CUE16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 400
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUE16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 400
File number: MLG 2091 of 2016 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 16 May 2023 Catchwords: MIGRATION – Protection (Class XA) visas – review of Administrative Appeals Tribunal – multiple applicants – whether Tribunal failed to reasonably consider applicant’s request to contact father – Tribunal gave adequate consideration of request – consideration of Tribunal’s reasons as a whole – grounds of application not made out – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 425, 426(3) and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Migration Regulations 1994 (Cth) sch 2, cl 866.221
Cases cited: AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Division: Division 2 General Federal Law Number of paragraphs: 45 Date of last submissions: 9 May 2022 Date of hearing: 9 May 2022 Place: Melbourne (by videoconference) Counsel for the Applicants: Mr J.R. Young Solicitor for the Applicants: G & S Law Group Counsel for the First Respondent: Ms J Wang Solicitor for the First Respondent: Clayton Utz The Second Respondent: Submitted an appearance, save as to costs Table of Corrections 12 July 2023 In Order 2, the sum to be paid by the Applicants to the First Respondent is amended to $10,338. In paragraph 45, information regarding the Respondent’s request for an amendment to the costs order is explained and granted accordingly. ORDERS
MLG 2091 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUE16
First Applicant
CUF16
Second Applicant
CUG16
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
16 May 2023
THE COURT ORDERS THAT:
1.The Amended Application filed 29 March 2022 is dismissed.
2.The Applicants pay the First Respondent’s costs fixed in the sum of $10,338.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to r 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Amended Application filed on 29 March 2022 (Amended Application), the Applicant seeks judicial review of the Administrative Appeals Tribunal (Tribunal) decision dated 23 August 2016 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicants’ Protection (Class XA) visas (Visas).
The Amended Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The Applicants have two (2) grounds of review in the Amended Application, which the Court will consider in detail below.
The matter was heard on 9 May 2022 and proceeded by way of videoconference on Microsoft Teams (Final Hearing). The Court is satisfied that the Final Hearing provided a meaningful opportunity for the Applicants to engage with the Court.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 12 April 2017 (Court Book), numbering 406 pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the Minister’s Written Submissions, filed 14 March 2022 (Minister’s Submissions), at [4] to [14], accurately summarise the factual history of this matter. The Court adopts these submissions as its own. They provide, with some amendments, as follows.
There are three Applicants in this proceeding, all citizens of Nepal.[1] CUE16 (First Applicant) and CUF16 (Second Applicant) are wife and husband respectively. CUG16 (Third Applicant), is their son. The First Applicant, Second Applicant and Third Applicant will hereafter collectively be referred to as the Applicants.
[1] Court Book (CB) 347, [1].
On 11 July 2008, the First Applicant and Second Applicant were married in Nepal.[2] They arrived in Australia a few months later, in October 2008, on subclass TU 572 Student visas.[3] They were granted further student visas, which were then cancelled on 24 October 2012.[4]
[2] CB 42, [1].
[3] CB 42 [6], 106.
[4] CB 347, [2].
On 6 June 2014, the First Applicant and Second Applicant applied for the Visas (Visa Application).[5] The First Applicant completed ‘Part C’ of the Visa Application indicating that she was the primary applicant.[6] The Second Applicant completed ‘Part D’ of the Visa Application indicating that his claims were reliant on the First Applicant’s claims.[7] The First Applicant stated in the Visa Application that she and the Second Applicant were from different castes and religions and although they had not previously been physically harmed in Nepal, they feared harm from their ‘family, community and society’ should they return to Nepal.[8]
[5] CB 3-45.
[6] CB 15-29.
[7] CB 30-36.
[8] CB 22-23.
In November 2014, the Third Applicant was born,[9] a fact that was ‘not brought to the attention of the Department’ at the time.[10]
[9] CB 118.
[10] CB 127.
On 23 January 2015, the Delegate refused to grant the Visas to the First Applicant and Second Applicant (Delegate’s Decision). The Delegate’s Decision was made on the basis that the Delegate was not satisfied that the First Applicant was a person to whom Australia has protection obligations pursuant to s 36 of the Migration Act and cl 866.221 of Schedule 2 of the Migration Regulations 1994 (Cth).[11]
[11] CB 93-113.
