CPN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1420
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CPN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1420
File number(s): SYG 1395 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 19 December 2024 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal - whether Tribunal failed to consider and make findings concerning claim by applicant – whether error in Tribunal’s findings concerning inconsistencies and discrepancies in applicants’ evidence -no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Singh v Minister for Home Affairs [2019] FCAFC3; 267 FCR 200
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 28 November 2024 Place: Parramatta Solicitor for the Applicants: Mr M Jones of Parish Patience Immigration Lawyers Solicitor for the Respondents: Mr C Juarez of Minter Ellison ORDERS
SYG 1395 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CPN20
First Applicant
CPO20
Second Applicant
CPQ20
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicants pay the first respondent’s costs in the amount of $5,900.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 9 June 2020, the applicants lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicants subclass 866 protection visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
On 19 June 2016, the applicants, citizens of India, arrived in Australia as holders of subclass 771 transit visas. The first applicant is the father of the family unit. The second applicant is the first applicant’s wife. The third applicant is a child of the first and second applicants born in 2001.
On 21 June 2016, the applicants applied for subclass 866 protection visas. The protection visa application included claims by the applicant father as to why he left India and why he feared returning to India: see pages 74 to 76 of Court Book (CB).
On 13 January 2017, the applicant father attended an interview with a delegate of the first respondent. At interview, the delegate and applicant father discussed the applicants’ claims.
On 20 January 2017, the delegate made a decision refusing to grant the visas.
On 1 February 2017, the applicants applied to the Tribunal for review of the delegate’s decision.
On 8 August 2019, the Tribunal invited the applicants to attend a hearing on 25 September 2019. The applicants then retained a migration lawyer, following which the hearing was postponed to 16 October 2019.
Between 10 and 14 October 2019, the applicants’ lawyer provided a number of documents to the Tribunal. Relevant to the hearing in this Court on 28 November 2024, the documents included:
(a)a statutory declaration of the applicant father dated 10 October 2019 (CB 315-320); and
(b)a submission from the lawyer dated 14 October 2019 (CB 353-356).
On 16 October 2019, the applicants and their lawyer attended a hearing before the Tribunal. At the hearing, among other matters, the Tribunal member discussed the applicants’ claims with the applicant father and applicant mother.
On 29 October 2019, the applicants’ lawyer provided a number of documents to the Tribunal, including a statement of the applicant father dated 28 October 2019 (CB 407-409) which, according to the first paragraph of the document, contained evidence of the applicant father in response to matters discussed during the hearing.
On 8 November 2019, the Tribunal sent a letter to the applicants (CB 471-474) (Invitation to Comment Letter). The letter, after listing “inconsistencies in the applicant father’s evidence about the political events he states he was involved in while in India”, “inconsistencies in the applicant father and applicant mother’s evidence about any adverse attention given to the applicant father as a result of the applicant father’s stated political activities”, “inconsistencies in the applicant father’s evidence about his travel to other countries and applications for visas made to other countries”, and “inconsistencies in the applicant father and applicant mother’s evidence about the requirements for the family unit to convert to Jehovah’s Witnesses”, “invited [each applicant] to give comments on or respond to” the alleged inconsistencies.
On 5 December 2019, the applicants provided a response to the Invitation to Comment Letter. The response comprised a statement of the applicant daughter (CB 481-485) in which she set out her parents’ response to parts of the Invitation to Comment Letter. It is curious that the applicant father and applicant mother did not provide statements in their names in response to the Invitation to Comment Letter.
On 20 April 2020, the applicants’ representative provided further submissions and supporting evidence to the Tribunal.
On 20 May 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants protection visas.
TRIBUNAL’S DECISION
The applicants claimed to fear harm for reason of the applicant father’s political opinion. The Tribunal considered there to be inconsistencies in the evidence of the applicant father concerning his travel to other countries and applications for visas made to other countries, inconsistencies in the evidence of the applicant father as to his political activities prior to leaving India, and inconsistencies in the evidence of the applicant father and mother about any adverse attention given to the applicant father as a result of his claimed political activities. The Tribunal, after considering the inconsistencies and the applicants’ response to the Invitation to Comment Letter, was not satisfied that the applicants faced a real chance of harm in India because of the applicant father’s political activities or claims.
The applicants claimed to fear harm arising from their interest in converting to Jehovah’s Witnesses. The Tribunal again considered there to be inconsistencies in the evidence of the applicant father and mother about converting to Jehovah’s Witnesses, as well as unsatisfactory or implausible answers given by the applicant father or mother to questions asked by the Tribunal. The Tribunal, after considering these matters and the applicants’ response to the Invitation to Comment Letter, found that there was not a real chance the applicants faced a real chance of harm in India because of their religious beliefs.
