SZSGE v Minister for Immigration

[2013] FCCA 1786

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSGE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1786

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91X, 36(2)(aa), 424A, 425

Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: SZSGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2726 of 2012

Judgment of: Judge Lloyd-Jones

Hearing date: 22 May 2013

Delivered at: Sydney

Delivered on: 8 November 2013

REPRESENTATION

The Applicant: The Applicant appeared in person with the assistance of an Hindi interpreter

Solicitors for the First Respondent: Ms E. Warner-Knight of Australian Government Solicitor

The Second  Respondent: The Second Respondent filed a submitting notice of appearance

ORDERS

1. The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.

2. The Application filed on 22 November 2012 is dismissed.

3. The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.  

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSGE.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2726 of 2012

SZSGE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1205168, a decision of Tribunal Member J. Ciantar dated 19 October 2012, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.

2. In accordance with the Court Orders made on 5 February 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.  

3. At the First Court Date directions hearing the applicant sought to participate in the NSW RRT Legal Advice Scheme. This referral was made and written advice was provided after the applicant’s conference with a panel advisor.  The applicant was granted leave to file and serve a short written outline of submissions and list of authorities fourteen (14) days before the date of the hearing.  The applicant elected not to file any written submissions or authorities.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives.  I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.

2. The applicant is a female citizen of India, born in Punjab who first arrived in Australia on 23 June 2008 as the holder of a subclass 573 Student visa.  She was accompanied by her then husband, whom she later divorced, and he was listed as her dependent.  She was granted a further Student visa on 9 October 2010 which was valid until 18 October 2011.  She returned to India on 7 June 2011.  The applicant most recently entered Australia on 24 June 2011 and lodged a Protection visa application with the Department of Immigration and Citizenship (as it was then) on 18 July 2011.

3. In a statement accompanying her Protection visa application, the applicant claimed her family were highly conservative and prominent Hindus in their home city of Punjab, were involved with Hindu national politics and were violently opposed to relationships between Sikhs and Hindus.  She claimed that her family had been targeted by Sikh militants for their opposition to Sikh separatism.

4. The applicant claimed that after her arrival in Australia she escaped from her relatives here and began a relationship with a Punjabi Sikh man named Mr Singh whose family had been involved with Sikh separatist movements in Punjab.

5. The applicant claimed that she divorced her husband and returned to India to see her mother and grandmother (as she claimed that she remained close to her immediate family who, unlike her broader family, were aware of her situation and were generally supportive).  She claimed that while in India she was abducted by her other relatives who had sided with her ex-husband and who told her that if she married a Sikh she could be arrested as a Sikh separatist.  The applicant claimed that at her family’s behest she was detained and mistreated by the local police on the basis of accusations that she was engaged in prostitution in Australia.  She claimed that the police also harassed Mr Singh’s family in India on the basis of their links to Sikh separatists.

6. The applicant claimed that she was able to escape India once released from police custody, but that she was afraid that her family would use their influence to have her and Mr Singh imprisoned if they returned to India.

7. The applicant’s Protection visa application was accompanied by numerous articles discussing terrorism, police corruption in India and Sikh ritual practices.  It was also accompanied by a divorce order granted by the then Federal Magistrates Court taking effect on the day that the applicant left Australia to return to India.

8. The applicant attended an interview before a delegate of the Minister.  The delegate accepted the applicant’s main claims, although she considered that these had been somewhat embellished.  The delegate found, however, that the applicant and Mr Singh, who had lodged his own Protection visa application, could relocate within India and that there would only be a remote possibility the applicant’s family could locate them if they lived outside Punjab.  As such, there was no real chance that they would face serious harm.

9. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 20 April 2012.

10. On 24 July 2012, the applicant and Mr Singh attended a hearing before the Tribunal.

11. On 8 August 2012, the Tribunal wrote to the applicant, inviting her to comment on:

    a)An inconsistency that it in her written and oral claims, namely:

    i)Whether her father and uncle had disappeared for three days and never talked about what happened; or whether they had been abducted by Sikh separatists, tortured and starved and the family forced to pay a ransom for their release.

    b)Various inconsistencies that it identified between the applicant’s claims and Mr Singh’s evidence, namely:

    i)Whether Mr Singh’s father was involved with Sikh separatist movements;

    ii)Whether Mr Singh’s father had applied for refugee status in the UK;

    iii)Whether Mr Singh’s father’s difficulties with the Indian Police arose because of Mr Singh’s involvement with the applicant or because of his alleged links to Sikh separatism;

    iv)Whether Mr Singh would himself face difficulties in India because of his involvement with the applicant or because of his alleged links to Sikh separatism; and

    v)Whether Mr Singh told the applicant in February 2011 that his father was having difficulties with the police because of their relationship, or whether the applicant told Mr Singh in June 2011 that his father had been harassed by the police since June 2010;

    c)Her apparent lack of awareness of Mr Singh’s migration status;

    d)The delay between the lodging of her Protection visa application and the lodging of Mr Singh’s application;

    e)The apparent delay in her and Mr Singh’s marriage.

