CMI17 v Minister for Immigration - [2018] FCCA 575

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMI17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 575

Catchwords:
MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – credibility findings by Tribunal – whether Tribunal acted erroneously – no jurisdictional error.

Legislation:

Migration Act1958 (Cth), ss.36(2)(a), 36(2)(aa)

Minister for Immigration v Li (2013) 249 CLR 332

Applicant:

CMI17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 534 of 2017

Judgment of:

Judge Jarrett

Hearing date:

16 February 2018

Date of Last Submission:

16 February 2018

Delivered at:

Brisbane

Delivered on:

16 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent:

Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

The application filed 8 June, 2017 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 534 of 2017

CMI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant in these proceedings arrived in Australia on 1 December, 2008 on a higher education sector visa. At the expiry of her student visa processes, she came to apply for a protection visa. That application was made on 16 March, 2016. On 13 December 2016, a delegate of the first respondent refused to grant to her a protection visa, and on 6 January, 2017 she sought review of the delegate’s decision before the Administrative Appeals Tribunal.
The Tribunal conducted a hearing at which it invited the applicant to attend for the purposes of giving evidence and making arguments in support of her visa application. That hearing occurred on 27 April, 2017. On 15 May, 2017 the Tribunal decided to affirm the delegate’s decision not to grant to the applicant a protection visa.
This case is the applicant’s application to review the decision of the Administrative Appeals Tribunal. Her application is brought pursuant to the Migration Act1958 (Cth), and she asks the Court to exercise its jurisdiction to grant prerogative writs – or constitutional writs – against officers of the Commonwealth. Here, for the applicant to be successful in her application, she needs to establish that the Tribunal’s decision is affected by jurisdictional error.
What constitutes jurisdictional error is difficult to define. It needs to be at least, it seems, either an error of jurisdictional fact or an error of law which is, as explained in the authorities, of considerable significance to the jurisdiction being exercised by the Tribunal.
Here, the applicant’s claims for protection were properly and accurately summarised by the Tribunal in its reasons for decision. The applicant does not take any issue with the way in which the Tribunal has identified her claims. The Tribunal’s reasons for decision make it clear that the Tribunal had regard to the evidence that the applicant wished the Tribunal to take into account. It is not suggested that it did not pay regard to the evidence she put before it. I will come back to that point shortly in these reasons.
In its reasons for decision, the Tribunal summarised the applicant’s claims as being as follows – first, the applicant would be killed by extremist Sikhs if she returned to India; second, she was previously married to a Sikh man and she claimed that she divorced her first husband and has since married a Christian; third, she claimed that inter-religion marriages were frowned upon in India; people have been killed in the past because they have married somebody from another religion or, alternatively, married somebody from another caste. She says that the police and the authorities are not particularly interested in doing anything about those types of killings. She claimed that she could not live anywhere at all in India because wherever it is that she might live, people would find her and harm her because of her inter-caste or inter-religion marriage. She said that finding her would be easy for people to do. She claimed that her relatives, including her brother, were against her marriage and had threatened harm against her. And finally, she raised a claim in respect of some property about which she says there was a dispute which arose following her father’s death. She said to the Tribunal that as a result of that property dispute, she feared harm from her brother.
The Tribunal considered, as revealed by its reasons, each of those claims and the evidence relied upon by the applicant to support them. It made detailed findings about them. And it is fair to say, I think, that ultimately, the Tribunal determined the matters relied upon by the applicant against her because it did not find her claims or her evidence credible.
The Tribunal commenced its findings at paragraph 57 of its reasons, and it thereafter considered, under various headings, the claims made by the applicant. From paragraph 64, it considered the applicant’s claim of fear of returning to India because of her marriage. In respect of that matter, the Tribunal concluded that the applicant’s claims in relation to those fears were “completely lacking in credibility”. That, it seems to me, amounts to a finding either that the fears that the applicant claimed to have she did not in fact hold, or alternatively, if she held genuine fears about matters arising from her marriage, that there was no reasonable grounds upon which she might hold those fears – they were not well-founded.
The Tribunal rejected her claims that she had been threatened by any of her relatives, by society more generally, or any extremists, Sikh or otherwise, as a result of her marriage. The Tribunal did not think that she would face a real chance of serious harm or a real risk of significant harm should she return to India. The Tribunal discussed the various matters that led to its findings about credibility. It recorded the evidence given by the applicant and it also recorded evidence given by witnesses that the applicant called to provide information to the Tribunal. The Tribunal noted that there were some inconsistencies, significant in the Tribunal’s view as it turned out, in that evidence.
The Tribunal dealt with the applicant’s fear of returning to India due to her family’s property dispute. Again, the Tribunal found that the applicant’s claims in relation to those matters were “completely lacking in credibility”. The Tribunal was not satisfied that the applicant was a part-owner of any house or land in India. It found that she had not been threatened by her brother or anyone else regarding any land or property in India and it did not accept that the applicant’s mother or sister had been attacked by her brother over any property dispute. It followed, according to the Tribunal’s reasons, that it did not accept that the applicant faced a real chance of serious harm or real risk of significant harm in India on account of any property dispute.
