EQG18 v Minister for Home Affairs

[2019] FCCA 1646

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQG18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1646

Catchwords:
MIGRATION– Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2A)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

First Applicant: EQG18

Second Applicant: EQH18

Third Applicant: EQI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 927 of 2018

Judgment of: Judge Vasta

Hearing date: 29 April 2019

Date of Last Submission: 29 April 2019

Delivered at: Brisbane

Delivered on: 29 April 2019

REPRESENTATION

There being no appearance by or on behalf of the Applicants

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed 7 September 2018 is dismissed.

2. That the Applicants pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 927 of 2018

EQG18

First Applicant

EQH18

Second Applicant

EQI18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 12 August 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant the First Applicant – EQG18 – the Second Applicant –EQH18 –and the Third Applicant – EQI18 – a protection visa.  On 7 September 2018, the Applicants filed an originating application in this Court, seeking the Court to review the decision. 

2. In summary, the Applicant came to this country by virtue of being an accompanying person on his wife’s student visa.  That is – his wife had applied for a student visa in India.  It had been granted.  The Applicant was the spouse of the visa Applicant and was given a visa to come to Australia. 

3. The two of them had been in Australia for some time before the department cancelled the student visa of the Second Applicant.  Upon that cancellation, the First Applicant then lodged an application for protection.  Since that time there has been a child born to the First Applicant and the Second Applicant, and that child is the Third Applicant. 

4. In short compass, the claims of the Applicant are that he and the Second Applicant were married in India.  The two of them were from the same sub-caste but not from the same samaj. The two of them say that, because of this, their families were against the wedding.  So almost as soon as they were married, their families took them to the Court for them to divorce. 

5. Both of them say that they were in effect then put under house arrest by each of their families.  Somehow – which isn’t fully explained – they were able to escape from house arrest and ran off together.  They remarried in a village about 15 kilometres away from their original home. 

6. After that, they kept moving from place to place in order to get away from their families, who would vow revenge.  The wife then applied for the student visa, which the husband tagged along for, and they came to this country. 

7. They fear returning to India, because the families would put them both at risk for the crime of intermarrying and the shame that they have brought upon the family. 

8. The AAT assessed this claim.  This was a very, very thorough judgment and, it would seem on the material before me, had taken quite some time to consider.  The time-table of their time in Australia is that they arrived on 25 September 2008 and that the wife’s student visa was cancelled on 25 June 2010.  The two of them remained in Australia as unlawful noncitizens.  On 4 May 2014, the Third Applicant was born, and on 19 December 2014, the Applicant filed this application. 

9. The delegate asked each of the Applicants to comment separately about the information they had given, and on 8 October 2015, the delegate refused their applications. 

10. The Applicants applied to the Tribunal for a review of the decision.  That occurred on 6 November 2015.  The Applicants attended hearings before the Tribunal on 26 April 2016 and 13 May 2016.  It was not until 12 August 2018, that the Tribunal gave its decision affirming the delegate’s decision.

11. The Tribunal went through very carefully the material that each had submitted in their original applications and then what each of them had said to the Tribunal during the hearings.  The Tribunal said this at paragraph 65:

    65. The Tribunal is willing to accept the applicants were married on 23 March 2006.  The applicants have maintained that this was their wedding day since they applied for student visas in 2008.  In addition, they provided a copy of their marriage certificate to the Department when applying for their student visa applications.  The Tribunal is also prepared to accept that the applicants are both Patels from the Kadva Patel subcaste.  Although the Tribunal does say with some hesitancy, given the apparent untruthfulness of the applicants the Tribunal is willing to accept that the applicants are from different Samajs or communities.  The Tribunal accepts that traditionally there is pressure from Patels to marry within their traditional Samajs. The Tribunal notes that it has been unable to find any credible reports of serious harm caused to Kadva Patels for marrying outside of their samajs. 

12. The Tribunal ended up talking of the inconsistent evidence and the fact that they did not accept the major tenets of the claims.  At paragraph 66 the Tribunal said:

    66. However, given the major inconsistencies in the evidence of the applicants, the Tribunal does not accept that the applicants were divorced, or forced to divorce, that they fled Sundarpur to live together and avoid persecution by their families, that they re-married on 29 April 2006 in Bhuj or that they travelled from place to place to avoid detection.  The Tribunal does not accept that either applicant was ever harmed or threatened by anyone for their marriage to each other or for any other reason. 

13. The Tribunal went through those major inconsistencies.  The major one was that both Applicants indicated, in their applications, that the only place they had lived for six months or more in India, in the 10 years prior to applying for protection visas, was in Sundarpur. However, at the actual hearing the Applicant indicated that the couple had lived in Bhuj for 13 or 14 months.  The Second Applicant indicated that the two of them had lived almost a year in Masana. 

14. The Tribunal noted that they found the reason for these major inconsistencies is that it did not occur; that is, they never left Sundarpur.  They never divorced.  They never remarried, and the marriage itself was at the very least tolerated, if not supported, by the Applicants’ families.    

15. The AAT noted that the original application for a student visa had that the Applicant’s father and the Second Applicant’s family members were listed as financial guarantors on the student-visa application. 

