Ely17 v Minister for Immigration

[2018] FCCA 2509

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2509

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where grounds of review are unparticularised – procedural fairness – findings of the Tribunal open to it on the evidence before it –  no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth) Part 7, Div.4

Applicant: ELY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2132 of 2017

Judgment of: Judge Hartnett

Hearing date: 3 September 2018

Delivered at: Melbourne

Delivered on: 3 September 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Montalban

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,127.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2132 of 2017

ELY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review filed on 5 October 2017 seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 September 2017.  By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a protection (Class XA) visa (‘the visa’).

2. The grounds of application are as follows:-

   “(1) The decision of the Tribunal:

   (a) is affected by an error of law;  and

   (b) denied the Applicant procedural fairness. 

   (2) the applicant has applied for a grant of legal assistance from Victoria Legal Aid and is awaiting a decision.”

3. As can be seen from the above, ground 2 is not a ground of judicial review.  Ground 1(a) and (b) are not particularised.

4. The First Respondent seeks dismissal of the application and that a costs order follow.

5. There is before the Court ‘submissions on denial of natural justice and procedural fairness’, as headed, and filed on 15 August 2018 by the Applicant, and submissions of the First Respondent filed on 20 August 2018.  There is also before the Court the evidence as contained in the Court Book filed 12 June 2018.

Background

1. The Applicant, a citizen of Papua New Guinea (‘PNG’), first arrived in Australia on 5 October 2012 on a PNG passport as the holder of a (Class TR) (subclass 676) (tourist) visa.  The Applicant departed Australia within the validity of that visa on 3 January 2013.

2. The Applicant next arrived in Australia on a further tourist visa on 25 April 2013.  The Applicant has not departed Australia since this arrival.

3. The Applicant applied for the visa on 1 July 2013.  The Applicant made claims for protection as set out in the Department of Immigration and Border Protection (‘the Department’) file, the salient points of which were set out in the delegate’s decision record of 12 March 2015.  The Applicant attended an interview before the delegate on 19 January 2015 and made additions and amendments to her earlier claims as further set out in the delegate’s decision.  On 10 February 2015, the Applicant was sent a letter by the delegate inviting her to comment on a range of information which could be a reason for refusing her visa application.  In the Applicant’s response received by the Department on 10 March 2015, was included a statutory declaration from the Applicant, a letter of support and a submission from her representative. Her statutory declaration included details of the Applicant’s claimed visa application processes.  In addition, the Applicant made further claims. All of this material was considered by the delegate.

4. The Department also received community information from an anonymous source that the Applicant’s claims were false, and that she was not at risk of harm in Papua New Guinea. 

5. The Applicant’s application was refused by the delegate on 12 March 2015.  The delegate did not find the Applicant to be a witness of truth and found her claims were not credible.  The delegate did not accept the Applicant was in a violent long-term relationship.

The Tribunal

1. The material before the delegate was also before the Tribunal. The Tribunal, in its Statement of Decision and Reasons (‘the Decision Record’) of 13 September 2017, and in particular from paragraph 17 onward, set out the Applicant’s background and specific protection claims. Those claims also included those made by the Applicant in her appearance before the Tribunal on 28 February 2017.  The Applicant was on that occasion represented in relation to the review by her registered migration agent. 

2. In the Tribunal’s consideration of the Applicant’s claims and evidence, the Tribunal took into account the Applicant’s representative’s submission to the Tribunal that the Applicant, deeply affected by her decision to leave her children in Papua New Guinea, and the deteriorating health of her father (who died in Papua New Guinea in October 2016), has experienced sadness, guilt and felt “suicidal on multiple occasions in the last few years”.  At the Tribunal hearing, the Applicant stated that she had contemplated suicide after the Department’s negative decision on her case.  The Applicant said she suffered from blackouts, saw a counsellor once a month, and that she took medication for depression but ceased in 2016.  The Tribunal noted that letters from two doctors had been provided to the Tribunal about the Applicant, accompanying a request that her case be prioritised.  The Tribunal set out in its Decision Record the contents of those letters, and noted in paragraph 13 of the Decision Record that the Tribunal accepted the Applicant had experienced sadness, anxiety and stress at times, and may be lonely in Australia away from her family members, in particular her children.  The Tribunal accepted that the Applicant may have received support in Australia through counselling and medications in the past, to help manage these issues, including her suicidal thoughts on occasion.  The Tribunal noted that no reports from mental health professionals had been provided to the Tribunal that indicated the Applicant had been diagnosed with, or suffers from, a specific mental illness.  The Tribunal also noted the Applicant’s evidence that she worked full time as an aged carer, and the comments from Dr Wigg of the Asylum Seeker Resource Centre about her strength and resilience.  Given those matters, the Tribunal was satisfied that the Applicant’s mental health issues were not so severe that they would result in a real chance of serious harm or a real risk of significant harm to her on return to Papua New Guinea.  Further, the Tribunal was satisfied on the evidence before it that the Applicant was able to meaningfully participate in the Tribunal hearing because she was able to understand the Tribunal’s questions and respond clearly.

