SZVIA v Minister for Immigration

[2016] FCCA 1140

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1140

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal failed to deal with a claim – whether Tribunal breached s.424AA of the Migration Act 1958 (Cth) – whether Tribunal took into account an irrelevant consideration – no jurisdictional error – application dismissed.

Legislation:

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

Cases cited:
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3

First Applicant: SZVIA

Second Applicant: SZVIB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2916 of 2014

Judgment of: Judge Nicholls

Hearing date: 29 February 2016

Date of Last Submission: 29 February 2016

Delivered at: Sydney

Delivered on: 13 May 2016

REPRESENTATION

Solicitors for the Applicant: Mr B Ram of Rams Family Lawyers

Solicitors for the Respondents: Ms A Wong of DLA Piper

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 21 October 2014 and amended on 6 February 2015 is dismissed.

3. The applicants pay the first respondent’s costs set in the amount of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2916 of 2014

SZVIA

First Applicant

SZVIB

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 October 2014 and amended on 6 February 2015 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 26 September 2014 which affirmed the decision of the Minister’s delegate to refuse Protection (Class XA) visas to the applicants.

2. In evidence before the Court is the bundle of relevant documents filed by the Minister (“the Court Book” – “CB”), and the affidavit of Ms Winnie David, Transcription Typist, made on 23 April 2015 and filed by the applicant on 1 February 2016, annexing a transcript (“T”) of the hearing before the Tribunal, read by the applicant without objection.

Background

1. The applicants before the Court are wife and husband. Both are citizens of India. Only the wife (“the applicant”) made claims to protection. Her husband (“the second applicant”) applied as a member of her family unit. He did not subsequently advance any protection claims in his own right.

2. The applicant claimed to fear harm if she were to return to India because she, as a “Jatt Sikh”, had married a person who was from another caste. The second applicant was said to be a “Hindu Sikh” (CB 19). The harm feared was said to emanate from people in her village and in particular the village council. She also claimed to fear harm because she had previously been married to, and divorced from, another man (CB 19 to CB 21).

3. The applicant did not attend an interview scheduled with the delegate (CB 131.10). The delegate was unable to reach the requisite level of satisfaction such that the visa should be granted (CB 115 to CB 138).

4. The applicants applied for review to the Tribunal on 5 August 2013 (CB 139). They attended a hearing before the Tribunal on 1 September 2014 (CB 146).

5. The Tribunal had a number of concerns about the credibility of the applicant’s account of the harm she said she feared if she were to return to India. The Tribunal explained its concerns in its decision record, particular at [27] – [29] (at CB 182).

6. The Tribunal accepted that she may have angered her parents in marrying without their approval and that she suffered emotional distress because of this ([30] at CB 183 to CB 184).

7. However, the Tribunal did not accept that the marriage was any

   
   

   inter-caste marriage or of any kind such as to give rise to a real chance of serious harm ([31] at CB 184). Further, the Tribunal was not satisfied that the applicant was a member of a particular social group being “Punjabi Sikh women in inter-caste marriages” as had been claimed. While it accepted that the applicant could be a member of the particular social group “Punjabi women marrying against their family’s wishes”, it was not satisfied she was at risk of harm for this reason ([32] at CB 184). The Tribunal also concluded that it was not satisfied that the applicant would face significant harm on return to India because her of marriage ([35] at CB 184 to [37] at CB 185).

Application Before the Court

1. The grounds of application before the Court, as amended on 6 February 2015, and drafted with legal assistance, are in the following terms:

   “1. The Tribunal committed jurisdictional error by failing to properly deal with the Claim made by the Applicant on the material before it that the Applicant had a well- founded fear of persecution from the village Panchayat by virtue of her being a member of a particular social group, namely, Punjabi Jaat Sikh women marrying outside of the Jaat Sikh religion.

   Particulars

   (a) The Tribunal dealt with the Applicant's Claim under a social group characterised as 'Punjabi Sikh women in in inter-caste marriages' or 'Punjabi women marrying against their family wishes.’ (paragraph 24 of the Statement of Decision and Reasons).

   (b) The Tribunal then took a conflated approach in dealing with the two social groups

   2. The Tribunal committed jurisdictional error by breaching section 424AA of the Migration Act.

   Particulars

   (a) The Tribunal failed to put the Applicant on notice that her credibility will be the reason, or a part of the reason, for affirming the decision under review.

