CRH16 v Minister for Immigration
[2020] FCCA 2767
•12 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRH16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2767 |
| Catchwords: MIGRATION – Protection (class XA) visa – failure to consider relevant evidence – where tribunal did not have regard to statements made by family members – where failure to consider statements made by family members do not amount to jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 430. |
| Cases cited: BXK15 vMinister for Immigration and Border Protection [2018] FCAFC 76 Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tankers Pty Ltd (1993) 43 FCR 280 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 SZMSD v Minister for Immigration and Citizenship [2009] FMCA 96 |
| First Applicant: | CRH16 |
| Second Applicant: | CRI16 |
| Third Applicant: | CRJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2029 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 17 April 2020 |
| Date of Last Submission: | 17 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2020 |
REPRESENTATION
| Counsel for the applicants: | Mr Aleksov |
| Solicitors for the applicants: | Carina Ford Immigration Lawyers |
| Counsel for the respondents: | Ms Lucas |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The applicants’ amended application filed on 19 March 2020 be dismissed.
The applicants pay the first respondents’ costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2029 of 2016
| CRH16 |
First Applicant
| CRI16 |
Second Applicant
| CRJ16 |
Third Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (“the tribunal”) on 13 August 2016 which affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (“the delegate”) made on 19 May 2015 refusing to grant the applicants protection (class XA) visas (“the visas”).
Background
The applicants are citizens of India who are related as wife (“the first applicant”), husband (“the second applicant”) and child (“the third applicant”).
The first applicant and second applicant married on 3 February 2007.[1] The first applicant stated that their respective families were made to believe the marriage was an arranged marriage. However, the first applicant claimed that after they were married, her father learned that the marriage was not a true arranged marriage but was a ‘love-marriage’.[2] The first applicant also stated that the second applicant’s family were angered when they learned they would not receive dowry payment.[3]
[1] Court book page 40.
[2] Court book page 30 at paragraph 19.
[3] Court book page 29 at paragraphs 16 and 17.
The first applicant claimed that the second applicant’s parents forced her to have an abortion after falling pregnant in late 2007.[4] The first applicant stated that she and the second applicant then agreed to leave India after this incident.[5]
[4] Court book page 30 at paragraph 21.
[5] Court book page 30 at paragraph 22.
The applicant applied for and was granted a student visa and after arriving in Australia on 16 February 2008, she completed a diploma of hospitality management in 2009. Upon completion, the first applicant was unable to secure employment and decided to apply for a further student visa to study a diploma of business management, which she commenced in July 2010.[6]
[6] Court book page 31 at paragraph 24.
The first applicant conceded that her student visa expired on 29 July 2011, at which time the first and second applicants became unlawful citizens. The applicant stated that she was suffering depression around this time and therefore did not take steps to obtain a new visa.[7] The first applicant provided numerous medical documents which suggest that she suffered from a number of medical conditions including stress, headaches, migraines, and heart palpitations.[8]
[7] Court book page 32 at paragraph 30.
[8] Court book pages 79 to 87.
The third applicant was born in Australia on 14 November 2011.[9]
[9] Court book page 32 at paragraph 29.
The applicants applied for protection visas on 30 May 2014.[10] A further application was made on behalf of the third applicant on 12 June 2014 in which the third applicant raised her own claims for protection.[11]
[10] Court book pages 1 to 33.
[11] Court book pages 88 to 106.
In her statutory declaration in support of her application for a protection visa, the first applicant stated that she had endured a history of abuse from her father, both before and after her marriage to the second applicant.[12] The first applicant further stated that after her marriage to the second applicant, her parents-in-law became angry when she told them that she would not be providing a dowry. She said that she was subsequently abused by her parents-in-law.[13] The first applicant claimed in her statutory declaration that she feared:
a)abuse and possible ‘execution’ from her parents-in-law; and
b)if she left their home, she would face serious harm living on the streets as a single mother.[14]
[12] Court book pages 26 to 33.
[13] Court book pages 29 to 30.
[14] Court book pages 30 to 32.
The first applicant also said that she feared for her daughter’s safety.[15]
[15] Court book page 33.
