CRH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1239
•12 October 2021
FEDERAL COURT OF AUSTRALIA
CRH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1239
Appeal from: CRH16 & Ors v Minister for Immigration & Anor [2020] FCCA 2767 File number: VID 715 of 2020 Judgment of: BEACH J Date of judgment: 12 October 2021 Catchwords: MIGRATION - jurisdictional error made by Tribunal – failure to consider corroborative witness statements – materiality – application for judicial review – primary judge dismissed application – appeal allowed Legislation: Migration Act 1958 (Cth) ss 36, 65 Cases cited: BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 43 Date of hearing: 10 September 2021 Counsel for the Appellants: Mr A Aleksov Solicitor for the Appellants: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr A Solomon-Bridge Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 715 of 2020 BETWEEN: CRH16
First Appellant
CRI16
Second Appellant
CRJ16
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
12 OCTOBER 2021
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the Federal Circuit Court made on 12 October 2020 be set aside.
3.In lieu of such orders it be ordered that:
(a)The decision of the second respondent made on 13 August 2016 be set aside.
(b)The matter be remitted to the second respondent for hearing and determination in accordance with law.
(c)The first respondent pay the applicants’ costs of and incidental to their application for judicial review.
4.The first respondent pay the appellants’ costs of and incidental to their appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
The appellants challenge a decision of the Federal Circuit Court where the primary judge dismissed their application for judicial review from a determination made by the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister to refuse to grant to them protection visas.
The appellants are citizens of India and a family group; the first appellant is the wife of the second appellant, with the third appellant being their child.
It is not necessary to set out the background facts as these have been adequately recorded in the reasons of the primary judge, whose recitation I adopt.
The sole ground of appeal before me concerns the Tribunal’s failure to take into account two corroborative witness statements that the first appellant had put before the Tribunal concerning threats that had been made against her by her father. It was accepted before me that the Tribunal had failed to take this corroborative evidence into account. For relevant purposes, the parties also accepted before me that the subject matter of this evidence only went directly to the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth). Nevertheless, such material had broader significance to the Tribunal’s adverse credibility findings concerning the first appellant more generally.
In summary, the appellants say that the primary judge was wrong to find that the Tribunal’s failure to take into account these corroborative witness statements was an error that lacked materiality.
For the following reasons in my view the appeal should be allowed.
Clearly the Tribunal overlooked the two corroborative statements that had been submitted by the first appellant. Those statements on their face supported the first appellant’s claims that she had been abused by her father. And given that the statements were from the first appellant’s mother and sister, who were in a position to know whether the first appellant had been abused by her father, it could not sensibly be said that they were not probative of her assertions.
Nevertheless, despite the fact that the Tribunal had overlooked this material, the primary judge found such an error to be immaterial.
Now the appellants say that the Tribunal’s error was material in the sense that has now been crystallised in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29] to [31] per Kiefel CJ, Gageler and Keane JJ, Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2] to [4], [45] and [46] per Bell, Gageler and Keane JJ and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [31] to [39] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The appellants say that the error was material because it might realistically have affected the Tribunal’s finding (at [58]) that the first appellant was not abused by her father and so, ultimately, the outcome of the review. It is necessary that I set out that paragraph in its broader context.
The Tribunal said the following (at [57] to [62]):
The Tribunal has a number of significant concerns regarding the evidence of the applicant and does not find that the applicant is a witness of truth for the reasons given below.
As the Tribunal raised with the applicant, her father was the guarantor of her student education loan. The Tribunal does not accept in light of this fact that [it] is credible that the applicant was the victim of continued and long-term abuse by her father nor that on one occasion he electrocuted her.
Similarly, the applicant’s claims of clandestinely doing higher education studies in 2004 and 2005 [and] at the same time residing in the same house with an abusive father and [the] manner in which the applicant described, how she would attend her lectures at university either when her father was asleep or away at work is difficult to accept given the on-going demands of a university education. The Tribunal does not accept this evidence.