12. On 31 August 2012 the applicant responded to the Tribunal.  In that response, the applicant stated:

    a)Her father and uncle had been abducted, tortured and starved until a ransom was paid, but had not spoken about the experience.  She had learnt the details from her mother;

    b)At the time of making her application the applicant and Mr Singh did not discuss personal family matters in depth.  The applicant had subsequently discovered the true situation being that:

    i)The applicant had been mistaken in her belief that Mr Singh’s father was personally involved with Sikh separatism, although he had disapproved of the attack on the Golden Temple and had been suspected of links to separatists because of his family connections;

    ii)While she had thought that Mr Singh’s father’s difficulties arose because of their relationship, the applicant was now aware that he also had difficulties because of Mr Singh’s suspected links to separatism;

    iii)Mr Singh would face more difficulties in India because of his perceived links to separatists than because of their relationship, but she noted that he would also face difficulties from her family; and

    iv)She became aware that Mr Singh’s father was being harassed when she was detained by the police and that harassment took place at the instigation of her ex-husband from June 2010;

    c)When the applicant was interviewed by the delegate she and Mr Singh were not very close and she was not aware of his visa status or intentions;

    d)She and Mr Singh were unmarried and did not discuss their situations in detail which is why they lodged separate applications at different times;

    e)She and Mr Singh had delayed their marriage because of their family’s concerns and their own fears of the consequences for themselves and their families.  They were not living as de factos because of cultural pressure; and

    f)The applicant asked that her and Mr Singh’s applications be considered separately and stated that she could clarify any questions during an interview.

The Tribunal’s Decision

1. The Tribunal did not accept that the applicant was a witness of credit, and found she had exaggerated her relationship with Mr Singh.  The Tribunal found that, up until the time of the hearing before it, the applicant had retreated from her earlier claims about the nature and extent of her relationship with Mr Singh, and that she had altered and tailored her evidence to account for inconsistencies.                  

2. The Tribunal accepted that until the interview before the delegate the applicant and Mr Singh were still considering whether or not to have a permanent relationship.  On this basis, and on the basis of inconsistencies between the applicant’s and Mr Singh’s evidence, the Tribunal did not accept that the applicant’s family had harassed Mr Singh’s family in India because of their relationship.

3. The Tribunal noted that it was the applicant’s evidence that her ex-husband was not interested in their relationship.  As such, the Tribunal considered that it was highly unlikely that the applicant’s family, which is also her ex-husband’s family, would attempt to maintain the relationship which, in any event, had been legally terminated.

4. The Tribunal did not accept that it was credible that the applicant’s broader family knew about her relationship with Mr Singh, or that they had learnt the details of his family in India.  The Tribunal also did not accept that it was credible that the applicant had been abducted by her relatives when she returned to India.  Consequently, the Tribunal did not accept the applicant’s claim that her relatives had handed her over to be detained and mistreated by the police.

5. The Tribunal noted that there may be some family estrangement as a result of the applicant’s divorce, but did not accept that her family would harm her or use their wealth and/or connections to harass her.

6. The Tribunal considered the applicant’s claim that her immediate family were only supportive of her relationship with Mr Singh on the basis that she did not return to India.  However, the Tribunal’s view was that the applicant had a close relationship with her immediate family and this would continue if she returned.

7. The Tribunal found that there was only a very remote chance that the applicant would be targeted as a result of her family’s prominent position or beliefs as she had not been targeted in the past for this reason.  The Tribunal also noted that, even if her father had been targeted as claimed, he was now dead.

8. The Tribunal considered whether the applicant would be at risk if she married Mr Singh.  The Tribunal noted that it did not accept that her family had harassed the applicant and Mr Singh’s family, and did not accept that the relationship between the applicant and her broader family was sufficiently acrimonious that she would be subjected to any harm beyond estrangement.  The Tribunal accepted that interfaith marriages are not favourably regarded in India, and that even the supportive members of both families had some misgivings.  The Tribunal noted, however, that the applicant had not claimed to fear serious harm from society in general as a result of her relationship, and found that any unhappiness, disapproval or estrangement that the applicant encountered due to marrying Mr Singh would not amount to serious harm.

