FJA17 v Minister for Immigration
[2019] FCCA 1117
•21 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FJA17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1117 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Nepal – applicant not believed – whether the Tribunal hearing was procedurally unfair considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.425 |
| Cases cited: AZAAD v Minister for Immigration (2016) 189 FCR 494 CQG15 v Minister for Immigration [2016] FCAFC 146 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v Guo & Anor (1997) 191 CLR 559 Minister for Immigration v Jia Legeng (2002) 205 CLR 507 Minister for Immigration v Rajalingam (1999) 93 FCR 220 Minister for Immigration v SZNCR [2011] FCA 369 Minister for Immigration v SZNVW (2010) 183 FCR 575 Minister for Immigration v SZUXN [2016] FCA 516 Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 NADH v Minister for Immigration (2004) 214 ALR 264 Randhawa v Minister for Immigration (1994) 52 FCR 437 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SBBS v Minister for Immigration (2002) 194 ALR 749 SZBEL v Minister for Immigration (2006) 231 ALR 592 SZOVP v Minister for Immigration & Anor (No.2) [2011] FMCA 442 SZVYJ v Minister for Immigration & Anor [2017] FCCA 1087 |
| Applicant: | FJA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3793 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms M Butler of Sparke Helmore |
ORDERS
The application lodged on 7 December 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3793 of 2017
| FJA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 November 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them is derived from the original submissions made on behalf of the Minister on 9 October 2018.
The applicant, a citizen of Nepal, arrived in Australia on 25 April 2014 on a Sponsored Family Stream (subclass FA-600) visa.[1] On 22 May 2014, she applied for the visa.[2] On 12 November 2015, the delegate refused to grant the visa.[3]
[1] Court Book (CB) 72
[2] CB 1
[3] CB 71
On 3 December 2015, the applicant applied to the Tribunal for review of the delegate's decision, attaching a copy of that decision to her application.[4] On 30 October 2017, the applicant appeared before the Tribunal with the assistance of a Nepali interpreter.[5] On 8 November 2017, the Tribunal affirmed the decision under review.[6]
[4] CB 84, 90
[5] CB 101
[6] CB 106
Applicant’s claims
The applicant’s claims for protection were set out in a personal statement and can be summarised as follows:[7]
a)her family disowned her after she married without their permission;
b)she was the victim of ongoing domestic violence by her ex-husband and his parents. She first experienced problems in 2007 after she fell pregnant with a daughter. Her husband wanted a son and demanded that she terminate the pregnancy, but she refused. Following this, he was frequently violent toward her, particularly when drunk;
c)her parents-in-law blamed her for the death of their grandson, accused her of being a witch, and were violent towards her. She feared her husband and in-laws would seek to harm and possibly kill her if she returned to Nepal, with the aid of criminals associated with her ex-husband’s brother-in-law; and
d)she will face hardship on return to Nepal as she has no family support.
[7] CB 49
Tribunal decision
Having considered the material before it, the Tribunal did not find the applicant to be a credible witness, and characterised her evidence as confused, inconsistent and changing.[8] In particular, the Tribunal identified the following bases for its credibility concerns:
[8] CB 111, [30]-[31]
a)the applicant gave confused and inconsistent evidence regarding the commencement of her relationship with her ex-husband. In this regard, the Tribunal noted that:
i)although the applicant claimed to have married her ex-husband when she was 18 years old, their marriage certificate stated that she had been 23;[9]
ii)although the applicant claimed to have met her ex-husband when he was 19 years old and unemployed, she had previously indicated that they had met at school;[10]
iii)the applicant’s evidence that at 15 or 16 years old, she was able to freely pursue a relationship with her ex-husband, was incongruous with its understanding of the situation of girls and young women in Nepal;[11] and
iv)the applicant’s evidence that her parents-in-law had accepted the match between her and their son despite the fact that her parents had not given their permission was incongruous with the Tribunal’s understanding of the situation in Nepal, where marriages were generally arranged by families.[12]
b)the applicant gave confusing and contradictory evidence regarding her attendance at school following her marriage. Although she initially claimed to have attended high school, when pressed for details she stated that she had only enrolled at that school after her daughter was about six months old.[13] The Tribunal noted the applicant’s evidence that she had attended a different school for two years after her marriage;[14]
c)the applicant gave inconsistent evidence in relation to her employment in Nepal.[15] In her visa application, she said she did not work following her marriage, yet told the Tribunal that she worked in the garment industry and briefly for a drug rehabilitation organisation;[16]
d)the applicant also gave inconsistent evidence in relation to employment documents she had provided in support of her visitor visa application, which stated that she had worked for a drug rehabilitation organisation from July 2009 until her departure for Australia. The Tribunal noted that while she initially claimed that the documents were genuine, she later indicated to the Tribunal that she only worked for the drug rehabilitation organisation briefly;[17] and
e)the applicant’s evidence in relation to when she separated from her ex-husband was inconsistent.[18] The Tribunal noted that the applicant had told the delegate that she had been separated from her husband for about five months before leaving Nepal, but told the Tribunal that she first raised the issue with her ex-husband about six months after she arrived in Australia.[19]
[9] CB 108, [14]
[10] CB 108, [15]
[11] CB 109, [16]