On 18 February 2015, the First Applicant and Second Applicant applied to the Tribunal for review of the Delegate’s Decision.[12]
[12] CB 131-137.
On 26 March 2015, the Delegate confirmed that the Third Applicant had been added to the Visa Application.[13]
[13] CB 121-122.
On 12 May 2015, the Delegate refused to grant the Visa to the Third Applicant, confirming that he is a member of the First Applicant’s family unit and therefore included in her Visa Application.[14]
[14] CB 125-130.
On 4 June 2015, the First Applicant applied to the Tribunal for review of the Delegate’s Decision regarding the Third Applicant’s Visa.[15] This application was subsequently combined with the applications of the First Applicant and Second Applicant.
[15] CB 203-205.
On 22 August 2016, the Applicants attended a hearing before the Tribunal and provided various documents (Tribunal Hearing).[16]
[16] CB 281, 367, [14]-[15].
On 23 August 2016, the Tribunal affirmed the Delegate’s decision in relation to the Applicants’ Visas. A day later, the Tribunal published a written record of its decision and reasons.[17]
[17] CB 342-358.
TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 346 to 356 of the Court Book. The Minister’s Submissions, at [15] to [19], accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions as its own, with amendments, as follows.
As it had been for the Delegate, the issue for the Tribunal was whether the Applicants met the criteria for the Visas as set out in ss 36(2)(a) or (aa) of the Migration Act.[18]
[18] CB 347, [5].
The Tribunal summarised the claims made by the First Applicant in the Visa Application, including that:
(a)Her parents were opposed to her marriage to the Second Applicant ‘due to their different caste and religion’;
(b)She and the Second Applicant had been threatened and told to end their relationship;
(c)If the Applicants returned to Nepal, she considered they would face physical harm, which would also involve mental stress;
(d)The harm would come from their families, the community and society, who would ‘not accept’ the First Applicant and Second Applicants’ marriage;
(e)The authorities in Nepal cannot safeguard the Applicants’ rights; and
(f)She believes that if the Applicants returned to Nepal, their community would disown them and not accept the Third Applicant.[19]
[19] CB 348-349, [7]-[11].
The Tribunal considered the First Applicant and Second Applicant to be ‘untruthful witnesses who had fabricated the totality of their claims to fear harm in Nepal’.[20] The Tribunal reached this view having regard to:
(a)The lengthy delay in the lodgement of the application for the Visas;[21]
(b)The First Applicant’s evidence, raised for the first time at the Tribunal Hearing, that while her father gave her documents and paid for her studies, he did not know about her marriage to the Second Applicant until 2009, and thought that it was only she who was going to Australia to study. The Tribunal considered the Applicant manufactured this claim;[22]
(c)The fact that the First Applicant and Second Applicant had returned to Nepal in September 2011 for five (5) weeks, so that the First Applicant could visit her grandfather. The Tribunal considered that the Applicants’ willingness to return to Nepal was indicative of the fact that they do not fear harm from their families or community;[23]
(d)The First Applicant’s inability to adequately explain how her family or the community would separate her and the Second Applicant, should they return to Nepal;[24] and
(e)The independent evidence, which indicated that there are laws in Nepal protecting persons in inter caste marriages, and that social intolerance of inter caste marriages was primarily directed to marriages where either the bride or groom was of the ‘dalit’ caste (which was not the case for the Applicants).[25]
[20] CB 349, [17].
[21] CB 350, [18]-[20].
[22] CB 351-352, [22], [24].
[23] CB 351-352, [23], [25].
[24] CB 352-353, [26].
[25] CB 353-354, [27]-[31].
The Tribunal therefore did not consider that the Applicants satisfied the criteria for the grant of the Visas as set out in ss 36(2)(a) or (aa) of the Migration Act.[26]
[26] CB 356, [39].
In relation to the matter in [20(b)] above, the First Applicant stated during the Tribunal Hearing that her father in Nepal could be telephoned and himself confirm that he did not support the First Applicant and Second Applicant’s marriage, and tell the Tribunal that he believed the First Applicant had travelled to Australia alone.[27] The Tribunal considered the First Applicant’s request but decided not to contact the First Applicant’s father, stating:
32. […] The Tribunal considered the request but decided not to contact the applicant’s father whom she claims will try to separate her from her husband and harm her. However, in any event the Tribunal does not accept that the applicant’s father is an independent witness and in such circumstances is not satisfied that it was either necessary or appropriate to contact the applicant’s father.[28]
[27] CB 351, [22].
