard to their stated reaction to their alleged first sexual encounter in Australia. The majority found that the Tribunal’s conclusions about the implausibility of the applicants’ reactions to and behaviour after their claimed first sexual encounter was based on an assumption about the expected psychological response to such an encounter. At [48] of the majority’s reasons, they said:
… It cannot be said that the psychological reactions of a couple to their first sexual encounter are matters of common human experience. Indeed, to the extent that anything can be said about such matters from common human experience, it would be that the psychological reactions of a couple to their first sexual encounter are likely to vary widely, reflecting the wide range of human emotional attributes. The assumptions made by the Tribunal about the expected psychological response of the appellants, and particularly BFH16, to their first sexual encounter could not be established without other evidence, perhaps psychological evidence. No other relevant evidence was before the Tribunal and, accordingly, the assumptions were not proved.[63]
[62] [2020] FCAFC 54 at [45].
[63] [2020] FCAFC 54 at [48].
In this case there was no equivalent assumption made. It is submitted that the Tribunal made an assumption about the nature of Baljinder’s interest in the first applicant, and that his feelings after he was rebuked were effectively those of an unrequited lover and that having made this assumption, then concluded that with time, and in the knowledge that the first applicant had married, those feelings would have passed.
I do not accept that this is reflective of the Tribunal’s reasoning. It is clear from the Tribunal’s findings at [154] that it accepted that Baljinder ‘was an undesirable character’ who had engaged in an attempted kidnapping.[64] However, it went on to say that given the time which had passed, namely 14 years since the attempted kidnapping, and the fact that the first applicant was now married, the Tribunal found it implausible that Baljinder would continue to pursue and/or threaten the first applicant or her family. This finding was entirely open on the evidence before the Tribunal and was not dependent upon an assumption as to the nature of Baljinder’s feelings for the first applicant.
[64] Court book page 231.
Moreover, it is also relevant that the Tribunal had also found that on the evidence before it, it was not satisfied that Baljinder was involved in the death of the first applicant’s grandfather or uncle. This finding was also open on the evidence before the Tribunal, including in particular the evidence about the number of road deaths in India.
In addition, the findings made by the Tribunal at [154] must be viewed in the context of the following Tribunal findings:
a)      the death of the first applicant’s grandfather and uncle were not related to Baljinder pursuing the first applicant but rather these resulted from unfortunate road accidents;[65]
b)      the first applicant did not stay home for two years after the kidnapping or drop out of her studies to avoid danger;[66]
c)      the first applicant’s family have not been the subject of threats on a regular and constant basis from Baljinder and his supporters and they are not in fear of their lives or the lives of the applicants;[67]
d)      the first applicant remained in India for five years after the attempted kidnapping and the Tribunal was not satisfied that she came to Australia for safety reasons.[68]
[65] Court book page 229 to 230 at [143] and [145].
[66] Court book page 230 at [144].
[67] Court book page 230 at [147].
[68] Court book page 231 at [150].
Having regard to these findings, the Tribunal’s findings at [154] were entirely open on the evidence and were not illogical or irrational or otherwise unreasonable.[69]
[69] Court book page 231.
Whilst another decision maker may have weighed the evidence differently, that is not sufficient to warrant a finding that the Tribunal’s findings are affected by jurisdictional error.
The applicants’ arguments in relation to grounds one and two simply take issue with the conclusions reached by the Tribunal and invite the court to engage in impermissible merits review.
For each of these reasons, I find that grounds one and two are not made out.