Her claim that she was forced to have an abortion lacks plausibility. First the applicant told the Tribunal that the abortion occurred in a “small city” “near where my parents in-Law live” but the applicant was unable to identify for the Tribunal the “small city” where the hospital was. Second, the Tribunal was told that the applicant had spent “three days” at this hospital but could not remember the name of the hospital. Third, the Tribunal asked the applicant whether the hospital where she was a patient had issued her with discharge papers and the Tribunal was told that the hospital did not provide her with discharge documents. The Tribunal does not accept that the applicant committed herself to a local hospital and undertook an abortion.
The Tribunal also questioned the applicant’s claims of involvement with Mr X, the education and migration agent. In her original statutory declaration dated 25 May 2015 which accompanied her application for protection visa, she deposed that Mr X had arranged everything concerning her student visa and paid all the costs associated with that visa. Later, in the applicant’s statutory declaration of 27 July 2016 she deposed that the applicant’s husband had also contributed to the costs of coming to Australia - an amount of 8,000 rupees ($AUD2.000.00). The Tribunal also notes that the claim of contribution by the applicant’s husband had not been mentioned by the applicant when interviewed by the Department. The Tribunal was also told by the applicant that in the case of her statutory declaration dated 25 May 2015, her representatives at that time had neglected to include the information when she had told them about it. Moreover, the Tribunal was also told by the applicant that at the interview with the Department, the applicant told the translator present but the translator had neglected to mention her statement properly the Department’s delegate.
Indeed, even if the Tribunal accepts, as the applicant has claimed, her husband contributed 8,000 rupees to the cost of them coming to Australia, the Tribunal does not accept that the education agent/migration agent Mr X paid the balance of the costs associated with her student visa.
Further, the Tribunal said (at [63]):
In regards to the applicant’s claim about the “arranged marriage proposal” the Tribunal accepts that there was an “arranged marriage” but the Tribunal also accepts that there was a deep, personal and loving relationship between the applicant and her husband prior to the marriage. It is probable that the two had formed a deep relationship - bonded to each other and each wished to marry. It is probable that the applicant’s friend…and her parents may have played some role in having the two families come to an understanding to marry. What remains unclear to the Tribunal is why an arranged marriage was negotiated between the two families and no discussion was had as (tradition dictated in India) to the “dowry” to be paid. It should be noted, that the Tribunal at the hearing only had the opportunity to question the applicant on this issue; her husband, the Tribunal was told by the applicant (and in her statutory declaration dated 27 July 2016) and by her representative did not wish to give evidence because “…he is a good and dutiful son in the eyes of Indian society…” and “really afraid of his parents” and the Tribunal could not test for itself the claims made on the issue of the dowry as put to it by the applicant.
Now the appellants say that the Tribunal’s reasoning at [58] was weak. In this regard it was said that it took only an elementary understanding of psychology to understand that a father might be abusive, even seriously abusive, but still provide a guarantee for a loan for his child. It was said that people are complicated, and sometimes do inconsistent things. It was said that emotion can motivate more than logic. So, consistency of action cannot be assumed.
It was said that the Tribunal’s reasoning was especially weak given the first appellant’s evidence about her father’s abuse being linked to his volatility. It was said that perhaps his moods fluctuated, and that he provided a guarantee whilst in a more forgiving mood. Or, if he was a rational actor, perhaps he provided a guarantee with the ultimate objective of putting more distance between himself and his daughter. On any view, so the appellants said, it was tenuous to suggest that providing a guarantee for a loan and being abusive were mutually incompatible scenarios.
It was said that the two witness statements that the Tribunal failed to consider on their face corroborated her claims, a proposition that I accept. So, it was said that the Tribunal overlooked ostensibly probative information, which was corroborative of a substantial claim of abuse by her father, in circumstances where her testimony about this claim could realistically have been accepted had the Tribunal not over-looked this material.
Indeed, the appellants say that unless the corroborative evidence was rejected, although they say that there is no apparent basis why that should have been so, it would have been difficult for the Tribunal to have maintained its finding at [58].
