Equ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1168
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EQU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1168
File number(s): SYG 2530 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 8 December 2023 Catchwords: MIGRATION – Where adverse credibility findings based on alleged omission of central claim from visa application and inconsistencies in manner in which claim later described – claim made with tolerable clarity in visa applicant – where alleged inconsistencies found on mistaken understanding of evidence – credibility findings legally unreasonable
PRACTICE AND PROCEDURE – heckling from Bar table by Counsel – obligation of Minister to act as model litigant
Legislation: Judiciary Act 1903 (Cth) ss 2, 55N, 55ZG
Migration Act 1958 (Cth) ss 36, 5AAA
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
BSE17 v Minister for Home Affairs [2018] FCA 1926
CID15 v Minister for Immigration and Border Protection [2017] FCA 780
CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222
Gestmin v Credit Suisse [2013] EWHC 3560 (Comm)
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and Border Protection v MZAIV[2016] FCA 251
Kelly v Australian Postal Corporation (2015) 67 AAR 359
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379
XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 119 Date of hearing: 15 June 2023 Place: Sydney Solicitor for the Applicants: Michael Jones Solicitor Counsel for the Respondents: Mr Reilly Solicitor the Respondents: Clayton Utz ORDERS
SYG 2530 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EQU18
First Applicant
EQV18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 12 August 2018 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re-determine, according to law, the application for review before it.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN
Before the Court is an application seeking review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 12 August 2018, affirming a decision of a delegate of the first respondent (delegate) to grant the applicants Protection visas (visas).
BACKGROUND
The background to this matter has been derived from written submissions of the parties but, unless otherwise indicated, does not appear to be in dispute.
The applicants are a married couple. The first applicant (wife) is a citizen of India. The second applicant (husband) is a citizen of Pakistan. The first and second applicants originally arrived in Australia separately travelling on student visas, in 2008 and 2009 respectively. The applicants met in Australia and applied for protection visas on 12 May 2014 (Court Book (CB) 1 to 84).
The first applicant claimed to fear harm from members of her family, her community, Indian society, Hindus, and extremist groups due to objections to her relationship and marriage as an Indian Hindu to a Pakistani Muslim (CB 431 to 433).
The second applicant claimed to fear harm from members of his family, the Muslim (Sunni) community, and Islamic extremists due to their objection to his relationship and marriage as a Pakistani Muslim to an Indian Hindu (CB 436 to 437).
A delegate of the first respondent interviewed the applicants on 6 January 2015. On 6 March 2015, the delegate refused to grant the protection visas (CB 323 to 367).
On 20 March 2015, the applicants applied to the Tribunal for review of the delegate’s decision and appointed their migration agent as their authorised recipient (CB 368 to 370). The Tribunal held hearings on each of 9 February 2016 and 11 May 2016. On 14 August 2018, the Tribunal notified the applicants (via their authorised recipient) of its decision, made on 12 August 2018, affirming the delegate’s decision to refuse to grant them the visas (CB 427 to 451).
The Tribunal’s Decision
The Tribunal accepted that the applicants met in 2009 and were in a de facto relationship from 2010, until they married in 2016 (CB 45 at [10]).
The Tribunal made the following findings with respect to the first applicant:
(a)the Tribunal accepted that the first applicant had previously been in a long-term, interracial and inter-faith relationship in Delhi, but had suffered no harm from her family as a result of that relationship (CB 445 at [111] to [112]);
(b)the Tribunal did not accept that the first applicant was threatened or beaten by her uncles or cousins when she returned to India in 2011 (CB 446 at [113]). The Tribunal based this conclusion on what was said to be:
(i)the first applicant’s failure to mention this claim in her protection visa application, and her inconsistent explanations to the delegate as to why she failed to mention it;
(ii)the second applicant's own evidence that the first applicant had no contact or interaction with any members of her paternal family since 1991, which the Tribunal accepted (CB 446 at [114]);
(iii)the first applicant’s inconsistent accounts regarding this claim; and
(iv)its finding that the letters purportedly written by her mother and another person to corroborate this claim were fabricated to bolster the first applicant's chances of being granted a protection visa.
(c)the Tribunal accepted that if the first applicant were to return to India she would live in Delhi (CB 447);
(d)the Tribunal accepted that the applicants might face difficulties as a Pakistani Muslim and Indian Hindu married couple (CB 447 at [121]). The Tribunal noted that country information suggested that interfaith couples may face negative attitudes and treatment from society at large in India (CB 447 at [121]). However, the Tribunal considered that the risk of serious harm to interfaith couples comes mainly from the families of the couples. The Tribunal found that there was no real risk the first applicant will suffer harm at the hands of her family members, finding that she had not been in contact with them since 1991 and she suffered no such harm from her previous inter-racial, inter-faith relationship (CB 447 at [121]); and
(e)the Tribunal did not accept that the first applicant's uncles are members of Hindu extremist groups or that they were involved with "Shiv Sena", noting that neither claim was made in her visa application (CB 447 at [122]).
With respect to the second applicant, the Tribunal made the following critical findings:
(a)the Tribunal did not accept that the second applicant was ever harmed or threatened by any member of his family, community or member of the Pakistani society including any extremist groups. The Tribunal based this conclusion on (CB 448 at [127]):
(i)“multiple inconsistencies and contradictions” in the second applicant’s evidence;
(ii)the fact that the second applicant’s claims regarding extremist groups were absent from his protection visa application, and not repeated at the hearing until prompted by the Tribunal;
(b)the Tribunal did not accept that a Fatwah ordering Pakistani Muslims to kill the second applicant had been issued. The Tribunal found that the documents submitted by the second applicant to the Department in relation to the Fatwah were bogus documents and fabricated to support his case (CB 449 at [132]); and
(c)the Tribunal considered it likely that the second applicant will attempt to travel to India with the first applicant. The Tribunal considered that the first applicant's family would not harm the second applicant if he continued to maintain his relationship with the first applicant (CB 449 at [137]).
Ultimately, the Tribunal was not satisfied that either of the applicants were persons to whom Australia owed protection obligations pursuant to ss 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act).
APPLICATION FOR REVIEW
The applicants commenced these proceedings by an application to show cause filed with the Court on 3 September 2018, at which time they were represented by the same firm of lawyers who had represented them before the Tribunal.