Ground three

Ground three is made as follows:
The Tribunal fell into jurisdictional error, on the basis of legal unreasonableness and irrationality or illogicality, in determining that the applicants were not credible, by making unwarranted assumptions, and adopting illogical reasoning, as to matters relevant to the applicant’s credibility.
Particulars
(a)Assumption that, in light of the information then available and Indian laws (for libel or similar) the local Indian media would have published stories connecting the road deaths in 2005 and 2012 to Baljinder;
(b)Assumption that, notwithstanding threats made against them, family members and neighbours who witnessed the kidnapping attempt would have made themselves available as witnesses for prosecution of Baljinder and the other assailants;
(c)Assumption that statements provided by those witnesses could have been used (and would be admissible evidence under Indian law) even if the witnesses were unwilling to be witnesses at trial;
(d)Assumption that, had he posed a continuing threat to the first applicant, Baljinder would have made further attempts to kidnap her after 2002;
(e)Assumption that the first applicant’s parents’ decision not to seek a protection visa in Australia indicates that:
(i)they do not consider there to be a real risk to them, or the first applicant, of significant harm in India; and
(ii)there is not a real risk that the first applicant will suffer significant harm in India; and
(f)the Tribunal’s finding that the first applicant’s delay in seeking a protection visa against the applicant’s credibility is unreasonable and illogical in that :
(i)until the first applicant applied for a protection visa, she had been in Australia on a student visa; and
(ii)since entering Australia on that student visa, the first applicant had not returned to India.[70]
[70] Applicants’ amended originating application filed 30 April 2020.
Ground three takes issue with the Tribunal’s credibility findings made in relation to the applicants. In particular, the applicants take issue with the finding made by the Tribunal at [146] that the applicants had ‘enhanced their claim to support their protection visa applications’ as well as the finding that the applicant’s claims were not credible.[71]
[71] Court book page 230.
It is submitted for the applicants that there was no logical or rational basis for these findings or for the finding that Baljinder did not pose a real risk of significant harm to the first applicant or her family after 2002.[72]
[72] Applicant’s submissions filed 29 April 2020 at paragraph 30.
It is submitted that the Tribunal’s findings were grounded on a false premise, namely that Blajinder was ‘motivated by … ‘heart break’ at his being rebuffed for marriage, and a desire still to marry the first applicant’.[73] It was submitted that the proper analysis which the Tribunal should have engaged in ought to have commenced with an acceptance that Baljinder was ‘motivated by violent malice in respect of the first applicant’s family …. The evidence does not permit, as a starting point (or at all), characterisation of Baljinder as simply having had a ‘broken heart’.[74]
[73] Applicant’s submissions filed 29 April 2020 at paragraph 31(a)
[74] Applicant’s submissions filed 29 April 2020 at paragraph 32.
In part the applicants rely upon the transcript of the Tribunal hearing and suggest that it contains references to the Tribunal Member ‘going back to this idea that Baljinder would no longer have any desire to marry … the first applicant because of the passage of time.’[75] This, in my respectful view, misstates the effect of the Tribunal Member’s questions. It is clear from a number of questions posed by the Tribunal Member to the first applicant including that referred to by counsel for the first applicant in the Tribunal hearing transcript that the Tribunal is seeking to understand whether there was any other factor that might have resulted in Baljinder’s sustained targeting of the first applicant and her family.[76] For example, the Tribunal Member is reported to have said:
Can you help me understand why … or how I can make sense of this … because it is a very long period of time and I need to be able to understand what’s driving this … Is there more to it than just you? For example … is there business dealings associated with this? … if I can accept the claims they seem to be targeting more than just you … … why would they target your grandfather or uncle?[77]
[75] Court transcript page 24 to 25.
[76] Affidavit of Nishel Nandan sworn and filed on 29 April 2020.at page 25.
[77] Affidavit of Nishel Nandan sworn and filed on 29 April 2020 at page 21.

