SZUOB v Minister for Immigration

[2015] FCCA 1144

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOB & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1144

Catchwords:
MIGRATION – Application in a Case – substantive application seeking review of decision of Refugee Review Tribunal – original application dismissed for non-appearance of the applicants – no satisfactory explanation for the applicants’ failure to attend previous Court date – no arguable case raised by the substantive application – not in the interests of the administration of justice – application in a case dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 476

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

SZIDH v Minister for Immigration & Citizenship [2007] FCA 369
Capital Webworks Pty Ltd v Adultshop.Com.Limited & Ors [2002] FCA 389
Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543; (1997) 148 ALR 578; 47 ALD 1
Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256
Autodesk Inc v Dyason(No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 111 ALR 385
NAJN v Minister for Immigration [2003] FMCA 414
Clifford v Mountford [2006] FMCAfam 450
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham  [2000] HCA 1; (2000) 74 ALJR 405
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Dranichnikov  v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZLWI v Minister for Immigration & Citizenship [2008] FCA 1330; [2008] 171 FCR 134
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415

First Applicant:

Second Applicant

Third Applicant

SZUOB

SZUOC

SZUOD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1705 of 2014

Judgment of: Judge Nicholls

Hearing dates: 18 March 2015, 25 March 2015

Date of Last Submission: 25 March 2015

Delivered at: Sydney

Delivered on:  6 May 2015

REPRESENTATION

First Applicant: In Person

Second Applicant: 

Third Applicant:

By Litigation Guardian

By Litigation Guardian

Solicitors for the Respondents: Ms H Dejean of Australian Government Solicitor

ORDERS

1. The Application in a Case made on 19 February 2015 is dismissed.

2. The first applicant pay the first respondent’s costs set in the amount of $1500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1705 of 2014

SZUOB

First Applicant

SZUOC
Second Applicant

SZUOD
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case (“AIC”) made on 19 February 2015 seeking that orders made on 11 February 2015 be set aside. Those orders were made by a Registrar of the Federal Court. On that date, when the applicants’ matter was listed for mention at a callover, there was no appearance by, or for, the applicants. One of those orders dismissed, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), an application made by the applicants on 23 June 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) because of their unexplained non-appearance at Court on that day.

2. The orders sought in the AIC are:

   “1. The orders of the Federal Circuit Court Judge Nicholls made on 11 February 2015 be set aside.

   2. An order that hearing in my case be heard in my presence for justice to be provided.

   3. An order that my case directed to the tribunal or Minister requiring them to determine my application according to law

   4. Respondent should be dismissed with costs.”

   [In relation to order 1 above sought, I note that the relevant orders were made by a Registrar of the Federal Court.]

3. The Orders of 11 February 2015 were:

   “1. The application made on 23 June 2014 is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

   2. The applicant pay the first respondent’s costs set in the amount of $3,416.00.

   By the Court

   Registrar Morgan”

4. The substantive application made pursuant to s.476 of the Act on 23 June 2014 sought review of the decision of the Refugee Review Tribunal (“the Tribunal”) of 27 May 2014 which affirmed the decision of the Minister’s delegate to refuse Protection visas (Class XA) to the applicants.

Before the Court

1. At the hearing of the AIC on 18 March 2015 the first named applicant (“the applicant”) appeared in person. She was assisted by an interpreter in the Nepali language. The other two applicants are her children. The applicant was appointed as a litigation guardian for the second and third applicant on 20 August 2014. There was no appearance by, or on behalf of, the Minister. The applicant appeared to assert from the bar table that the Minister had been served with the AIC.

2. The applicant agreed to give oral evidence, in relation to this matter. This evidence was not entirely clear. She claimed to have been assisted by a lawyer, Mr David Bitel, in making her original application to the Court, and that an employee of Mr Bitel’s office had assisted her in lodging that application.

3. Further, that the AIC had been lodged with the assistance of Mr Dilip Pun, a person whom the applicant first described as a “friend”, and later as an “interpreter”.

4. Although it was not clear, her evidence was that she thought, or expected, that either the solicitors’ employee, or Mr Pun, would serve the AIC on the Minister. In all, I was not satisfied that the Minister had been properly served. I adjourned the matter until 25 March 2015.

5. The applicant filed written submissions with the Court’s Registry on 19 March 2015.

6. On 25 March 2015 the applicant appeared in person. The second and third applicants were again represented by her as their litigation guardian. The applicant was assisted by an interpreter in the Nepali language. Ms H Dejean appeared for the first respondent.

