Dma19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 198

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 198

File number(s):

SYG 2358 of 2019

Judgment of:

JUDGE DRIVER

Date of judgment:

25 February 2021

Catchwords:

MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Nepal – applicant disbelieved in part and other fears found not to be well-founded – whether the Tribunal acted unreasonably considered – no jurisdictional error.  

Legislation:

Migration Act 1958 (Cth), ss 424, 438

Cases cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Number of paragraphs:

35

Date of hearing:

5 February 2021

Place:

Sydney

Counsel for the Applicant:

Mr J R Young

Solicitor for the Applicant:

Shamser Thapa and Associates

Solicitor for the Respondents:

Ms A Zinn of Mills Oakley Lawyers

ORDERS

SYG 2358 of 2019

BETWEEN:

DMA19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	25 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application filed on 11 September 2019 is dismissed.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 13 August 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a male citizen of Nepal who arrived in Australia on 16 March 2008 on a vocational education sector (TU 572) visa, which expired on 2 December 2009 and the applicant thereafter became an unlawful non-citizen.[1]

   [1] Court Book (CB) 89

4. On 3 May 2011, the applicant was granted a bridging visa effective until 4 May 2011 to enable him to make arrangements for his departure, but he again became an unlawful non-citizen on 5 May 2011.[2]

   [2] CB 89

5. More than three years later on 27 July 2015, the applicant lodged an application for a protection visa[3] with the assistance of Shamser Thapa & Associates.[4] The applicant provided copies of pages from his passport and[5] his NSW Photo Card,[6] and set out his written protection claims in his visa application[7] and in a statutory declaration dated 21 July 2015[8] where he claimed the following:

   (a)the applicant came to Australia on 16 March 2008 on a student visa. He experienced financial difficulty in his second semester and was unable to continue his studies, spent the next few years “wandering around” and “lost” his visa;

   (b)after moving to Sydney in 2011, the applicant met a Nepalese woman and they married. The applicant was of the “Chhetri” caste and his wife was of the “Brahmin” caste. Both sets of parents were “furious” when they discovered that they were in an inter-caste marriage and “tried to get their hands on” them to punish them. Both families told them not to return to Nepal as they would not accept the relationship;

   (c)societal discrimination against inter-caste marriages was deeply rooted and the authorities were unable to punish perpetrators of such discrimination;

   (d)whilst the applicant had previously “had enough courage to return to Nepal and start a new life”, the recent earthquake in Nepal changed his mind;

   (e)the applicant and his wife would have nowhere to live in Nepal as their families did not accept them and the applicant had been completed discarded by his family. Both the applicant and his wife considered Australia as their home and once his wife completed her Bachelor of Business studies in 2016 and obtained her qualifications, they would be able to start a new life; and

   (f)the applicant and his wife feared social discrimination and “honour killings” due to their inter-caste marriage.

   [3] CB 1-36

   [4] CB 37-39

   [5] CB 40-49

   [6] CB 50-51

   [7] at CB 31-32

   [8] CB 52-55

6. On 7 April 2016, the applicant attended an interview with the delegate where he stated, among other things, that there was continued resistance to inter-caste marriages in Nepal and that his wife had become pregnant but the pregnancy had been terminated. It was also put to the applicant that there were documented cases of Chettri/Brahmin marriages in Nepal, to which the applicant responded that the parties to those marriages “must be very broad-minded”.  It was put to the applicant that his wife had declared in her latest visa application that she was “Never Married”, to which the applicant stated he was sure his wife had given his name to the Minister’s Department.[9]

   [9] CB 91-93

7. On 8 April 2016, the delegate refused to grant the applicant a protection visa.[10]  Despite the applicant claiming that he and his wife were married, the delegate was unable to be satisfied that the applicant was genuinely married to a woman of the Brahmin caste because there was no supporting evidence for the claim.  The delegate found that even if she accepted the claim, independent country information on the protections afforded to Nepalese people in inter-caste marriages did not support the applicant’s claim that the authorities would not help him should he return to Nepal or that he would be harmed for entering into an inter-caste marriage. The delegate also found that the applicant’s delay in applying for protection undermined the credibility of his claims.