The applicants claimed that the applicant mother and daughter faced a real chance of sexual assault in India. The Tribunal accepted the applicant wife had been sexually assaulted in the past. But, after considering the applicant wife's and daughter's particular circumstances as well as the country information before it, was not satisfied there was a real chance they would face gender-based violence in the reasonably foreseeable future.
The Tribunal considered the applicants' claims cumulatively but was not satisfied they would face a real chance of persecution now or in the reasonably foreseeable future. Turning to complementary protection, the Tribunal noted that as real chance and real risk involved the same standard, for the same reasons, the Tribunal was not satisfied the applicants would face a real risk of significant harm.
The Tribunal affirmed the decision not to grant the applicants protection visas.
PROCEEDINGS IN THIS COURT
Application and additional ground
On 9 June 2020, the applicants filed an application in this Court (Application). The grounds are as follows (verbatim):
1.The Tribunal failed to consider, or failed to make findings, in respect of certain specific claims made by the Applicants.
Particulars
(a) being perceived as supporters of Kashmiri separatism and therefore as Pakistani agents or sympathisers;
(b) having made reports about criminal gangs with links to politicians.
The Tribunal either did not consider those claims or failed to make findings in respect of either or both of them.
2.The Tribunal made a finding that was unreasonable because it lacked an evident or intelligible justification.
Particulars
The Tribunal found that there was not a real chance or a real risk that the Second Applicant would be sexually assaulted despite having accepted that she had been sexually assaulted in the past.
3.The Tribunal failed to make a finding about a relevant point of law.
Particulars
The Tribunal failed to make any finding as to whether the Applicants could avail themselves of a right to enter Nepal.
In an updated written submission lodged on 31 October 2024 (AS), the applicants abandoned ground 3.
At the hearing on 28 November 2024, the Court granted the applicants leave to rely on the following additional ground (verbatim):
The Tribunal failed to properly exercise its jurisdiction by failing to assess the significance of the claimed inconsistencies in the Applicant’s evidence and the weight to be given to them, thus failing to appreciate the nature of the task before it or to perform it reasonably and fairly.
Particulars
As set out in paragraphs 21 to 39 of the Applicant’s Amended Submissions filed on 31 October 2024
Applicants’ submissions
On 31 October 2024, the applicants lodged the AS which replaced an earlier written submission lodged on 15 November 2020. At the hearing on 28 November 2024, Michael Jones, solicitor, appeared for the applicants and made oral submissions.
Ground 1
Mr Jones, at AS [9]-[17], listed parts of the applicant father’s written evidence before the Tribunal and written submissions by the applicants’ representative to the Tribunal where the applicant father claimed:
(a)a fear of harm because, if required to return to India, he would be perceived to be a supporter of Kashmiri separatism; and
(b)he had voiced concerns about illegal sand mining done by powerful politicians and criminal gang members in Madurai and, if required to return to India, he would face intimidation and harassment from the powerful politicians and criminal gangs.
The applicants contend in ground 1 that “the Tribunal either did not consider those claims or failed to make findings in respect of either or both of them”.
Ground 2
The applicant wife claimed, and the Tribunal accepted, that she was sexually assaulted in India on one occasion before she came to Australia. The applicant father and mother claimed to fear that the applicant mother and daughter faced a risk of sexual assault if required to return to India. The Tribunal found at [137] that “there is not a real chance the applicant mother or applicant daughter is at risk of harm because of their gender if they return to India in the reasonably foreseeable future”. The applicants contend in ground 2 that this finding “lacked an evident or intelligible justification”.
Ground 4
The Tribunal stated at [101] that “the applicant father’s inconsistencies about his travel to other countries and applications for visas made to other countries lead the Tribunal to doubt the truthfulness of his evidence to the Tribunal”. The Tribunal listed at [101] what it considered were “discrepancies in the applicant father’s evidence”. The Tribunal stated at [103] that “the applicant father’s inconsistencies in his evidence as to his political activities prior to leaving India lead the Tribunal to have significant doubts about his claims relating to his political opinion”. The Tribunal listed at [104] “inconsistencies in the applicant father’s evidence about the political events he states he was involved in while in India” in respect of which the Tribunal had sought comment from the applicant in the Invitation to Comment Letter. The Tribunal listed at [106] “inconsistencies in the applicant father and applicant mother’s evidence about any adverse attention given to the applicant father as a result of the applicant father’s stated political activities” in respect of which the Tribunal had sought comment from the applicant in the Invitation to Comment Letter. The Tribunal, after considering the applicants’ response to the Invitation to Comment Letter, found at [109] that “the vague nature of the applicant father’s evidence in addition to the significant discrepancies set out above lead the Tribunal to not accept” claims made by the applicant father concerning his political activities in India. The Tribunal also found at [111] that “given the significant discrepancies in the applicants’ evidence, the Tribunal does not accept” other claims made by the applicant father.