Further, the appellants say that if the Tribunal’s finding at [58] had been the reverse, which was a realistic possibility on the strength of the corroborative information before the Tribunal, it was realistically possible that the first appellant might have been found to have been owed complementary protection.
In summary, the appellants say that the primary judge was wrong on her finding as to an absence of materiality. It was said that the primary judge erred in holding that the evidence which had been overlooked was not sufficiently important to conclude that a failure to consider it amounted to a failure to conduct a review as required by the Act, and further that any error was not material to the outcome.
Now it is trite to observe that a failure to consider relevant evidence is not, without more, a jurisdictional error; see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] to [122] and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [29] and [47]. It is not a jurisdictional error per se to ignore relevant material, including corroborative evidence. Whether or not there is a jurisdictional error is a function of the importance of the material said to have been overlooked or omitted, with importance itself being a function of its subject matter, probative value or both when viewed in the context of the claims being made.
And so it was said by Robertson J in SZRKT (at [111] and [112]):
…The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims…
Now as the Minister would have it, and with which I am inclined to agree, before reaching questions of materiality, the appellants had to persuade the primary judge that the two over-looked statements were sufficiently important to conclude that the Tribunal’s failure to consider them amounted to a failure to conduct a review as required by the Act. But of course in that sense it might be said that the asserted jurisdictional error that I am dealing with incorporated an element of materiality (MZAPC at [33]).
Now the appellants said that the two overlooked statements might realistically have affected the Tribunal’s findings at [58] that the first appellant was not abused by her father. But the Minister said that the appellants had to do more than prove that the Tribunal’s failure deprived them of a realistic chance of a successful outcome, which was the plain vanilla test for materiality. Rather, the Minister said that the appellants had to persuade me of a necessarily higher standard as to the significance of the overlooked material, namely, that the material was of sufficient importance. Further, the Minister said that nothing in BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515 could justify me not applying that higher threshold.
Let me say now that I accept for present purposes the following propositions.
First, the very nature of the jurisdictional error being asserted before me requires that the overlooked material be shown to be of sufficient importance. But what is meant by sufficient importance is unclear. I invited the Minister’s counsel to suggest some meaningful content, but he only put propositions which in one sense were circular, question begging or quite vague.
Second, if sufficient importance was established, then on one view there was little room left for any separate materiality analysis. Nevertheless, conceptually, I propose to address each question in turn.
Let me turn then to the probative value and significance of the omitted statements.
Now the Minister accepts that the statements, if accepted by the Tribunal, were potentially corroborative of the first appellant’s claims to have been abused by her father. But the Minister said that the statements were not sufficiently important so as to make out jurisdictional error.
First, it was said that various features of the statements were relevant to their probative value. Both statements were undated and neither was witnessed. Further, the statement from the mother, which was in English, was signed using a native script but does not indicate whether or how it was translated back to the mother. Further, there was said to be a notable spelling error common to both statements (“bearing” instead of “beating”), and a common omission of the necessary verb before that misspelling. It was said that this suggests that the statements were typed by the same person. Further, the statement from the sister mentions the subject of the father’s abuse, but only in brief terms. Further, although the statement from the mother contained more references to the father’s abuse, apart from the reference to an incident of being given an electric shock it was expressed in general terms. Further, the statement from the mother omitted allegations concerning her that had been made in the first appellant’s own evidence, namely, that the father had stabbed the mother in the head, requiring many stitches.
Second, it was said that the appellants, who were represented before the Tribunal, did not seek to have the Tribunal call the authors as witnesses, either so as to adopt their statements or to expand on their detail; that is true, but then so far as the appellants were concerned there may have been no need to do so.
Now these points made by the Minister are not wholly without merit. But I am not the trier of fact and it is inappropriate for me to speculate about the probative value of these statements other than to say that on their face they were capable of corroborating the first appellant’s version of events. And if that had been so, the Tribunal’s finding at [58] would likely not have been made.