9. The Tribunal concluded that the applicant had not suffered any Convention-related harm in India in the past and that there was no real chance that she would face harm for a Convention reason if she returned to India. The Tribunal considered the criteria is s.36(2)(aa) of the Migration Act but was not satisfied that there was a real risk of significant harm. Accordingly, the Tribunal affirmed the decision to refuse to grant the applicant a Protection visa.

Current Proceedings

1. The applicant filed an application seeking review of the Tribunal’s decision in this Court on 22 November 2012.  The applicant was granted leave at the First Court Date directions hearing to file and serve an amended application and written submissions.  No documents have been filed since the filing of the Application and affidavit in support by the applicant.  In her Application the applicant seeks the following orders:

   1.  An order that the decision of the tribunal or Minister be quashed.

   2.  A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.

2. The grounds of the Application are as follows:

   1.  The decision made by RRT Members is wrong.

   2.  This decision unfair as I can feel a fear of persecution if I go back on falls (sic) ground.

   3.  Even Immigration have a decision in which they agree about the events which happened when I been to India.  The Immigration delegate was agree that there is significant harm can occur to me if I go back and my life will be in danger.  I was expecting the grant of Protection Visa for RRT Members as I feel threat to my life if I go back but the refusal is unexpected as there is no way back for me.

Minister’s Submissions

1. The Minister submits ground one of the Application is a mere expression of disagreement with the conclusion of the Tribunal and does not identify any jurisdictional error.  This Court is not entitled to review the merits of the Tribunal’s decision: see Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 at [20].

2. The Minster contends that like ground one, the complaint of ‘unfairness’ in ground two of the Application appears to be no more than an expression of disagreement with the factual findings and conclusion of the Tribunal and does not identify any jurisdictional error.

3. It is argued that ground three of the Application appears to complain that the Tribunal did not believe the part of the applicant’s story which had previously been accepted by the delegate.  As noted above, although the delegate found she had embellished her claims, by contrast with the Tribunal, the delegate largely accepted the applicant’s claim to fear harm from her family, but found it would be reasonable for the applicant and Mr Singh to relocate and thereby avoid harm from the applicant’s family.

4. Further, the Minister submits no jurisdictional error arises from the Tribunal’s different findings. In compliance with its duty under s.425 of the Migration Act, the Tribunal expressly put the applicant on notice at the hearing that it may find differently to the delegate and that her credibility was in issue (see CB 147 at [58]). This was also reiterated in the s.424A letter.

5. The Minister argues that no jurisdictional error in the Tribunal’s decision has been established. 

Consideration

1. The applicant is a self-represented litigant who appeared before the Court with the assistance of a Hindi interpreter.  At the First Court Date directions hearing the applicant elected to participate in the NSW RRT Legal Advice Scheme.  The applicant stated that she had not received that advice.  The Court file contains a document that is titled “Confirmation of advice and as appropriate tax invoice” where it is detailed that the panel lawyer attempted to contact the applicant via telephone, but was unsuccessful.  The panel member indicated that he sent, via post, a copy of his advice to the applicant.  The applicant indicated that she had received the written advice.

2. Ms Warner-Knight, appearing for the Minister, requested an adjournment of 10 minutes to allow the applicant have the Minister’s submissions read to her via the interpreter.  The applicant indicated that she had reasonable English skills and had read the submissions previously, however, I allowed the adjournment to occur in order for the interpreter to translate the written submissions to the applicant

3. Once Court had resumed, I asked the applicant whether she had any oral submissions to make.  She stated “I have no knowledge about the legality of this case.  I have no idea on what ground my application has been rejected.  So I don’t want to make any submission.” (Transcript, 22 May 2013, p.4.14-16). 

4. The Tribunal, in its Findings and Reasons notes that the applicant claims that her family are wealthy, conservative Hindu jewellers who marry within the family.  She was born Ludhiana in Punjab.  The family is Hindu and being wealthy, contribute large amounts of money to the advancement of Hindu culture and restoration of temples in the Punjab.  They were regularly targeted by Sikh militants who were campaigning for Sikh separation.  The applicant claims that her family is very conservative and it is customary for the family to maintain their caste and to hold their wealth amongst themselves.  They never want their sons and daughters to marry, except amongst relatives. 