   (b) In paragraph 27 of Statement of Decision and Reasons, the Tribunal notes: ‘I have a number of concerns as to the credibility of the Applicant's account of the harm she fears in India’

   3. The decision of the Tribunal is affected by ‘Apprehended Bias’ as the Tribunal has prejudged the issues even before considering the relevance and importance of the evidence.

   Particulars

   (a) The Tribunal appears to prejudge the husband to be Sikh because of his name. (Paragraph 15 of the Statement of Decision and Reasons, fourth dot point).

   (b) It is common knowledge that the name ‘Singh’ is as much an Indian name as a Sikh name.

   4. The decision of the Tribunal is affected by jurisdictional error as it took irrelevant considerations in arriving at its decision.

   Particulars

   (a) Paragraphs 18 to 22 of the Tribunal's decision are devoted to 'honour killings' in India, which have no relationship to the Applicant's Claim.

   (b) In paragraph 30, under the first dot point, the Tribunal seems to attach importance to the issues canvassed under paragraphs 18-22, in rejecting the Applicant's Claim.

   (c) The Applicant at no time made a claim that she feared for her safety due to possible honour killings by her parents and/or her families.”

   [Error in original]

2. The applicants and the Minister were legally represented at the hearing before the Court. The applicants advised that they did not press ground three.

Consideration

1. Ground one asserts that the Tribunal failed to deal with the applicant’s claim of fear of persecution by virtue of her membership of a particular social group. That group is said to be “Punjabi Jaat Sikh women marrying outside of the Jaat Sikh religion”. The ground directs attention to [24] of the Tribunal’s decision record (at CB 181 to CB 182) and asserts that the Tribunal dealt with her claim on the basis of membership of groups described as “Punjabi Sikh women in inter-caste marriages” or “Punjabi women marrying against their family wishes”.

2. The Tribunal’s statement at [24] is in the following terms (at CB 181 to CB 182):

   “The Applicant claims to fear harm from her local council (Panchayat) as well as other members of Sikh society in her village because she has married a person from another caste.  Although she does not suggest a Convention nexus I accept she can be taken to be claiming to fear harm arising from her membership of a particular social group which might be relevantly defined as ‘Punjabi Sikh women in inter-caste marriages’ or ‘Punjabi women marrying against their family wishes.’  I am prepared to accept that such groups can be said to exist in India as particular social groups, in the sense that they are sufficiently identifiable by characteristics or attributes common to all their members, other than a shared fear of persecution, which serve to distinguish them from society at large.”

3. Contrary to the assertion made in the ground, the applicants’ submissions before the Court asserted that the Tribunal was “wrong” in determining that the applicant did not belong to a particular social group, namely “Punjabi Sikh women in inter-caste marriages”.

4. As pleaded, as opposed to what is contained in the written submissions, the applicants’ ground cannot succeed because the Tribunal did address the applicant’s claim with reference to the particular social groups as identified at particular (a) and was, on the evidence before Court, not required to consider the group as otherwise identified now in the ground.

5. In essence, the difference between the two is that the Tribunal, at the impugned paragraph of its decision record (at [24] at CB 181 to CB 182) dealt with the applicant’s claim to fear harm because of an inter-caste marriage which did not have the approval of her family, whereas the ground pleads that it should have dealt with a claim of fear said to arise from marrying outside her religion.

6. In the applicant’s application for the protection visa, she initially set out her claims to fear harm in a handwritten narrative. It was clear that the basis of the harm claimed was explained as an inter-caste, not an inter-religious marriage. The term “marriage to Hindu Sikh boy” (CB 19.6), was subsequently described as “intercaste marriages (CB 19.8), “my husband who is from another caste” (CB 19.9), “the community wants me to marry within the caste” (CB 21.4) and “will marry from within the cast (sic)” (CB 21.5).

7. As stated above, the applicant did not attend an interview with the delegate. She did not explain her reason for not attending (CB 99.2). In the circumstances, the delegate proceeded to consider the application on the available material. The delegate, relevantly, understood the applicant’s claimed fear to be “the applicant claims to be from the Jatt Sikh caste and married a boy from another caste” (see first dot point at CB 99.5).