Ground 4, which complains that the Tribunal “fail[ed] to assess the significance of the claimed inconsistencies in the applicants’ evidence and the weight to be given to them”, appears to principally challenge the Tribunal’s reasoning process at [109] and [112] in which the Tribunal relied in part on discrepancies in the applicants’ evidence to reject parts of the applicants’ claims. The particulars to ground 4 state that the “inconsistencies in the applicants’ evidence” about which the applicants complain are particularised in AS [21]-[39]. It appears to the Court that AS [21]-[39] challenge four matters the subject of discrepancy or inconsistency findings. These matters are addressed below.
First respondent’s submissions
On 19 November 2020, the first respondent filed a written submission. At the hearing on 28 November 2024, Carmen Juarez from Minter Ellison appeared for the first respondent and made oral submissions. The first respondent’s submissions, where necessary, are referred to further below.
CONSIDERATION
Ground 1
On 21 June 2016, the applicants lodged an application for protection visas. The application included the applicant father’s claims as to why he left India and why he feared returning to India. In January 2017, the applicant father attended an interview with a delegate of the first respondent at which the delegate and applicant father discussed the applicants’ claims. The applicant father’s evidence at the interview is summarised in the delegate’s decision and in the Tribunal’s decision at [14]-[17]. On 20 January 2017, the delegate made a decision refusing to grant the applicants protection visas. Up to this point in time, with reference to the particulars in ground 1 of the Application, the applicant father made no claims concerning the applicants “being perceived as supporters of Kashmiri separatism” or the applicant father “having made reports about criminal gangs with links to politicians”.
On 10 October 2019, the Tribunal received a statutory declaration from the applicant father dated 10 October 2019 in which the applicant father stated (as written):
7. I returned to India in 2013 as I did not want to stay for long as an unlawful non-citizen. After I returned to India, I started working and since people in the locality know that I am a Tamil nationalist, they used to come and encourage me to attend their meetings and protests. It should be noted that during that time a Tamil nationalist party called Naam Thamilar Katchi (NTK) was revived by Mr Seeman in 2009 in the aftermath of the atrocities committed against Sri Lankan Tamils in Sri Lanka by the Sri Lankan military. Mr Seeman is a famous Tamil film director and a good orator. He advocates that Tamils should be able to rule by themselves and promotes Tamil identity which he claims has been undermined by the Dravidian Identity. Due to the infiltration of non-Tamils into Tamilnadu, the native Tamils have become minority within their own place. In addition, he promotes and advocates for the separate country for Tamils living in Sri Lanka. He is an ardent supporter of the LTTE supremo Mr V Pirapaharan and he once visited North part of Sri Lanka and met Mr Prapaharan whom we consider as the Tamil national leader.
8. In addition, he advocates against caste discrimination and religious extremism. In addition, he and his party NTK advocate freedom for the minorities living in India including Kashmiri Independence.
9. Attracted by his ideologies and the philosophy of NTK I started involved with the party activities. I attended their meetings and demonstration and functions and helped them to organise the party. In 2015, I formerly joined the party after I was invited by the local leaders of the NTK.
10. I involved in activities including the following:
…
e. NAT also involved in raising issues related to illegal sand mining allegedly done by the powerful politicians and the criminal gang members in Madurai and as an active member of the NAT I participated and voiced our concerns against it.
…
11. Due to my activities and involvement, party members, leadership and the local people look at me as an emerging leader within the NTK…My political activities and endorsement and profile came to the attention of the authorities and Dravidian political parties, national political parties and the criminal network which have connections with the powerful politicians who involved in illegal activities. As a result of that, I faced intimidation and harassment and threats of politically motivated cases.
17. We fear if we returned to India now or in a foreseeable future, we will face a real risk of significant harm including torture, degrading, inhuman and cruel treatment and fear we will be possibly with be killed for following reasons:
a. Due to my political opinion supporting Tamil nationalist ideologies.
b. Due to my political opinion supporting NTK which is seen as a party challenging the structure of Indian state.
