DBQ16 v Minister for Immigration
[2018] FCCA 1591
•7 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBQ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1591 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Nepal – applicant’s fears found not to be well-founded – whether the Tribunal should have enquired what the applicant would do with allegations concerning her brother should she return to Nepal – whether the Tribunal erred in relation to a s.438 certificate considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 424AA, 424A, 425, 438 |
| Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Aporo v Minister for Immigration (2009) 113 ALD 46 Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 AVO15 v Minister for Immigration [2017] FCA 566 BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 Hinton v Minister for Immigration [2015] 146 ALD 184 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v Lay Lat (2006) 151 FCR 214 Minister for Immigration v Le (2007) 164 FCR 151; [2007] FCA 1318 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZIAI (2009) 83 ALJR 1123 Minister for Immigration v SZRTF [2013] FCA 1377 Minister for Immigration v SZSCA (2014) 254 CLR 317 MZABA v Minister for Immigration [2015] FCA 711 MZAFZ v Minister for Immigration [2016] FCA 1081 SZNBX v Minister for Immigration (2009) 112 ALD 475 SZNWF v Minister for Immigration [2010] FCA 1041 SZURL v Minister for Immigration [2015] FCA 864 |
| Applicant: | DBQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2844 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 June 2018 |
| Date of Last Submission: | 2 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The application filed on 18 October 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2844 of 2016
| DBQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 September 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them is derived from the Minister’s outline of legal submissions filed on 8 June 2018.
The applicant, a citizen of Nepal, first arrived in Australia on 16 October 2008, travelling as a dependent on her then husband’s Vocational Education Sector (subclass 572) visa.[1] The applicant re-entered Australia on 15 May 2011, again travelling as a dependant on her then husband’s visa.[2] On 9 March 2012, the applicant and her husband divorced.[3] On 1 August 2013, the applicant applied for an ELICOS[4] Sector (subclass 570) visa, which was refused.[5]
[1] Court Book (CB) 63, 140 [1]
[2] CB 63, 140
[3] CB 63
[4] English Language Intensive Courses for Overseas Students
[5] CB 63
On 25 February 2014, the applicant applied for a protection (class XA) visa.[6] On 6 February 2015, the delegate refused to grant the protection visa.[7] On 10 February 2015, the applicant applied to the then Refugee Review Tribunal for review of the delegate’s decision.[8]
[6] CB 1-26, 63
[7] CB 58-80
[8] CB 81-82
On 14 September 2016, the applicant appeared before the Tribunal with her representative to give evidence and present arguments.[9] On 21 September 2016, the Tribunal affirmed the decision under review.[10]
[9] CB 112-114
[10] CB 139-156
Applicant’s claims
The applicant claimed to fear harm in Nepal as a divorced, single woman,[11] and as a victim of child sexual abuse.[12] In particular, the applicant claimed that she entered into an inter-caste marriage against the wishes of her family, who then rejected her. The applicant also claimed that her elder brother, N, [13] raped her repeatedly from the age of 12. She claimed to fear harm from her brother and also as a single woman and a divorcee.[14]
[11] CB 18
[12] CB 52
[13] The name has been anonymised
[14] CB 18, 50-53
The applicant’s representative provided post-hearing submissions to the Tribunal addressing country information about harm faced by women in Nepal.[15] The representative submitted that the applicant faced serious harm in Nepal as a member of a particular social group comprising “single women without male protection”.[16] The representative further submitted that the applicant faced a real risk of significant harm from sex trafficking,[17] and that she could not get state protection.[18]
[15] CB 117-136
[16] CB 125, 134
[17] CB 127
[18] CB 134
The applicant also provided a statutory declaration to the Tribunal dated 19 September 2016, in which she claimed that she would not be able to get a job and would face economic hardship in Nepal.[19]
[19] CB 135
Tribunal’s decision
On the basis of its concerns regarding the truth of central aspects of the applicant’s claims and evidence, as well as its assessment of independent country information reports, the Tribunal was unable to be satisfied that the applicant faced a real chance of serious or significant harm in Nepal.[20]
[20] CB 141, [10]