On 25 September 2018, a Registrar of the Court made orders by consent in Chambers for the timetabling of the matter. The proceedings were initially docketed to another Judge of this Court, before whom they were next to be listed for callover on a date to be administratively advised to the parties. By the orders made on 25 September 2018, the applicants were granted leave to file any amended application by 15 November 2018. The matter was later placed in the central migration docket. On 12 July 2019, a Notice of Address for Service was filed with the Court which had the effect of appointing the applicants’ current solicitor as their legal representative. On 12 September 2019, orders were made by the Court (by consent) to allow the applicants a further grant of leave to file an amended application and any affidavit evidence by 24 September 2019, with any evidence in reply for the first respondent to be filed by 8 October 2019.
On 16 September 2019, the following documents were filed for the applicants:
(a)an Amended Application;
(b)Affidavit of Winnie David, transcriptionist, affirmed on 9 September 2019, annexing two transcripts of interviews between the delegate and the first and second applicants respectively (first David Affidavit); and
(c)Affidavit of Winnie David, transcriptionist, affirmed on 9 September 2019, annexing two transcripts of Tribunal hearings held with the applicants on each of 9 February 2016 and 11 May 2016 (second David Affidavit).
On 8 December 2022, these proceedings were docketed to me and I made orders on that day in Chambers, listing the matter for hearing with a timetable for preparation in advance thereof. At the hearing of the matter on 15 June 2023, the applicants (who were both present in Court throughout that hearing) were represented by their solicitor. The first respondent was represented by Counsel.
Each of the first and second David Affidavits referred to at [14(b)] and [14(c)] were read for the applicants, without objection. The applicants also tendered the Court Book (prepared and filed for the first respondent) which was marked Exhibit “1A”.
For the first respondent was read, without objection, an Affidavit of Annette Sophia Haddad sworn on 27 November 2018 and a Supplementary Court Book (SCB) was tendered and marked Exhibit “1R”.
Grounds of review
By reference to the Amended Application, the applicants advance the following four grounds of review (omitting particulars):
1.The Tribunal failed to consider whether the impossibility of the couple living together on a permanent basis in either country could amount to a real risk of harm.
2.The Tribunal ignored evidence in relation to a crucial finding.
3.The Tribunal's application of the tests of "real chance" of persecution or "real risk" of significant harm was unreasonable.
4.The Tribunal failed to exercise its jurisdiction to assess the credibility of the First Applicant, or exercised it in a manner that was unreasonable.
Ground 1
By this ground the applicants contend that the Tribunal failed to consider whether the impossibility of the couple living together on a permanent basis in either India or Pakistan could amount to a real risk of harm.
The particulars to this ground set out that the Tribunal acknowledged the first applicant would not be able to live in Pakistan and that her husband would have difficulties securing a visa to live in India and that, even if he did, he would have to return to Pakistan from time-to-time. The applicants allege that the Tribunal failed to consider whether their forced separation (whether completely or in a manner which effectively made it impossible for them to live “a normal married life”) could amount to persecution or significant harm.
The applicants rely on the Tribunal’s finding at [120] (CB 447) that:
…if the applicant were to return to India that she would live in Delhi in the property that she owns as she did for a decade before travelling to Australia. The Tribunal finds that the applicant would not attempt to live with applicant 2 in Pakistan.
and say the Tribunal appears to consider the above scenario would be a free choice on the part of the first applicant when, in fact, her uncontradicted evidence was that an Indian Hindu could not marry a Muslim and live in Pakistan, at the very least without the latter having to convert to Islam.
The applicants point to evidence (which was accepted by the Tribunal (CB 440 at [76])) that, in Pakistan, a Muslim man could marry a Hindu woman only if she converted to Islam. The Tribunal had noted (CB 436 at [51]) that neither applicant would consider changing their religion. The applicants say the Tribunal should be taken to be aware that pursuant to
s 5J(3)(c)(i) requiring a person to alter his or her religious beliefs, amounts to persecution. The applicants say that therefore the fact that the first applicant "would not attempt" to live in Pakistan was in no way a free choice.
The applicants submitted that the Tribunal thereby fell into the type of error identified in cases such as Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, by failing to appreciate the full nature of the claim made or the reasons behind the persecution feared by the Applicants.
The first respondent meets ground 1 by saying that the Tribunal made no finding that it was “impossible” for the applicants to live in India, being the place to which the Tribunal found the first applicant would return. The first respondent acknowledges the Tribunal’s findings that the second applicant may experience difficulty in gaining a visa to live in India permanently, but notes that it found this would not amount to persecution of the first applicant (CB 447 at [120]).
The first respondent says that in the absence of the first applicant clearly articulating a claim of how such difficulty could amount to her suffering “serious harm” or “significant harm” under the Act, that finding was clearly open. As such, the first respondent contends that there could have been no failure by the Tribunal to address a “substantial and clearly articulated argument” as enunciated in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ.
Consideration
I accept the submissions of the first respondent that the claims as raised were that each of the applicants feared they might be killed on return to their respective countries of origin.
The first respondent did not take issue with the possibility that in certain circumstances a claim could be made that separation from a partner might constitute a requisite level of harm as to engage protection obligations, but that it would need to extend beyond “romantic disappointment”. This latter quip was expanded upon to submit that the nature of such a claim would need to engage some existing Convention basis such as an inability to subsist, or medical evidence to the effect that it might give rise to a complete mental breakdown. As the first respondent submits, none of those factors presents in the instant case either expressly or arising on the materials.
The Tribunal also did not find that the parties could not live together in India, albeit there was an acceptance of challenges that the second applicant may face in securing a visa. It is also true that the Tribunal went on to consider the chance of harm to the second applicant in Pakistan based on the likelihood he would be traveling to and from India to live, or spend time, with the first applicant there (CB449 to 450 at [136] to [137]).
As Gleeson CJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (supra) at 479 [1]:
Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
Ground 1 approaches the Tribunal’s decision in such the manner cautioned against in the preceding paragraph, by seeking to augment or evolve the applicants’ claims as giving rise to an additional basis which was not originally advanced. Ground 1 does not disclose an error on the part of the Tribunal as alleged.