[12] CB 109, [18]
[13] CB 109, [19]-[20]
[14] CB 109, [19]
[15] CB 110, [23]
[16] CB 109-110, [20] and [23]
[17] CB 109, [20]-[21]; CB 111, [30]
[18] CB 111, [30]
[19] CB 110, [27]-[28]
The Tribunal put to the applicant its doubt about the credibility of her claims, and each of the inconsistencies to which it had regard. The applicant declined to comment.[20]
[20] CB 111, [30]
On the basis of its adverse credibility findings, the Tribunal rejected the totality of the applicant’s claims.[21] Further, having regard to a DFAT[22] country information report on the situation of women in Nepal, the Tribunal was not satisfied that the applicant faced a real chance of experiencing serious harm by reason of her status as a divorcee who had remarried.[23]
[21] CB 111, [32]-[35]
[22] Department of Foreign Affairs and Trade
[23] CB 112, [36]
Having regard to the applicant’s claims individually and cumulatively, the Tribunal found that she did not have a well-founded fear of persecution for any Refugees Convention reason.[24]
[24] CB 112-113, [37] and [40]
Having regard to its anterior factual findings, the Tribunal also did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there was a real risk she would suffer significant harm for the purpose of the complementary protection criterion.[25]
[25] CB 113, [38]-[39] and [41]
The current proceedings
These proceedings began with a show cause application filed on 7 December 2017. The applicant continues to rely upon that application. There are four grounds in it:
1. I am not satisfied with the Tribunal Member’s decision because the decision involved an error of law.
2. I argue that the Tribunal Member committed a jurisdictional error by heavily relying on its arbitrary views in consideration of my evidence and claims.
3. The Tribunal Member ignored to give me a benefit of the doubt and natural justice.
4. I am a genuine refugee in fear of persecution and my fears on return to my home country Nepal remain relevant.
The matter came before me for a show cause hearing on 16 October 2018. At that time the applicant made oral submissions in support of the allegation of procedural unfairness. The applicant contended that at the Tribunal hearing she felt anxious and was unable to express herself properly or to make submissions. She claimed to have raised this with the Tribunal member, who had refused to grant an adjournment or to allow her further time to provide documentary evidence in support of her claim.
In light of these assertions, I gave the applicant the opportunity to file a verified transcript of the Tribunal hearing and, contingent on that evidence being filed, I made a show cause order pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) requiring the Minister to show cause why relief should not be granted in relation to the question of whether the Tribunal provided the applicant with a fair hearing opportunity.
On 20 November 2018, the applicant complied with the order to file and serve a verified transcript and the show cause order thereupon operated. She also filed written submissions.
The matter came before me for a final hearing on 29 April 2019. At that time I received into evidence the verified transcript, as well as the court book filed on 21 February 2018 and the applicant’s original affidavit accompanying her show cause application.
At the final hearing I invited the applicant to take me to any parts of the transcript of the Tribunal hearing that she wished me to pay attention to. She declined that opportunity. Her oral submissions were limited to the merits of her protection claims.
Consideration
The transcript of the Tribunal hearing does not support the allegations made by the applicant at the show cause hearing. In that regard, I agree with the Minister’s supplementary submissions in relation to the show cause order I made.
The transcript reveals that the applicant did not express any concerns with the Tribunal regarding her capacity to participate, make an adjournment request, or request further time to provide additional documents. Rather, the following aspects of the transcript indicate that the Tribunal made a concerted effort to ensure that its obligations under s.425 were discharged:
a)the Tribunal gave the applicant a comprehensive explanation of the proceedings and indicated that if she could not answer a question because she could not remember or did not know, to “please let me know that that’s the case”;[26]
b)the Tribunal continued to state that “if there’s anything more that you feel is relevant to your case that I haven’t heard, then I’ll certainly give you an opportunity to tell me about that at the end of the hearing” and for the applicant to indicate if “you think my understanding is wrong or inadequate in some way”;[27]
c)the Tribunal proceeded to engage in an orthodox questioning of the applicant regarding her claims. At some points, it rephrased questions due to apparent misunderstandings by the applicant. However, a fair reading of the transcript indicates that this merely served to enhance the applicant’s understanding and that all questions and answers were adequately interpreted;[28] and
d)the Tribunal put to the applicant its concerns regarding her claims and repeatedly invited her to comment. However, she declined to do so. The Tribunal then stated, “those are all of the questions that I had for you. Is there anything else that we haven’t spoken about that you think I need to know?”, to which the applicant responded “I don’t have anything to say”.[29]
[26] Transcript, 1.29-2.15
[27] Transcript 2.15-2.30
[28] Transcript 4.20, 5.45, 9.5
[29] Transcript 24.15
The applicant has not provided any other evidence indicating that she was in any way unfit to give evidence, present arguments and answer questions.[30]
[30] Minister for Immigration v SZNVW (2010) 183 FCR 575; Minister for Immigration v SZNCR [2011] FCA 369 at [30]-[33]; SZOVP v Minister for Immigration & Anor (No.2) [2011] FMCA 442
In the circumstances, the applicant was afforded a real and meaningful opportunity to participate in the hearing. It follows that the Tribunal complied with its obligations under s.425 of the Migration Act 1958 (Cth) (Migration Act) and no jurisdictional error arises.