The Tribunal accepted that the applicant was a party to an inter-caste marriage and that she divorced in March 2012.[21] The applicant told the Tribunal that neither she nor her husband were harmed by anyone in the time they were together in Kathmandu (over one year).[22] The applicant also gave evidence that no member of her own or her ex-husband’s family had ever tried to harm them in any way in connection with their marriage.[23] The Tribunal considered the evidence that the applicant was invited to attend a relative’s wedding in Nepal in 2011, indicating that she was an accepted part of an extended family network.[24] It found that the applicant continued to have contact with her family and to work in the book shop financed by her father until August 2008, despite living in Kathmandu from around 2006.[25] The Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm in Nepal from her family or her in-laws in connection with her inter-caste marriage or divorce. The Tribunal also found that the applicant was part of a close family network in Nepal.[26]
[21] CB 142, [11]-[12]
[22] CB 142, [14]
[23] CB 143, [19]
[24] CB 145, [22]
[25] CB 145-146, [23]
[26] CB 146 [25]
The Tribunal considered the applicant’s claims in relation to being a victim of sexual abuse by her brother, N. The Tribunal considered that there was no mention of N as a member of the applicant’s family unit in her protection visa application form. The Tribunal also noted that the documentation in the Minister’s Department’s file relating to the subclass 572 visa application lodged by her former husband did not list N as a member of the applicant’s family.[27] The Tribunal did not consider the absence of such documentation on that file to be adverse to the applicant. However, in the context of its cumulative credibility concerns, the Tribunal considered it significant that it did not have before it any probative evidence that the applicant had a brother named N.[28] Despite this, the Tribunal gave the applicant the benefit of the doubt and accepted that she had a brother named N who sexually abused her.[29] The applicant gave evidence that she remained in Nepal for over a year after the abuse from N stopped and was not harmed or approached by him. The applicant gave no evidence that she was approached by N when she returned to Nepal for almost three months in 2011. The Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm in Nepal from or in connection with N.[30]
[27] CB 145, [27]
[28] CB 145, [27]
[29] CB 147, [29]
[30] CB 148, [31]
The Tribunal accepted that the applicant would return to Nepal as a single woman and a divorcee from an inter-caste marriage. The Tribunal also accepted that the applicant had a fair complexion. Having considered country information provided by the applicant’s representative, the Tribunal found the proposition that fair skinned women in Nepal generally faced a real chance of being trafficked to work in the sex trade “highly speculative”.[31]
[31] CB 149, [33]
Having considered “other reliable independent sources” as well as the applicant’s history, the Tribunal found that the applicant would reside in Kathmandu, where attitudes to inter-caste relationships and divorce were less conservative.[32] The Tribunal also considered independent reports relating to the treatment of divorced women,[33] women generally and single women specifically.[34] The Tribunal did not accept that the applicant had been disowned by her family or that she would be denied their support. The Tribunal found that as the applicant was part of a family network, this would minimise her actual and perceived vulnerability in Nepal.[35] The Tribunal also found that the applicant had extensive work and study experience, and that she would be able to access sound and reputable employment and accommodation in Nepal, which would also minimise any actual or perceived vulnerability as a single woman. The Tribunal accepted that single women in Nepal could be vulnerable to sexual violence and crimes, but in light of the applicant’s background and circumstances, did not consider there to be a real chance that the applicant would face such harm.[36]
[32] CB 149-150, [34]
[33] CB 150-151, [37]-[40]
[34] CB 151-152, [41]
[35] CB 153, [44]
[36] CB 153, [45]
Considering the totality of the evidence before it, the Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm in Nepal.[37]
[37] CB 153, [47]
The present proceedings
These proceedings began with a show cause application filed on 18 October 2016. The applicant continues to rely upon that application. There are four grounds in it as follows:
1.I am not satisfied with the Tribunal Member’s decision as the decision has been involved an error of law.
2.The Member failed to apply natural justice and procedural fairness correctly in determining my application.
3.The Tribunal Member’s arbitrary views undermined my claims of fear of serious harm on return to Nepal despite the fact that I am a rape victim and I have a real fear of serious harm on return and reside in Nepal.
4.The AAT did not comply with s 359AA in relation to adverse information that it put to me.
I have before me as evidence:
a)the applicant’s affidavit filed with her application;
b)the court book filed on 23 March 2017; and
c)the affidavit of Tom Hillyard made on 23 March 2017, to which annexed a purported certificate under s.438 of the Migration Act 1958 (Cth) (Migration Act) and documents purportedly covered by that certificate.
