CSV15 v Minister for Immigration

[2017] FCCA 268

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSV15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 268

Catchwords:
MIGRATION – Jurisdictional review – protection visa.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 499

Cases cited:

Nahi v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10

MZXHY v Minister for Immigration and Citizenship [2007] FCA 622
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547
Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: CSV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2816 of 2015

Judgment of: Judge Harland

Hearing date: 13 February 2017

Date of Last Submission: 13 February 2017

Delivered at: Melbourne

Delivered on: 20 February 2017

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms McInnes

Solicitors for the Respondents: The Australian Government Solicitor

ORDERS

1. The application filed 18 December 2015 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2816 of 2015

CSV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a judicial review of the Tribunal’s decision to affirm the delegate’s decision to refuse the applicant’s application for a protection visa.  The applicant appeared for herself.  It is apparent from her documents and the written submissions that she handed up at the hearing that she has not had the assistance of a lawyer. Therefore it is unsurprising that neither her application nor submissions identify any jurisdictional error that the Tribunal is alleged to have made.  Rather in both documents she seeks to engage in an impermissible merits review and in this regard I refer to the High Court of Australia decision of Nahi v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

2. The applicant’s written submissions essentially refer to the fact that she explained her story in detail to the Tribunal. She refers to her claim that she will not survive if she is returned to India because of her depression and suicidality.  She said this is because she fears for her life if she returns to India. She fears that she will be ill-treated because she has gone against her religion and engaged in a love marriage.  She says the situation worsened after she got divorced and remarried.  She says she feels that the Australian system does not understand the cultural issues in India and annexes a series of articles to her submissions.  With respect to the annexures to her submissions counsel of the Minister relies on the decision of MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8], in particular where the Court found that it is not open for the appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with factual conclusions reached by the Tribunal. This is exactly what the applicant was seeking to do in this case

3. In effect, it is asking this Court to allow new evidence for the purposes of the applicant disagreeing with the Tribunal decision.  I accept that submission and have not had regard to the annexures. 

4. The Tribunal then referred to the applicant’s claims and evidence and summarised her evidence.  The applicant claims that she left India because her father is a strict Sikh.  She had disagreements with him because she says she does not adhere to or respect Sikhism and before she left India she entered into a love marriage.  She later divorced and then formed a de facto relationship with a Sikh male from a higher caste.

5. She claims that her father will subject her to emotional abuse and kill her if she returns to India.  She says she will not receive support from her relatives and from the community and she will be outcast.  She says she will not be able to survive if she is returned to India and will commit suicide.  She says that her mother supported her but passed away in 2012.  At [24] of the decision the Tribunal records that just before coming to Australia on a student visa the applicant entered into a love marriage and at the time only her mother knew about that marriage.

6. She says that her mother later told her father and that when her father was told about the relationship he said that this showed disrespect for him and for Sikhism.  She then said that her father did not support stay or study in Australia.  She returned to visit India in 2011 for 19 days.  She says during that period she and her father argued and in one argument he tried to hit her.  The applicant divorced her husband in 2012.  She is now in a long-term relationship with her partner who is in Australia on a business sub-class 457 visa.

7. She says her father will not be supportive of that relationship because it is inter-caste.  She says that her father and her family do not know the details of her partner, where he is from or who he is.  She says she told her mother and believes her mother spoke to her family but does not know how her father reacted.  She says that she wanted to return to India in 2012 when her mother died but that her father told her uncle that he did not want to see her and would kill her if she returned.  The Tribunal record at [30] that the applicant said that her current partner has not talked with his family about their relationship but thinks his family will not accept her because they are also strict Sikhs.

8. She provided the Tribunal with a letter from her partner which appears in the Court Book at pages 98 and 99.  The Tribunal points out later in its decision that there are a number of inconsistencies in the applicant’s evidence and one of those inconsistencies is with respect to the letter from her partner which says:

   The families back in home country are aware of our relationship and they are totally against it. 

9. The Tribunal records at [31] that the applicant says she is in contact with her sister-in-law and has contact with the family from time to time but says her brothers in her family follow her father and feel she has disrespected everyone and she will be an outcast if she returns.  She says her father will be able to find her if she moves somewhere else in India. 

10. The Tribunal then goes on to assess the applicant’s claims and evidence.  At [37] the Tribunal identified that the issues it had to consider in assessing whether or not the applicant faces a real chance of serious harm at the hands of her father, relatives, community and her partner’s family because of her rejection of Sikhism, her previous love marriage, her divorce and her relationship with her current partner from another caste.

11. The Tribunal then goes on to point out the inconsistencies in the applicant’s oral evidence and finds that her evidence changed over the course of the hearing and also found that many of her claims were non-specific and superficial which led to the Tribunal being concerned about her credibility.  At [39] the Tribunal refers the alleged threats to kill and that given her claim that she is in touch with her sister-in-law she would have sought further detail about and understanding of her father’s response to her current situation. 