7. Rule 16.05(2)(a) of the FCC Rules provides that the Court may set aside an order if it is made in the absence of a party. The applicants were absent when the order dismissing their application was made. The Minister opposed the setting aside of the order.

8. A bundle of relevant documents (“the Court Book –“CB”) was in evidence before the Court. The applicant sought leave to read an affidavit made by her on 17 February 2015 and filed on 19 February 2015. The affidavit sought to provide an explanation for her inability to attend Court on 11 February 2015 ([2] – [3] of the applicant’s affidavit of 17 February 2015):

   “[2] I failed to attend the hearing scheduled at 9.30am on 11 February 2015 because I went to stay with my sister, Nira Pun who gave birth to a baby girl at the late evening on 10 February at Royal Hospital for Women, Barker Street, Randwick and as a sister I had to look after her as well as my children. I became very emotional and I just forgot the time to attend the Hearing. When I recalled my hearing and I went to the Registry of Federal Circuit Court of Australia, Sydney on 11 February around 11.30am and one of the officers of the Registry told me that my case was dismissed.

   [3] I have attached a copy of proof of birth that my sister, Nira Pun gave birth to a baby girl on 10 February 2015 at Royal Hospital for Women Randwick herewith.”

9. The applicant’s affidavit annexed a copy of her sister’s baby’s “Proof of Birth” declaration. The Minister did not object to the reading of the affidavit into evidence. The applicant was cross examined.

10. In questioning, the Minister took the applicant to the first Court date in this matter, on 20 August 2014. It was the applicant’s evidence that she understood that she was “required” to attend Court on 11 February 2015 and that she was on notice, as a result of events on 20 August 2014, that it was in “her interest” to amend her application to the Court, or, on the next occasion, the application may be dismissed as not raising an arguable case for the relief sought.

11. The applicant’s evidence was that she had noted the next Court event of 11 February 2015 on her mobile phone, but the “mobile got lost”. Nonetheless, she knew that she had to come to Court on 11 February 2015. The applicant gave evidence that she understood the importance of filing further material in support of her application but could not satisfactorily explain why she had not done so.

12. The applicant’s evidence as to the events surrounding her

    
    

    non-attendance at Court on 11 February 2015, was that her sister gave birth to a child in hospital and that she visited her sister on 9, 10 and 11 February 2015. The applicant’s evidence was that she was required to attend the hospital because she “…had to check all the foods, and there was no one to look after [her] sister and the kid”.

13. Further, that “…I had to take her some food and come back, get my kids ready for the school and everything. That’s why I forgot”. The applicant also gave evidence that by the time she remembered about the Court event, on that day, it was “too late”.

The Issue

1. The issue raised for consideration is whether the order dismissing the application should be set aside. Although not stated as such, I understood the AIC to invite the Court to proceed pursuant to r.16.05(2)(a) of the FCC Rules. This is in the following terms:

   “16.05 Setting aside

   2) The Court may vary or set aside its judgment or order after it has been entered if:

   (a) the order is made in the absence of a party;…”

2. Rule 16.05(2)(a) of the FCC Rules provides a discretion to the Court. A number of judgments give direction to the exercise of this discretion (see, for example, SZIDH v Minister for Immigration & Citizenship [2007] FCA 369, Capital Webworks Pty Ltd v Adultshop.Com.Limited & Ors [2002] FCA 389 for the corresponding order in the Federal Court Rules 2011 (Cth), Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543; (1997) 148 ALR 578; 47 ALD 1, Smith v NSW Bar Association [1992] HCA 36; (1992) 176 CLR 256 – “there is some matter calling for review” (at [27]); Autodesk Inc v Dyason(No 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 111 ALR 385 – “the interests of justice so require” at per Gaudron J at [1] and [18].

3. I note, and respectfully agree with, what was said in NAJN v Minister for Immigration [2003] FMCA 414 at [7] per Judge Barnes:

   “This is not a case where both parties consent to the setting aside of the orders. The respondent opposes such a procedure. The court has a discretion under Rule 16.05(2)(a) to set aside a judgment. Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation recognising the tension between the public interest in the expeditious conduct of litigation and the obligation of the court to ensure litigants have the opportunity to present a case where there is a real dispute. The power is generally not to be exercised unless the applicant can show that by accident and without fault on his part the order was made without his being heard. It is necessary to look at the whole of the circumstances. (Australian Fisheries Management Authority v P.W. Adams Pty Limited No.2 (1996) 66 FCR 349).”