Only the Minister prepared written submissions in accordance with procedural orders made by a registrar.
I invited oral submissions from the applicant at the trial of this matter on 18 June 2018. The applicant said that she had nothing to say. I prompted her to tell me what she thought was wrong with the Tribunal decision. She reiterated that she had no submissions. I asked her specifically about any discussion at the Tribunal hearing of her claims concerning her brother N and what she would do with her information about his abuse should she return to Nepal. The applicant chose to say nothing.
I called on the solicitor for the Minister to address two issues in oral submissions. The first was the purported s.438 certificate and the second was a question apparently left unaddressed by the Tribunal, namely what, if anything, the applicant would do with her information concerning the abuse by her brother N should she return to Nepal. In the light of those oral submissions, I invited further written submissions from the parties concerning whether the Tribunal came under a duty to inquire if the applicant would report the abuse should she return to Nepal and whether the Tribunal fell into error by assuming that the applicant would “live quietly” and not report the abuse in Nepal.
The Minister filed additional submissions on 2 July 2018. Nothing further was filed by the applicant.
Consideration
There is no substance to the grounds as simply expressed by the applicant. In that regard, I accept the Minister’s submissions.
Grounds 1 and 2 do not particularise how the Tribunal is said to have erred, or failed to afford the applicant natural justice and procedural fairness. Without particulars, Ground 1 is meaningless. In respect of Ground 2, the Tribunal noted that no issues regarding the applicant’s capacity to participate in the application or review process were advanced at any stage. The Tribunal also noted that the applicant had requested a female interpreter for the hearing, and confirmed with the applicant that she was comfortable discussing all of her claims and evidence in the presence of her male representative.[38] As pleaded, neither Ground 1 nor 2 establishes any error in the Tribunal’s decision.
[38] CB 141, [8]
Ground 3 similarly does not particularise how the Tribunal’s reasoning is said to be arbitrary or irrational. The Tribunal’s findings were open to it on the material before it and for the reasons it gave.[39] The Tribunal dealt with the claim that the applicant had been a victim of sexual abuse (was a rape victim) by her brother and despite some concerns accepted this claim. However, as outlined above, the Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm in Nepal from or in connection with N.[40]
[39] Kopalapillai v Minister for Immigration (1998) 86 FCR 547
[40] CB 148, [31]
Ground 4 is also unparticularised and does not specify what information the Tribunal is said to have failed to put to the applicant under s.359AA (the correct section is s.424AA). The Tribunal did in fact put information to the applicant under s.424AA during the hearing, namely, information to the effect that she told the delegate that she understood N was now married. After the hearing, the Tribunal listened to the audio recording of the Departmental interview again and accepted that the applicant did not refer to N being married. The Tribunal, therefore, did not consider the information put to the applicant during the hearing under s.424AA to be adverse to her case.[41]
[41] CB 147-148, [30]
I have also considered whether the Tribunal was required to put to the applicant the absence of information in the subclass 572 visa file that N was a member of her family. For the following reasons, I find that that information did not enliven any s.424A obligations. First, the Tribunal did not consider the absence of such documentation on that file to be adverse to the applicant.[42] Secondly, the Tribunal accepted the claim that the applicant had a brother named N who sexually abused her.
[42] CB 147, [27]
The brother claim
The applicant’s claim concerning her brother N was made in her written statement dated 5 September 2014. There was considerable detail in the statement but for present purposes, the following extracts are relevant. The applicant wrote:
I would like to tell the Australian Government and its people the truth about what happened to me in Nepal. My brother began raping me when I was 12 years old. He raped me and he didn’t stop raping me until I left my village. He had raped me many times. My life was perfect. I had everything a child could want and more. That is until I turned 12.
…
I felt like someone who didn’t belong in the family, because of what happened to me. I had held in my dark secret for far too long. I knew I had to tell someone, but how and when. I had no clue where to start. I thought to myself, well may be if I keep a secret long enough then it would just go away.
The Tribunal dealt with the brother claim in the following terms:[43]
Claims regarding [N]
The Tribunal has also considered the claims made regarding the applicant's brother [N]. Her claims are that she was sexually abused and raped by him for around ten years from the time she was 12, which was in around 1997. She claims that the abuse continued until she left her family home … for Kathmandu on dates given variously as 2006 and 2007. He was aged around 21 at that time.