5. The applicant stated that she was aware that she would not be allowed to marry anyone outside her caste or family.  However, at school she realised that the caste system should be abolished in India, as many Dalits and innocent people experience discrimination and even murder.  She thought the Golden Temple attack was unwarranted and the Indian Government could solve problems through negotiation, rather than by branding all Sikhs as militants.  She was studying with Sikh students and she felt that the majority of Hindus should not act like other minority religious groups as they should not encourage violence and hatred.  The applicant stated that she had many Sikh friends and this caused friction within the family, particularly with her father. 

6. The substantial part of the material provided to the delegate and to the Tribunal is concerned with these frictions within the broader family group.  In January 2008 the applicant’s father died from kidney failure and she was coerced by the family to marry her aunt’s nephew and to live with his family.  When the applicant came to Australia as the holder of a Student visa her husband was listed as a dependant, but shortly after her arrival they parted company.  The applicant initially lived in Sydney with her aunt and uncle until she formed a new relationship with a Sikh student, Mr Singh.  This liaison caused considerable concern with the extended family, who spread rumours in India, claiming that the applicant was involved in prostitution in Australia. 

1. At the Tribunal hearing, the Tribunal summarised the applicant’s oral evidence as follows:

   47.  … She has only spoken to her ex-husband once or twice since she left her aunt’s house in December 2009.  Her ex-husband called her in December 2009 or January 2010.  He said she had to return to live at her aunt’s house or he would report her to the department but he did not do so.  She had heard nothing of him and she does not know if he is still in Australia.  He is a distant relative because he is the nephew of her father’s sister, her aunt; he is not her cousin as he is the son of her aunt’s brother-in-law….

   (CB 143)

   The Tribunal then continues with a detailed account of the applicant’s circumstances leading up to the filing of the Protection visa application.

2. In the Findings and Reasons the Tribunal member provides the following finding:

   94.  For the following reason, the Tribunal does not accept that the applicant has been threatened, assaulted, kidnapped and detained because she separated from her ex-husband and divorced him, or because she is in a relationship with [Mr] Singh.  The Tribunal does not find the applicant to be a witness of credit.

   (CB 159)

   The Tribunal then sets out in the following paragraphs a detailed analysis of each of the applicant’s claims, together with the reasons for the finding of lack of credit in respect of the applicant’s claims.

3. At the conclusion of that review the Tribunal makes the following finding at [111]-[112]:

   111.  The Tribunal accepts that the general attitude of society towards inter-religious married couples in India is ‘not favourable’.  However, the independent evidence also indicates that such marriages are not uncommon and the treatment of married couples with different religious backgrounds depends on their location and social levels.  The applicant is from a wealthy family and she is well educated.  The applicant has not claimed, and the Tribunal does not accept that the applicant would be subjected to serious harm from society in general if she married Mr Singh.  She was given evidence that her mother, grandmother and brother are not opposed to her marrying Mr Singh although they said she should not return to India if she did so.  The Tribunal accepts that this indicates that they have misgivings about the marriage because of the difference in religion between the applicant and Mr Singh.  Similarly, Mr Singh’s family are not opposed to the marriage but have urged caution.  However, the evidence of the applicant and Mr Singh is that they have maintained communication and positive relationships with both their immediate families.  The Tribunal is of the view that is there was any estrangement between the applicant and her family, although upsetting, it does not amount to serious harm and is not likely to do so in the foreseeable future.  While the applicant’s immediate family and Mr Singh’s family might be unhappy about the marriage, and while the applicant might encounter disapproval and estrangement from her extended family, and disapproval from society, due to her divorce and any subsequent marriage, the Tribunal is satisfied that the applicant would not be subjected to serious harm by her immediate or extended family, or Mr Singh’s family, or society in general because of difference about religion, or for any Convention reason, if she returned to India.     

   112.  The Tribunal has considered the applicant’s claims individually and cumulatively.  The Tribunal finds that the applicant has not suffered any past Convention-related persecution or similar harm in India.  The Tribunal concludes that there is no real chance of the applicant facing harm for a Convention reason if she returns to India.  The Tribunal is therefore not satisfied that the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if she returns to India.

   (CB 164-165)

4. The Tribunal’s adverse credibility finding and consequential rejection of the applicant’s claim is a matter for the Tribunal par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67], where his Honour states:

   67. …[A] finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence…

5. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, the Tribunal’s finding that she was not credible.  In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Tamberlin and RD Nicholson JJ (with Lee J dissenting) observed at [64]:

   64.  The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ):

   “If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge `has failed to use' or `has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the `evidence' or which was `glaringly improbable'".