The first applicant also stated that her father had abused the second applicant and had threatened to kill both the first and second applicants.[16] This incident allegedly occurred three or four months after their marriage (which had occurred in February 2007) when the first applicant’s father had come to know that the marriage between the first and second applicant was not an arranged marriage but had in fact been a ‘love marriage’.[17]
[16] Court book page 30 at paragraph 19.
[17] Court book page 30 at paragraph 19.
In her statutory declaration, the first applicant said that she and the second applicant returned to India on two occasions, once in 2009 and again in 2011.[18] On the first occasion she did not visit her father or her in-laws. On the second occasion, she did not visit her father but did visit her in-laws.
[18] Court book page 31 at paragraphs 25 and 26.
The applicant said the following in her statutory declaration:
I had learned about a migration agent, named xxx … In December 2007 I went to visit him with [the second applicant]. He was a wealthy man who worked part-time as a migration agent, but also managed a bank in xxx. On hearing my history and the problems with my father, he was extremely compassionate toward me. Not only did he help me apply for a student visa to Australia, but he very kindly paid my initial course fees, used his own bank accounts to financially support my application, and paid our airfares. … Sadly, [the migration agent] passed away in 2011, aged around 56. I discovered this when I tried to call him and, instead, his wife answered his mobile phone and told me the news. When I later tried to contact her to express my condolences, but the number had been disconnected (sic). I have also heard that [the migration agent’s] family have since moved from the house where [the migration agent] conducted his migration business.[19]
[19] Court book page 30 at paragraph 23.
On 6 June 2014, the delegate confirmed receipt of their 30 May 2014 application and requested further information from the first applicant and second applicant.[20]
[20] Court book pages 108 to 115.
The applicants also provided two statements in support of the first applicant’s claims. The first was from her sister, containing the following:
From the very beginning [the first applicant] lived under depression as the father of [the first applicant] always bearing (sic) her. … [the first applicant] arranged Love marriage (sic) with [the second applicant] for her future…[21]
[21] Court book page 147.
The balance of the statement relates to threats and ill treatment of the first applicant at the hands of her in-laws, her move to Australia and the ongoing threats of violence that she and her daughter face if they were forced to return to India.
The second statement is from the first applicant’s mother. It relevantly contains the following statement:
… I am having four childrens (sic) whom … [the first applicant] is my youngest daughter. From the very beginning my husband [the first applicant’s father] bearing (sic) me and my children. From the birth my daughter [the first applicant] is living under domestic voilence (sic). The Father of [the first applicant] takes the work from [the first applicant] as a servant. My husband was serving in the Army. [He] attacked many times to kill the family. One day [the first applicant’s father] shocked the electric current to [the first applicant] and she sustained injury on her hand. She remain in the hospital several days. [The first applicant’s father] is not anxious about her future.[22]
[22] Court book page 148.
The balance of the first applicant’s mother’s statement then deals with the first applicant’s difficulties with her in-laws. The statement then ends with:
Now I am unable to ful fill (sic) the requirement of my daughter as my husband is not co-operating me. Further more (sic) I am also unable to take any action against the in laws of [the first applicant] as he is a Police Officer and he is having a political approach. With the help of [the second applicant] my daughter … went to Australia and if she will come back to India, in laws of [the first applicant] will kill her.[23]
[23] Court book page 148.
The delegate provided written notification of its refusal to grant the application for the visas on 19 May 2015.[24] A copy of the delegate’s decision record was enclosed with that correspondence.[25]
[24] Court book pages 153 to 174.
[25] Court book pages 157 to 174.
Relevantly, the delegate’s decision contains the following:
I have also considered the supporting documents provided in the initial student visa application lodged by the applicant. Contrary to the applicant’s claim that the financial support was provided by [the migration agent], the supporting documents indicate that the applicant’s own father took out a loan from XXX Bank in order to support her student visa application. This inconsistent information was put to the applicant for comment. The applicant did not provide any comment except to reiterate that the financial support was not provided by her father but was provided by [the migration agent].[26]
[26] Court book page 165.
The applicants made an application to the Refugee Review Tribunal on 16 June 2015 to review the delegate’s decision to refuse the visas.[27] The tribunal confirmed receipt of that application in writing on 17 June 2015.[28]
[27] Court book pages 175 to 181.
[28] Court book pages 182 and 183.
The applicants attended a hearing before the tribunal on 3 August 2016 with the assistance of an interpreter and their representative.[29]
[29] Court book page 223 at paragraphs 3 and 4.