…
h. Due to my activities exposing the criminal gangs and their activities and their connections with the politicians.
With reference to the particulars in ground 1 of the Application:
(a)It does not appear that the applicant father clearly claimed that the applicants would be “perceived as supporters of Kashmiri separatism”.
(b)While the applicant father claimed that the Tamil nationalist party Naam Thamilar Katchi (NTK) was involved in “raising issues related to illegal sand mining allegedly done by the powerful politicians and the criminal gang members” and the applicant father “participated and voiced our concerns against it”, the applicant father did not claim that he personally “made reports about criminal gangs with links to politicians”.
(c)In any event, the applicant father’s claims relating to Kashmiri independence and illegal sand mining done by powerful politicians and criminal gangs were integrally connected to his claimed involvement with and claimed support for the NTK and support for Tamil independence.
On 14 October 2019, the applicants’ representative provided a submission to the Tribunal in which he stated, among other matters, that the applicant father was a member and supporter of the NTK, “a Tamil nationalist”, held “political opinions supporting Tamil nationalism”, and “would be perceived as a person supporting Kashmiri freedom movement”. In light of the wording of particular (a) in ground 1 of the Application, it is appropriate to emphasise that the applicants’ claim, as explained in the submission (CB 353-358), was that the applicant father was a “Tamil nationalist and a member and supporter of the…NTK” and a “strong supporter and member of the NTK [who] supports its ideological stand and activities” and, as a result, the applicant father “would be perceived as a person supporting Kashmiri freedom movement”. The claim relating to the Kashmiri freedom movement was integrally connected to the applicant father’s claimed membership and support for the NTK and support for Tamil nationalism.
On 16 October 2019, the applicant father attended a hearing before the Tribunal. Mr Jones did not identify from the transcript tendered at the hearing in this Court on 28 November 2024 anything said at the hearing before the Tribunal which disassociated the applicant father’s claims concerning the two matters particularised in ground 1 from his claims that he was a member and supporter of the NTK.
Following the hearing before the Tribunal, on 29 October 2019 the Tribunal received a further statement from the applicant father dated 28 October 2019 (CB 407 - 409). In relation to the issue of Kashmiri independence, the applicant father stated (as written):
I will be perceived as an anti-Indian due to my Tamil nationalist political opinion and my support and membership with NTK. NTK supports minority ethnic groups self determination including Kashmire Independence. I also support Kashmire independence. At the moment. the Indian central government engages in activities undermining Kashmire Independence movement and engages in human rights abuses. The Indian intelligence, and the authorities and the BJP party consider any one who supports Kashmire Independence as anti-Indian and submit that anyone who is perceived as anti-Indian and supporter of Kashmere independence faces high risk of harm. Further, anyone who is perceived as Kashmiri supporter will be branded as Pakistani supporter and will face harm from the Indian public due to the anti-Pakistani sentiment prevail in India and from the Indian authorities.
…
Further due to NTK is active and passive political opinion and my association with the NTK, I fear I will be under surveillance. I also note that even if I move to other areas of the Country, I will continue to voice my political opinion including my opinion supporting Kashmire Independence. As a result of that internal relocation is not a possible option in my case. Further, during the hearing, the Tribunal did not ask any relevant questions regarding my active and passive political opinion supporting the Kashmire Independence and therefore, I did not get a chance to provide further Information about my political opinion.
This appears to be the first occasion on which the applicant father stated that he personally supported Kashmiri independence and, if he returned to India, would voice his opinion supporting Kashmiri independence. However, this claim remained integrally connected to the applicant father’s claims that he was a member and supporter of the NTK and a Tamil nationalist. For example, on each occasion the applicant father referred to his support for Kashmiri independence, he linked this support to his “support and membership with NTK” and his “association with the NTK”.
The Tribunal found at [109]:
The vague nature of the applicant father’s evidence in addition to the significant discrepancies set out above lead the Tribunal to not accept that the applicant father organised several political meetings including a protest about Tamils involved in Rajiv Gandhi’s assassination, that he spoke in favour of the LTTE at a political meeting, that he attended ten protests in Chennai, that he attended 25 to 30 protests over a seven-month period in Chennai and one in Madurai, that he was active politically from November 2015 or that he was working for Tamils from a young age. The Tribunal does not accept the applicant father was involved in any protest activity while he lived in India. The Tribunal does not accept that the document provided by the applicant father about his membership of the NTK party is a genuine document.
The Tribunal also found at [112] that it “does not accept the applicant father left India because of his involvement in Tamil causes” and “it does not accept that [the applicant father] was politically active for Tamil causes while in India”.