The Tribunal’s assessment of the applicant’s credibility and the credibility of her claims was affected by the Tribunal’s view that there were significant inconsistencies between things said by the applicant and things said by her mother and her sister. An alleged attack by her brother on her mother and sister that had predated the Tribunal’s hearing and the visa application that occurred in November were things that specifically attracted the Tribunal’s attention. The Tribunal sought an explanation from the applicant about those matters and, by way of explanation, the applicant suggested that she was stressed, distressed and depressed.
The Tribunal dealt with the inconsistencies arising from the evidence about those matters in paragraphs 69 and 70 of the reasons for decision. In paragraph 69, the Tribunal noted those claims and noted the applicant’s suggestion that she was unable to remember details in the relatively recent past because she was stressed. After the Tribunal’s hearing, the applicant had provided a statement from a psychologist that the applicant had apparently consulted relating to the nature of the applicant’s relationship with her husband. That psychologist’s report did not bear directly on the assertion by the applicant that she was stressed and was depressed but, rather, noted that there were stressors and distress in her relationship with her husband because of the applicant’s visa difficulties. The Tribunal concluded that the applicant’s explanations for the inconsistencies that concerned the Tribunal ought to be rejected and her explanation based in her psychological state, that is, that she was stressed and depressed, was rejected by the Tribunal.
Having made those findings, the Tribunal concluded that the applicant did not meet the criteria for the grant of a protection visa either under ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 and it affirmed the decision under review.
By this application, the applicant suggests that the Tribunal made an error when it rejected the authenticity of a particular document, namely, a document referred to in the Tribunal’s reasons as a “FIR” document. She says that the Tribunal ought not to have rejected that document, first, because it was important to her claim; secondly, it corroborated her claims; and, thirdly, if the Tribunal had any doubts about its authenticity, the Tribunal ought to have made its own inquiries about it from the people that she says had issued it.
She also says that the Tribunal asked itself the wrong question. She says that whilst the Tribunal determined that the applicant didn’t have any medical issues – no stress or depression – sufficient to explain the inconsistencies in her evidence, she says the Tribunal paid no attention to the psychologist’s opinion that the applicant and her husband “are in distress”. Her complaint about this is that the Tribunal did not give any weight to that opinion from the psychologist.
Finally, she makes a complaint that the Tribunal’s decision is illogical, it seems, or perhaps irrational, given its findings and the way in which it dealt with the FIR document.
Dealing with the question of the medical condition first, it seems to me that the applicant’s complaint there is simply that the Tribunal has chosen not to give any weight to that information. It is, of course, a matter for the Tribunal to determine what weight ought to be given to any material before it. To the extent that the applicant suggests that the Tribunal has misinterpreted that evidence, I am against the applicant. The psychologist’s report does not suggest that the applicant is stressed or depressed beyond that which might ordinarily be expected for an applicant in the same position as this applicant, given her visa application and its rejection. There is nothing remarkable in the psychologist’s report and certainly nothing which would go to explain the inconsistencies that troubled the Tribunal.
It was a matter for the Tribunal to consider what weight it placed on the psychologist’s view and the Tribunal plainly thought that it was of no particular assistance to the issues that the Tribunal needed to determine.
Nor is there any apparent difficulty with the way in which the Tribunal has chosen to deal with the authenticity of the FIR document. It is not for the Tribunal to make its own inquiries. It can, but there is no obligation on it to do so except in the clearest of cases. This is not one of those cases. It is for the applicant to satisfy the Tribunal of her claims. The applicant asked rhetorically in her oral submissions to me “What else is it that I could do?” There is no answer that I can give to that other than to say that it is her obligation to satisfy the Tribunal.
The written submissions for the first respondent set out in some detail the authorities for each of those propositions. I will not repeat them in these reasons. To the extent that the applicant suggests that the Tribunal’s reasons are illogical or its conclusions unreasonable, in my view, that is no more than the applicant suggesting that she disagrees, vehemently, with the Tribunal’s reasons and decision and having regard to what has fallen from the High Court in cases like Minister for Immigration v Li (2013) 249 CLR 332, that does not amount to unreasonableness for the purposes of establishing jurisdictional error on an application for review like this.
In those circumstances, in my view, the application for review does not reveal that the Tribunal’s decision is attended by jurisdictional error.
My own consideration of the Tribunal’s reasons does not reveal that the Tribunal has made any error, let alone a jurisdictional error. In those circumstances, the application for review must be dismissed.

RECORDED: NOT TRANSCRIBED

The first respondent applies for his costs of this application. The usual rule is that costs follow the event: that is, the successful party has his or her costs paid by the unsuccessful party. That usual rule is applied unless there are special circumstances that would suggest that it’s inappropriate. As a matter of principle, impecuniosity or an inability to pay those costs is generally never seen as special circumstances sufficient to warrant displacing the usual rule. In those circumstances, costs should follow the event.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:

Date: 9 March 2018