4. In light of this, the elements for consideration in the present case are whether the applicant has presented a satisfactory explanation for her lack of appearance, and whether there is an arguable case in the application calling for review, or the interests of justice require that the applicant should be given the opportunity to present her case where a real dispute exists. That is, whether there exist material arguments that might reasonably lead to a different order to the one already made by the Court (in this latter regard see Clifford v Mountford [2006] FMCAfam 450 per Judge Jarrett at [34]).

5. The applicant sought to rely on her written submissions of 19 March 2015. She claimed they were drafted by her sister. They appear to make a number of general assertions of legal error, not made in the substantive application. In any event, they are dealt with below. There was no objection by the Minister, who stated that he was not prejudiced by the late “filing” of the written submissions.

The Explanation for the Non-Attendance

1. I am not satisfied on the evidence that the applicant has provided a satisfactory explanation for her non-attendance before the Registrar on 11 February 2015. Her evidence was that she understood the importance of the application that she had made to the Court and the consequences of not attending at the Court event.

2. The applicant’s explanation that “she forgot” because she was required to take food to her sister and look after her in hospital, because there was no one else to look after her, and the sister’s baby, is, with respect to the applicant, not a satisfactory explanation for her failure to attend Court. This is particularly so, given the applicant’s complaint that the Tribunal’s decision would mean she would return to a situation, which she says, would lead to serious and significant harm for her.

3. On her evidence, the applicant knew of the Court event on 11 February 2015 and its importance. I do not accept her explanation, in the circumstances, that she “forgot”.

The Substantive Application

1. Of greater importance than the failure to attend at the last occasion, is that the substantive application, which was dismissed, does not raise an arguable case such that it is in the interests of justice to reinstate it and proceed to a final hearing. Further, on what is before the Court, and also in light of what the applicant said before the Court, I cannot see that the substantive application has any reasonable prospects of success, or that any real dispute exists. This would leave the granting of the orders sought in the AIC as an exercise in futility. On the evidence before the Court, it cannot be said that the setting aside of the Registrar’s orders would lead to a different outcome.

2. The relevant background to the originating application is as follows. The applicant is a citizen of Nepal (CB 7) who arrived in Australia on 19 June 2012 on a visitor visa (subclass 679) (CB 9). She has two children. The applicant applied for a protection visa on 19 July 2012 (CB 1 to CB 49). The applicant provided a statement and supporting documentation with her protection visa application (CB 3 to CB 6 and CB 54 to CB 83). The second and third applicants applied as members of her family unit and did not make any separate claims to protection (CB 23 to CB 49).  They were assisted by a registered migration agent who is also a lawyer (CB 50 to CB 52).

3. The applicant claimed to fear harm on return to Nepal from her husband, and in-laws, because they believe she is a witch, and because she has separated from her husband. Further, that she was a victim of domestic violence. She also claimed that she may be killed by Maoists as she is anti-Maoist and, in the past, they have demanded money from her husband (CB 214 to CB 215).

4. A delegate of the Minister refused the grant of the protection visas on 20 March 2013 (CB 227). The delegate was unable to reach the requisite level of satisfaction such that the visa must be granted to the applicant. Essentially, this was due to concerns about the applicant’s credibility, in particular with the applicant’s written statement and the information she provided at the interview. Further, the delegate placed weight on available country information which related to the treatment of women in Nepal accused of witchcraft (see CB 214 to CB 222, and in particular, CB 217).

5. The applicants applied for review to the Tribunal on 10 April 2013 (CB 228 to CB 234). Again, they were represented by a registered migration agent (CB 228 and CB 282).

6. The applicant, and her representative, attended a hearing before the Tribunal on 17 March 2014 (CB 282 to CB 284). A number of supporting documents were provided to the Tribunal at the hearing (CB 269 to CB 281). The Tribunal’s decision record is reproduced in the Court Book (at CB 288 to CB 294).

7. The Tribunal saw the key issue before it as being whether the applicant’s core claims were credible and whether, as a necessary and foreseeable consequence of her returning to Nepal, there is a real risk that she would suffer serious or significant harm ([5] at CB 289).

8. The Tribunal found the applicant’s evidence, given in support of central aspects of her claim, to be “vague, implausible and unsupported” by relevant country information before it ([21] at CB 292).