Ground 2
By ground 2, the applicants contend that the Tribunal ignored evidence in relation to a crucial finding. The particular to this ground alleges that the Tribunal based its conclusions about the risk faced by the first applicant (by reason of her being in an interfaith relationship) in part on a finding that her previous marriage had also been an interfaith pairing, despite the Tribunal being aware that her first husband had converted to Hinduism when they married.
The applicants say that by ignoring the only evidence before it about the nature of the previous relationship, the Tribunal made findings of fact for which there was no evidence, in the sense of "not a skerrick", relying on BSE17 v Minister for Home Affairs [2018] FCA 1926 at [33] per Moshinsky J (and the cases referred to therein) (see also, Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [28] per Allsop CJ, Besanko and O’Callaghan JJ).
The first respondent relies on [51] (CB 436) of the Tribunal’s decision and says that by reason of the following paragraph, the ground fails on a factual level:
The Tribunal asked the applicant whether she was willing to convert to Islam or whether applicant 2 was willing to convert to Hinduism. The applicant indicated that neither of them would change their religion. The Tribunal pointed out that the applicant had given evidence that her previous husband had converted to Hinduism from Christianity so that her family would accept their marriage. The applicant indicated that her former husband had resented having to do this and suggested that this was the reason that he had beaten her and left her.
The first respondent says that the relationship between the first applicant and her first husband was evidently an interfaith one before the first husband converted, and remained an interracial one. As such, the first respondent says it was open to the Tribunal at [121] to describe it as an interracial and interfaith relationship and this does not indicate that the Tribunal “ignored” the evidence it had noted previously at [51] of its reasons.
Consideration
The scope of this ground is narrow, and it can be addressed briefly.
I agree that the Tribunal’s reference to the evidence of the first applicant’s previous interfaith, interracial marriage with a man (who will be referred to as “R”) was not ignored, as the entirety of [51] of the Tribunal’s decision demonstrates.
It is true that the Tribunal did not set out, in minute detail, the first applicant’s evidence in relation to her marriage to R. However, a review of that evidence from the transcript of the first Tribunal hearing[1] reveals that the first applicant gave an explanation of the lengthy background to her marriage to R which seems to indicate that she was married to him for some time in secret before revealing that fact to her family, following which the first applicant said (anonymisation added):
My uncle, my maternal uncle helped me out to sort the problem. And then he came back and said that, “Okay, fine we can work it out because if things happen, the guy is good, then…[a named uncle] advised, only he had the..(not transcribable)..to get me married to him if he changes his religion. And then [R], initially he didn’t say, “Yes” in one go. Even he had to convince himself. I have to convince him. “Please do it for me if you love me.” And he did. The only thing for my family is the secret was that me and [R] was married. 7th of May was a big function, a marriage function where he took on the marriage according to Indian and Hindu rituals where he changed his name.[2]
[1] Second David Affidavit at p AAT49.37 to AAT52.7
[2] Second David Affidavit at p AAT51.7 to AAT51.16
As such, I agree with the submission for the first respondent that it was open to the Tribunal to describe the relationship with R as being “interfaith” because he originally was a Christian and he later converted, with the assistance of the first applicant’s family. There is no basis to conclude that the Tribunal’s findings at [121] were made in ignorance of the fact that R had converted.
Focussing on the term “interfaith” in relation to the relationship with R is to read the Tribunal’s decision skewed towards error, rather than with the requisite beneficial construction required: see XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 at [27] per Perry, Banks-Smith and Anderson JJ.
The Tribunal did not err in the manner alleged by ground 2.
Ground 3
By this ground the applicants contend the Tribunal erred because its application of the tests of "real chance" of persecution or "real risk" of significant harm was unreasonable.
The particulars to the ground are based on the Tribunal’s acceptance (CB 447 at [121]) that there had been "many incidences of violence against interfaith couples in India including murder" and that their problems "may be exacerbated by the fact that applicant 2 is Pakistani". The Tribunal qualified this by saying the risk came "mainly" from the families of the couples and that it was "lower" for members of the middle and upper classes living in big cities. It went on to find that there was "some risk" of harm from members of society, including Hindu extremists, but said that this was "remote". The applicants contend that the Tribunal's ultimate calculation that the level of risk was "remote" was unreasonable because:
(a)there was no evident reason for it to exclude risks from non-family members just because it had evidence that such risk came "mainly" from family, where "mainly" could simply mean "in the majority of cases"; and
(b)it gave no intelligible explanation as to why a "lower" risk based on class and location was still not a real risk, especially having found that there was "some" risk.
The applicants say the error lies in the Tribunal applying a relative, rather than an objective, test of the risk of harm to the applicants, citing CID15 v Minister for Immigration and Border Protection [2017] FCA 780 at [35] per Moshinsky J in relation to geographical relativity and the acceptance in CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663 at [33] to [34] per Anderson J that the same principle could apply to temporal relativity.
The applicants say that finding a denial of the right to live together as a couple in either India or Pakistan would not amount to persecution (or serious harm) was also manifestly unreasonable because it failed to take into account the basic right of all people to marry and found a family, citing article 23(2) of the International Covenant on Civil and Political Rights.
The first respondent says the applicants’ submissions in support of this ground do not rise above an attempt at merits review. Having found that the risk to interfaith couples was mostly from their own family and lower for members of the middle and upper classes who live in large cities (such as the first applicant) the Tribunal’s assessment was open to it and that, because reasonable minds could differ about the Tribunal’s reasoning, it is not illogical, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 130 to 131 per Crennan and Bell JJ. The first respondent says the Tribunal did not apply a relative assessment of risk as claimed in the applicants’ submissions but, rather, it found that the first applicant’s risk of harm from members of Indian society was remote, and so not a well-founded fear of harm.
Consideration
This ground turns upon an allegation of legal unreasonableness.
The threshold for establishing legal unreasonableness is a high one: see SZMDS (supra) at [135] per Crennan and Bell JJ and Djokovic (supra) at [3] and [29] to [30] per Allsop CJ, Besanko and O’Callaghan JJ. The High Court has described the test for unreasonableness as being stringent and extremely confined: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.