16. The Tribunal placed a good deal of weight on the fact that the department had not ever been given copies of a divorce or a second marriage certificate when the couple applied for student visas.  If what the Applicants were saying was correct, one would have thought that it is the second marriage certificate that would have been the proper marriage certificate.  This is because, on the evidence of the two of them, the first marriage had already ended in divorce and so that certificate was not a suitable certificate to be giving to the Department to bolster the claims that the First Applicant should be the accompanying person or dependent person upon the Second Applicant in her student-visa application. 

17. The Applicants had claimed that they did not apply for protection visas before 2014 because they were unaware that such visas existed, and the Tribunal did not accept that this was the true state of affairs.  The Tribunal noted at paragraph 72 that:

    72. As the Tribunal does not accept the applicants were ever forced to divorce, the Tribunal does not accept that government officials or policemen were bribed or otherwise influenced to assist the applicants’ families to procure the forced divorce. Similarly, the Tribunal does not accept the couple ever asked policemen for assistance in avoiding harm from their families.

18. The Tribunal found that they were not satisfied that the Applicants met the refugee criteria or the complementary protection criteria and, therefore, they affirmed the indecision. 

19. The grounds of the application are these: 

    1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

    The tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon their return to India.

    2. The Tribunal was not satisfied that the applicant was a person whom Australia owed protection obligations, the Tribunal engaged in a process of reasoning that was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds.

    3. The Tribunal constructively failed to exercise its jurisdiction; 

    Particular:

    The applicant provided documents to the Tribunal to corroborate his claims.  The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.  It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

    4. The Tribunal failed to consider an integer of the applicant’s claim, in failing to consider whether or not inter caste marriage in India was at risk of harm from family, and not able to access effective protection whilst the Tribunal formed the view that the applicants are from different Samajs, and traditionally there is pressure from Patel to merry within their traditional Samajs (AAT decision page 22, paragraph 65).

20. The Applicant appeared before Registrar Lynch on 7 November 2018.  Registrar Lynch ordered that the Applicants file and serve written submissions in support of the application for review 14 days prior to the hearing and set the matter for hearing on 29 April at 11.30 am.  The Applicants did not file any written submissions and have been, obviously, content to let the grounds of the application speak for themselves, but the Applicants have not turned up for the hearing.

21. The Applicants were called just before 11.30 am.  They were called again at 11.30 am.  They were called again at 11.55 am, when I was ready to proceed with the matter.  My Associate physically went to the registry to find out whether or not the Applicants had turned up there or had made any contact with the registry, and they had not.

22. I decided to proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) and hear the matter on the merits. I have been assisted by very helpful submissions by Mr Karanis, who appears for the Minister.

23. With respect to the first ground in the application, the ground does not further particularise what it is that the Tribunal has done to misconstrue the risk and fear of significant harm as set out in the Act, nor does the ground explain how the Tribunal erroneously and narrowly construed that.

24. The fact of the matter is that the Tribunal came to the conclusion that the Applicants had fabricated their claims; that is, that they were not truthful in saying that their families were against their marriage.  If that were so, it is totally incongruous that the family of both the Applicants were financial guarantors to the student visa application.  The Tribunal, even though they were somehow reluctant, came to the conclusion that the marriage was tolerated.

25. Having regard to that conclusion, it is not to the point whether the construction of risk and fear of significant harm has been misconstrued.  The point is that in a situation where the Tribunal has said what it is that is the true state of affairs, there was no room for there to be any risk and fear of significant harm on that factual scenario.  There is certainly no merit in ground one.

26. Ground two does not have any merit either, because the finding that the Tribunal came to was one that was certainly open on the evidence, as I have described it, and was logical;  therefore, there is no merit in that ground.

27. Ground three is a claim that the Tribunal ignored the documents; that is, the document of divorce and the document of remarriage.  It seems that the Tribunal was well within its rights to do so, because, as I mentioned in the recitation of the facts, one would have thought if what the Applicants were saying was true, that the first certificate of marriage would not have been the one upon which they relied to base their student visa application.  That certificate would have been of absolutely no use whatsoever, and it would have been the second certificate that was given to the Department.

28. The fact that it was the first certificate that was given to the Department is sufficient for the Tribunal to come to the logical inference that the subsequent documents were fabrications.  Given the other findings that the Tribunal made as to the general credibility of the Applicants, it is difficult to see any error made by the Tribunal. I find that there is no merit in ground three.

29. Ground four suggests that the tribunal has failed to consider the fact of inter-caste marriage.  As was quite evident in the recitation of the facts, the Tribunal specifically noted that they were unable to find any credible reports of serious harms caused to Kadva Patels for marrying outside their Samajs.  It is trite to say that it is for the Applicants to prove their case.  The Tribunal was simply not in a position to be satisfied that there was going to be serious harm caused to the Applicants for marrying outside their Samajs.  It seems to me that the Tribunal has properly considered that matter.

30. Given that there is no merit in any of the applications, and, as well, having gone through the decision of the Tribunal and found that there are no jurisdictional errors, I am left with the inevitable task of dismissing the application with costs in the sum of $5,000.00

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 27 June 2019