9. The Tribunal did not find it plausible that if the applicant’s husband “suspected her of being a witch; was beating her and subjecting her to domestic violence; threatened to kill her; and abused her for failing to properly educate her children in Nepali” that he would have cooperated with the applicant, and prepared her travel documents for Australia, and, indeed, allowed her to travel to Australia with his children

   
   

   ([22] – [23] at CB 292). The Tribunal did not find her explanation credible in this regard ([23] at CB 292).

10. The Tribunal was not persuaded by the applicant’s explanation as to why her husband would “tolerate” the applicant’s unmarried sister who lived independently in Sydney when she interrogated and lectured him about his claimed behaviour towards the applicant ([24] at CB 292), when he was said to be a “traditional man” who regarded his wife as his “property” ([24] at CB 292). Additionally, the Tribunal did not find it plausible that the applicant’s husband, who was an officer in a prestigious Gurka military contingent, and had lived in “highly developed Singapore”, would be influenced by “village superstition” as to witchcraft ([25] at CB 25).

11. Further, the Tribunal found that the applicant’s situation and attributes when she was accused of witchcraft in Nepal, that is, as a healthy married woman who allegedly caused her mother-in-law’s one week fever, was inconsistent with descriptions of witchcraft in Nepal proffered in “extensive country information”, given to the Tribunal by the applicant’s representative ([26] at CB 293).

12. The Tribunal was not persuaded by the applicant’s explanation for her delay in applying for her protection visa. This was that she did not know how to go about this. The Tribunal found that her sister, who sponsored her visit to Australia, had herself been through the protection visa process and had been granted a visa ([27] at CB 293).

13. The Tribunal accepted that the applicant had minimum involvement in preparing her Sponsored Visitor visa application, but due to “vague and confusing” evidence regarding the reason that her husband wished her to stay in Nepal, found that “her protection claims have been fabricated to achieve a migration outcome” ([28] – [29] at CB 293).

14. Ultimately, due to issues with her credibility, the Tribunal did not accept that she was a victim of domestic violence, had been accused of witchcraft, that her husband threatened to kill her, or that she was estranged from him and would suffer negative effects from this ([31] at CB 293).

15. The grounds of the applicants’ substantive application to the Court are in the following terms:

    “1. I am not satisfied with the Refugee Review Tribunal Member’s decision on the issue of fairness and natural justice. I claim to be a victim of domestic violence and that the Refugee Review Tribunal rejected my claims because the Member displays a lack of Nepalese cultural awareness that is necessary to examine information from the point of view the environment in which it occurred rather than from the point of her arbitrary view.

    2. I am not agreed with the decision because the RRT Member did not consider the concern I expressed. I believe the RRT Member was biased because the Member took an irrelevant view and consideration as to how my husband allowed me and my children to leave Singapore as well as my husband’s mentality and his abuse towards me. Therefore taking an irrelevant consideration and the mere commentary into account to refuse my claims is a legal error.

    3. I argue that I am a victim of the RRT Member’s purported decision.”

    [Errors in the original.]

Consideration of The Grounds of the Substantive Application

1. There are a number of complaints in the applicant’s grounds. First, that the Tribunal rejected her claims due to a lack of awareness of Nepalese culture. The applicant was unable to explain, or particularise, how any such claimed lack of awareness contributed to the Tribunal’s decision. At best, it appears that this was simply another way of expressing dissatisfaction for the Tribunal’s findings adverse to her credit and its rejection of the factual basis for her claim to fear harm.

2. As set out above, the Tribunal’s central finding as to her lack of credibility in her claims was based on its assessment of the applicant’s own evidence. Such findings on credibility are findings of fact within jurisdiction, in circumstances where they were reasonably open to the Tribunal to make on what was before it and for which it gave reasons (Re Minister for Immigration and Multicultural Affairs; Ex Parte  Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405).

3. The applicant claimed that the Tribunal was ignorant of relevant “cultural attitudes”. However, it is important to note that, what the Tribunal found as being not credible was the applicant’s assertion that her husband had traditional values in relation to her, for example, that she was his property, but was also tolerant of interrogation, and criticism, from the applicant’s younger unmarried sister, who lived independently in Sydney. The Tribunal’s finding was not based on any misunderstanding of relevant cultural attitudes, but the inconsistency in the applicant’s own evidence.

4. The applicant also asserts bias on the part of the Tribunal member. At best, this is explained in that the Tribunal is said to have taken an “arbitrary view” of “information”, and that the Tribunal’s view, as to how her husband allowed her and the children to leave, was irrelevant, and therefore revealed bias.

5. The tests for bias, and for that matter, the apprehension of bias, are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001); 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex-parte H”)).