This is not a case where a relative assessment was made about the chance of harm to the applicants, Cf CID15 (supra) and CJE16 (supra). It was open to the Tribunal within the area of decisional freedom to consider the circumstances of the applicants, and the material before it, to conclude that the existence of some risk equated with the chance of harm being remote.
To the extent that the applicants suggest there was no evident reason why the Tribunal excluded risks from non-family members, that is not borne out by reference to independent country information[3] which was considered by the delegate’s decision (CB 358) and says:
Reports indicate that there is less discrimination towards inter-religious marriages that occur “within a middle-class urban context” where it is not uncommon.
[3] CB 358 footnote 22 “Situation of inter-religious couples from both urban and rural locations, including social attitudes, treatment by government authorities and the treatment of their children (2005-April 2012)” Canada: Immigration and Refugee Board of Canada (IRB) 01 April 2021
The conclusion by the Tribunal that the risk is remote is one which can be fairly read as a finding that there is not a real chance of harm, which is constituted with the Tribunal’s finding at the conclusion of [121]. I do not accept that the Tribunal was saying that the risk is lower for such people, without forming a view about whether it was at a level which constituted a real chance or otherwise.
I agree that, in essence, the applicants seek to have the Court find that the risk assessment ought to have been more favourable to the applicants than it was. That is an attempt to have the Court engage in merits review and does not satisfy the tests of legal unreasonableness established by the cases referred to at [47] above. Ground 3 does not establish error.
Ground 4
The final ground contends that the Tribunal failed to exercise its jurisdiction to assess the credibility of the first applicant in relation to her claim to have been beaten by family members in 2011 by reason of her relationship with the second applicant. In the alternative, the applicants say the Tribunal exercised that jurisdiction in a manner that was unreasonable.
The applicants say there were two bases for the Tribunal rejecting the claimed assault. The first was that the first applicant had not mentioned the alleged beating in her original application. The applicants say this is incorrect, referring to a statement included in the visa application (CB 34) that her paternal family had "become aggressive" towards her, and that she explained at the delegate’s interview that there had not been enough space on the form to elaborate.
The second, and said to be of greater significance, is the Tribunal's assessment of supposed inconsistencies in the various accounts of the alleged beating, which led the Tribunal to conclude that it had not occurred at all.
In the present case, the applicants say that the Tribunal disregarded the “obvious fact” that the alleged beating must have been extremely traumatic and frightening for the first applicant, that it had occurred in 2011, and that she was questioned about it by the delegate in 2015 and by the Tribunal in 2016.
The applicants rely on the decision in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) in which Leggatt J of the High Court of Justice referred to what his Honour described as two common and related errors about memory. The first being that the stronger and more vivid the feeling or experience of recollection, the more likely the recollection is to be accurate and the second that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
In Gestmin (supra) at [17], his Honour said:
Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
The applicants also rely on Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at [140] per Gummow J, where his Honour said (footnotes omitted):
Further, whilst it is for this Court to determine independently for itself whether in a particular case a specialist tribunal has or lacks jurisdiction, weight is to be given, on questions of fact and usage, to the tribunal's decision, the weight to vary with the circumstances. The circumstances will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in the exercise of its functions and the extent to which its decisions are supported by disclosed processes of reasoning. A similar doctrine has been developed by the Supreme Court of Canada, at least with respect to findings of non-jurisdictional fact.
The applicants submitted that, being a body tasked with the function of assessing the credibility of people's accounts of events which may have occurred many years previously and for which there may not be any corroborating evidence other than accounts from memory, a Tribunal acting reasonably must be expected to have a level of understanding of human memory that at least takes into account the views generally accepted by the Courts. In this case the applicants contend that the Tribunal’s reasoning fell below that requisite level.
The applicants say instead that the Tribunal unreasonably insisted that the first applicant's accounts of the alleged beating over time should have been perfectly consistent in minor details. It is said to have unreasonably disregarded the fact that the first applicant’s mother was not actually present in the room, inaccurately described the second applicant's evidence, and ignored the fact that the delegate did not ask the second applicant about the assault. In these respects, the Tribunal is said to have constructively failed to exercise its jurisdiction to review the delegate's decision, or done so unreasonably.
The first respondent again says that this does not rise above an appeal for merits review and the fact that the claim, said to be of great importance to the first applicant’s case, was not mentioned at all in her protection visa application (CB 446 at [113]), together with the numerous inconsistencies pointed out by the Tribunal at (CB 446 to 447 at [114] to [119]) are said to provide a “perfectly reasonable basis” for the Tribunal to have rejected it.
Contrary to the applicants’ assertions, the first respondent says the Tribunal did not expect the first applicant to have a perfect memory. Rather, the Tribunal is said to have reasonably expected that a central claim of the first applicant would have at least been mentioned in her protection visa application, and have been presented in a reasonably consistent fashion over time.
The first respondent says the Tribunal was not obliged to accept the second applicant’s explanation as to why he had told the delegate that that the first applicant had no relationship with her paternal family since 1991, nor to ignore the fact that the first applicant told the delegate that she was beaten by four uncles, but later told the Tribunal the beating was by two uncles.
The final part of the first respondent’s written submissions is as follows:
The applicant’s submissions suggest that the applicant was traumatised by the assault, but this assumes the assault occurred at all whereas there is at least a reasonable alternative view that it was a fabrication of the first applicant to assist her attempt to get a visa. Which of these was the case was a factual matter for the Tribunal. As reasonable minds could differ about the Tribunal’s reasoning rejecting the claim its reasoning is not illogical or irrational: SZMDS, so this ground fails.
Additional issue
Before turning to consideration of this ground, I find it necessary to record the occurrence of a less than decorous incident during the hearing before me.
While the solicitor for the applicants was making oral submissions about:
apparent inconsistencies in what must have been a highly traumatic event which, apparently, occurred…
Counsel for the first respondent interjected loudly to twice heckle from the Bar table saying, in an incredulous tone, “if it ever occurred”.[4]
[4] Transcript 15 June 2023 T8.45 to T9.5
As noted above at [15], both applicants were in the Court room when that interjection took place.