As discussed with the applicant during her Tribunal appearance, the Tribunal has some concerns regarding the existence of [N], as there is no mention of him as a member of her family unit in her Protection visa application form, which lists her family members as her mother, father, her [other] brother [G] and a sister. Besides the applicant's own assertions, no evidence has been submitted of the applicant having a brother named [N]. While the Tribunal requested a copy of the Student visa file which resulted in the grant of the Student visa on which the applicant first entered Australia in 2008 in an effort to locate identity documents listing [N] as a member of the applicant's family, no such documentation was on the file. The Tribunal does not consider the absence of such documentation on that Student visa file adverse to the applicant, however, as there are no documents on that file evidencing her being part of any family unit other than that of her then husband's, a reflection in this Tribunal's view of the issues relevant to determining that Student visa application. Notwithstanding this, as explained to the applicant, the Tribunal does not have before it any probative evidence that she had or has a brother named [N], which, in the context of the cumulative credibility concerns detailed in the above considerations, the Tribunal considers significant.
Compounding the above is that the applicant raised no concerns or fears related to her brother [N] until submitting her 2014 Statement in September 2014, some 7 months after lodging her Protection visa application form and some 8 years after entering Australia, despite claiming that she had ongoing fears of harm, including sexual abuse from him from the time she was 12 and continuing.
Despite the above concerns, however, given the sensitivity of the claims made regarding [N] and the shame, hurt and humiliation which most likely attaches to the disclosure of such experiences, the Tribunal is willing to give the applicant the benefit of the doubt and accepts that the applicant has a brother named [N] who is around five years older than her and who sexually abused her over around ten years from 1997, when she was aged 12.
During her Tribunal appearance the Tribunal put to the applicant what it considered to be potentially adverse information arising from the applicant's department interview in respect of her claims regarding [N], that interview being held on 3 October 2014. The information was to the effect that she is audio recorded saying that she understands [N] is now married. The Tribunal put to the applicant that this is relevant to the review as it appears to conflict with her oral evidence to the Tribunal that she has never heard that [N] is married and as far as she knows he is not. The Tribunal explained to her that if it relies on that information it may conclude that her evidence in respect of [N] is not reliable and may not be satisfied that she is being truthful in respect of the claims made in respect of [N]. The Tribunal explained that she has a right to request additional time to respond or she may do so immediately. She offered immediately that as far as she recalls she has never said that [N] is married and has always said he is not married. In a statutory declaration sworn on 19 September 2016 the applicant re-iterated this. As represented to the applicant by the Tribunal, the Tribunal listened to the audio recording of the department interview a second time following her Tribunal appearance and accepts that the applicant did not refer to [N] being married. She did in fact say he is not married. The Tribunal accepts that it was wrong in its understanding, on first listening to the Department interview, that the applicant said [N] is married. Tribunal does not consider the information put to the applicant during the hearing under section 424AA, detailed in this paragraph, to be correct or adverse to her case in any way.
However, as explained to the applicant during her hearing, even if the Tribunal accepts, on listening again to the Department's audio recording of her interview on 3 October 2014, which it has done, that she has been consistent regarding [N]’s marital status, this does not necessarily assist her case. As explained to the applicant, regardless of her evidence regarding [N]’s marital status the Tribunal has concerns regarding her risks of future harm from or connected to [N]. Those concerns are as follows. On the applicant's own evidence, she remained in Nepal for over a year after the abuse from [N] stopped and was not harmed or approached by him in any way. She told the Tribunal that [N] has not so much as attempted to contact her in any way in the almost ten years which have transpired since those abuses last occurred. The Tribunal is mindful of the applicant's evidence that she had the protection of her husband at the time she moved to Kathmandu in 2007. However, as detailed in earlier paragraphs her written evidence suggests she moved to Kathmandu in 2006 but continued to work in a book store financed by her father in [her home town] until August 2008, some two months before leaving Nepal for Australia. As reasoned in earlier paragraph, the Tribunal considers this to reflect ongoing contact between the applicant and her family in [her home town] even after she moved to Kathmandu, and also suggests she moved to Kathmandu in 2006, which is before she claims to have been with her husband. Despite these anomalies, her evidence is that she has not been harmed or approached by [N] in any way since she left [her home town], which is some time in 2006 or 2007. On her own evidence the applicant voluntarily contacted her family in [her home town] on her return to Nepal for a relative's wedding in 2011. She attended the wedding which was also attended by relatives with connections to her immediate family in [her home town]. The Tribunal considers, in these circumstances, that it would have been known to the applicant's family, including [N], that she had returned to Nepal alone. She chose to remain in Nepal for almost three months on that occasion and gave no evidence that she was approached by [N] in any way in that time. She told the Tribunal that [N] has made no attempt to contact her in any way since 2006/7. That the applicant was willing to return to Nepal alone to attend a relative's wedding, and remain in Nepal for an extended duration of almost three months with not so much as any contact from [N] does not support her claim to face a real chance of serious or significant harm from or in connection with [N]’s past abuses which took place largely during her childhood years. On the evidence before it the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm, including sexual harm, from or in connection with [N], in Nepal in the reasonably foreseeable future.