3. The claims made by the Applicant for protection are as accurately set out in the First Respondent’s submissions as follows:-

   “3.1  The applicant was born in Topela village in Wapenamanda District, Enga Province.

   3.2    In 2002, the applicant entered into a customary marriage with her husband, whom she had two children with.

   3.3    After the birth of their first child, her husband became increasingly aggressive and argumentative towards the applicant.  He physically assaulted her in 2006, 2010 and 2011.  She tried to make a complaint to the police in 2011.

   3.4    In October 2012, the applicant came to Australia for three months on a tourist visa.  When she returned, her husband accused her of sleeping with other men in Australia.

   3.5    In February 2013, the applicant left her village and went to Port Moresby.  She arranged to leave for Australia but fell ill and was hospitalised.  She had surgery for a burst appendix.  Her husband accused her of having an abortion, and on one occasion raped the applicant.

   3.6    On 25 April 2013, the applicant returned to Australia on a second tourist visa.  The applicant claimed to fear harm in Papua New Guinea from her abusive husband.”

4. The Tribunal noted further in paragraph 18 of the Decision Record that in a written submission from the Applicant’s representative to the Tribunal dated 22 February 2017, it was said that the Applicant faced a real chance of serious harm on return to Papua New Guinea from her husband, and that she would not receive adequate protection from the authorities there on account of her membership of the following particular social groups:-

   a)women in Papua New Guinea;

   b)women who have suffered domestic violence in Papua New Guinea;  and/or

   c)women without male protection in Papua New Guinea.

5. The Tribunal further noted that the Applicant, in her oral submissions to the Tribunal, as set out relevantly in paragraph 25 of the Decision Record, described the history of her relationship with her husband and his violence directed toward her over a number of years which precipitated her decision to leave Papua New Guinea in April 2013.  The Applicant told the Tribunal that she had married her husband in a customary ceremony in 2002 and her “bride price” paid to her family and community by her husband’s family members was 20,000 kina and 30 pigs.  The Applicant, in an ongoing dialogue between the Tribunal member and the Applicant, told the Tribunal that she had “not considered divorcing her husband because she feared he would kill her”.  Further, the Applicant said that “when her husband paid her bride price, it was distributed among many community members, some of whom have now deceased, so they would not be able to pay it back”.  The Applicant further informed the Tribunal that, according to her sister, her husband had remarried in 2013 and had two sons with his new wife.

6. The Tribunal said at paragraph 35 of the Decision Record:-

   “At hearing when asked why she thinks her husband would still want to harm her, the applicant said because she escaped him; her family have not paid back the bride price; on marriage her husband and his family take her as their property; and she left him behind with their children without letting him know, so the hatred is still in him.”

7. The Tribunal, on hearing the matter afresh, made findings in part contrary to that of the delegate, and findings which were more favourable to the Applicant.  Nevertheless, the Tribunal concluded that the Applicant did not face a real risk of significant harm in Papua New Guinea.

8. The Tribunal accepted the Applicant’s husband was verbally and emotionally abusive in the past, and may have been physically violent toward the Applicant at times, but was of the view that the Applicant had exaggerated these claims for the following reasons:-

   a)there were inconsistencies between the Applicant’s oral evidence to the Tribunal and what was contained in the letter from a medical officer about how long she was hospitalised in 2006; 

   b)the Applicant failed to apply for a protection visa and returned to Papua New Guinea after her first trip to Australia, after claiming to have been seriously mistreated by her husband for years; 

   c)the Applicant’s husband supported her first visit to Australia, despite her claims he was possessive and jealous; 

   d)the Applicant left her children in Papua New Guinea with her husband, despite her claims he was violent and she was worried for their safety.

9. The Tribunal did not accept the Applicant’s husband had made any threats to her family members or friends in Papua New Guinea, nor that the Applicant was unable to repay the bride price.

10. The Tribunal accepted, as set out in paragraph 53 of the Decision Record, the Applicant would return to Papua New Guinea as a single mother, single woman, and/or separated/divorced woman.  It was submitted that as her father had died, she would also be returning to Papua New Guinea as a woman without male protection.  The Tribunal accepted that single women, single mothers and separated/divorced women in Papua New Guinea can face discrimination and hardship.  However, the Tribunal noted the Applicant did have some family members who could support her on her return, including her brothers, and further, that the Applicant had some education and work experience, indicating that she was resourceful and financially independent.  Given those considerations, the Tribunal found remote the chance that the Applicant would face serious harm on return to Papua New Guinea as a single mother, single woman and/or separated/divorced woman without male protection.

11. The Tribunal considered whether the Applicant would face serious harm more generally as a woman in Papua New Guinea.  The Tribunal in paragraph 55 of the Decision Record said relevantly as follows:-

    “The Tribunal accepts the situation for many women in PNG is poor and in particular for women in the Highlands, where the applicant originates from, that discrimination exists, that domestic or family violence is particularly endemic and State protection inadequate.  However for reasons above the Tribunal has found the applicant is now separated from her husband and does not face a real chance of serious harm at his hands on return.  She has not claimed to have experienced problems from other individuals whilst she lived in PNG in the past as a woman and the applicant has not submitted any information that indicates she has or will experience serious harm as a woman in PNG.  On the information before it, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm at the hands of anyone as a woman on return to PNG.”