To the extent that the grounds in the original application have any continuing relevance, I agree with the Minister’s submissions concerning those grounds.
Grounds 1 and 4
These Grounds do not articulate a basis upon which to assert legal error on the part of the Tribunal, and constitute no more than a request for impermissible merits review based on the applicant’s dissatisfaction with the Tribunal’s findings.[31] The Tribunal is under no obligation to uncritically accept the claims made by an applicant.[32] Nor does it have to make a decision that is “acceptable” to the applicant.[33]
[31] Minister for Immigration v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272
[32]Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451; Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596
[33] SZVYJ v Minister for Immigration & Anor [2017] FCCA 1087 at [23]
Ground 2
Ground 2 appears to be an attempt to assert bias on the part of the Tribunal. An allegation of bias is a serious allegation of personal fault on the part of the decision maker.[34] It must be firmly and distinctly made and clearly proven.[35] A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. Further, there is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the determination of the application for review.[36] In the absence of further evidence, this ground cannot succeed.
[34] SBBS v Minister for Immigration (2002) 194 ALR 749 at [43]
[35] Minister for Immigration v Jia Legeng (2002) 205 CLR 507 at 531
[36] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH v Minister for Immigration (2004) 214 ALR 264 at [115]
Insofar as this ground can be said to be an attack on the logicality of the Tribunal’s comprehensive adverse credibility findings, it cannot be established. Although some of the inconsistencies relied upon by the Tribunal were “relatively minor”, it was cognisant of this, and concluded that the applicant had not given an honest account of her reasons for seeking protection on the basis of all of the relevant evidence, including the significant inconsistencies set out above,[37] which included her changing evidence about her ex-husband’s occupation, her confused and contradictory account of her school attendance, and her “completely different accounts” about her relationship with her ex-husband before she departed Nepal. These findings were open on the material before the Tribunal and arrived at on consideration of matters logically probative to the issue of credibility.[38] As such, any complaint of illogicality or irrationality rises no higher than one of disagreement with the merits of the Tribunal’s decision.[39]
[37] CB 111
[38] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; Kopalapillai v Minister for Immigration (1998) 86 FCR 547; CQG15 v Minister for Immigration [2016] FCAFC 146
[39] Minister for Immigration v SZUXN [2016] FCA 516 (cited with approval by the Full Federal Court in CQG15 at [60]
Ground 3
By Ground 3, the applicant contends that the Tribunal erred by reason of its failure to give her the benefit of the doubt and natural justice. This ground is without substance.
First, a fair reading of the Tribunal’s decision record as a whole does not suggest that it had any material doubt about its findings and conclusions. The Tribunal considered the applicant’s claims and disposed of them emphatically on credibility grounds. In these circumstances, it was not required to ask the question “what if I am wrong?”.[40]
[40] Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [66]-[67]
Further, as set out above, the Tribunal was not required to accept uncritically any and all claims made by the applicant.[41] Nor did it have to possess rebutting evidence before holding that a particular assertion was not made out.
[41] Supra note 32
Secondly, insofar as the applicant contends that the Tribunal breached its procedural fairness obligations, such a contention cannot be maintained. The applicant was validly invited to a hearing pursuant to s.425 of the Migration Act, and there is nothing to suggest that she was not given a meaningful opportunity to give evidence and present arguments. On the evidence before the Court, the issues dispositive of the review were raised[42] and the applicant was put squarely on notice of the Tribunal’s credibility concerns.[43] Accordingly, it is clear that the Tribunal properly conducted its review in accordance with Division 4, Part 7 of the Migration Act.
[42] CB 108, [14]-[29]
[43] CB 111, [30]. SZBEL v Minister for Immigration (2006) 231 ALR 592 and AZAAD v Minister for Immigration (2016) 189 FCR 494
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 May 2019
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