(footnote omitted and reproduced at [44] below)
[43] CB 147-148, [26]-[31]
The question is whether the Tribunal came under an obligation to inquire what the applicant would do with her allegations concerning her brother should she return to Nepal. Her claims indicated a need to tell her story. She did so for the purposes of the protection visa application and the issue of concern to me is whether there arose squarely on the materials a proposition that she may also wish to tell her story on return to Nepal. There was nothing to indicate that this was explored with the applicant at the Tribunal hearing or otherwise. This raises a related but different question, namely whether the Tribunal proceeded on an unstated assumption that the applicant would live quietly and not reveal her information concerning her brother in Nepal. Further, there is a question whether that is an expectation that the Tribunal was entitled to make.
These issues were addressed in the Minister’s further submissions, which I accept.
Should the Tribunal have inquired as to what the applicant would do with the information regarding the abuse on her return to Nepal?
The Tribunal’s statutory obligation is to conduct a review.[44] It does not have any general duty to inquire.[45] To the contrary, it is well-established that it is for the applicant to put whatever evidence or argument she wishes to the decision-maker to enable the decision-maker to be satisfied that the applicant satisfies the criteria for the visa.[46]
[44] Minister for Immigration v SZIAI (2009) 83 ALJR 1123 at [25]; SZURL v Minister for Immigration [2015] FCA 864 at [55]
[45] Minister for Immigration v SZGUR (2011) 241 CLR 594 at [1]
[46] See for example Minister for Immigration v Lay Lat (2006) 151 FCR 214 at [76]; Aporo v Minister for Immigration (2009) 113 ALD 46 at [45]
Bearing the above in mind, it is only within highly circumscribed parameters that a “failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”.[47] It has been stressed on a number of occasions that the circumstances in which such a duty can arise are rare and exceptional.[48]
[47] SZIAI at [25]
[48] See for example Minister for Immigration v Le (2007) 164 FCR 151; [2007] FCA 1318 at [60], [77]; SZNWF v Minister for Immigration [2010] FCA 1041 at [35]-[36]
In SZNBX v Minister for Immigration[49] at [21], Bennett J held that three questions arose for consideration in determining whether a jurisdictional error had arisen as a result of a failure to inquire:
a)first, whether the inquiry that the Tribunal failed to make was obvious;
b)second, whether it concerned a critical fact, the existence of which was easily ascertained; and
c)third, whether it supplied a sufficient link to the outcome as to constitute a failure to review.[50]
[49] (2009) 112 ALD 475
[50] See too MZABA v Minister for Immigration [2015] FCA 711 at [61]
For a fact to be “critical”, it must at least be decisive of, or crucially important to, an anterior issue which provides “a sufficient link” to the outcome of the review.[51] Further, there must be something “on the record to indicate that any further inquiry by the Tribunal…could have yielded a useful result”.[52]
[51] Minister for Immigration v SZRTF [2013] FCA 1377 at [40]
[52] Hinton v Minister for Immigration [2015] 146 ALD 184 at [72] quoting SZIAI at [26]
Having regard to the above principles, four points are apparent.