As the first respondent’s written submissions had already acknowledged (see [64] above), belief or otherwise of the first applicant’s claim of having allegedly been beaten is a matter uniquely within the purview of the Tribunal. It is not for this Court to make its own assessment of the truth or otherwise of that claim. All that the Court, and any party in these proceedings can do (also acknowledged by the first respondent’s written submissions), is to assess the manner and availability of that reasoning to the Tribunal.
The applicants’ solicitor had couched his submissions about the event in relatively neutral terms by the use of the words “apparently, occurred” see [65] above.
Having been taken aback, the Court did not raise this incident with Counsel at the time. No doubt if it had been raised, Counsel would have apologised.
To interrupt an opponent’s oral submissions other than to assist (for example by correcting an errant reference), while sometimes seen as part of the permissible jousting at the Bar table between Counsel, is often just rude. To do so in the presence of an applicant who claims to have suffered a traumatic event, by casting aspersions as to the truth of that event, is demeaning and potentially further traumatising. It is also unbecoming and tends to bespeak a degree of partisan zeal[5] as to the personal merit of an applicant’s case, which should be avoided by the Minister and those who represent him by reference to the duty to act as a model litigant:[6] see s 55ZG(1)(a) and (f) read with ss 2 and 55N(1) of the Judiciary Act 1903 (Cth) (Judiciary Act).
[5] Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 at [192] per Moore J
[6] See Appendix B to the Legal Services Directions 2017 (Cth)
The incident, while lamentable, has not factored into my consideration of ground 4. However, it should not occur again.
Consideration
In order to consider the Tribunal’s analysis of the first applicant’s claim to have allegedly been beaten, and its findings as to alleged inconsistencies in that regard, it is necessary to have regard to when the claim was raised and later advanced.
It is necessary to have regard to both the Affidavits read for the applicant. In doing so, I have proceeded with caution having regard to authorities to the effect that a transcript of the Tribunal hearing cannot be employed to “supplement and expand the Tribunal’s stated reasons for exercising the power in the way it did”: see AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [58] per Tracey, Mortimer (as her Honour then was) and Charlesworth JJ (citing in turn Minister for Immigration and Border Protection v MZAIV[2016] FCA 251 per Mortimer J (as her Honour then was) at [33] and Kelly v Australian Postal Corporation (2015) 67 AAR 359 per Griffiths J at [51] to [53]); see also Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [95] per Rares J. In this regard I also rely on the matters discussed by the Court in EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222 at [88] to [91]. In the present case, reviewing the various transcripts to consider how (if at all) the first applicant’s claims have evolved over time in order to ascertain whether the reasons given by the Tribunal in relation to alleged inconsistencies therein, falls outside of the scope of “scouring” the words used by a Tribunal at hearing to seek to read them into its reasons for decision.
The applicants contend that the alleged beating claim was sufficiently made by the visa application where, in answer to Question 43 “Why did you leave that Country?” (in the first applicant’s case, India), the first applicant responded inter alia (original case and errors) (CB 34):
MY MOTHER AND BROTHER DID ACCEPTED THE RELATIONSHIP BY MY PATERNAL FAMILY BECAME VERY AGGRESSIVE AND AGAINST ME DUE TO HAVING A LIVING RELATION WITH A PAKISTANI AND MUSLIM GUY.
In answer to Question 44 “Have you experienced harm in that country?” the first applicant ticked the box corresponding to “Yes” and answered (original case and errors) (CB 35):
I HAVE BEEN THREATENED TO KILL BY MY PARENTS UNCLES WITH SUPPORT OF COMMUNITY LEADERS OF SHIV SENA (BAL THACKERY).
In answer to Question 45 “What do you fear may happen if you go back to that country?” the first applicant answered (original case and errors) (CB 35):
I WILL BE DONE TO DEATH IF I RETURNED TO INDIA. THE BIGOT HINDUS AND MY UNCLES WHO ARE BIGOT HINDU LEADERSS, WILL KILL ME FOR THEIR FAKE HONOR AND BIGOT HINDUTAV IDEOLOGY.
In answer to Question 46 “Who do you think may harm/mistreat you if you go back?” the first applicant answered (original case and errors) (CB 36):
MY PATERNAL UNCLES, AUNT, HINDU COMMUNITY AND SHIV SENA ACTIVISTS (BAL THACKERY) WILL KILL ME, MISTREAT ME IF I GO BACK TO INDIA.
Each of the answers to questions 47 and 48 in the visa application form also referenced the first applicant’s family and her uncles respectively.
It is noteworthy (because the first respondent relies on it as being a matter of moment) to observe certain features of this part of the prescribed visa application form. Namely, that for each of questions 43 to 48 (which pertain to aspects of past experiences of claimed harm, reasons for leaving the country of origin, feared harm on return and the availability of protection from the country of origin, respectively), the question is asked and a box is included into which the answers to each question is to be written. The size of those boxes vary, but they range from one quarter of an A4 page (e.g. Q46) to an entire A4 page (e.g. Q48). The first respondent draws attention to the fact that at the bottom of each of the boxes is a notation which reads:
If insufficient space, attach additional details
While the first applicant filled the entirety of the box to answer Q43, the answers to the other questions were brief. There was no additional attachment pertaining to any question.
