CQC15 v Minister for Immigration

[2016] FCCA 1958

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1958

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – claim that Tribunal did not listen to or understand the applicant – applicant told Tribunal she was of the same caste as her second husband – applicant now claiming that was not true – no basis on which Tribunal could have known what the applicant now claims.

Legislation:
Migration Act 1958

Applicant: CQC15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2710 of 2015

Judgment of: Judge Riley

Hearing date: 8 July 2016

Date of last submission: 8 July 2016

Delivered at: Melbourne

Delivered on: 8 July 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: David Brown

Solicitors for the first respondent: Australian Government Solicitor

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 8 December 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $4,250.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2710 of 2015

CQC15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The applicant applied for a protection visa on 6 August 2014.  A delegate of the Minister refused that visa on 10 February 2015.  The applicant applied for review by the Tribunal.  The Tribunal conducted a hearing on 11 November 2015.  The applicant and her second husband gave evidence at that hearing. 

2. The applicant is a 33 year old Sikh woman.  She is an Indian national.  She arrived in Australia on 30 July 2009 on a subclass 572 student visa.  She undertook a Certificate III in Cookery.  The applicant applied for a further student visa.  However, that was refused on 1 February 2012. That refusal was affirmed by the Migration Review Tribunal on 15 October 2013.  The applicant then sought ministerial intervention. However, that request was refused on 28 July 2014. 

3. The applicant then applied for a protection visa on 6 August 2014.  The applicant was invited to contact the Department of Immigration and Border Protection (“the Department”) to arrange an interview. However, she did not do so.  On 10 February 2015, a delegate of the Minister refused the visa.  The application to the Tribunal was lodged on 11 March 2015.  The Tribunal handed down its decision on 13 November 2015 affirming the delegate’s decision.

4. The applicant explained to the Tribunal that she had married her first husband six months before coming to Australia.  However, they soon divorced.  The applicant then entered into a marriage which she described as a love marriage with her second husband.  The applicant told the Tribunal that her second husband was a Sikh of the same caste as herself.  The applicant had previously told the Tribunal that she and her first husband were both Sikhs from the Jat caste, so it followed that the applicant’s claim to the Tribunal was that she and her second husband were Sikhs of the Jat caste. 

5. The applicant explained to the Tribunal that neither her own parents nor her second husband’s parents accepted her marriage to her second husband.  The applicant claimed that both sets of parents threatened to harm the applicant and her second husband if they returned to India.  The applicant also told the Tribunal that her parents wanted to be reimbursed the money that they had given to her to assist with her studies in Australia.  The applicant claimed that her own family would not look after her, and the second husband’s parents had said that they would kill her if she returned. 

6. The Tribunal’s decision record indicates that the Tribunal put country information about arranged marriages and honour killings to the applicant.  The decision record also indicates that the Tribunal raised with the applicant the Tribunal’s view that it was implausible that her own parents wished to harm her when they had supported her financially and now, on the applicant’s evidence, wanted to be repaid.  The Tribunal noted the evidence of the applicant’s second husband that he communicated by telephone with his brother and parents every one or two months. 

7. The decision record shows that the Tribunal put to the applicant during the hearing information from her student visa file.  That information was that she relied on her father for financial support and she was in communication with him at a time when she had been married to her second husband for almost 12 months.  The decision record explains that the Tribunal indicated to the applicant that this information may undermine the credibility of her claim that her father wanted nothing to do with her and would harm her if she returned.  The Tribunal offered the applicant an adjournment.  However, the applicant chose to respond at the hearing.  The applicant told the Tribunal that the student visa documents only related to financial support and her father had not in the end provided any money to her because he was sick. 

8. The Tribunal accepted that the applicant and her second husband had entered into a love marriage.  The Tribunal also accepted that the second husband’s parents did not accept the marriage.  However, the Tribunal did not accept that the applicant’s claims relating to prospective harm from her parents and her parents-in-law were credible.  The Tribunal noted the lack of detail about the alleged threats.  The Tribunal considered that it was implausible that the husband would communicate with his parents by telephone every one or two months if they were threatening to kill the applicant. 