Moreover, if the Tribunal’s reasoning at [58] had been undermined, that may have had a flow on effect in relation to other findings that depended upon the first appellant’s credibility. After all, the Tribunal started with its reasoning at [58]. I can only assume that this reasoning had some importance concerning credibility, which may have then infected subsequent paragraphs of the reasoning to the extent that they were based on credibility findings.
Let me now deal with a broader dimension to the Minister’s arguments. The Minister asserted that the broader context of the material in the assessment of the first appellant’s claims was relevant. That broader context included the following matters.
First, it was said that the fear of future harm from her father assumed little prominence among the first appellant’s principal claims. Her principal focus was on potential harm at the hands of the first appellant’s parents in-law. So, it was said that fear of harm at the hands of her father was either not mentioned at all or given little prominence or expressed at a very general level in her various statements. But in my view this is not a wholly accurate characterisation of the first appellant’s statutory declarations made on 25 May 2014 or 27 July 2016.
Second, it was said that the Tribunal disbelieved the first appellant’s claims of an abusive father, in circumstances where her father became the guarantor of her student loan. In that context, it was said that the overlooked statements did not offer anything relevant to that circumstance, which circumstance the Tribunal considered rendered the first appellant’s account not credible. But as the appellants rightly point out in their submissions which I have referred to, this is simplistic.
Third, the Minister says that the Tribunal found that the first appellant would face a real risk of significant harm from her parents in-law by reason of the non-payment of a dowry, but found that she could internally relocate within India, outside her home state of Punjab, and that it would be reasonable to do so with her husband and child. Therefore, according to the Minister, the premise of the Tribunal’s decision was that the first appellant, who by the time of that decision was married, approaching 34 years of age and had been living out of home for many years, would be relocating to a different State in India and so away from her father in any event. Moreover, the Minister says that the violence complained of at the hands of her father was asserted to have occurred essentially in a domestic setting, although there was evidence of one violent incident against the first appellant when he visited her at her parents in-laws’ property. Further, the Minister says that the passing reference to the father inflicting harm upon her elsewhere in India was generalised and contingent.
In summary, the Minister says that the two statements were not sufficiently important such that their overlooking amounted to jurisdictional error.
But I reject the Minister’s diminishment of the significance of these two statements. They clearly provided corroborative evidence. Moreover, if they had been taken into account it is unlikely that the Tribunal would have concluded in [58] of its reasons what it did without more. Further, if [58] could not stand, there is a realistic chance that other credit findings may not have stood in an unaltered form.
Further, the fact that the first appellant feared her in-laws did not negate or diminish her fear of the father. Further, the fact that the appellants may have relocated to an area other than the father’s home area was not a complete answer to her concerns given her father’s character and prior behaviour.
In my view, in the context of the claims made by the first appellant, her fears of her father, the probative nature of the omitted material, and the significance of the Tribunal’s findings at [58], the omission of these two statements was of sufficient importance such as to constitute jurisdictional error in terms of the Tribunal failing to properly perform its review function. The primary judge ought so to have found. Let me turn then to the question of materiality, if this be separate.
Now as I have said, the Minister has made a distinction between whether the evidence omitted was sufficiently important and the concept of materiality. But I am not convinced that there is a brightline distinction. In any event, if the evidence was sufficiently important, which in my view it was, then materiality, if it be a separate concept, was satisfied.
The Tribunal’s failure was material if it operated to deprive the first appellant of the realistic possibility of a successful outcome. Absent the failure, could there realistically have resulted a different decision? Now the first appellant bore the onus of proof of showing that matter, which is an ordinary question of fact, although materiality can be determined by inferences drawn from the evidence.
In my view, and based on what I have already said, by reason of the Tribunal failing to consider the two corroborative statements the first appellant was denied such a realistic possibility based upon satisfying the complementary protection criterion. The primary judge ought so to have found.
Accordingly, the appeal will be allowed with costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 12 October 2021
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