The first respondent contends in its written submission that the Tribunal’s findings at [109] and [112], in particular that the Tribunal “does not accept the applicant father was involved in any protest activity while he lived in India” and “does not accept he was politically active for Tamil causes while in India”, involved a rejection by the Tribunal of the applicant father’s claims in relation to his political involvement in its entirety. The Court agrees. With reference to the particulars in ground 1 of the Application:
(a)The applicants complain that the Tribunal failed to deal with a claim that the applicants would be “perceived as supporters of Kashmiri separatism”. However, as explained above, this claim was integrally connected to the applicant father’s claim that he was active politically from November 2015, left India because of his involvement in Tamil causes, and was politically active for Tamil causes while in India. The applicants claimed that the applicant father, because of his political activities and involvement in Tamil causes, would be perceived as a supporter of Kashmiri separatism. The Tribunal’s findings at [109] and [112] thereby disposed of any claim by the applicant father concerning being perceived as a supporter of Kashmiri separatism.
(b)The applicants complain that the Tribunal failed to deal with a claim that the applicant father “made reports about criminal gangs with links to politicians”. However, first, Mr Jones did not identify any material in the Court Book where the applicant father claimed that he personally “made reports about criminal gangs with links to politicians”. Second, in relation to the applicant father’s claim that, in relation to NTK’s involvement in “raising issues related to illegal sand mining allegedly done by the powerful politicians and the criminal gang members in Madurai”, the applicant father, “as an active member of [NTK], “participated and voiced [his] concerns” (see CB 317 at [10(e)]), this claim was again integrally connected to the applicant father’s claim that he was active politically from November 2015, left India because of his involvement in Tamil causes, and was politically active for Tamil causes while in India. The Tribunal’s findings at [109] and [112] disposed of any claim by the applicant father concerning this issue.
Further, the Tribunal found at [114]:
The Tribunal finds that, if he returns to India, there is not a real chance the applicant father would face serious harm because of his political opinion or imputed political opinion. The Tribunal is not satisfied that the applicant father has a well-founded fear of persecution because of his political opinion supporting Tamil nationalist ideologies, his political opinion supporting NTK which is seen as a party challenging the structure of the Indian state, his political opinion supporting the LTTE and the freedom struggles of Sri Lankan Tamils, his political opinion against Dravidian parties and Tamil nationalist ideology as being perceived as anti-Dravidian, or his political opinion against parties which promote Hinduvita ideologies…
The Court considers that the findings at [114] separately and additionally disposed of the claims particularised in ground 1 of the Application.
Ground 1 is not made out.
Ground 2
The Tribunal stated at [129] and [130]:
129. The applicant mother gave evidence at the Tribunal hearing that she had an experience she had not told her husband about which related to a sexual assault. She did not provide details to the Tribunal, however, the Tribunal is prepared to accept that the applicant mother was sexually assaulted and that there is a reasonable explanation for her not having disclosed this to her husband previously or having disclosed this for the purposes of her written protection application.
130. However, as to the risk in the reasonably foreseeable future to the applicant mother and applicant daughter, the Tribunal notes the country information, discussed with the applicants at the Tribunal hearing, states that not all women are at risk of gender based violence and that, while domestic and gender based violence occurs, the risk is higher to women in rural areas and from lower castes. DFAT assesses that the risk to women from gender-based violence varies depending on where an individual lives, their caste, class, ethnicity, religion, education and age.
The Tribunal, after considering some material provided by the applicants’ representative, concluded at [136] and [137]:
136. The Tribunal finds that the applicant mother and applicant daughter would return to Chennai, the capital city in Tamil Nadu. The applicants would return as a family unit and would return to an area where they both have extended family: the applicant father’s mother and four sisters are living there and the applicant mother’s mother, two sisters and three brothers are living there. The applicant mother is a Hindu who is able to speak Tamil and English and some Telugu and Hindi. She has an undergraduate degree in bank management and worked for 13 years in administration in India in various positions. She has found employment in a number of different positions in Australia. The applicant daughter is currently completing secondary school in Australia and is intending to study medicine upon completion of her secondary schooling.
137. On the basis of their ability to return to a city-based environment, their caste, education levels and the fact that they would be returning as a family unit along with the applicant father to an area where they have extensive family supports, the Tribunal finds there is not a real chance the applicant mother or applicant daughter is at risk of harm because of their gender, if they return to India now or in the reasonably foreseeable future. The Tribunal finds that, while the applicant mother and applicant daughter may be at low risk of official discrimination, having regard to the country information set out in the most recent DFAT report, any discrimination they may face does not meet the threshold of serious harm.