   See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167 at 179. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the Court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.

6. Under the heading Claims and Reasons the Tribunal indicates that during the hearing on 24 July 2012 it raised with the applicant the issue of the applicant’s credit at [58]:

   58. …The Tribunal put to the applicant that it is hard to believe that her ex-husband’s family had bribed the police to harass Mr Singh’s family.  The Tribunal explained that although the delegate has accepted a number of the applicant’s claims, the Tribunal was making its own determination regarding the applicant’s credibility and the Tribunal is assessing her claims afresh.  The Tribunal would also take into account whether the applicant’s evidence to the Tribunal was consistent with the information she has provided to the Department and also whether it is consistent with the information and evidence given by Mr Singh.  The Tribunal put to the applicant that if her ex-husband has continued to live in Australia and she has divorced him, it was hard to see why his family would go to such trouble to cause problems for Mr Singh’s family.  The applicant stated that her ex-husband’s family does not accept the divorce as it was without their consent.  Her family has a tradition of marrying within the family, in order to keep their wealth the family, and they are opposed to the divorce.  The Tribunal put to the applicant that her mother, grandmother and brother are not opposed to her marrying Mr Singh.  The applicant confirmed that they are not opposed, on a condition that she does not return to India.     

   (CB 147)

7. As a consequence of this concern, the Tribunal wrote to the applicant on 8 August 2012 in the form of a s.424A (of the Migration Act) letter raising a number of concerns that it had with the evidence given by the applicant during the hearing. The contents of that letter are set out in the Decision Record at [80]. Significantly, within that letter the Tribunal officer states:

   If the Tribunal makes these findings the Tribunal might doubt your credibility as a witness and conclude that you have not given a truthful account of your experiences in India.  If the Tribunal makes these findings it would not be satisfied that you have a well-founded fear of persecution and that you are owed protection by Australia and the Tribunal might affirm the decision to refuse to grant a visa. 

   You are invited to give comments on or respond to the above information in writing. 

   (CB 127)

   A response was received from the applicant and is reproduced in the Court Book at CB 128-131.

8. The Tribunal rejected the applicant’s Protection visa application as it was not satisfied that the applicant had a real chance of facing harm for a Convention reason if she returned to India.  That finding was based on the assessment of the applicant’s credit in respect of the information that she had put before the delegate and the Tribunal, both in writing and orally at the hearings.  The Tribunal’s concern in respect of these aspects of the applicant’s credibility were brought to her attention during the Tribunal hearing and, subsequently, by letter addressed to the applicant which specifically stated the issues that the Tribunal had with the information that had been provided to it by the applicant. 

9. The Tribunal has demonstrated that it complied with the requirements of the Migration Act set out in s.424A and that correspondence is reproduced in the Court Book and in the Tribunal’s decision. I am satisfied that the grounds of review raised in the Application cannot be sustained and, because the applicant is a self-represented litigant with very little or no knowledge of the concept of judicial review of an administrative decision, I have also considered the contents of the Court Book and, particularly, the Decision Record and I am satisfied that on a fair reading of that material that no apparent jurisdictional error exists.

10. An additional issue is whether Australia owes the applicant complementary protection. A convenient summary of the new provision of the Migration Act is contained in the then Bill’s second reading speech on 24 February 2011. The speech indicates that the new provision establishes criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under Human Rights treaties and the Refugees Convention:

    Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

    - the arbitrarily deprivation of life;

    - having the death penalty carried out;

    - being subjected to torture;

    - being subjected to cruel or inhuman treatment or punishment; or

    - being subjected to degrading treatment or punishment.

    (Hansard, 24 February 2011)

11. As discussed above, the claims advanced by the applicant to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal. They were rejected primarily on the basis of the applicant’s credibility and, secondly, the claim that the applicant had been threatened, assaulted, kidnapped and detained because she separated from her ex-husband and divorced him or because she a formed a new relationship with a Sikh was not accepted by the Tribunal.  The immediate families on both sides accepted the prospect of marriage.  In these circumstances none of the issues raised in the complementary protection criteria are relevant. None of the complementary protection criteria were raised by the applicant in her claim, but this is understandable in the case of an unrepresented litigant, unfamiliar with the language and legal administration of this country and having very limited opportunity to avail herself of this knowledge or assistance.       

12. Consequently, the Application cannot be sustained and should be dismissed with costs.               

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 8 November 2013