First, it was no part of the applicant’s claim or evidence that she intended to raise the allegations against her brother either to her family, the authorities or some other person on her return to Nepal. Indeed, there is nothing in the applicant’s written statement[53] nor the written submissions provided by the applicant’s representative, nor her statutory declaration,[54] from which it could be reasonably inferred that the applicant intended to take any steps in relation to the allegations about her brother. Instead, the applicant’s claim in respect of the brother was that she would face further sexual assaults from him in the future. It follows that the applicant did not squarely articulate a claim to fear harm because of any unspecified, future intention in relation to the allegation against her brother, nor can it be said that such a claim squarely arose on the materials before the Tribunal.
[53] CB 50-53
[54] CB 117-135
Secondly, there was no readily ascertainable fact for the Tribunal to inquire into, for the purpose of the determination of the applicant’s claims, having regard to the principles in SZIAI. If it is suggested that the Tribunal ought to have inquired with the applicant whether she would take some steps in relation to the information, that is an inquiry to ascertain whether the applicant wished to make any claim to fear harm beyond that which she had made. A claim is not a readily ascertainable fact for the purposes of the Tribunal’s duty to review. It cannot be readily ascertained or independently verified what if anything the applicant would do with the information concerning the brother’s past conduct. Further, it is no part of the Tribunal’s review function to suggest possible claims to applicants and invite them to confirm whether they wish to pursue those claims. As stated above, it was for the applicant to provide whatever evidence she wished to advance in support of her claim and it was not for the Tribunal to make out the applicant’s case for her.[55] This is particularly so when the applicant was given ample opportunity to make any claims and was assisted by a registered migration agent, who made lengthy submissions on her behalf.
[55] Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14; SZIAI
Thirdly, whether or not the applicant wished to pursue a claim that she would use the information concerning the brother’s conduct could not be said to be critical in that it would be “centrally relevant to the decision to be made” and “decisive” of the review.[56] In this respect, it should be noted that the possibility that the information that is the subject of the inquiry may have made some difference to the outcome of the review does not make it critical.[57] In the present case, even if the inquiry had confirmed that the applicant would not keep the information to herself, numerous other questions remained to be decided before the Tribunal could be satisfied that the applicant was entitled to a protection visa. For example, the Tribunal would have needed to inquire as to the manner in which the applicant intended to disclose the information, and to whom. It would have also needed to be satisfied as to the credibility of the applicant’s intentions (and it is noted that the Tribunal found aspects of the applicant’s claims not to be credible[58]), as well as the likely reaction of others to the applicant’s claimed intended use of the information. Having made the suggested inquiry, the Tribunal would have then potentially needed to consider a whole new claim that might or might not have given rise to protection obligations, and in the absence of any supporting evidence. That is far removed from the circumstances in which a duty to inquire has been held to arise previously.
[56] SZRTF at [38]-[40]
[57] SZRTF at [39]
[58] CB 142, [10]
Finally, for the same reasons as above, it is not apparent on the material before the Court that any inquiry of this nature could have “yielded a useful result”.[59] The applicant has not, on judicial review, advanced any suggestion that she would take steps to raise the claim with her family or the authorities. Nor is there any suggestion in the material before the Tribunal that even if the applicant had an intention to disclose the information concerning the brother, she might face any harm as a result. Accordingly, what (if anything) any inquiry would have yielded is a matter of conjecture.
[59] SZRTF at [47]
For all of the above reasons, I accept that this is not one of those rare and exceptional cases where a duty to inquire arose.
Was there an expectation that the applicant would keep the assault to herself?
The Tribunal’s decision must be considered in light of the basis on which the application was made, and not upon an entirely different basis which may later be identified or advanced.[60] There is no evidence to suggest that the applicant advanced a claim to fear harm other than in the terms considered by the Tribunal. In other words, the Tribunal addressed and disposed of the claim as made and as it arose on the material.
[60] Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473
In those circumstances, I accept that there can be no error of the kind described by the High Court in Appellant S395/2002. In that case, the Refugee Review Tribunal had accepted that “it is not possible to live openly as a homosexual in Bangladesh” but nonetheless found that the appellant, who was homosexual, could live discreetly to avoid persecution.[61]
[61] Appellant S395/2002 at [38]
The Tribunal did not make any analogous finding in this case. The Tribunal did not make any finding, nor was there any material before it to suggest, that the applicant would face harm if she were to raise the allegation against her brother on her return to Nepal. Accordingly, any question of whether those adverse consequences could be avoided did not arise for consideration. This is not a case where the Tribunal has diverted itself from its task of determining whether there would be a real chance of persecution because the Tribunal focussed on an assumption about how the risk of persecution might be avoided.[62] The Tribunal did not need to turn its mind to the question, when a claim of such harm was not made and did not squarely arise on the material.