   [10] CB 88-105

   The Tribunal

8. On 2 May 2016, the applicant lodged an application with the Tribunal to review the delegate’s decision. He gave the Tribunal a copy of the delegate’s decision and again appointed Shamser Thapa & Associates as his authorised representative.[11]

   [11] CB 106-107

9. On 25 February 2019, the Tribunal sent the applicant a letter pursuant to s 424 of the Migration Act 1958 (Cth) (Migration Act) inviting him to provide information, namely, a copy of his marriage certificate and photographs of his wedding.[12] On 10 March 2019, the applicant provided the requested documents.[13]

   [12] CB 120-123

   [13] CB 124-129

10. On 24 July 2019, the applicant provided a further submission that essentially reiterated his claims to fear harm from “his family members and community” due to his inter-caste marriage. He also confirmed that the marriage had since broken down. He sought to explain his delay in lodging his protection visa by contending that:[14]

    (a)he wanted to study and “become something on his own rather than to stay here on protection visa”; and

    (b)his fear of harm was “only subjective as he was out of the reach of his family and community members”.

    [14] CB 157-167

11. On 31 July 2019, the applicant attended a Tribunal hearing. His authorised representative did not attend.[15] The applicant gave the Tribunal at the hearing additional copies of his marriage certificate, wedding photos and pages from his passport.[16] The only evidence of what occurred at the scheduled Tribunal hearing are the references in the Tribunal’s decision, which recorded that the following occurred:

    (a)the applicant confirmed that his relationship with his wife ended in September 2018 and that she was in Nepal. There had been no difficulties in the relationship prior to this time, but his wife had ended it without giving any reason why. He suspected it was because she did not want to be in an inter-caste marriage;[17]

    (b)when the respective families found out about the marriage, they had objected and wanted the parties to separate;[18] and

    (c)the Tribunal put to the applicant that as he would not now be returning to Nepal in an inter-caste marriage, the independent information before it did not establish there was a risk to the applicant as a result of having previously been in such a marriage. The applicant disagreed.[19]

    [15] CB 171-173

    [16] CB 174-182

    [17] CB 193, [26]

    [18] CB 193, [27]

    [19] CB 193-194, [29][30]

12. The Tribunal provided the applicant with the opportunity to proffer any authoritative independent information to counter its view that none of the independent evidence supported the contention that he would face a risk of harm notwithstanding that his claimed inter-caste marriage had ended. The applicant indicated that he would provide information to this effect, but no such evidence was ever provided.[20]

    [20] CB 173, 194, [30]

    The Tribunal decision

13. On 13 August 2019, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa. In summary, the Tribunal found the following:

    (a)the Tribunal found that if the applicant had a genuine fear of returning to Nepal based on his inter-caste marriage, he would have explored and ascertained protection options at an earlier point than he did, and this created some “credibility concerns” as to the extent of his claimed fears based on the marriage;[21]

    (b)the Tribunal found the applicant’s evidence about the circumstances of the breakdown of the relationship did not convey a sense that he was recounting true experiences. It found that it did not make sense that the applicant’s wife would simply indicate that the relationship was over without giving any reason and held this “did not have a ring of truth to it”, particularly given the wife would have been aware of the caste difference before entering into the marriage;[22]

    (c)even if it accepted the claimed circumstances surrounding the separation, the Tribunal found that the relationship had now ended to the apparent approval of the parties’ families and, on the basis of the independent country information, found that the risk of ongoing difficulties from the marriage was limited to the period in which it continued and the applicant had provided no evidence to counter this view;[23] and

    (d)the Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm on return to Nepal based on having previously been in a marriage and relationship with a person from a different caste which had since ended.[24]

    [21] CB 194, [32]

    [22] CB 194, [33]-[34]

    [23] CB 194-195, [35]‑[36]

    [24] CB 195, [37]

14. The Tribunal referred to a non-disclosure certificate issued under s 438 of the Migration Act that was before it covering material on the basis that the material comprised internal working documents and related to business affairs. The Tribunal did not consider the certificate was valid.[25]

    [25] CB 195, [38]

    THE CURRENT PROCEEDINGS

15. These proceedings began with a show cause application filed on 11 September 2019.  There are three grounds in that application:

    1.The Second Respondent made jurisdictional error by drawing a legally unreasonable inference that an absence of country information on the subject of whether there was a real risk of persecution from a person having entered into an inter-caste marriage in Nepal, which had ended, could be used to conclude there was no risk.