The first applicant provided a further statutory declaration to the tribunal in support of her application ‘to address the issues that were raised by the Department of Immigration in their decision to refuse to grant my daughter and I a protection visa’.[30]
[30] Court book page 209.
After setting out the difficulties that the first applicant and her children would face if they were to return to India, she said:
If we return to India, this will leave my daughter (and my new baby) and I alone, abandoned. I cannot return to my father’s house. He will hurt me, even kill me.
He will hurt [the third applicant].[31]
[31] Court book page 210 at paragraphs 17 and 18.
The first applicant also provided more detail in this statement about:
a)the circumstances in which she met the migration agent;
b)the assistance that he provided to her and the second applicant; and
c)her father’s apparent involvement in providing money to support her in Australia.[32]
[32] Court book pages 211 to 213.
The tribunal notified the applicants’ representative of its decision to affirm the delegate’s decision under letter dated 1 September 2016.[33] A copy of its reasons were enclosed with that correspondence.
[33] Court book pages 219 to 237.
The tribunal’s decision
In its statement of decision and reasons, the tribunal outlined the criteria for granting a protection visa[34] and set out in detail the relevant background, the first applicant’s claims and the evidence relied upon.[35]
[34] Court book pages 223 to 225 at paragraphs 5 to 20.
[35] Court book pages 225 to 231 at paragraphs 23 to 56.
In summarising the first applicant’s protection claims, the tribunal noted the first applicant’s claims that:
a)she had suffered abuse and violent treatment by her father, including being electrocuted and beaten;
b)with the assistance and generosity of a migration agent, she was able to come to Australia to study, noting that he had assisted with costs of visa and airfare to Australia; and
c)she had no support to survive in India if she was forced to return and ‘may also be killed by her parents-in-law or father’.[36]
[36] Court book page 227 at paragraph 34.
The tribunal went on to detail its consideration of the claims and set out its findings.[37] It raised concerns regarding the first applicant’s evidence and concluded that the applicant was not ‘a witness of truth’.[38]
[37] Court book pages 231 to 235 at paragraphs 57 to 82.
[38] Court book page 231 at paragraph 57.
The tribunal’s analysis will be discussed in more detail below to the extent relevant for the purpose of addressing the grounds of review. Ultimately, the tribunal was not satisfied that the first applicant feared harm at the hands of her in-laws due to one of the convention reasons. As such, it found that there was:
no real chance that the applicant will face persecution for any of the Convention reasons if she returns to India now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason.[39]
[39] Court book page 233 at paragraph 72.
It therefore concluded that she did not meet the criterion in section 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).
Notwithstanding this, after assessing country information, the tribunal did conclude that the first applicant would not be able to obtain protection from the authorities in her home state of Punjab, and consequently, she would be at risk of suffering significant harm arising from the opposition from the second applicant’s family to their marriage.[40] In those circumstances, the tribunal went on to consider whether the applicants could relocate to another part of India.[41]
[40] Court book pages 234 and 235 at paragraphs 75 to 82.
[41] Court book pages 235 to 237 at paragraphs 83 to 95.
The tribunal concluded that the applicants could relocate to another region or city in India and in doing so there would be no real risk that the applicant would suffer significant harm at the hands of her in-laws as a result of the dowry not having been paid. Having reached this conclusion, the tribunal concluded that the first applicant did not satisfy the complementary protection criterion.
The tribunal therefore affirmed the delegate’s decision to refuse the applicants protection visas.[42]
[42] Court book page 237 at paragraph 96.
Ground of review
By the applicants’ amended application filed 19 March 2020, the applicants press only one ground of review, namely:
The Tribunal failed to consider important evidence.
PARTICULARS
i.The Tribunal did not consider the applicant’s evidence explaining why it might have been that it seemed as though her father was the guarantor for the loan that enabled her to come to Australia.
ii.The Tribunal did not consider the applicant’s evidence explaining why [the migration agent] might have paid for her trip, because she was to repay that money after arriving in Australia.
iii.The Tribunal failed to consider corroborative statements from the applicant’s mother and sister.[43]
[43] Applicants’ amended application filed 19 March 2020 page 4.
The parties agreed to the principles which apply to a claim such as this. The difference between them is how those principles ought to be applied.