It was against this background that the Tribunal Member then followed up with:
… I find it difficult to accept and understand why there is a sustained targeting that you claim of you but through your family members. Is it about you or is it about something … different?[78]
[78] Affidavit of Nishel Nandan sworn and filed on 29 April 2020 at page 22.
It was submitted for the applicants that when proper regard is had to the extremely violent nature of the attempted kidnapping in 2002 and then the death of the first applicant’s grandfather in 2005 and uncle in 2012, it is illogical to continue to view Baljinder as someone who has simply been rebuffed in relation to a marriage proposal.[79] Rather, the Tribunal ought to have viewed him as a person who held a severe grudge against the first applicant and her family and who was prepared to engage in severe violence towards them, including acts which lead to the death of a member of the first applicant’s family. It was conceded for the first applicant that she had not been able to find any evidence linking Baljinder to her uncle’s death in 2012, but submitted that there was evidence linking him to the 2005 death. In those circumstances, it was submitted that there was no proper basis on which to impugn the credibility of the applicants.
[79] Applicant’s submissions filed 29 April 2020 at paragraph 32.
I find that the Tribunal’s adverse credibility findings at [146] were reasonably open to it.[80]
[80] Court book page 230.
A fair reading of the Tribunal’s reasons, indicate that the Tribunal Member did not proceed on any ‘false premise’ that Baljinder was suffering from a mere ‘broken heart’ which reasonably ought to have abated after such a long period of time.[81] As noted above, the Tribunal was, reasonably in my view, troubled by the applicant’s claim that whilst accepting that Baljinder continued to threaten the applicant’s family for the period from 2002, when the attempted kidnapping occurred and 2014, when the applicant filed an application for a protection visa. Particularly in light of its findings that the deaths in 2005 and 2012 were unfortunate road accidents.
[81] Applicant’s submissions filed 29 April 2020 at paragraphs 32 and 33.
Similarly, the Tribunal did not make any unwarranted assumptions as alleged at paragraph 33 of the applicant’s written submissions.[82]
[82] Applicant’s submissions filed 29 April 2020 at paragraph 33.
In DAO16 v Minister for Immigration and Border Protection and Anor [2018] FCAFC 2, the Full Court summarised the relevant principles which apply to cases in which it is alleged that there is legal unreasonableness in determination of issues of credit. The Full Court relevantly said at [183] and following:
The Relevant principles can be summarised as follows:
(1)While findings of credit are generally matters for the administrative decision-maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review … The question of whether the credibility finding is tainted by jurisdictional error is a case specific inquiry and is not assessed by reference to fixed categories or formulae … in each case it is necessary to analyse in detail what the decision-maker has decided …
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis
(3)…
(4)…
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error to ensure that the Court does not embark impermissibly upon merits review. …As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to a different conclusions … Thus ‘even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality… (cases and citations excluded)[83]
[83] DAO16 v Minister for Immigration and Border Protection and Anor [2018] FCAFC 2 (“DAO16”).
In this case, it is clear from a fair reading of the Tribunal’s reasons that the credit findings made by the Tribunal were reasonably open on the facts before it.
In relation to the applicant’s assertion that the Tribunal had made an unwarranted assumption about the way in which Indian laws of evidence operated and why the assailants were not prosecuted notwithstanding the availability of witness statements, it is clear that the Tribunal was concerned about the fact that the applicant said the case in relation to the attempted kidnapping was dropped in circumstances where a number of the people who helped the first applicant on the night of the incident were family members. No assumptions were made about the way in which the Indian legal system operated. Rather as is clear that the Tribunal was considering whether witnesses to the attempted kidnapping had been afraid or were too afraid to give evidence.[84] For the reasons set out in [148] the Tribunal concluded that it did not accept this. Indeed in coming to this conclusion, the Tribunal acknowledged the limitations of the Indian justice system, but did not see that this was a relevant factor in this case.
[84] Court book page 230 at [148].
At [156] the Tribunal accepted that Baljinder ‘may have been supported by extremists and have connections to political leaders, however Applicant 1’s father is also well connected politically. Furthermore given the Tribunal finds that with the passage of time, Baljinder Singh Sonu poses no threat to the applicants, the Tribunal does not accept that his political contact would pose any harm to them.’[85]
[85] Court book page 231.
It is clear that the Tribunal had regard to the applicants’ evidence as to why her parents decided to return to India notwithstanding the claimed ongoing risk to them there from Baljinder and his supporters.[86]
[86] See court book page 224 at [75].
It is also clear that the Tribunal put to the applicant its concerns about the delay in her making an application for a protection visa even though she had been in Australia since 2007.[87]
[87] See court book page 224 at [77].
Moreover, it is clear from the Tribunal’s decision record that it put to the first applicant concerns it had in believing that she and her family had genuine concerns of their safety if she were to return to India.[88]
[88] See court book page 225 at [81].
When one considers the Tribunal’s reasons in their entirety and read fairly, it is clear that the Tribunal had some significant concerns in believing the applicants’ claims to fear harm if they were to return to India, notwithstanding having accepted that the attempted kidnapping had occurred.
As noted in DAO16, the court on review, must exercise a high degree of caution before finding that credit findings are affected by jurisdictional error. For the reasons set out above, I am not satisfied that the adverse credit findings made by the Tribunal in this case are illogical, irrational or otherwise unreasonable. On the contrary, they were reasonably open to the Tribunal, they are clearly explained by the Tribunal in its reasons and therefore, I find that ground three is not made out.

Conclusion

As none of the grounds of review have been made out, I order that the applicants’ application be dismissed and that the applicants pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 19 February 2021

[2021] FCCA 276

19 February 2021

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

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