    2.Further or in the alternative to ground 1, the Second Respondent misused or used in an unreasonable way, information relating to inter-caste marriages in Nepal and the risk of harm and persecution, to the circumstance of the marriage having ended, to which there was no reference in the country information.

    3.The Second Respondent made jurisdictional error by failing to comply with s 425 of the Migration Act 1958 or the principles of procedural fairness in relation to issues concerning the breakdown of the Applicant's marriage.

    Particulars

    a) Particulars will be provided on receipt of a transcript of the hearing of the Second Respondent on 31 July 2019.

16. Ground 3 was not pressed. 

17. In discussion with the applicant’s representative at the trial, Ground 1 was rephrased as follows:

    The second respondent made jurisdictional error by drawing a legally unreasonable inference that an absence of country information on the subject of whether there was a real risk of persecution from a person in Nepal having entered into an inter-caste marriage which had ended, could be used to conclude there was no risk.

18. Grounds 1 and 2 were addressed together. 

19. The only evidence I have before me is the court book lodged on 12 November 2019.

    CONSIDERATION

20. This case focuses upon the Tribunal’s reasoning at [36] of its reasons for decision, where the Tribunal stated:[26]

    The applicant has claimed that both the families of he and his wife demanded that the relationship be ended once they found out about the marriage.  The relationship has now ended therefore meeting the wishes of [the] respective families.  The Tribunal considers, including based on independent information, that the risk of ongoing difficulties from families and society as a result of entering into an inter-caste marriage is limited to the period in which the marriage/relationship continues.  The applicant has not provided independent evidence which counters this view.

    [26] CB 195

21. The applicant contends that while it may have been open to the Tribunal to make a negative conclusion that it was not satisfied on the material before it that the applicant faced a continuing risk of harm in Nepal based upon the inter caste marriage, it was not open to the Tribunal to make a positive finding that any risk faced by the applicant ended with the ending of the relationship.  The applicant contends that there was nothing before the Tribunal to support that positive finding.  The applicant contends, in the circumstances, that the finding by the Tribunal was legally unreasonable.  Counsel for the applicant submitted that an analysis of the independent country information supported the view that some risks, such as social ostracism and physical violence could survive the end of the marriage.

22. The Tribunal’s finding at [36] was a rather bold one.  As I pointed out to the representatives during legal argument, at the time of the Tribunal decision, while it was clear that the applicant and his wife had separated, there was no evidence of divorce, either in Australia or in Nepal.  There was thus still, in a legal if not a practical sense, an inter-caste marriage.

23. In my view, however, it puts the bar too high to assert that the Tribunal’s conclusion was unreasonable in a legal sense.  It needs to be viewed in context.  That context includes that the applicant advanced a claim to protection based on an inter-caste marriage after he became a prohibited non-citizen following the expiry of his student and bridging visas.  Secondly, the delegate did not accept that the applicant was married.  The Tribunal was, however, persuaded that a marriage had been contracted, based on the evidence comprising a certificate of marriage[27] and photographs of what appears to be a Hindu religious marriage ceremony.[28]  The applicant’s fear of harm was wholly based on that marriage.

    [27] CB 174

    [28] CB 175

24. Further, the country information before the Tribunal, while providing clear evidence of a risk facing Dalits, or “untouchables”, provided limited support for the proposition that high caste individuals (such as the applicant and his wife) faced difficulties arising from an inter-caste marriage.  In addition, it was the applicant who put to the Tribunal that the marriage had come to an end.  There was no suggestion from the applicant that he would seek to resuscitate the marriage or resist a divorce. 