The onus is on the applicant to establish that a particular piece of evidence has not been considered by the tribunal.[44]
[44] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [64] and [91] to [92]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [53].
As noted by North and Charlesworth JJ in BXK15 vMinister for Immigration and Border Protection [2018] FCAFC 76 (“BXK15”):
Whether the Tribunal failed to have regard at all to the witness statements is a question to be determined in all of the circumstances, including the nature of the appellant’s claims, the materiality of the evidence in question and the conduct of the Tribunal’s proceeding.[45]
[45] BXK15 vMinister for Immigration and Border Protection [2018] FCAFC 76 at [16].
The first applicant’s claims are set out above. In summary:
a)she feared harm from her father, whom she claimed was violent towards her throughout her childhood and her life in India and who was not happy about her marriage to the second applicant; and
b)she feared harm from her in-laws over a dispute about dowry and the fact that she has female children.
The applicants argued there are three significant pieces of evidence which were overlooked by the tribunal in assessing these claims, namely:[46]
a)the first applicant’s explanation for why her father’s name appeared as guarantor in her student visa application;
b)the first applicant’s evidence that the money’s paid by the migration agent to assist the first and second applicants to study in Australia was to be repaid to him; and
c)the statements of the first applicant’s mother and sister which appear to corroborate the applicant’s claims that her father was abusive towards her.
[46] Applicants’ outline of submissions filed 19 March 2020 at paragraphs 3 to 5.
It was submitted that as a result of failing to consider these three pieces of evidence, the tribunal’s decision is affected by jurisdictional error.
I will deal with each of the pieces of evidence and the tribunal’s handling of them, in turn.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (“Wu Shan Liang”) at [30], the High Court quoted with approval the following statement made by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tankers Pty Ltd (1993) 43 FCR 280 at [287]:
The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
The first applicant addressed the issue of her father having been recorded as the guarantor on her loan documentation. She stated:
With respect to the money that was supposed to support us during my studies, again, I did not know of its existence. With respect to the money looking like it came from my father, I had no idea about this, but I do know beyond all doubt that there is no way at all that my father would have put up money for me for anything, let alone study in another country.[47]
I do know that [the migration agent] worked in a bank and maybe he made it look like my father had put the money in there to support us. I noticed that there was no signature by anyone, certainly not my father. Perhaps he opened an account and put the money in there himself. I really do not know. But what I do know is that my father would never have supported me.[48]
[47] Court book page 212 at 54.
[48] Court book page 212 at 55.
The applicants then pointed to paragraph [57] and following of the tribunal decision record.[49] The applicants submitted that the tribunal did not engage with the applicant’s suggestion that her father was not the guarantor, notwithstanding what was stated on the documents.[50]
[49] Transcript page 3 at lines 41 to 45.
[50] Transcript page 4 at lines 25 to 29.
It was submitted that, in circumstances where the first applicant claimed to fear harm at the hands of her father, an assessment of whether the father was in fact the guarantor was an important matter.[51] Moreover, it was submitted that the only evidence that the tribunal points to in rejecting the claim the father was regularly abusive towards the first applicant, is the fact that the father was the guarantor of her loan.[52]
[51] Transcript page 4 at lines 41 and 42.
[52] Transcript page 4 at lines 33 and 34.
It was argued that in those circumstances, it was necessary for the tribunal to engage more fulsomely with the applicant’s assertion that he in fact was not the guarantor. The tribunal’s failure to so, it is asserted by the applicants, gives rise a jurisdictional error.
It was submitted that this failure to grapple with this claim is an error of the kind discussed in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317. In that decision, Robertson J quoted the following paragraphs from SZMSD v Minister for Immigration and Citizenship [2009] FMCA 96 at [24] and [25]:
[24]The error of “ignoring relevant material” is related to the jurisdictional error of “failing to take into account a relevant consideration”, which was explained by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd … However, as their Honours in Yusuf suggested at [74], the latter is more concerned with how a decision-maker has identified legal and factual issues which were required to be addressed when the relevant legislation is applied to the particular matter for decision, than with “the process of making the particular findings of fact upon which the decision-maker acts.