It appears from the wording of ground 2 that the applicants’ complaint is that, because the Tribunal accepted the applicant mother had been sexually assaulted in the past, it was not open to the Tribunal to find there was not a real chance that she would be sexually assaulted in the future.
While what has occurred in the past provides guidance to what will happen in the future (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575), the fact that the Tribunal accepted that the applicant mother was sexually assaulted in the past does not mean that it was not open to the Tribunal to find that there was not a real chance that she would be sexually assaulted in the future. Instead, decision-makers, in addition to making findings concerning past events, should consider country information concerning the present and reasonably foreseeable future, as well as the applicant’s particular circumstances, in assessing whether the applicant faces a real chance of serious harm on return to their country of nationality. This is what the Tribunal did at [136]-[137]. The assertion in ground 2 of the Application does not involve a jurisdictional error.
The applicants explain the alleged error in ground 2 differently in AS [42] where it is stated:
Having accepted that the Second Applicant had been sexually assaulted, the Tribunal's reliance on statistical information about a general risk of sexual violence against women nevertheless suggested that it must have been a random event having no connection with the claims of the Applicants that the Second Applicant, and possibly also the Third Applicant, were specific targets of such violence because of their political and religious activities. As in Li at [76] per Hayne, Kiefel and Bell JJ, the Tribunal's decision lacks an evident and intelligible justification and it is not possible to comprehend how the decision was arrived at.
The complaint, although not clearly explained, appears to be:
(a)there was a link between the applicants’ claims concerning their political and religious activities and the risk the applicant mother and daughter would be sexually assaulted; and
(b)the Tribunal overlooked this link.
At the hearing on 28 November 2024, the Court asked Mr Jones to identify any material in the Court Book where the applicants or their representative contended to the Tribunal that there was a link between the applicants’ claims concerning their political and religious activities and the risk the applicant mother and daughter would be sexually assaulted. Mr Jones did not identify any such material. That the Tribunal did not deal with a submission never made to it is unlikely to be a jurisdictional error. In any event, even if the applicants contended to the Tribunal that there was a link between the applicants’ claims concerning their political and religious activities and the risk the applicant mother and daughter would be sexually assaulted, the Tribunal rejected the applicants’ claims concerning their political and religious activities.
Ground 2 is not made out.
Ground 4
Ground 4 seeks to invoke the category of jurisdictional error explained in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [23], [27] and [28] as follows:
[23] A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.
…
[27] Secondly, the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
[28] Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
The particulars to ground 4 refer to AS [21]-[39]. The applicants, in AS [27]-[39], complain about four claimed inconsistencies and discrepancies.
First, the applicants complain in AS [28] about the Tribunal’s treatment of inconsistencies in the applicant father’s evidence about his travel to other countries. The Tribunal stated at [101]:
101. The applicant father’s inconsistencies about his travel to other countries and applications for visas made to other countries lead the Tribunal to doubt the truthfulness of his evidence to the Tribunal. Following the hearing the Tribunal wrote to all three applicants jointly, inviting them to comment on the following discrepancies in the applicant father’s evidence:
•In his written protection application, the applicant father stated that he had travelled to Singapore, Malaysia and Thailand in 2015;
•In his written protection application, the applicant father stated that he had never had, or used, any other passport or travel document, including expired, lost or stolen documents;
•In his written protection application, the applicant father stated that he had never applied to migrate to any country other than Australia, and that he had never been refused a visa to any country other than Australia;
•In a statutory declaration provided to the Tribunal, dated 10 October 2019, the applicant father stated that he: lived in the UK from 2006 to 2013 and stayed as an unlawful non-citizen; applied for a USA visa which was refused in 2014 and applied for a New Zealand visa in 2016 which was refused, and that he had two previous passports.
•In the Tribunal hearing, the applicant father stated that he had travelled to Thailand for three days in 2015. When asked during the hearing about his written claim that he had travelled to Singapore, Malaysia and Thailand in 2015 he stated that this was correct and he had forgotten this.
The applicants accepted in this Court that the evidence of the applicant father was inconsistent. Their complaint is that “apart from recording [the inconsistencies] as an example of untruthfulness on the applicant’s part casting doubt on the genuineness of his claims, the Tribunal does not at any point explain why it was relevant to the substance of those claims”: AS [28]. The meaning of the applicants’ complaint is not clear. The Tribunal expressly stated at [101] that “the applicant father’s inconsistencies about his travel to other countries and applications for visas lead the Tribunal to doubt the truthfulness of his evidence to the Tribunal”. The Tribunal thereby expressly explained the relevance of the inconsistencies to its task. It was open to the Tribunal to reason in this way. The Court is not persuaded that the complaint in AS [28] establishes a jurisdictional error.