The next juncture at which the first applicant’s claims were advanced was her interview with the delegate in 2015.[7] The relevant exchange between the first applicant and the delegate is lengthy but can be summarised as follows:
(a)the first applicant was in India, at her mother’s house, and as part of telling her mother than she was filing for divorce, she told her mother about her relationship with the second applicant;[8]
(b)the first applicant surmised that the wife of one of her cousins overheard the conversation between the first applicant and her mother, and reported it to other relatives. Things escalated quickly in the early afternoon;[9]
(c)the first applicant said that her uncles and cousins came in and asked her brother and mother to leave the room. When the first applicant’s mother did not, “they” (meaning the uncles/cousins) pushed her mother out of the room and gave the first applicant “a good beating”;[10]
(d)the first applicant was then locked in the room;[11]
(e)the first applicant’s mother later came to give her dinner in her room;[12]
(f)the next day the first applicant was let out of the room, and remained quiet. She called the second applicant later in the day and requested that he send her some money to facilitate her return to Australia, which he did, and she left approximately 3 days later.[13]
[7] First David Affidavit at p DOHA19 Q155 to DOHA23 Q178
[8] First David Affidavit at p DOHA19 Q155 and DOHA20 Q163
[9] First David Affidavit at p DOHA20 Q163
[10] First David Affidavit at p DOHA21 Q164
[11] First David Affidavit at p DOHA21 Q167
[12] First David Affidavit at p DOHA21 Q167
[13] First David Affidavit at p DOHA21 Q167 to DOHA22 Q171
Relevantly, the transcript reveals that when the first applicant was recounting this incident, the delegate did not ask her any questions, but is instead recorded as occasionally saying “Mm mm”.[14]
[14] First David Affidavit at p DOHA19 at Qs 155, 157, 159, DOHA20 at Qs 160, 161, 162, 163, 164, and DOHA 21 at Qs 167 and 168
After the first applicant recounted the alleged incident, the delegate asked her about what injuries she sustained from the alleged beating, and she described:
(a)back injuries and back pain from being hit with a belt;
(b)leg and shoulder pain;
(c)red marks on her face from being slapped; and
(d)finger marks which required ice to be applied.[15]
[15] First David Affidavit at p DOHA22 Q172 to DOHA22 Q174
The delegate also asked the first applicant why it was that the alleged beating incident was not included in the application when discussing that same trip to India. The exchange in this regard is as follows (emphasis and anonymisation added):[16]
[16] First David Affidavit at p DOHA22 Q176 to DOHA23 Q178
Q 176. Okay. In your written statement you do talk about this trip to India and that you had difficulties but you didn’t mention that you were beaten? Why was that?
A I think my mum might have, my mum did, no?
Q 177. This is, I’m looking at your statement. Not your mother’s.
A Yeah. I didn’t write that, yeah.
Q 178. So, why did you not put on it that your uncle’s - - -
A I wasn’t aware if I can discuss that thing in the interview. That was a very small page and I was just trying to fit up things in there. In India beating is normal for the daughters. Is there any other reason that you fear returning to India/
Q 179. I have two reasons. First of all, not two, three reasons. First reason is me being Hindu.
A Mm mm. Second is [EQV18] being Muslim.
It is tolerably clear from the context and formatting of the previous questions that the highlighted portions in the above-mentioned exchange[17] are actually the questions of the delegate, despite having been momentarily attributed as being answers of the applicant.
[17] Together with the earlier record of the delegate regularly responding with “Mm mm” (see [82] above)
The delegate’s decision says the following about this exchange:[18]
It was put to the applicant at interview, that I had concerns over her failure to mention this attack in her written claims, given the apparent significance of this incident. In her response she claimed that the form was too small and that she wanted to discuss it at interview. I note however that the applicant did not use up the space on the form and was also made aware on the form that if there was insufficient space attachments should be used.
[18] CB 345 to 346
Three matters warrant observation at this point.
The first is that, while it is true that in answer to other questions the first applicant did not use all the space in the boxes provided,[19] she did exhaust the space in the box in which she wrote about the alleged beating incident.[20] I accept she did not take up the opportunity to attach a further statement if that space was insufficient, but this does not alter the conclusion that the claim was made, even if it might have been capable of further explanation by an addendum.
[19] CB 35 to 37
[20] CB 34
Submitted to the Department in January 2015 in support of the visa application were an array of documents which included a statutory declaration made by the first applicant’s mother (CB 113 to 115). By that declaration, the first applicant’s mother said (errors in original, anonymisation added):
12.We (me & my son & his family are living a very hard life in India& have told [EQU18] not to return to India in any event. When my daughter [EQU18] last visited India in 2011 she was telling me about her relationship with [EQV18]; her cousins overheard out conversation & this fact was disclosed to the whole family about her being involved with a Pakistani Muslim boy. [EQU18] had to leave India immediately as she was pressured to end the relationship, she received a beating with a belt from her uncles for putting the family name to shame for being in a relationship with the enemy.
However, and while it can be accepted that the first applicant did not set out details of the alleged beating incident in the visa application form, I accept that the statement which is extracted at [75] is a summarised reference to the alleged beating incident, in particular by the statement that her family “became very aggressive”. The statutory declaration of the first applicant’s mother sufficiently picked up the incident in question from the visa application form (in addition to a number of other matters which in that statutory declaration which reflect the first applicant’s responses in the visa application at CB 34 to 37). Accordingly, I do not accept that the first applicant “failed to mention this attack in her written claims”.[21] As such, while the first applicant did not elaborate further by the most advantageous use of the visa application form provided, and noting that this might not constitute the most fulsome provision of particulars described in s 5AAA(2) of the Act, the claim was made.
[21] CB 345 to 346
Third, it will be observed from the extract at [87] above, that the delegate did not “put to the applicant at interview” their “concerns over her failure to mention this attach in her written claims”. The delegate asked the first applicant why she didn’t mention she was beaten and why. The delegate did not tell the first applicant that this perceived omission was a matter of concern to the delegate and, after the first applicant gave her explanation for why the alleged beating was not expressly mentioned, the delegate pivoted and offered a broad opportunity to the first applicant to given any other reasons why she feared returning to India.
When the applicants appeared before the Tribunal to give evidence and present arguments in relation to the review, there was a detailed exchange between the first applicant and the Tribunal about the alleged beating incident: see second David Affidavit at pp AAT15.29 to AAT26.23. The relevant exchange between the first applicant and the delegate is lengthy but can be summarised as follows:
(a)the first applicant had returned to India for a family wedding. She had not planned to tell her family about her relationship with the second applicant but did want to inform her mother and brother;[22]
(b)the first applicant was in her bedroom at her mother’s house with her mother and her brother. The brother’s wife was also in the room with them for some period;[23]
(c)the first applicant suspects that the wife of one of her cousins overheard the discussion between she and her mother from outside, but had some recollection that the cousin’s wife may also have come in at some point to serve them tea;[24]
(d)it was “late lunchtime” when her “uncles barged in”;[25]
(e)the first applicant’s brother and his wife left the room, the first applicant was holding her mother’s hand so that she might stay with her but the uncles forced her mother to leave the room;[26]
(f)the first applicant was speaking in general terms about who was present (as she had done with the delegate) referring to them by a collective “they”. The Tribunal asked the first applicant “who were they?” to which she asked if the Tribunal was wanting to know their names. When the Tribunal said yes, the first applicant gave the names and the spellings;[27]
(g)the first applicant gave a detailed account of how she was attacked and by whom (primarily by one cousin (N) and an uncle (Y);[28]
(h)N hit the first applicant repeatedly with a belt;[29]
[22] Second David Affidavit p AAT15.37 to 15.42
[23] Second David Affidavit p AAT15.37 to 15.42
[24] Second David Affidavit p AAT16.29 to 16.44 and AAT18.11 to 18.24
[25] Second David Affidavit p AAT19.41 to 19.42
[26] Second David Affidavit p AAT20.17 to 20.19
[27] Second David Affidavit p AAT20.23 to 21.30
[28] Second David Affidavit p AAT22.39 to 24.19
[29] Second David Affidavit p AAT22.23 to 22.24 and AAT24.01 to 24.19
The Tribunal did not ask the first applicant any questions about injuries she sustained from the alleged beating incident.
