MZAHN v Minister for Immigration

[2016] FCCA 337

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHN & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 337

Catchwords:

MIGRATION – Application for protection visas – whether failure of Tribunal to view a video-cassette, the first applicant provided to the Tribunal, constituted jurisdictional error – whether Tribunal failed to consider first applicant’s claim regarding wife’s delivery of healthy baby in Australia – whether failure to consider any such claim constituted jurisdictional error – no jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547
MZABA v Minister for Immigration and Border Protection [2015] FCA 711
SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
Minister for Immigration and Citizenship v MZYZA [2013] FCA 572

First Applicant: MZAHN

Second Applicant: MZAHO

Third Applicant: MZAHP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1350 of 2014

Judgment of: Judge Jones

Hearing date: 17 August 2015

Date of Last Submission: 31 August 2015

Delivered at: Melbourne

Delivered on: 19 February 2016

REPRESENTATION

Counsel for the Applicants: Self-Represented

Solicitors for the Applicants: Self-Represented

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application for judicial review filed on 7 July 2014 is dismissed.

3. The Applicants pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1350 of 2014

MZAHN

First Applicant

MZAHO

Second Applicant

MZAHP

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the (then) Refugee Review Tribunal (“the Tribunal”) dated 11 June 2014 affirming a decision of the Delegate of the Minister for Immigration and Border Protection (“the Minister”) dated 20 August 2013, refusing to grant the Applicants’ Protection (Class XA) visas (“protection visas”) under the Migration Act 1958 (Cth) (“the Act”).

2. The Applicants are respectively the husband, wife and child. They are citizens of India. The husband is a Sunni Muslim and the wife is a Shia Muslim. The essence of their claims is that if they returned to India, their respective families will harm them, because of their “inter-caste” marriage. The evidence in relation to their claims was substantively made by the husband who shall be referred to in this decision as “the Applicant”. The wife adopted the husband’s evidence. The husband made submissions on behalf of the family, both before the Tribunal and in the Court proceedings.

3. There is one ground, in the application for judicial review filed on 7 July 2014. It concerns the failure of the Tribunal to view a video-cassette of the husband and wife’s wedding, which the Applicant had provided to the Tribunal as part of his submissions. The ground of judicial review is as follows:[1]

   “Sir, Before of the hearing, I had already submitted the video cassette of my wedding, In which It shows the evidence of my Parents absence but the at the hearing the tribunal asks me on the hearing what is there in the video, In this scence i belive is the tribunal has not taken my case at serious, which my family and me who is at deep problems all round the duration of times, but what i belive is it was totally unfair. The person is relying on the decision and who belive he has got the all the evidences. at what the tribunal, wants to give protection to me and my family, and also i belive is we are genuine people and the tribunal does not understands and makes the decision with easy without the checking the video of my wedding in which it shows the evidence and also i reminds him the wedding date to the i belive he took very easy to my case without getting into this care deeply or i should say serious. i have got lot more to tell and, I want to Express my feelings in front of my Federal Circuit Court judge. thank you sir.”

   [1] Without being critical of the Applicant, the ground contains numerous grammatical errors. The ground is reproduced in full.

4. As the Applicant was self-represented, I explained to him the nature of judicial review proceedings, with the focus of the Court on deciding whether the decision of the Tribunal is affected by jurisdictional error.

5. I asked the Applicant to explain his ground of review. The Applicant gave two general explanations about the reasons for his application for judicial review in the course of his submissions. With respect to his claim that the Tribunal failed to view the video-cassette he provided of his and his wife’s wedding, he said that he was the only person from his family at the wedding, that his parents were against the marriage and that if he returns to India with his wife and child, he and his wife will be harmed by his family. He also said that the Tribunal erred, because it failed to accept his evidence, that the loss of the baby (the wife’s miscarriage in India) was due to the stress his wife suffered from the threats of harm in India, and that after the wife arrived in Australia, she delivered a healthy child.  As the Applicant was self-represented, I gave him leave to add a further ground of judicial review, namely:

   “The Tribunal failed to consider the applicant’s claim that the delivery of a healthy baby in Australia was because the wife was no longer being threatened or feared harm.”

6. I made Orders for the filing of further supplementary submissions by the Minister and the Applicant in relation to this additional ground of review. The Minister filed supplementary submissions on 31 August 2015. The Applicants did not file any submissions in relation to this ground.