Second, the applicants complain in AS [29]-[30] about the Tribunal’s treatment of inconsistencies in the applicant father’s evidence about his political activities prior to leaving India. The Tribunal stated at [103] and [104]:
103. In addition to the applicant father’s failure to disclose significant travel and other visa applications, the applicant father’s inconsistencies in his evidence as to his political activities prior to leaving India lead the Tribunal to have significant doubts about his claims relating to his political opinion.
104. In the s.424A letter sent to all three applicants, the Tribunal’s invitation to comment set out the following matters in respect of the applicant father’s political claims:
Firstly, there are inconsistencies in the applicant father’s evidence about the political events he states he was involved in while in India:
•In his written protection application, the applicant father stated that he organised several political meetings including a procession about the Tamils involved in Rajiv Gandhi’s assassination;
•In his Department interview, the applicant father stated that he spoke in favour of the LTTE at a political meeting and attended around 10 protests, all in Chennai and the outskirts of Chennai, and that he did not have a leadership position within the party;
•At the Tribunal hearing the applicant father stated that he was only a participant in the protests;
•At the Tribunal hearing the applicant father stated that he attended 25 to 30 protests over a seven-month period in Chennai and also attended one in Madurai.
This information is relevant because the inconsistencies in the applicant father’s evidence may lead the Tribunal to not accept that he participated in any protests or political meetings, either in Chennai or Madurai. It may also cause the Tribunal to not accept that the applicant father organised any political meetings or that he spoke in favour of the LTTE at a political meeting. It may also cause the Tribunal to doubt the truthfulness of the applicant father’s evidence. It may cause the Tribunal to not accept that the applicants have a well-founded fear of persecution if they return to India or that there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
The nub of the applicants’ complaint in AS [30] is that “considering the applicant’s evidence as a whole … his description of his political activities were overall modest and generally consistent”. The Court disagrees that the applicant father’s description of his political activities over time was generally consistent. In June 2016, the applicant father stated in response to question 89 in his protection visa application (CB 74) that “I organised several political meetings including the Land Procession to [Chief Minister] of Tamil Nadu”. The applicant father repeated in response to question 91 that he was warned by the police “on several occasions for [participating] in meeting promoting Tamil causes”. The applicant father said nothing in the protection visa application about attending and participating in protests. In contrast, during an interview with the first respondent’s delegate in January 2017:
(a)the delegate’s decision records that the applicant father told the delegate that he “did not organise any political meetings for the Naam Tamilar Party” (CB 231); and
(b)the Tribunal’s decision records the applicant father also told the delegate that “he had come to Australia because at a political meeting he had spoken in favour of the LTTE” and “he had taken part in protests in Tamil Nadu”: see Tribunal’s decision at [14] and [16].
The claims made by the applicant father in his protection visa application and at interview with the delegate concerning his political activities in Tamil Nadu are clearly inconsistent.
Further, in October 2020, the applicant father attended a hearing before the Tribunal. The Tribunal recorded the applicant father’s evidence concerning his political activities at [29] to [40]. The applicant father said nothing about attending or speaking at a political meeting, indicating a further inconsistency between his evidence to the delegate and his evidence at the hearing before the Tribunal.
The Court considers there were a number of inconsistencies in the evidence of the applicant father concerning his political activities in India. To the extent that the Tribunal relied on those inconsistencies in a manner adverse to the applicants, the Court is not persuaded by the contentions in AS [29]-[30] that this involved a jurisdictional error.