12. The Tribunal accepted the applicant’s evidence that she prefers Western culture and does not adhere to Sikhism and that she entered into a love marriage in 2009 and is now in another long-term relationship with a Sikh of another caste.  The Tribunal was also willing to accept that her father is a strict Sikh and does not agree with her views and conduct and was further prepared to accept her evidence that she and her father have a poor and argumentative relationship that has led to tension at home and disengagement from both sides.  It was not satisfied that this was sufficient to amount to her facing a real risk of significant harm and whilst it would be unpleasant and distressing, without more it does not meet the statutory criteria.

13. The Tribunal took into account - and refers to the delegate’s decision which addresses this – the fact that on the applicant’s own evidence her father was aware of her love marriage when she left India but after being aware of that the father provided her with financial support in support of her student visa application. 

14. The Tribunal did not accept the applicant’s explanation as to how the bank documents, which shows a term deposit in her father’s sole name came to be before the Department when assessing the student visa application and does not find it credible that her father did not know that he was providing financial documentation in support of her studying in Australia and that his ongoing financial support of her after finding out about her love match is inconsistent with him holding such strong views that he would kill her or seriously harm her.

15. The Tribunal went on to consider the applicant’s evidence that she did not return to India for her mother’s funeral because she was fearful of her father harming her, but considered this in the context of the other evidence, including the father’s financial support and the fact that the applicant returned to the family home in 2011 when her father was aware of her love match and after his statement to her mother that he felt that this act disrespected her.

16. It then refers to inconsistencies in the applicant’s evidence as to whether or not the father was aware of her new relationship.  The Tribunal also considered claims that were not expressly raised by the applicant but which arose from the material which includes her divorce, and at [49] of the decision the Tribunal refers to country information which indicates that divorce remains uncommon in India and that there is stigma attached to it, but that it is becoming more common and there were no reports in the country information of divorced women being subject to attacks in her home area in India.

17. The Tribunal also considered that the applicant may face social rejection and disapproval but that this did not amount to serious harm.  At [50] the Tribunal noted that when the applicant lodged her protection visa in March 2014 she made no reference to her new relationship and made no reference to her concerns arising out of this new relationship when she was interviewed by the department delegate in August 2014, even though she had been in that relationship for almost a year by that time.

18. The Tribunal also considered country information with respect to whether or not she would face a real chance of harm based on her relationship with a Sikh from another caste but found that, in considering the applicant’s individual circumstances and evidence, it was not satisfied that she faced a real risk of significant harm from her father because of her current relationship.  The Tribunal rejected her claim that she would be killed if she moved to another part of India.

19. With respect to the applicant’s claims that she would suffer harm from the community because she did not hold traditional Sikh views, the Tribunal observed that she returned to her home community of 2011 when she had already broken Sikh cultural and marriage norms and based on this found that there was only a remote chance that she would face risk from the community if she returned.

20. The Tribunal went on to consider whether or not she faced a real risk of harm based on being a member of a social group, being women in India, and referred to country information and, again, found that in her specific situation where she had support of family sending her to Australia for education there was only a remote chance that she would suffer harm because of being a woman in India.  The Tribunal then assessed the complementary protection criteria and found that Australia did not have protection obligations towards the applicant.

21. It is quite clear from the Tribunal’s decision that the Tribunal considered the applicant’s evidence and claims in detail.  It is for the applicant to make out her case and the Tribunal clearly dealt with the specific claims that she raised, but also claims that arose from the material but were not raised by her.  It is also apparent from the Tribunal’s decision that the Tribunal found many aspects of the applicant’s evidence to be inconsistent and made adverse findings as to her credibility.  It is for the Tribunal and not the Court to assess an applicant’s credibility.

22. The assessment of credibility is a matter for the Tribunal and not this Court.[1]

    [1] See Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 547; Ex parte Durairajasingham (2000) 168 ALR 407.

23. The first respondent submits that the Tribunal correctly identified the legislative framework, properly considered the applicant’s claims, and correctly applied it.

24. The respondent also submits that the Tribunal properly considered the applicant’s claim and applied the country information before it. The conclusions it reached were open on the evidence. The first respondent’s written submissions refer to the applicant’s judicial review application and her statement she would not survive if she was returned to India because of her depression. The Tribunal addressed this claim at [55].

25. The Tribunal correctly outlined the refugee criterion at s.36(2)(a) of the Migration Act 1958 (Cth) (“Migration Act”) and also addresses the complementary protection criterion at s.36(2)(aa) and ministerial direction No. 56 made under s.499 of the Migration Act 1958. 

26. I am satisfied that the Tribunal correctly had in mind its task when assessing the applicant’s claims for a protection visa and properly carried out its statutory function.  The applicant clearly takes issue with the decision but has not been able to identify a jurisdictional error.  Having considered the material I am satisfied that the Tribunal did not err. 

27. I dismiss the application and will hear submissions as to costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  20 February 2017