6. In the case of actual bias such a complaint must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]). This is because an allegation of bias is extremely serious to make as it is directed to the very integrity of the relevant decision maker.

7. The relevant test for apprehension of bias, in cases such as this, is as follows (Ex parte H at [27] – [28] per Gleeson CJ, Gaudron and Gummow JJ):

   “[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the Tribunal, proceedings are held in private.

   [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.”

8. The applicant also complained in her grounds that the Tribunal took into account an irrelevant consideration. As stated above, the Tribunal had evidence before it that the applicant’s husband was primarily involved in the arrangements for her, and their children, to obtain visitor visas and come to Australia. He had provided consent for the children to travel to Australia with her (see [19] at CB 291).

9. The Tribunal found it inconsistent, and implausible, that the applicant’s husband suspected her of being a witch, had beaten her and subjected her to domestic violence, but arranged and supported her, and his children’s, travel to Australia by providing her with documents and money ([23] at CB 292). This was a finding reasonably open to the Tribunal to make on the evidence before it. The husband’s claimed conduct cannot be said to be an irrelevant consideration when it otherwise formed the basis for the applicant’s claim to fear harm if she were to return to Nepal.

10. In the circumstances, what remains, is that the allegation of bias made in the grounds is said to arise because the Tribunal did not accept the applicant’s claims of domestic violence perpetrated by her husband. As this finding, and the findings that informed it, were reasonably open to the Tribunal, based on its view of the applicant’s own evidence, no bias is revealed.

Consideration of the Written Submissions

1. There are six numbered paragraphs in the applicant’s written submissions. In part, they appear to raise additional complaints about the Tribunal’s decision.

2. Paragraph 1 of the applicant’s written submissions asserts that the Tribunal “overlooked” her claims. On any fair reading of the Tribunal’s decision record, if this is some complaint that the Tribunal did not “consider” her claims, this must be rejected. In light of the decision record, it appears to be a complaint that the Tribunal did not accept her claims. The Tribunal’s findings in relation to the claim of domestic violence were reasonably open to it. It gave reasons for its conclusion. There is no merit in the applicant’s complaint. Nor, it must be noted, in these circumstances, is the Tribunal’s conclusion in this regard irrational or unreasonable (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [78] per Heydon J and [130] – [131] per Crennan and Bell JJ).

3. Paragraph 2 of the applicant’s written submissions appears to assert bias. As set out above, there is nothing in the Tribunal’s decision record to support any assertion that the Tribunal did not bring an open mind to the proceedings. Further, the applicant has not provided any evidence to support her claim. She appears to rely only on the Tribunal’s decision record. It is rare that a claim for bias will be made out on the Tribunal’s decision record alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

4. Paragraph 3 of the applicant’s written submissions asserts that it was unfair of the Tribunal to ignore expert evidence given by a psychiatrist in support of the applicant’s claims. Paragraph 6 asserts that the Tribunal ignored evidence of her “traumatised mental state”.

5. Although it was not made clear by the applicant before the Court, these complaints appear to be based on the following. It is to be remembered that the applicant was represented by a registered migration agent, described as “Immigration Lawyers”, before the delegate and the Tribunal. The applicant’s representative made a number of submissions, and provided various documents in support of the applications to both the delegate, and the Tribunal. Amongst these was a report from a “Senior Clinical Psychologist”, Dr A Gordon (“Dr Gordon”), dated 10 October 2012 (CB 145 to CB 150).

6. I agree with the Minister’s submissions that, the purpose of submitting this report was not made clear, at the relevant time, by the applicants’ representative (CB 145). Nor did the applicant provide any explanation before the Court now.

7. At best, [3] of the applicant’s written submissions to the Court, asserts that the Tribunal “ignored completely” Dr Gordon’s report “to explain issues relating to my trauma”. The complaint is expressed in terms that the Tribunal did not have regard to the report, or overlooked it (“ignored completely”). I agree with the Minister’s submissions that, on the evidence before the Court, it cannot be said that the Tribunal ignored the report.

8. At [6] of the Tribunal’s decision record (at CB 289) it states:

   “The Tribunal has had regard to the applicant's written and oral evidence to the Department and the Tribunal, including those listed at Appendix B.”

9. Relevantly, “Appendix B” states (CB 296):

   “The Tribunal has had regard to the following materials:

   - Post-interview submission and accompanying materials submitted by applicant’s representative on 8, 15, 18 and 19 October 2012;…”

10. On the evidence before the Court, the only “post interview submission and accompanying materials” submitted by the applicants’ representative, on 15 October 2012, was the letter reproduced at CB 145, and the accompanying report from Dr Gordon (CB 146 to CB 150).