As has already been established at [90] to [91] above, I do not accept that the alleged beating incident was omitted from the first applicant’s visa application. It may not have leapt off the page, but it was later contextualised by both the statutory declaration of her mother and her statements to the delegate, that her family had become aggressive towards her and she fled the day afterwards. She said so in the visa application.[30]
[30] CB 34
The applicants submit that, after its finding about the significance of the alleged beating claim being purportedly omitted from the visa application, the Tribunal next based its finding that the alleged beating had not occurred on what were said to be inconsistencies in the accounts of the first applicant and the mother of the first applicant (in the statutory declaration at CB 113 to 115). In so doing, the applicants allege that the Tribunal:
(a)unreasonably disregarded the fact that the first applicant’s mother was not actually present in the room at the time of the alleged beating (there being no account in which it is suggested otherwise);
(b)inaccurately described the first applicant's evidence; and
(c)ignored the fact that the delegate had not even asked the second applicant about the assault.
In relation to the allegation about the first applicant’s mother not having been present in the room when the first applicant was allegedly beaten, this was advanced by the applicants as being a plausible explanation which ought to have been considered by the Tribunal for why there might be a discrepancy between the accounts of the first applicant and her mother. However, as will become apparent from the matters set out below, I am not persuaded that those accounts were actually inconsistent. As such, no mitigating explanation need be proffered, because it was the Tribunal who was mistaken.
The Tribunal placed significant emphasis on what is said to be a discrepancy between the claim as advanced by the first applicant to the delegate, and then to the Tribunal about how many uncles were involved in the alleged beating. However, for the reasons that follow, I am satisfied that this finding was based on a flawed understanding by the Tribunal of the first applicant’s evidence to the delegate which, when put to the first applicant as being an inconsistency, was not so wholly conceded by her in the manner the Tribunal recounts.
In her interview with the delegate about the alleged beating incident the following exchange occurred (emphasis added):[31]
…And they give me a good beating.
Q 165. Who, who are you saying, “They?”
A My uncles. My cousins. They gave me a very bad beating that day.
Q 166. So this is your uncles? How many uncles?
A My four uncles and three cousins. They are sons. And they are quite older than me. They were basically beating me to scare me to leave him.
[31] First David Affidavit at p DOHA21 Qs 165 to 166
However, the answer above in bold needs to be read and understood in light of a further exchange with the delegate about how many uncles the first applicant has, during which the first applicant told the delegate that:[32]
I have a lot of uncles… not my blood relatives…as I told you because in village all people they live like a family…so we, we, we call them uncles even, even, even if we don’t know them like we call them uncles…
[32] First David Affidavit at p DOHA100 Qs 187 to 190
Shortly after which the following exchange occurred (emphasis added):[33]
Q192. How many do you have?
A There are – how many – you can say the real one like the real sons of – the sons - - -
Q193. Mm mm.
A - - - of my real uncles like you can say maybe 15, or 20 because I have four uncles and their sons yeah, could be between 15 to 20 who are the real threats and these are the ones I’m telling who are – who have real like blood relation with me.
[33] First David Affidavit at p DOHA21 Qs 165 to 166
It is open to infer, and I do, that when asked “How many uncles” at Q166 (see [99] above), the first applicant took the view she was being asked how many uncles she has and her answer there (as marked in bold) was consistent with her answer later when she was asked that question more directly at Q192 (see [95] above). Further, the Tribunal failed to take into account as a possible explanation for any perceived inconsistency about which of the persons involved in the alleged beating incident were uncles and cousins, the first applicant’s very clear explanation that not everyone she was required to call “Uncle” was in fact a blood relative (see [94] above).
When the Tribunal member put to the first applicant at hearing its concerns in this regard, the exchange was as follows (anonymisation and emphasis added):[34]
MEMBER: …So, what I, so the things that I have currently are the issues that I think are important. Issues of credibility. Because of inconsistencies in the evidence that you’ve given and between the evidence you’ve given and the evidence from your husband we’ve talked about some of those things. For example, the - not including the incident with your uncles in your application. Things like big differences in, discrepancies in what you’ve said and what your husband has said in relation to the same thing. So, I’ll give you an opportunity to talk about it but that, that, that is something that I see as important and an issue. I’ll, I’ll, I’ll give you one more example just to give you an opportunity to comment here. In the decision it records that you with your uncles, you said that you that all four of your uncles beat you up on that day. Today you’ve told me it was two of your uncles. Do you want to explain that discrepancy?
WITNESS [EQU18]: Sir, two of my uncles and three of my cousins. Maybe that I said the wrong thing. Maybe just with I have heard the..(not transcribable).. I might not get the same words but no, there were two uncles and three cousins.
MEMBER: Okay. Because you can see that, that’s a concern.
WITNESS [EQU18]: Yes, I know, I have..(not transcribable)..myself.
MEMBER: Yes.
WITNESS [EQU18]:And..(not transcribable).. That’s the reason I don’t..(not transcribable).. I don’t know how come I say, “Four.” I regret myself there. I..(not transcribable)..I said, “Four” instead of two. I heard the..(not transcribable)..but I kept..(not transcribable).. I didn’t, I..(not transcribable)..that point of time what I’m telling her. I realise when I heard the CD and I said it wrong.