Background

1. The husband and wife arrived in Australia on 25 December 2008 on Student visas. Their child was born in Australia on 11 November 2010. After the husband and wife’s Student visas expired, they applied for new Student visas, which were refused, including on review by the Tribunal.

2. On 3 January 2013, the Applicants made a valid visa application for protection visas. The Applicants had earlier made two invalid applications for protection visas (CB 1 to 44 and CB 85).

Applicants' claims

1. The Applicants’ claims are set out in their initial valid application (CB 7 to 10), subsequent correspondence with the Department of Immigration and Border Protection (“the Department”) (CB 92 to 98 and 179 to 187), in their valid visa application (CB 239 to 242), subsequent correspondence with the Tribunal (CB 527 to 533 and 585 to 589), as well as in their evidence given at the Tribunal hearing and summarised by the Tribunal in its decision record (at CB 599 to 602 [24] to [49]).

2. The Applicants’ claims were:

   a)the husband is a Sunni Muslim and the wife is a Shia Muslim;

   b)they met, as she was his sister’s friend (which claim was later clarified as being his cousin’s sister),[2] and fell in love;

   [2] CB 585.

   c)they married on 18 April 2008. It was a marriage based on love, not religion;

   d)both their parents were against the marriage, because they belong to a different caste of the same Muslim religion;

   e)the husband’s parents were not present at their wedding, because his parents did not approve of his wife and her parents, as they are Shia Muslims;

   f)soon after they arrived in Australia their parents rang them regularly saying they should divorce each other, but they continued their relationship;

   g)the wife became pregnant in Melbourne and they decided she should return to India for the delivery of the child;

   h)soon after she arrived in India, the husband’s parents became aware that she was in India. They went to her parent’s house and told her to get a divorce. They repeated this many times, but she ignored them;

   i)the first time his parents went to the wife’s parents home, it was around 1.00am and they came with some “goons”. They kicked the wife on the back and told her to get divorced in just two days, and threatened that if she did not do so, they would kill her and the whole family;[3]

   [3] CB 528.

   j)fights between their parents became a daily event and at times were very heated, with threats made against each other. His parents continued to threaten the wife and harm her. His parents kicked his wife’s stomach, her legs and hands, denigrated the Shia religion and pelted stones on his wife’s house;[4]

   k)the wife became very stressed by all of this and her health suffered from the behaviour of his parents and the fighting. She was advised by her treating doctors that the stress she was suffering could harm her baby;

   l)she gave birth to a baby boy in India, who suffered serious medical issues. The baby passed away eight days after his birth. The Doctor informed the wife’s parents that the baby’s demise was due to the stresses their daughter suffered from their fighting;

   m)the wife remained in India, staying at her parent’s house. The Applicant’s parents came to the wife’s parents’ house to kill her. However, she was not there, as she was having a medical check-up.[5] His parents continued their attempts to locate the wife. One day his parents and uncles found the wife and her parents in the night on a main road of an outer suburb of Hyderabad. They bashed his wife. One person was hitting her on the head and another kicking her stomach. Another two people were hitting the wife’s parents. Both the wife and her parents became unconscious;[6]

   n)after this incident, the wife and her parents moved around 550kms away from their home, living at one of her maternal uncle’s houses. The husband’s parents tracked them down there;[7]

   o)as a result of the cruel treatment from his parents to his in-laws and his wife, the wife’s mother told the wife to divorce her husband and continued to harass her to get a divorce;[8]

   p)the wife became very depressed. She continually telephoned the husband, begging to come back to Melbourne. Finally he was able to save enough money and she returned to Melbourne. She left India without the knowledge of her parents. She was diagnosed as having postnatal depression, by a General Practitioner in Melbourne, which lasted about five months. In Melbourne she was very dependent on the husband and did not want to be left alone;

   q)the wife received a telephone call from her in-laws threatening to kill both of them, whenever they returned to India;

   r)she became pregnant once more and gave birth to a healthy baby girl on 11 November 2010. The reason why the baby was born healthy, was that she was not exposed to and was able to forget the harassment and threats, during her time in India, when the husband’s parents threatened her; and

   s)they fear if they return to India they will be killed by both their parents, because of their parents’ strong opposition to their marriage.

   [4] CB 529

   [5] Ibid.

   [6] CB 530

   [7] Ibid.

   [8] Ibid.