[28] CB 354, [32].
PROCEEDINGS BEFORE THE COURT
On 27 September 2016, the First Applicant filed an Application seeking judicial review (Application). At the time the Application was filed, the Applicants did not have legal representation. The Applicants became legally represented on 23 November 2021.[29]
[29] Notice of Address for Service, filed 23 November 2021.
The Applicants were given leave to file the Amended Application by Orders of the Court dated 15 March 2022.[30]
[30] Orders dated 15 March 2022, Order 5.
The Amended Application contained two (2) grounds of review (Grounds of Review), as follows:
5. The Second Respondent made jurisdictional error at [32] at CB354 by failing to give reasonable consideration to the Applicant’s request that the Tribunal contact her father.
6. Further in the alternative to ground 5 above, the Second Respondent made jurisdictional error by unreasonably refusing the Applicant’s request that it contact the Applicant’s father.
The materials before the Court include: the Court Book (marked as the Minister’s Exhibit 1); the Affidavit of Wissam Philopos, affirmed 11 March 2021 and filed 14 March 2022 (marked as the Applicants’ Exhibit 1); the Applicants’ Written Submissions, filed 6 May 2022; and the Minister’s Submissions.
The Court has also considered the transcript of the Final Hearing, where both Counsel for the Applicants and Counsel for the Minister made oral submissions.
The Court will now consider each of the Grounds of Review.
CONSIDERATION
As noted above, the Amended Application contained two (2) Grounds of Review.
Ground 5
In Ground 5, the Applicants contend that the Tribunal failed to give reasonable consideration to the First Applicant’s request that the Tribunal contact her father.
At the Final Hearing, Counsel for the Applicants conceded that was is plain from the Tribunal’s Decision that the Tribunal did in fact consider the First Applicant’s request to contact her father,[31] as the Tribunal stated:
32.[…] The Tribunal considered the request but decided not to contact the applicant’s father […][32]
[31] Transcript P8:L26-28.
[32] CB 354, [32].
At the Final Hearing, Counsel for the Minister submitted that Ground 5 was misconceived, primarily on the basis that there was no duty upon the Tribunal to consider any request of the Applicants that they had not previously given the Tribunal notice of pursuant to s 426(3) of the Migration Act.[33] The Court’s attention was directed to the judgment of Colvin J in AOO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 424 (AOO16), where His Honour said, at [63]:
63.[…] The Act confines the statutory duty to have regard to a request by an applicant that a person be invited to give evidence to those instances where the request is made in accordance with the terms of s 426(2) […] Conformance with that statutory duty as to the procedure to be followed conditions a valid exercise of the power to undertake a review. On the other hand, a failure by the Tribunal to consider whether to take evidence from the parents after a later request was made would not be a failure to conform to any statutory requirement […]
[33] Transcript P21:L4-16.
I agree with the submissions of the Minister and note that, despite there being no statutory requirement for the Tribunal to consider the First Applicant’s request to contact her father, the Tribunal’s decision nevertheless demonstrates that consideration was had to the request and a finding as to the whether the request should be entertained was made.
Ground 5 is therefore dismissed.
Ground 6
In Ground 6, the Applicants contend that the Tribunal fell into jurisdictional error by ‘unreasonably refusing the [First] Applicant’s request’ that the Tribunal contact the [First] Applicant’s father.
At the Final Hearing, Counsel for the Applicants submitted that it was in one (1) paragraph of the Tribunal’s Decision that the Applicants contended that the Tribunal made the jurisdictional error contended in Ground 6.[34] That paragraph, produced in part at [22] above, reads as follows:
32.As indicated above, the applicant stated during the hearing that her father could support her claims that he did not know she had married in Nepal and had come to Australia with her husband. The Tribunal considered the request but decided not to contact the applicant’s father. The Tribunal considers this request to be puzzling given that it is the applicant’s father whom she claims will try to separate her from her husband and harm her. However, in any event the Tribunal does not accept that the applicant’s father is an independent witness and in such circumstances is not satisfied that it was either necessary or appropriate to contact the applicant’s father.[35]
[34] Transcript P8:L21-23.