8. At the Tribunal hearing the applicant explained her fear as follows (T8, lines 36 to 50 and T9, lines 1 to 7):

   “[The applicant]: Um, because I married to a different caste of a person, the boy, that's why - because my village run by panchayat, and in my village, most of the people are from my community, so they want to get married, girl or boy, into the same community, not inter-caste marriage. So that's why they could harm me or they can threaten me.

   [The Tribunal]:  So what do you fear would actually happen to you?

   [The applicant]:  They can torture me or they can - they can go to any level, but wherever they can go, I can't imagine wherever they can go.

   Because they don't accept this inter-caste marriage, they don't allow it.

   [Tribunal]:  Right.  So is there any other reason why they'd wish to harm you?

   [The applicant]  No, only that's the reason.  Because I'm married to the different caste.

   …

   “[Tribunal]: Right. So how do you know that they would do this to you?

   [The applicant]: Because, ah, it's happen, like, ah, whenever they - ah, boys or girls in my village, they got married, they find the people from their own caste, from the Sikh community. So that's why they don't want to, you know, enter different caste member into the community. So that's why I know that they're not gunna accept this one.”

   [Emphasis added.]

   Further references by the applicant to “inter-caste marriage” and “caste” appear at T9, lines 19 and 27.

9. The applicant then proceeded to explain that the harm she feared for this reason was from the village council (“panchayat”) and from the “Sikh community” (T9, lines 23 to 39).

10. However, when the Tribunal sought to pursue the proportion of Sikhs in the applicant’s village, that is those who were of the Sikh religion (T10, line 3), the following exchange subsequently occurred (T10, lines 15 to 19):

    “[Tribunal]: Okay.  And so you said you don’t fear harm for any other reason, apart from marrying Mr Singh?

    [The applicant]:  Only the religion - yeah, only the religion issue. Because I married to a different religion.”

11. Notwithstanding this, the applicant then returned to characterising the marriage, and the “problem” it caused, as one of an inter-caste marriage, rather than specifically religion (T10, lines 25 to 34). Then the applicant stated (T10 lines 37 to 38):

    “Different religion.  Different religion.  Like I am a Sikh, and my husband is a Hindu.”

12. In all, in her initial application, and over the course of the processing of the application and, for the most part, before the Tribunal, the applicant’s claimed fear was said to arise from her inter-caste marriage which would be the subject of disapproval by the village and Sikhs generally.

13. The references to “religion” at one part to the hearing before the Tribunal can properly be understood, in context, as the applicant seeking to characterise an aspect of the different castes, to which she claimed she and her husband belonged, to derive from different religions.

14. The Tribunal understood this when it stated “I accept that caste and religion are not necessarily separate concepts in Punjab, for Sikhs or for Hindus” ([28] at CB 182). This was part of the Tribunal’s analysis that in part sought to explain the difficulty, given her claims and evidence at the hearing, as to whether the applicant claimed to fear harm on the basis of an inter-caste marriage or an inter-religious marriage.

15. When read fairly, [28] (at CB 182) of the Tribunal’s decision record contains the Tribunal’s analysis as to whether there was a difference in the applicant’s claim to fear harm because of an inter-caste marriage and her evidence concerning religion, or even both. It was reasonably open to the Tribunal on what was before it to view the relationship in the Punjab between caste and religion as being part of the “ethno religious population of Punjab” ([28] at CB 182).

16. It must be said that the applicants’ submissions before the Court put orally by their legal representative were confused and for the most part remained unsatisfactorily explained. While the written submissions filed for the applicant presented some difficulties in comprehension, in all, they were a better source of understanding the applicant’s case.

17. Contrary to the ground as pleaded, with the emphasis on religion, the written submissions appear to emphasise “caste”. The applicants’ written submissions at [16] complain that the Tribunal was “wrong in determining that the [a]pplicant did not belong to a particular social group, namely ‘Punjabi Sikh women in inter-caste marriages’” (emphasis added).

18. The written submissions at [16] further assert that in so doing the Tribunal “failed to properly consider the applicant’s claims of persecution at the hands of the ‘Panchayat’ (the village Sikh committee) and the general Sikh residents”.

19. These submissions must be rejected. Any plain, let alone a fair, reading of the Tribunal’s decision record reveals that it understood and proceeded on the basis that the applicant’s claim to fear harm arose from her membership of a particular social group “which might relevantly be defined as ‘Punjabi Sikh women in inter-caste marriages’ or ‘Punjabi women marrying against their family wishes’” ([24] at CB 181 to CB 182). Further, the Tribunal also considered the applicant’s claim of persecution at the hands of the village committee and general Sikh residents (see [29] at CB 182 to [31] at CB 184).