Tribunal hearing

1. The Applicants appeared before the Tribunal on 12 February 2014 and the hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

2. Following the hearing, the Tribunal wrote to the Applicants on 17 February 2014, inviting them to comment on or respond to information that was contained in the (invalid) visa application received by the Department on 1 October 2012. A copy of this application was attached to the correspondence (CB 567 to 584).

3. In that correspondence, the Tribunal identified claims made by the Applicants in the visa application dated 1 October 2012 and pointed out that these conflicted with claims the Applicant later made in his letter to the Tribunal received on 4 December 2013 and his evidence given during his hearing on 12 February 2014. The conflicting claims given later by the Applicant were also identified in the correspondence. Having identified these inconsistencies, the Tribunal went on to state, in that correspondence, that the information was relevant, because the inconsistencies indicated that their evidence may not be credible and, consequently, the Tribunal may affirm the decision of the Delegate.

4. The Applicant responded to this correspondence by letter dated 26 February 2014 (CB 585 to 589).

Tribunal decision

1. In its decision record, the Tribunal firstly set out the claims of the Applicant contained in his protection visa application, his letters to the Department and to the Tribunal, both prior to and after the hearing, as well as the evidence given by the Applicant at the hearing. (CB 596 to 605 at [9] to [61].

2. The Tribunal stated that the Applicant had provided a video recording, which it did not view. The Tribunal noted that the Applicant has said that it and other material showed that no one from his family attended his wedding (CB 599 at [26]).

3. The Tribunal then considered relevant country information (CB 607 to 611 at [79] to [91]).

4. The Tribunal noted that the wife did no more than adopt the Applicant’s written and oral evidence. The Tribunal did not accept that the Applicant gave credible evidence (CB 612 at [97]). These adverse credibility findings formed the basis for the Tribunal reaching its ultimate conclusion that the Applicants did not satisfy the criterion set out in ss.36(2)(a) or (aa) of the Act (CB 615 to 616 at [118]).

5. The Tribunal’s adverse credibility findings flowed from the following:

   a)the Tribunal found various aspects of the Applicant’s claims or evidence improbable (CB 612 at [99]);

   b)the Tribunal was concerned by the Applicants’ lengthy delay in making an application for a protection visa, given he had arrived in Australia in 2008 (CB 614 to 615 at [109] to [113];

   c)the Tribunal was concerned by inconsistencies in the husband’s evidence (CB 613 at [106]); and

   d)the fact that the Applicant made various specific claims, not previously made, that his wife suffered harm and threats of harm whilst she was in India, and that these were made only very late in the review process, in his letter to the Tribunal received on 4 December 2013 (CB 613 at [104]).

6. The Tribunal rejected the Applicant’s claims about the reaction of his and his wife’s families to their relationship. It also rejected the claims that the families have harmed or have threatened either the Applicant or wife with harm (CB 615 at [116]).

Judicial Review

Ground One – The Video Recording

1. There is no dispute that the Tribunal did not view the video-cassette (see [15] above). The question therefore becomes, whether the failure of the Tribunal to consider this evidence which the Applicant provided to the Tribunal constituted jurisdictional error.

2. In Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 Kenny, Griffiths and Mortimer JJ stated at [31] that while the description “failure to consider more recent information” may explain the path leading to error, the error itself is a failure to perform the statutory task imposed on the Tribunal by the Act. That task involves (at [34]):

   [F]irst, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

3. “That task could not be lawfully undertaken without “a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there” (at [38]).  The Court said later, as follows:

   [68]  In SZJSS at [27]-[28] (a passage extracted by Robertson J in SZRKT at [96] the joint judgment of the Court recognised as a proposition flowing from Yusuf that “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT (at [97]), it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.

   …

   [70]  With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the Tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.

4. In MZABA v Minister for Immigration and Border Protection [2015] FCA 711, Bromberg J stated with respect to a Tribunal’s statutory task at [24]:

   In SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365, Griffiths J set out the Minister’s submissions as to the state of the authorities at [75]–[78] (which he accepted subject to provisos not here relevant), and at [81] set out additional principles relevant in determining whether the Tribunal committed jurisdictional error in failing to address a substantive and clearly-articulated submission. I will endeavour to summarise from Griffiths J’s judgment (and the authorities his Honour cited) the principles here relevant: first, the Tribunal’s duty is to review, which requires it to consider and deal with clearly-articulated submissions of substance (SZSSC at [81(a)]); second, a failure to consider a submission that was substantial and clearly articulated (SZSSC at [75], [78], citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24]) or an undertaking of the task of review “without a consciousness and consideration of the submissions, evidence and material,” (SZSSC at [76], citing MZYTS at [38]), could amount to jurisdictional error. Those may be different ways of expressing the same principle (SZSSC at [77], citing SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 314 ALR 146 at [23]–[24]); third, not every failure to deal with a submission, evidence, or other material, will constitute jurisdictional error (SZSSC at [81(b)], citing SZRKT at [97]).  Some evidence may be irrelevant and some contentions misconceived, though there is a distinction between failure to advert to evidence that might have led to a different factual finding, and failure to address a contention which, if accepted, might establish well-founded fear for a convention reason (SZSSC at [81(c)], citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]); fourth, it may be appropriate to have careful regard to the Tribunal’s statement of decision and reasons including its summary of submissions received (and how it dealt with them) and its structure (SZSSC at [81(e)]); fifth, the burden is on the appellant to persuade the Court that any failure to deal with a submission is a jurisdictional error (SZSSC at [81(g)], citing MZYTS at [53]), and the Tribunal’s reasons are not to be approached with an eye keenly attuned to detection of error (SZSSC at [81(h)], citing Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 140 ALD 1 at [19]–[20])

1. The crux of the Applicants’ claim to fear persecution or significant harm if they returned to India, is that the Applicant’s parents disapproved of the husband and wife’s marriage, such that they will kill them or seriously harm them if they return to India.

2. Various claims are made in support of this, as follows:

   a)the Applicant’s parents did not attend the wedding, because they did not approve of his marriage to the wife, or the wife’s family;

   b)the Applicant’s parents insisted, continually, after they had arrived in Australia, that the couple divorce;

   c)during the wife’s time in India, whilst pregnant with their first child, the Applicant’s parents made threats to the wife and assaulted her;

   d)the stress she suffered from his parents’ behaviour resulted in the birth of a seriously sick son, who died only eight days after he was born;

   e)the Applicant’s parents continued to threaten and assault the wife after the birth of the child;

   f)the wife’s parents told the wife she should divorce the husband, because of the threats made by the Applicant’s parents to harm the wife’s family in India;

   g)the wife suffered depression and returned to Melbourne; and

   h)subsequently, without the ongoing threats and assaults from the Applicant’s parents, the wife gave birth to a healthy daughter.

3. The Applicant provided the video-cassette to the Tribunal as evidence that the Applicant’s parents did not attend the wedding.

4. The Tribunal dealt with the question of those attending the husband and wife’s wedding, as follows (at CB 613 at [101]):

   “The Tribunal has made the finding that the applicant and his wife were married. The Tribunal has not had to determine who attended the wedding. There were photos showing the applicant and his wife together wearing garlands. The Tribunal did not view any video recording. If there were video recordings or other photographs that showed the complete wedding party and guests they would not assist the Tribunal for the Tribunal would then have only the applicants’ oral evidence as to who was there and who was not. The reference in the marriage certificate to a maher amount tended to show that there was usual involvement of both families, although the applicant maintained that was not the case. If no one from the applicant’s family was present that would be consistent with his claims that his family was not aware that he planned to get married and that they disapproved. The essential question for the Tribunal however is whether either family poses any and what threat to the applicants.

5. The Tribunal went on to note (at [102]) that, “If the Applicant’s family disapproved of the relationship and if because of that they pose a threat to the applicant the reasons for that would need to be considered.”

6. The reference to the “maher” arises from the evidence given at the hearing, which is described by the Tribunal as follows (at CB 600 at [34]):

   The applicant acknowledged that for an Islamic wedding in India  typically there would be a “maher amount” paid by the groom or groom’s father to the bride. He said that there had not been one in his case. When the Tribunal pointed out that the marriage certificate on the Department’s file referred to a maher amount, the applicant said that he thought (sic) was being asked about a dowry. He added that the maher amount did not have to be paid straight away and could be paid at any time the bride was alive.”

7. It is clear from the decision record, that the Tribunal decided it was not necessary to view any evidence regarding those attending the wedding, as it would not assist in its consideration of whether the Applicants satisfied the criteria for the protection visas. It formed this opinion on the basis that it would only have the Applicant’s evidence about who the people in the video or photographic evidence were. In other words, the Tribunal held that such evidence was not relevant to its fact-finding task. Further, the Tribunal, correctly in my opinion, identified that the relevant question was not whether the parent’s disapproved of the marriage, but whether the Applicant and his wife would suffer harm if they returned to India. Consequently, it was not necessary for the Tribunal, in considering the Applicant’s claims, to view the video recording.