11. It is the case that the substance of the report is not referred to in the Tribunal’s reasons. A failure by the Tribunal to consider a claim, or an integer of a claim, made by an applicant, may be revelatory of legal error, in circumstances where such a claim is expressly made, or clearly arises (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, Dranichnikov  v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088). Further, such a claim to fear harm may arise from submissions made on behalf of an applicant, or in a report provided with any submissions (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16).

12. In this light, attention must be given to the substance of the report. For the most part (apart from setting out Dr Gordon’s qualifications – CB 147), the bulk of the report simply recounts what the applicant is said to have told Dr Gordon at an interview. For example, “History as told to me” (CB 148 to CB 149.4). Under the heading of “Current Mental State”, Dr Gordon noted that the applicant was “quite contained in interview but appeared to speak openly in response to questions”. The remainder of this section of the report recounts what the applicant told Dr Gordon, including that “her memory is poor”.

13. The “Conclusions” reached by Dr Gordon were as follows (at CB 149 to CB 150):

    “…She is suffering from symptoms of distress, constantly worrying that something bad will happen, concerned (legitimately and healthily) for her future and that of her children. In addition, though, she has some great mental health concerns, being tearful and lonely, with sleep disturbance and other possible symptoms of depression. She is currently caring for her children, but is unclear as to a future for any of them…”

14. As set out above, the report, for the most part, simply reported the applicant’s account of past events. In that sense, the report could not be said to be independently corroborative of the applicant’s claims as to past events and to fear harm because of them. Further, the expert opinion advanced by Dr Gordon, based on that account, as to the symptoms the applicant was suffering, said nothing about the applicant’s capacity to participate in the hearing before the Tribunal (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41). In these circumstances, I agree with the Minister that it is open to find that the Tribunal did not ignore or overlook the report. No legal error is revealed here.

15. Paragraph 4 of the applicant’s written submissions complains about the Tribunal’s finding at [21] of its decision record (at CB 292), that the applicant’s claims were unsupported by country information. This complaint remained unexplained before the Court.

16. Relevantly, [21] of the Tribunal’s decision (at CB 292) is an introduction to the analysis undertaken in the consideration of the applicant’s claims. The reference to “no support for the central claims by country information”, is explained at [26] of the Tribunal’s decision record (at CB 293). The Tribunal explained why the country information concerning witchcraft in Nepal was not of relevance, given the applicant’s circumstances. Country information, submitted by the applicant’s representatives, regarding domestic violence, was of no assistance to the applicant, in circumstances where the Tribunal rejected the factual basis of the claims in this regard. No legal error is revealed by [4] of the applicant’s submissions.

17. Paragraph 5 of the applicant’s written submissions appears to assert, although not expressly referring to s.424A of the Act, a failure by the Tribunal to put to the applicant information the Tribunal considered adverse to her case. Before the Court, the applicant was unable to identify what information she was referring to here.

18. It is the case that the Tribunal’s adverse view of the applicant’s evidence, including her credibility, is not information for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26). To the extent that the Tribunal had regard to country information, it falls within the exception to the obligation in s.424A(1), set out at s.424A(3)(a) of the Act, to give “information” to an applicant for comment, or response.

19. The Tribunal did rely on information given in the applicant’s visitor visa application. To that extent, it may be said this was information which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision and is, therefore, caught by s.424A(1) of the Act. It does not come within any of the exceptions in s.424A(3) of the Act.

20. However, on the evidence available to the Court, the Tribunal’s decision record, which was not challenged by the applicant, it is clear that the Tribunal discussed this information with the applicant at the hearing ([19] at CB 291). The applicant was given the opportunity to comment on, and respond to, it. The Tribunal stated it utilised the facility available to it, pursuant to s.424AA of the Act, to discharge its obligation pursuant to s.424A(1) of the Act (SZLWI v Minister for Immigration & Citizenship [2008] FCA 1330; [2008] 171 FCR 134 at [19] and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [2] per Moore J). There is no apparent legal error here.

Conclusion

1. The grounds of the originating substantive application are, in the circumstances, without merit. The written submissions do not disclose any possible legal error by the Tribunal. In the circumstances, there is no material argument that would lead to a different outcome to the order, already made, dismissing the substantive application. The AIC should be dismissed and the orders of 11 February 2015 stand. I will make an order accordingly

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 6 May 2015