[25]In relation to a decision-maker’s consideration of the evidence, it is well established that no jurisdictional error occurs if the decision-maker makes a “mere” error of fact when considering or weighing a piece of evidence in the course of deciding an issue of fact or law arising in the matter … Moreover, the Full Court has warned against drawing an inference that either an issue has been overlooked, or that evidence was overlooked, merely because a piece of evidence was not expressly discussed in the course of a decision-maker’s stated reasons, since “it is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons”… However, an error in the assessment of a material piece of evidence is one thing, and failing to be aware of evidence which is material to the decision, and of which the decision-maker should be aware, is another.[53]
[53] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [19].
Section 430 of the Act requires the tribunal ‘to set out its findings on questions of fact it considers material, together with the evidence and other material on which those findings were based.’[54]
[54] Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [33].
In Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16, the Full Court said:
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight (case references omitted).[55]
[55] Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [34].
A fair reading of the tribunal’s reasons in the sense contemplated by Wu Shan Liang[56] requires that the tribunal’s conclusion at paragraph 57 of its decision record[57] must be read in the context of the reasons as a whole.
[56] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
[57] Court book page 231.
The tribunal noted that it was provided with a copy of the first applicant’s statutory declaration of 27 July 2016 and it invited the first applicant and her representative to clarify if there were any further claims they wished to make.[58] As noted above, that statutory declaration expressly addressed the concerns raised by the delegate including the fact that the applicant maintained that her father had not provided any financial support for her.
[58] Court book page 227 at paragraph 35.
The reference to that statutory declaration is clear evidence that the tribunal was aware of the applicant’s evidence in this regard.
In addition, the tribunal was clearly aware that the first applicant’s evidence was that her relationship with her father was troubled as is evident from paragraph 38 of the decision record.[59] The tribunal also noted in that paragraph the first applicant’s evidence that her father would subject her to abuse.
[59] Court book page 227 at paragraph 38.
In relation to the migration agent’s assistance, the tribunal noted the discrepancy between evidence given about this issue in the first applicant’s statutory declaration made 25 May 2015 as compared to that made on 27 July 2016.[60] The tribunal member also raised with the first applicant the inconsistency between her claimed poor relationship with her father and the fact that his name appeared as her guarantor. In response it noted that the first applicant:
did not provide any clarification when this was put to her, except to say that [she] ‘…did not know…’ and reiterated the point that [the migration agent] had done all of this on her behalf.[61]
[60] Court book pages 229 and 230 at paragraphs 51 to 53.
[61] Court book page 230 at paragraph 54.
The fact the tribunal did not mention the alternative explanations for her father’s name appearing as guarantor does not evidence that the tribunal did not consider the evidence she gave about this issue. Rather, the fact that the conclusions reached at paragraph 58[62] appear immediately after the findings at paragraph 57[63] explain that the tribunal simply did not accept the explanations given. It found that she was not a witness of truth.[64]
[62] Court book page 231.
[63] Court book page 231.
[64] Court book page 231 at paragraph 57.
The same analysis applies to the claim that the tribunal did not consider the applicant’s evidence that the money lent by the migration agent was to be repaid. The tribunal adequately addressed the issue of the alleged loan from the migration agent. The tribunal pointed to the fact that there were inconsistencies between the first applicant’s evidence about the arrangement with the migration agent.[65]
[65] Court book page 230 at paragraph 52.
Ultimately, the tribunal made it clear that it simply did not accept the first applicant’s claims about the migration agent’s involvement in meeting the costs, or some of the costs, of her education, travel and visa to get to Australia.[66]
[66] Court book page 231 at paragraphs 60 and 61.
The final piece of evidence which the applicants claim the tribunal did not have regard to are the statements made by the first applicant’s mother and the first applicant’s sister which it is said corroborate her claim that her father was abusive towards her.[67]
[67] Court book pages 147 and 148.
The first question is whether the tribunal ‘ignored’ or overlooked these statements.
As noted above, it is not necessary for the tribunal to make reference to each and every piece of evidence. However, having said that, one of the issues before the tribunal was the first applicant’s claim to fear harm from her father if she were to return to India. That claim was based on his alleged history of subjecting her to violence and abuse.
The two statements do go some way to supporting the first applicant’s claim that he had historically been violent towards her.