[62] Minister for Immigration v SZSCA (2014) 254 CLR 317 at [17]
Accordingly, I accept that there is no basis upon which it could be inferred that the manner in which the Tribunal proceeded in relation the applicant’s allegations against her brother amounted to an expectation that the applicant would live quietly in Nepal and keep the information to herself, where no claim to the contrary can be said to have been made.
The certificate issue
This issue was raised by the Minister rather than by the applicant. The issue arises from the existence of the purported certificate exhibited to Mr Hillyard’s affidavit and the documents purportedly covered by it, and also by what the Tribunal said at footnote 10 of its decision:[63]
Also relevant to that file, as discussed with the applicant and her RMA during the hearing, there are section 438 certificates attached to documentation on that file which is of no relevance to the current review and which the Tribunal is not taking into account in any way in assessing the current review application. Accordingly, the Tribunal has not taken any further steps to verify the validity or otherwise of the certificates attached to that information.
[63] CB 147
The Tribunal was in error in referring to multiple certificates. There is only one which the Minister concedes is invalid. The certificate is reproduced at CB 107 and purports to apply to folios 84 – 93, 97 – 101 and 146 – 162 from the file held by the Minister’s Department bearing the reference “CLF 2008/009512”. These documents were exhibited in a sealed envelope to Mr Hillyard’s affidavit and I examined them at the trial. The Minister’s delegate certified in the certificate that the disclosure of the documents covered by it would be contrary to the public interest because they “contained information relating to internal business of the Department”.
As noted by the Tribunal,[64] the documents covered by the certificate relate to the applicant’s subclass 572 visa documents which applied to:
a)the Tribunal’s request for the Minister’s Department’s file and electronic Departmental records;
b)an assessment of the applicant’s subclass 572 visa application, including fund calculation; and
c)further electronic Departmental records.
[64] CB 147, [27]
In line with Beach J’s reasoning in MZAFZ v Minister for Immigration[65] at [36]-[37], the Minister accepts (as do I) that the certificate is, on its face, invalid. However, the Tribunal discussed with the applicant that the certificate covered documentation not relevant to the current review and that it would not take the documentation into account.[66] The Minister submits, notwithstanding the invalidity of the certificate, that the information was neutral to the applicant’s interests, [67] as confirmed by the Tribunal and therefore, given that the Tribunal did not consider the documentation covered by the certificate to be adverse to the applicant, there was no difference to the outcome of the review[68] and the applicant did not “los[e] any opportunity to advance [her] case by reason thereof” and did not suffer detriment or practical injustice.[69]
[65] [2016] FCA 1081
[66] CB 147, [27]
[67] BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 at [47]
[68] AVO15 v Minister for Immigration [2017] FCA 566 at [91]; BEG15 at [67]-[68]
[69] Cf AVO15 at [91]
There is, however, tension between what the Tribunal states at footnote 10 to its reasons (namely that the documents on the file were of no relevance to the review) and what the Tribunal states at [27] where it took the view that the absence of any information in the applicant’s student visa file about her brother named N raised credibility concerns which the Tribunal considered “significant”.
In my view, after weighing these competing factors, the Tribunal did not act on the certificate because it examined the documents purportedly covered by the certificate to determine their relevance to the review and it disclosed at the Tribunal hearing the issue of substance to which the documents apparently related, namely the existence of the applicant’s brother N. While the documents to that extent did have relevance to the review, notwithstanding what the Tribunal said at its footnote 10, that relevance abated when the Tribunal accepted, notwithstanding its concerns, the applicant’s claims concerning her brother. In my view, the Tribunal’s acceptance of the claim and its discussion of the issue with the applicant at the hearing met the Tribunal’s obligations of procedural fairness under s.425 (and possibly also s.424A).
In my view, the Tribunal did not fall into jurisdictional error in relation to the manner in which it dealt with the certificate and the documents purportedly covered by it.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 7 August 2018
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