20. The Tribunal ultimately found that the marriage was not a marriage between persons of different castes, or one that would otherwise be of a “kind which would expose her to a real chance of serious harm at the hands of her parents, relatives, members [of] the Panchayat or others in her village” ([31] at CB 184). The Tribunal also found that the applicant was not a member of the particular social group “Punjabi Sikh women in inter-caste marriages” ([32] at CB 184).

21. These conclusions, and the findings which preceded them, addressed the applicant’s claims as made by her and were, as were the findings which informed them, all reasonably open to the Tribunal to make on what was before it. The Tribunal gave cogent and intelligible reasons for the findings. No legal error is revealed in these circumstances.

22. The written submissions also assert that the Tribunal “did not accept the distinction between the ‘Jaat Sikh’ which the [a]pplicant belonged, and ‘Hindu Sikh’ which her husband belonged as two different castes” ([17] of the applicants’ written submissions).

23. As set out above, the Tribunal relied on country information which did not support the claim of the existence of a caste (or community) which could be identified as “Hindu Sikh”, the claimed caste of the applicant’s husband (the second applicant) (see [28] at CB 182). This was part of the Tribunal’s analysis (which included its assessment that at the hearing the “issue was not significantly clarified by the [a]pplicants…”) that led to the finding that the applicants were not of different castes ([28] at CB 182). This was a finding reasonably open to the Tribunal on what was before it.

24. Particular (b) to the ground asserts that the Tribunal was in error in considering the applicant’s claim to fear harm as being put on the basis of or involving a social group said to be “Punjabi women marrying against their family wishes” (with reference to the Tribunal’s decision record at [24] at CB 181 to CB 182).

25. The applicants’ written submissions at [18] submit that she did not claim “persecution from her parents or her families (sic)”. The Tribunal’s “classification” at [24] of the second particular social group (“Punjabi women marrying against their family wishes”) was, therefore, said to be “misplaced”.

26. The difficulty for the applicants is that on at least a plain, if not fair, reading of its decision record the Tribunal did understand the extent of the applicant’s claim as it emerged from the material and evidence before the Tribunal. The applicants’ submissions have misunderstood, or chose to ignore, an important nuance in the Tribunal’s reasoning arising from the applicant’s claims as they were presented to it.

27. The applicant gave evidence that she sought her parents’ approval for her marriage and this was refused. This caused her distress. In those circumstances it was reasonably open, if not necessary, for the Tribunal to consider whether the relationship with her parents, and the evidence she gave concerning the relationship and her marriage, could give rise to serious or significant harm. 

28. The Tribunal found at [30] (at CB 183):

    “I am prepared to accept that the Applicant did seek her parents’ blessing for her marriage when she returned to India in 2011 and that they refused to give it.  I accept that her conduct in marrying without their agreement may well have angered them and that this reaction was exacerbated by the fact that she had previously married, also without their approval, and later divorced.  I accept that their reactions would naturally have been upsetting for her and that she might well have experienced considerable emotional distress as a result.  However, I am not satisfied that the harm she now fears because of these circumstances can have risen much higher than this, for the following reasons:

    - She does not claim that she is at any risk of physical harm from her parents, other family members or relatives.  Nor is it claimed that the second-named Applicant’s family or relatives wish to harm either him or her.  The risk is said to arise, instead, from the reaction of other inhabitants of her village.  I note the available country information indicates that, almost without exception, it is the family members or relatives of the victims who perpetrate honour killings in Punjab.  While I accept the evidence also indicates that the perpetrators are often driven to these acts under intense social pressures, there is no suggestion in the case of either Applicant that their family members or relatives have ever contemplated harming them.

    - If she genuinely believed there was a risk of serious harm from the Panchayat or other inhabitants of her village it is difficult to account for her conduct in returning there in 2011 and remaining for three months.  I accept she may have wished to visit her mother who, as she claims, was ill.  I am also prepared to accept that the second-named Applicant did not accompany her.  Nevertheless, having informed her parents of her marriage and fearing, as she claims, that the news would leak out it to a society whose members were inquisitive and apt to pose intrusive questions about her, is difficult to believe she would choose to place herself in danger in this way.