Third, the applicants complain in AS [31]-[32] about the Tribunal’s treatment of an inconsistency in the applicant father’s evidence concerning the number of protests in which he participated in India. The applicant father told the delegate at an interview in January 2017 that he took part in around 10 street protests in Tamil Nadu. In contrast, at the hearing before the Tribunal in October 2019, the applicant father told the Tribunal, in response to a question about how many protests he specifically attended, that he “would have participated in 25 to 30 protests”: page 19 of transcript. The Tribunal put to the applicants, in the Invitation to Comment Letter, the inconsistency in the applicant father’s evidence concerning the number of protests he attended. As explained above, the applicant father chose not to respond to the Invitation to Comment Letter. Only the applicant daughter provided a response. A few paragraphs of the daughter’s response sought to relay an explanation from the father concerning the discrepancy. The nub of the applicants’ complaint at AS [32] is that the Tribunal “disregarded [the daughter’s] explanation in favour of its lexicographer’s zeal for precision without explaining why the explanation was implausible or even why it was of any significant relevance”. If the applicants’ complaint is that the Tribunal disregarded the daughter’s explanation, the Court disagrees, since the Tribunal referred to the daughter’s explanation at [105]. The Court disagrees that the Tribunal had a “zeal for precision” in relation to this matter. It was open to the Tribunal to be concerned about the inconsistency in this aspect of the applicant father’s evidence. To the extent that the applicants complain that the Tribunal did not explain “why the [daughter’s] explanation was implausible or even why it was of any significant relevance”, that the Tribunal’s reasons for decision did not contain this explanation is not a jurisdictional error: see for example Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE) at [46]-[47].
Fourth, the applicants complain in AS [33]-[35] about the Tribunal’s treatment of inconsistencies in the applicants’ evidence concerning the adverse attention the applicant father claimed to have received from the Indian authorities. The applicant father stated in his protection visa application that he was “apprehended, detained, interrogated without proper documents on few occasions by the police”: CB 75. He also claimed to fear “further police prosecution, harassment and torture by the police”: CB 74. In contrast, the applicant father told the delegate at an interview in January 2017 that “he has never been arrested or detained by the Tamil Nadu State police” and “he has never been interrogated or tortured”. In contrast again, the applicant mother stated at the Tribunal hearing that some people “took her husband away in a vehicle” “at least six or seven times”: see Tribunal’s decision at [55]. The applicants appear to contend in AS [35] that the applicant father and mother claimed that the applicant father was “never formally arrested but subjected to the usual thuggery of official and semi-official repression of political dissent” and this claim was “not inconsistent but rather entirely consistent across the span of time from the lodgement of the application in June 2016 to the Tribunal’s decision in May 2020”. The Court disagrees. The Court considers there were clear discrepancies or inconsistencies in the evidence of the applicant father and mother over time concerning the adverse attention the applicant father claimed to have received from the Indian authorities. The Court is not persuaded that the contentions at AS [33]-[35] reveal a jurisdictional error in the Tribunal’s decision.
The applicants complain in AS [39] that the Tribunal “failed completely to explain why it found [various] discrepancies to be sufficient to justify rejecting the applicant’s claims as simply untrue and for that reason failing to give them proper consideration”. In response to these complaints, first, a complaint concerning inadequacy of an explanation in reasons for decision is not a jurisdictional error. Second, in any event, the Court disagrees that the Tribunal’s explanation concerning discrepancies in the applicants’ evidence was inadequate. Third, if the applicants seek to contend in AS [39] that the Tribunal failed to give the applicants’ claims proper and genuine consideration in a manner which involves jurisdictional error (as explained in cases such as Singh v Minister for Home Affairs [2019] FCAFC3; 267 FCR 200 at [30]-[37]. Mr Jones has not developed this submission in any way beyond a mere assertion. The Court is not persuaded that the Tribunal failed to give the applicants’ claims proper and genuine consideration.
The applicants also complain in AS [39] that the Tribunal summarily dismissed the applicant father’s party membership card as a forgery, and “a failure to give an explanation for rejecting a document other than the prevalence of document fraud” may be a jurisdictional error. This complaint by the applicants, which was repeated by Mr Jones in oral submissions, appears to involve a misreading of the Tribunal’s decision. The Tribunal at [109] effectively rejected the totality of the applicant father’s claims concerning his membership of and support for the NTK. In this context, the Tribunal, in the last sentence of [109] did not accept that the document provided by the applicant father about his membership of the NTK was a genuine document. The Court does not accept that the Tribunal summarily dismissed the applicant father’s party membership card as a forgery without explaining the basis for its finding. In any event, a “failure to give an explanation” is not by itself a jurisdictional error: see WAEE at [46]-[47].
For the above reasons, ground 4 is not made out.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Both parties agreed that costs should follow the event. The first respondent sought costs in the sum of $5,900. Mr Jones did not oppose this amount.
Ms Juarez sought a costs order against all three applicants. The third applicant, although the child of the first and second applicants, was an adult at the commencement of the proceedings in this Court. Mr Jones did not oppose a costs order against the third applicant if the application was dismissed. Since the third applicant was an adult at the commencement of the proceedings in this Court, it is appropriate that she also be ordered to pay the first respondent’s costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 19 December 2024
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