[35] CB 354, [32].
Counsel for the Applicants submitted that the Tribunal’s principle reason for refusing the First Applicant’s request was that the First Applicant’s father was not an ‘independent witness’. This was said to be unreasonable in circumstances where most witnesses that appeared before the Tribunal could not be described as independent, and indeed the reason for a hearing before the Tribunal is for parties ‘to give evidence and present arguments relating to the issues’ pursuant to s 425 of the Migration Act, and act according to the merits of the case.[36]
[36] Transcript P9:L34-39.
Counsel for the Applicants conceded that the test for unreasonableness is a stringent one.[37] Support for such a proposition was submitted by the Minister to be found in the Full Court of the Federal Court’s judgment in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431, at [54]:
54[…] a line must be maintained between a court’s emphatic disagreement with the merits of a tribunal’s reasoning process, and the identification of a level of irrationality, unreasonableness or a lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal. […]
[37] Transcript P13:L13-15; Minister’s Written Submissions, filed 14 March 2022 (Minister’s Submissions), [28].
The Minister submitted that the Applicants claim of legal unreasonableness with respect to just one (1) paragraph of the Tribunal’s Decision was not the proper approach according to AOO16, where Colvin J noted the importance of evaluating a claim of legal unreasonableness ‘having regard to the nature of the review as a whole’.[38] In adopting this approach, Counsel for the Minister pointed to a number of salient contextual factors within the Tribunal’s Decision that must be taken into account when evaluating whether the basis of refusing the First Applicant’s request was unreasonable. Among these factors are the following:
(a)The First Applicant’s claim that her parent’s did not know about her marriage prior to her coming to Australia, a claim made for the first time at the Tribunal Hearing;[39]
(b)The First Applicant had told the Tribunal that her parents would try to harm her, were angry with her, and had stopped talking to her;[40] and
(c)The implausibilities or problems identified with the First Applicant’s evidence, including those listed at [20] above.[41]
[38] Transcript P25:L25-P26:L20; Minister’s Submissions, [30]; AOO16 at [36].
[39] Transcript P26:L29-P28:L7; CB 351, [22].
[40] Transcript P28:L7-P30:L20; CB 351-352, [21]-[23].
[41] Transcript P30:L22-41.
In light of the context of the Tribunal’s Decision as a whole, therefore, Counsel for the Minister submitted that there was no unreasonableness as alleged because the Tribunal ‘justifiably had concerns about the credibility of any evidence that might be given by the [First Applicant’s] father’.[42] This was said to be so despite the absence of an explicit reference in the Tribunal’s reasons for refusing the request.
[42] Minister’s Submissions, [33].
I agree with the submissions of the Minister and note that the Tribunal’s Decision identifies a number of inconsistencies with the First Applicant’s evidence and indeed describes her as an ‘untruthful’ witness and her claims as ‘fabricated’, ‘manufactured’ and ‘problematic’.[43] When read as a whole, as submitted by the Minister, the Tribunal’s decision to refuse the First Applicant’s request to contact her father can be better understood as having been formed on the basis that it would likely be of little probative value to serve any useful purpose.[44]
[43] CB 349-352, [17], [20], [21] and [24].
[44] Minister’s Submissions, [33].
As discussed at [33] above, there was no statutory duty upon the Tribunal to consider a request made by the First Applicant at the Tribunal Hearing, and as such, the Tribunal was exercising its discretion in considering the First Applicant’s request. In exercising the discretion, I consider that the Tribunal acted reasonably, taking into account all of the information and evidence before it.
Ground 6 is dismissed.
CONCLUSION
The Applicants’ Amended Application has not identified any jurisdictional error and is therefore dismissed.
At the Final Hearing, the Minister sought costs fixed in the sum of $7,853, in accordance with the costs allowed in pt 2, div 1, item 3 of sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules). On 27 June 2023, the Minister sought to amend this amount, to $10,338. Having considered the relevant material, I am satisfied that this matter falls within r 17.05(2)(e) of the 2021 Rules and that the Orders made on 16 May 2023 should be amended accordingly.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kirton. Associate:
Dated: 16 May 2023
0
3
0