12. Accordingly, the Tribunal did not accept the Applicant faced a real chance of serious harm from her husband for any reason, or from the authorities or the community more broadly, as a single, separated/divorced woman, a woman who has suffered domestic violence, or a woman in Papua New Guinea.

Consideration

1. The Applicant in her submissions to the Court claimed jurisdictional error in the following:-

   “The Member exclusively reiterated on information provided by a community member who alleged of providing false information of which is not true and have no knowledge and failed to provide the individual(s) name when FOI was provided.”[1]

   The Court notes the Applicant’s claim that the Tribunal relied on the information provided by a community member, is not correct.  As set out in paragraph 57 of the Decision Record, the Tribunal said as follows:-

   “As set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review, notes contained on the Departmental file indicate that the Department received an anonymous allegation on 17 September 2013 that the applicant was providing a ‘fake’ story as to why she cannot return to PNG and her life was not at risk in PNG.  At hearing when the information contained in the allegation was discussed the applicant said it is a lie and she suspects it came from a woman in Australia called Mercy who is suspicious of other PNG women here, has a younger boyfriend, and often argues with other PNG women at functions.  The representative submitted that because it is unsubstantiated and false, the allegation should be disregarded.  As discussed at the hearing, given the allegation is anonymous and unsubstantiated, the Tribunal gives it no weight.”

   [1] Applicant’s submissions filed 15 August 2018, 5.

2. The Applicant submitted this day that jurisdictional error had occurred in the Tribunal decision because the Tribunal had not considered country information.  That also is not borne out in the Tribunal’s Decision Record.  One such example was the bride price.  It is clear that the Tribunal looked at relevant country information, the choice of it and the weight to be given to it, a matter for the Tribunal.  In respect of the bride price tradition in Papua New Guinea, the Tribunal noted an excerpt from a 2006 report from Amnesty International, included in the Applicant’s submissions, which referred to the difficulty in leaving situations of domestic violence for fear of the bride price having to be repaid.  The Tribunal had earlier looked to country information in matters of the bride price and did not accept the submissions of the Applicant. The Tribunal found the Applicant’s husband’s lack of contact with her and her family indicated that he had no interest in pursuing her.  The Tribunal also noted in paragraph 51 of the Decision Record that:-

   “… the applicant had access to money to pay for her return airfare to Australia in April 2013 and works in Australia. The representative submitted that the applicant sends money from her work in Australia to her family in PNG.  This money could have been used to repay the bride price if the applicant genuinely feared being harmed by her husband whilst this debt is outstanding.  The money could have been given by her family and/or community members and the applicant’s husband would not have needed to know the source of the money...”

3. In submissions also made this day, the Applicant claimed the Tribunal did not look into her evidence, being the evidence she had provided to the delegate. She did not say what particular evidence it was that she claimed to have been overlooked. The basis of that submission, as stated by the Applicant, was that the Tribunal asked the Applicant the same questions as the delegate.  This submission goes to a disagreement with the findings of the Tribunal and a desire that the Court engage in merits review, which of course is not a function of the Court.

4. Otherwise, the grounds of review are broad and unparticularised, and to that extent, lack meaningful content.

5. The Tribunal carefully considered the various claims of the Applicant.  The Tribunal did that which it was required to do, which was to test the Applicant’s evidence. The Applicant considered it procedurally unfair and that she had been put under “enormous pressure” at the hearing by being required to provide oral evidence and respond to questions asked of her by the Tribunal member. The Tribunal’s proceedings are inquisitorial in nature however and the Tribunal fairly raised with the Applicant matters that were of concern to it, including inconsistencies in the Applicant’s own evidence, and evidence and materials which did not support the Applicant’s claims.  The Tribunal did not rely upon the third-party allegation which the Tribunal discussed with the Applicant, and no part of the reasons relied upon any finding of fact in respect of those allegations.

6. The Tribunal complied with its procedural fairness obligations as provided for in Div.4 of Part 7 of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal in its Decision Record does not take into account irrelevant considerations, and nor indeed were there any irrelevant questions asked of the Applicant. Absent further particulars and evidence, such as a transcript of the hearing, the procedural fairness ground cannot be made out. The Tribunal accepted, unlike the delegate, that the Applicant’s claims to have suffered verbal and emotional abuse and possible physical violence at the hands of her husband were made out, although the Tribunal found the Applicant’s evidence that she had suffered physical violence at the hands of her husband to be claims which were exaggerated.

7. The Tribunal gave a detailed and thorough consideration to the matters put before it by the Applicant, engaged in a logical reasoning process with conclusions made that were clearly open to the Tribunal on the evidence before it. No jurisdictional error attends the decision. The application, therefore, must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 18 September 2018