I am prepared to accept that those statements might have been relevant to the question of whether the father had beaten the first applicant and subjected her to abuse including on one occasion being electrocuted. The mother’s statement also refers to electrocution and therefore it could be seen to be corroborative of that aspect of her claim.
The mother’s statement also makes reference to the first applicant’s claims that her father:[68]
a)went to the first applicant’s home after he found out that the marriage was not really an arranged marriage;
b)threatened to kill the first and second applicants; and
c)said that the first applicant ‘will not come to my house’.
[68] Court book page 148.
The sister’s statement largely relates to the abuse that the first applicant allegedly suffered at the hands of her in-laws. To the extent that it refers to her father, it simply says ‘From the very beginning [the first applicant] lived under depression as the father of [the first applicant] always bearing her. (sic)’[69] Given the generality of this statement, it is difficult how it could be said that this is corroborative of the first applicant’s claims, even assuming the last two words were read as ‘beating her’.
[69] Court book page 147.
In any event, there is absolutely no mention of the two statements either expressly or by implication in the tribunal’s reasons. In particular, there is no reference to these statements in the tribunal’s discussion about the first applicant’s claims to fear harm at the hands of her in-laws.
It was submitted for the applicants that in circumstances where the tribunal concluded that there was no abuse by the father, one would have expected to see some engagement with these statements. The absence of any such engagement leads to the conclusion that they were not considered. There is some force to this submission.
I am prepared to find for the purposes of this decision that the tribunal did not have regard to them.
Even if one accepts that these statements are corroborative of the first applicant’s claims, and they were ‘overlooked’ by the tribunal, the court must still determine whether any such evidence was sufficiently important to conclude that a failure to consider it amount to a failure to conduct a review as required by the Act.
It is submitted for the respondent that given the credibility issues that the tribunal had with the first applicant’s evidence, these statements would not have altered the outcome. In reply, the applicants point to the comments by the majority in BXK15:
… Nor is it correct to ask whether the two witness statements could possibly overcome the significant adverse credibility findings recorded in the Tribunal’s reasons. To approach the appeal in that way is to ignore the circumstance that the Tribunal’s reasons are a record of a reasoning process based on an incomplete assessment of the relevant evidence. The critical question is whether the Tribunal could possibly have assessed the appellant’s credibility (and hence the substantive issues) differently had it been conscious of the content of the statements at the time that it engaged in its own reasoning process.[70]
[70] BXK15 vMinister for Immigration and Border Protection [2018] FCAFC 76 at [23].
…
… Accordingly, it is no answer to the appellant’s arguments on this ground of appeal to say that his credibility was irreparably damaged by the time that the corroborative evidence came to be considered. It is possible that the appellant’s credibility may not have been irreparably damaged at all. There is, accordingly, jurisdictional error.
It was submitted for the applicants that this analysis equally applies in this case.[72]
[72] Transcript page 6 at line 10.
In reply, the first respondent argues that the tribunal’s reasons make it clear that a key issue of concern for the tribunal was the fact that the father had been named guarantor on the first applicant’s loan documentation.[73] The mother and the sister’s statements did not address this issue at all. Accepting this then, the tribunal did not accept that the first applicant had been the subject of abuse as alleged.
[73] Transcript page 8 at lines 43 and 44.
Moreover, it is important to note that the tribunal’s credibility concerns were not limited to concerns about the applicant’s claims about abuse at the hands of her father. The tribunal’s concerns also arose from:
a)its rejection of the first applicant’s claim to have studied clandestinely in 2004 and 2005;
b)its rejection of her claim to have been forced to have an abortion; and
c)the first applicant’s evidence about the migration agent and how much he paid and how much she and the second applicant paid to come to Australia to study.[74]
[74] Court book page 231 at paragraphs 60 to 62.
The statements from the mother and the sister did not address these issues nor could they have overcome the credibility concerns these matters gave rise to.
Having regard to the totality of the evidence therefore and the tribunal’s reasons, I find that the tribunal’s failure to consider the statements by the first applicant’s mother and sister did not constitute a jurisdictional error. The consideration of those statements could not have led to a different outcome.[75]
[75] Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34 at [30]
Accordingly, the sole ground of review has not been made out and I find that the applicant’s application ought to be dismissed. The applicant is ordered to pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 12 October 2020
[71] BXK15 vMinister for Immigration and Border Protection [2018] FCAFC 76 at [25].
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