[34] Second David Affidavit at p AAT57.40 to 58.18
From the above exchange it is tolerably clear that the first applicant understood that she was being asked about the limited context of the alleged beating incident (rather than to enumerate whom, in her family, was an uncle). To the extent that what the first applicant said has been capable of being transcribed, she expressed a degree of surprise at herself and confusion as to why she would have said it was four uncles involved in the alleged beating incident, and while ultimately, she accepts that she said four uncles and that she “said it wrong”, it is open to infer, and I do, that a contextual reading of the delegate’s interview reveals that:
(a)the first applicant was not claiming that four uncles were involved in the alleged beating incident, but rather was telling the delegate she has four (blood-related) uncles; and
(b)consequently, the Tribunal, having misinterpreted that exchange found an inconsistency where there was not one.
Properly understood, the material undermines the Tribunal’s findings of inconsistency. It also calls into question the reasonableness of the following finding, which is not truly borne out as being a concession by reference to the first applicant’s evidence to the Tribunal as set out at [103] above:
The applicant indicated that she had mistakenly told the delegate that she was beaten by four of her uncles when she had only been beaten by two of her uncles.
On a contextual reading of the material, the first applicant’s account to the delegate was not inconsistent with her specific (and unshaken account) as given to the Tribunal, which was also consistent with the account of her mother.
Finally, I agree with the submissions of the applicants that the Tribunal also focused on what it said was an inconsistency as to when the second applicant had become aware of the alleged beating incident.
The Tribunal said at [65] (CB 438) that the second applicant had told the delegate at interview that the first applicant had not had contact with her paternal uncles since 1991, but later told the Tribunal at the hearing that he had learned about the alleged beating some time in 2014. I agree that the Tribunal's account of what the second applicant told the delegate was inaccurate. The delegate had not questioned the second applicant at all about the alleged beating incident. In the delegate’s decision they referred to a written response to a "post-interview procedural fairness letter" (SCB 29 to 39) in which it was said that, since 1991, there had been "little interaction" between the families (CB 347). At the Tribunal hearing the second applicant confirmed that he had been told about the alleged beating in 2014.[35] The Tribunal suggested to him that he had said that he understood the first applicant did not have "a relationship" with any of her uncles after 1991.[36] The second applicant agreed that he had said that. Shortly afterwards the following exchange occurred (anonymisation added):[37]
MEMBER: […] The point that I’m making is this, you appear to have given evidence initially that after 1991 there has been no contact between [EQU18] and her immediate family and her paternal uncles.
WITNESS [EQV18]: That’s what I presumed first.
MEMBER: Okay. But then and you said you didn’t know anything about any contact until after your first interview when she clarified with you that, yes, she did in fact maintain contact with three uncles, just not the one.
WITNESS [EQV18]: Yeah.
MEMBER: What I was getting at was that you said before in 2014 she told you what had happened, that she did have contact with those uncles that beat her.
[35] Second David Affidavit at p AAT 73.47 to 73.50
[36] Second David Affidavit at p AAT 74.30 to 74. 31
[37] Second David Affidavit at p AAT 76.20 to 76.34
In W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 Lee, Carr and Finkelstein JJ) said the following at [15]:
As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.
The aforementioned passage from W375/01A was cited in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 by Kenny, Griffiths and Mortimer JJ (as her Honour the Chief Justice then was). The errors identified in AQV15 (supra) are present in this case.
The Tribunal rejected that the first applicant “was ever harmed or threatened by any member of her family”,[38] not accepting specifically that she “was threatened or beaten by her paternal uncles or cousins when she returned to India in 2011” and that it was “unconvinced by the applicant’s various inconsistent explanations to the delegate and the Tribunal as to why she failed to mention the incident in her protection visa application form”.
[38] CB 445 at [11]
For the reasons set out above, the inconsistency relied on appears to be the product of a number of misunderstandings. The Tribunal failed to have regard to the evidence as presented by reference to the first applicant’s claims as a whole. The Tribunal does not appear to have remained:
… conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given.[39]
[39] AVQ15 (supra) and [28]
In the present case, the Tribunal’s finding of inconsistencies in relation to the first applicant overlooked significant material which potentially put a different light on those findings.[40] That information included the presence in the protection visa application of a claim of family aggression which (with tolerable clarity) was contextually consistent with the alleged beating incident, the consistent account in the statutory declaration of the first applicant’s mother, the account given to the delegate in which the first applicant referred to simply having four uncles as a statement of fact (Cf that four uncles had beaten her), and the detailed version of events which the first applicant gave to the Tribunal. The Tribunal also did not consider that the delegate had not, in any detail, asked the first applicant probing questions about the alleged beating incident[41] (which may explain why the re-telling to the delegate was not as detailed as to the Tribunal, who had sought to draw out further particulars).
[40] AVQ15 (supra) and [29]
[41] See [82] above
The Tribunal inaccurately described (and presumably therefore misunderstood) the second applicant's evidence and ignored the fact that the delegate had not asked the second applicant about the assault.
To the extent that the first respondent contended it was reasonable for the Tribunal to expect that a central claim of the first applicant would have at least been mentioned in her protection visa application and be presented in a reasonably consistent fashion over time, I find on the material that they were. The above matters give the impression of a Tribunal who was on a quest to disbelieve, such that sufficient attention or precision was not applied to understanding the material before it: see AQV15 (supra) at [24]. This led to matters which are not truly inconsistent being misunderstood and mislabelled to form the building blocks of an adverse finding. A Tribunal which properly understood the nature of the material before it could not have come to the same conclusion as the Tribunal did for the reasons that were given in this case in relation to the alleged beating incident.
I am satisfied that ground 4 has been made out.
The applicants say that threats to the safety of the applicants which they might face in either country were directly relevant to whether there was a real chance or a real risk that they would suffer harm within the meaning of sub-ss 36(2) and (2A) of the Act. In the present case, had the Tribunal not erred in the manner identified in ground 4 and wholly rejected the alleged beating claim as being a fabrication, this could realistically have resulted in a different decision being made. Accordingly, I find the error to be material.
CONCLUSION
The applicants have succeeded in establishing jurisdictional error in respect of ground 4. Accordingly, writs should issue. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 8 December 2023
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