8. In my opinion, the failure of the Tribunal to view the video; that is, to take into account the video-cassette, which the Applicant asserts was a video of the wedding, does not give rise to jurisdictional error. Given the adverse credibility findings by the Tribunal, regarding the Applicants’ claims, this failure was not material to the exercise of the Tribunal’s function. Even if the Tribunal viewed the video-cassette and accepted the Applicant’s evidence about those attending the wedding, and his claim that his parents did not attend the wedding, because they disapproved of the marriage, this would have made no difference to its ultimate finding. This is because the Tribunal did not accept that the Applicant’s parent’s disapproval was of the nature the Applicant claimed and rejected the Applicant’s claims that they had made threats or harmed the wife (CB 615 at [116]).

9. Accordingly, I find that this ground does not give rise to jurisdictional error.

Ground Two – Failure to consider Applicants’ claim regarding the delivery of a healthy baby in Australia

1. The claims the Applicant made regarding the wife’s delivery of a healthy baby girl in Australia and its relevance to the Applicants’ claim to fear persecution or significant harm, is helpfully summarised by the Minister in its supplementary submissions. I have set this summary out below.

   4.  The primary applicant made the following assertion to the Department regarding the circumstances of the birth of his and his wife’s baby daughter in Australia (CB 93, 180):

   one day finally here in Melbourne she became once more pregnant and she gave birth to the very healthy baby girl which the baby was born on 11-11-2010. the (sic) reason why the baby was born healthy is she has forgot (sic) the tension and problems of those bad days …

   (emphasis added)

   5.  The primary applicant also made assertions regarding the circumstances of the birth and death of the couple’s baby boy in India.

   a.  He stated as follows in a letter to the Department (CB 96-97):

   … When asked to (sic) the doctors why the baby is born abnormal the doctors told (sic) the reason was may be the mother was taking more tensions and problems on her that is why the baby hasn’t developed his lungs

   (emphasis added)

   b.  He stated as follows in a letter to the Department (CB 184):

   … the doctors use (sic) to say (sic) her you may (sic) having some tensions in yourself this [illegible] tensions can kill the baby anytime…

   … the doctors told to (sic) my inlaws that the baby died due (sic) tensions in each others family there (sic) all tensions (sic) effected my wife (sic) pregnancy.

   c.  He stated as follows in a letter to the Tribunal, responding to the Tribunal’s 424A letter (CB 588):

   Sir, yes she lost her first child because of stress, depression, violance (sic), attacks by my parents period after periods (sic). you (sic) know normally every pregnant women (sic) at the time of pregnancy days women goes (sic) to a doctor once in (sic) week or every 15 days after or before to a normal check ups, but my wife she use (sic) to go every often (sic) to see a doctor for her and every time whenever she use (sic) to go to a doctor, doctor use (sic) to say (sic) her your pregnancy is not going smooth these days and why are you taking stress and also doctor asked her do u (sic) have any domestic problem and tensions in your home, then why are you going in (sic) depression what is the problem, please tell me , the doctor had asked her…

2. A Tribunal is not obliged to refer to every bit of evidence in the course of its reasoning. In SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389, Lindgren J decided at [58]:

   “It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs [1996] FCA 1342; (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”

3. A failure to make a finding regarding a piece of evidence does not amount to jurisdictional error: see VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25].

4. In Minister for Immigration and Citizenshipv MZYZA [2013] FCA 572, Tracey J relevantly stated:

   28.    Legislation which governs the operation of statutory tribunals often requires a tribunal to provide reasons for its decisions. When a tribunal which is required to provide reasons does so and it is alleged, by reference to those reasons, that the tribunal has failed to have regard to what is said to be a relevant consideration or some important piece of evidence which is supportive of a party’s case, it will often be difficult to assess the validity of the complaint.

   29.    The failure by a tribunal, in its reasons, to refer to a particular consideration or piece of evidence will not necessarily lead to the conclusion that that consideration or evidence was disregarded or overlooked. At the other extreme, a statement by a tribunal that it has had regard to a particular consideration or item of evidence will not necessarily lead to a conclusion that it has done so or done so in an appropriate manner.