25. At [30][29] the Tribunal acknowledged the applicant’s assertion at the Tribunal hearing that he would remain at a risk of harm notwithstanding the relationship had ended because of the fact that he had entered into the inter-caste marriage.  The Tribunal gave the applicant the opportunity after the hearing to provide written support for that proposition.  Nothing further was provided.

    [29] CB 194

26. Viewed in the context of all the surrounding circumstances, in my view, it was open to the Tribunal to conclude that the applicant’s risk of harm terminated with the termination of the relationship between the applicant and his wife, because it was the attitude of their respective families that mattered and the cessation of the relationship accorded with the families’ respective wishes.

27. I otherwise agree with the Minister’s submissions concerning the two grounds of review maintained in the application.

    Ground 1

28. The first ground contends the Tribunal drew a “legally unreasonable inference” that, because there was no country information on whether harm could be faced by people formerly in an inter-caste marriage, the applicant therefore faced no risk of harm. The applicant’s submissions at [15]-[19] concede that the Tribunal was correct to find that none of the applicant’s evidence supported the claim that any risk of harm to the applicant would continue after the relationship had ceased, but contend the Tribunal then “moved way beyond this” in finding at [36] that “based on independent information risks associated with inter-caste marriages were limited to the period in which the relationship continued”. The applicant at [20] of his submissions contends this was either a legally unreasonable finding or a finding based on no evidence.

29. The applicant’s contentions cannot succeed. First, there was nothing unreasonable about the Tribunal forming the view that the information before it did not indicate that a person who had previously but was no longer in an inter-caste marriage would face any harm. The Tribunal had no information before it to suggest that the someone in that position would face such harm, and the applicant did not put forward any information to that effect despite having been expressly given the opportunity to do so. In those circumstances, it could not be said that the Tribunal’s view lacked an evident and intelligible justification,[30] or was a view that was so unreasonable that no reasonable decision-maker could have arrived at it.[31] 

    [30] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]

    [31] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at [230]

30. Secondly, the Tribunal at [36][32] found that “based on independent information” the risks associated with being in an inter-caste marriage were limited to the period in which the marriage/relationship continued. The applicant contends that there was no independent information to support this finding and that it was therefore a finding made with no evidence. Such a view mischaracterises the Tribunal’s findings. The Tribunal, in determining that its view was “based on independent information”, was merely stating that the independent information before it did not indicate that the applicant would face any risk from an inter-caste marriage that had since ended. It had put this same view to the applicant.[33] Contrary to the applicant’s assertions, there was therefore independent information before the Tribunal that supported this view.

    [32] CB 195

    [33] CB 193-194, [29]

    Ground 2

31. The second ground contends, in the alternative, that the Tribunal “misused or used in an unreasonable way” information relating to inter-caste marriages in Nepal “to which there was no reference in the country information”.

32. It is not clear how the complaint in Ground 2 is different from the complaint advanced in Ground 1. The second ground appears to be a recasting of the first ground. Nor is it apparent how the Tribunal misused the independent information before it relating to inter-caste marriages in Nepal or how this constitutes jurisdictional error on the part of the Tribunal even if it could be established. The Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it thought appropriate in all the circumstances and it was not obliged to uncritically accept any or all of the allegations made by the applicant.[34]  Its findings flowed logically from and were reasonably open on its assessment of the material before it.

    [34] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

1. As outlined in respect of Ground 1, the Tribunal at [30] put to the applicant at the hearing the effect of the independent country information, its views about the likely application of that information to the applicant’s claims and circumstances and afforded him an opportunity to comment upon and respond to the information and the Tribunal’s view and to identify and provide further independent information to countenance his own view. It is not apparent how this could have been a misuse or unreasonable use of that information. As no further supporting country information was provided by the applicant, the Tribunal was entitled to rely on the information before it and to accord it the weight that it deemed appropriate.[35] 

   [35] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]

   CONCLUSION

2. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

3. I will hear the parties as to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       25 February 2021