9. The Tribunal relied on the information the applicant provided in her student visa application that showed that the applicant had continuing communication with her father and financial support from her father well after her second marriage.

10. In these circumstances, the Tribunal concluded that the applicant did not face a real chance of serious or significant harm if she were to return to India. 

11. The applicant appeared in this court without the benefit of legal assistance.  Her application to this court was also completed, evidently, without the benefit of legal assistance.  In her grounds of application, the applicant said that she was not satisfied with the decisions of the Tribunal and the Department, and said that she was attaching her claim in a separate page.  Clearly, this court cannot review the decision of the Department.  The fact that the applicant may be dissatisfied with the decision of the Tribunal is not of any moment.

12. The applicant said in a separate sheet setting out her grounds of application the following:

    I want to dispute over the conduct of Administrative Appeals Tribunal in regards to my protection visa application. My application was first refused by the Department of Immigration & Border Protection and then by AAT as they were not satisfied by the claims made in relation to my application. I do not agree with the decisions from both departments. I want to challenge the AAT decision of refusing my application.

    I lodged my protection visa application on 6 August 2014 with the Department of Immigration and Border Protection and the delegate refused to grant the visa on 10 Feb 2015.

    I then lodged a review application in AAT and appeared before tribunal on 11 Nov 2015 but AAT affirmed the DIBP’s decision not to grant my visa.

    The reason for the refusal was that tribunal member was not satisfied with my claims in relation to my application.. These are the circumstances that are out of my control. My concern is that why a protection visa application gets a refusal if the circumstances are beyond applicant's control. The detailed reasons are mentioned in AAT refusals letter which is also enclosed with application.

    I still can’t believe that I got this awkward refusal for my protection visa.

    I request the “FEDERAL CIRCUIT COURT” to exercise its powers and to reverse the decision of the Migration Review Tribunal.

13. The applicant, in essence, is simply expressing her serious disagreement with the Tribunal’s conclusions.  That is not indicative of any jurisdictional error, such as would permit the court to remit the matter to the Tribunal.

14. The applicant referred in her grounds to circumstances that were out of her control.  However, the applicant did not specify what those circumstances were.  It may be that she meant the circumstance that she was married to her second husband without the approval of her parents and her parents-in-law.  The Tribunal considered those claims, and, for reasons which it gave, did not accept that they amounted to or led to a real chance of serious or significant harm.  The Tribunal’s reasoning appears to me to have been open to it. 

15. The applicant also said before the court today that her second marriage was “out of caste”.  She also alleged that the Tribunal did not listen to her or understand her.  She explained that she felt unable to tell the Tribunal that she was not of the same caste as her second husband.  She said that she told the Tribunal something that was not true, because she was embarrassed to say in front of her husband that she was not of the same caste as him.  However, the applicant confirmed to the court that she had previously told her husband what her caste is.  She said that she just had not wanted to say it again and again.

16. The applicant did not dispute that she had told the Tribunal that she was of the same caste as her second husband.  There was no jurisdictional error in the Tribunal taking that concession at face value. It was not for the Tribunal to try to see behind what the applicant had told it, and somehow comprehend that the applicant was not actually from the same caste as her second husband.  I can see no basis for the applicant’s claim that the Tribunal did not listen to her or understand her.

17. I have been unable to detect any jurisdictional error in the Tribunal’s reasons for decision or decision-making process.  The Tribunal gave the applicant a hearing and heard evidence from her and her second husband.  The Tribunal put adverse matters to the applicant in accordance with the Migration Act 1958 and gave the applicant an adequate opportunity to respond.  The Tribunal considered all of the applicant’s claims.  The Tribunal applied the law correctly.  The Tribunal made findings that were open to it, and which were not unreasonable.

18. In all the circumstances, I am not persuaded that there was any jurisdictional error on the part of the Tribunal in this case. Consequently, the application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 1 August 2016