   30.  A reviewing Court will not lightly infer that relevant considerations or material have been overlooked by a decision-maker. In forming a judgment the Court will have regard to a range of factors. They include:

   o    The terms of the relevant statutory requirement to provide reasons.
   o  Whether what the Tribunal has supposedly failed to consider is a relevant consideration or an item of evidence.
   o  The relative importance of the consideration or the evidence to the party’s case.
   o Whether any reference is made to the consideration or the evidence in the tribunal’s reasons.
   o The reason reliance is placed on the consideration or evidence by the party who asserts its significance.
   o The relative significance of the absence of reference to the consideration or evidence having regard to the tribunal’s reasons as a whole.

   31.    The Tribunal was required, by s 430 of the Act, to provide reasons for its decision. The terms of s 430 have been set out above at [23]. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 McHugh, Gummow and Hayne JJ held that s 430(1) required the Tribunal to “set out its findings on those questions of fact which it considered to be material to the decision which is made and to the reasons it had for reaching that decision.” (Emphasis in original). Their Honours held that if, in its reasons, the Tribunal fails to refer to particular material, a reviewing Court may infer that that “matter ... was not considered by the Tribunal to be material.”

   32.    That does not mean, as French CJ and Kiefel J pointed out in Minister for Immigration and Citizenship v SZGUR(2011) 241 CLR 594 at 605-6, that, simply because a matter is not mentioned in the reasons, it was not considered. The “matters” referred to by McHugh, Gummow and Hayne JJ in Yusuf were “matters of fact” or “findings of fact” made or not made by the Tribunal and not “matters generally”: see SZGUR at 617 (Gummow J).

5. I am satisfied that the Tribunal was aware of the Applicants’ claim regarding the circumstances of the birth of their daughter in Australia. With respect to this, the Tribunal recorded the Applicant’s evidence to the Department as (CB 597 at [13]):

   “….. The child (born in India) survived for eight days only. Doctors said that the child’s development was affected by the tension that the applicant’s wife experienced. He said that she “was facing big life threatening issues” from their parents. As a result the applicant’s wife became depressed. The applicant called his wife to return to Melbourne… Finally, the applicant’s wife became pregnant again and gave birth to a healthy baby girl in November 2010. The applicant said that the reason the baby was healthy was that his wife had peace of mind here.”

6. I am satisfied that the Tribunal addressed the Applicants’ contentions regarding the circumstances of the tragic loss of their baby son in India and, by inference, the birth of a healthy girl in Australia. I am satisfied that the Tribunal correctly understood the relevance of these contentions to the Applicants’ claims to fear persecution and/or significant harm if they returned to India. This is apparent from:

   a)its correspondence dated 17 February 2014 to the Applicant, in which the Tribunal invited the Applicant to comment on or respond to particular information, including, “When your wife lost her baby doctors said that that was because of stress.” The Applicant responded to this request for information (see  [34(5)(c)] above) (CB 567); and

   b)the Tribunal’s consideration of the circumstances surrounding the baby’s death in India (CB 614 at [107]):

   The Tribunal is conscious that the circumstances surrounding the death of the applicant’s baby (boy in India) is a matter of the utmost sensitivity. The Tribunal observes though that it would be consistent with the general circumstances of the applicant’s wife being in India while she was pregnant and without her husband for her to suffer stress and for her doctors to recognise that. The eventual onset of depression would also seem consistent with the whole of that history. The Tribunal does not however accept that the applicant’s wife also experienced “violence and attacks” when the applicant initially mentioned only “stress”.”

7. Thus, the Tribunal accepted that the Applicant wife suffered stress in India, and consequently depression. However it did not accept, and indeed rejected, the Applicant’s claim that the families harmed or threatened either the wife or husband (CB 615 at [116]).

8. The claim that the wife delivered a healthy baby girl in Australia is made in support of the husband’s claim, that her delivery of a seriously ill baby boy in India was as a consequence of the threats and physical harm dealt to her by his family, while she awaited the delivery of her child in India. The Tribunal clearly rejected his claims that his wife was harmed or threatened whilst she was in India. Given this finding, the delivery of a healthy baby girl in Australia could not be evidence that would support the Applicant’s claim that this was because his wife was no longer subject to threats or harm from his family.

9. Accordingly, I find that this ground does not give rise to jurisdictional error.

Conclusion

1. For the reasons set out in this judgment, I will dismiss the Applicants’ application for judicial review, with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  19 February 2016