    - On a related issue, she was notably unclear in her evidence at the hearing as to whether or not the news of her second marriage has, in fact, become known in her village.  She suggested this may already have occurred but could point to no reason for believing so.  When she was asked if her parents had told her that the Panchayat had raised it with them she said they had not.  She added that she was in contact with her parents only every three or four months as they were afraid to cause problems for themselves by telephoning her.  I find this claim generally implausible and I also find it implausible that, had such an approach been made by the Panchayat, her parents would not have mentioned it when they did call her.

    - Finally, I note her evidence that in Sydney she attends religious worship – both Sikh and Hindu - and major Hindu festivals in the company of her husband.  I put to her at the hearing that this seemed to indicate she was not overly concerned about the possibility that knowledge of her marriage might find its way back to her village, to which she responded that there is nobody from her village in Sydney, and that in any event the Indian community here does not concern itself much over matters of caste difference.  I find it difficult to understand how she could be confident of the accuracy of either of these propositions, however, particularly when she and her husband were participating in large-scale festivals.  This is not to suggest that she should have been deterred from worshipping in this way in Australia by fear that she would reveal the fact of her marriage; rather, her responses at the hearing did not reflect a concern that she was running any particular risks by doing so.”

1. The following extract from the transcript of the Tribunal hearing is an example of the applicant’s claim that her parents did not wish her to marry her husband. The distinction here is between their not wanting her to marry him, but that they would not harm her for having done so (T21, lines 28 to 41):

   “[Tribunal]: Right.  I have to say it seems a slightly - it seems slightly hard to understand how you could have imagined - if what you're saying is true, it seems hard to understand how you could've imagined that your parents would first of all accept it, and secondly that they would be prepared to talk to the panchayat about this, and thirdly, even if they did, that the panchayat would ever accept it. I mean you must have known --

   [Applicant]: Yeah, yeah --

   [Tribunal]: -- that this would never be accepted

   [Applicant]: I'm so sorry, because I'm - I'm him - I'm their child, you know. Because I thought they are my parents, they can understand. Even if my children, I could, you know, listen their problem. So I - I - I try to help them.  But they couldn't.  They said no, we can't have this, because we have to live here, in the community.”

2. The applicants’ written submissions also assert that the applicant claimed (in her written application) to fear harm as a “divorced person”. Further, she repeated her “fear of persecution” from the village council, and the Sikh community, because of her previous divorce from a Hindu person. The complaint in the submissions is that the Tribunal “ignored this particular social group” ([19] of the applicants’ written submissions).

3. The Tribunal addressed the matter of “divorce” at [25] of its decision record (at CB 182):

   “I also note that in her protection visa application the Applicant claimed to fear harm as a divorced person.  At the Tribunal hearing, however, she agreed that her divorce would not become known in her village and I have concluded that she does not, in fact, claim that she would be at risk of harm for such a reason.”

4. This finding was reasonably open to the Tribunal on what was before it (see T16 line 31 to line 33). It was not, therefore, necessary for it to go on and consider whether any social group of women who had previously divorced a Hindu person recognisably existed, or that the applicant was a member of it.

5. As set out above, the oral submissions on the applicants’ behalf by their legal representative before the Court did not promote understanding of the applicants’ case. However, three matters require note.

6. First, during submissions before the Court, when invited to explain the jurisdictional error in ground one, and in light of written submissions, the applicants’ legal representative ultimately submitted, that there did not “appear to be a jurisdictional error per se in the way the Tribunal treated” the matter of the particular social group of “Punjabi Sikh women in inter-caste marriages”. Later in the submissions the legal representative stated that to the extent ground one in the amended application concerned inter-caste marriage there was no jurisdictional error and ground one therefore “failed”. This was in direct contrast with the written submissions at [16].

7. Second, during the Court hearing the Court sought further explanation of the applicants’ complaint that the Tribunal erred in dealing with a claim that was not made. That is, the matter of the applicant marrying against her family’s wishes, as discussed above.

8. The Court asked the applicants’ legal representative to respond to the Minister’s submissions on this point. The applicants’ legal representative was not responsive to that matter. The submissions, it must be said inexplicably, were that the Minister’s submissions were that the Tribunal “relied on country information, and so talked about honour killings”. This matter is dealt with at ground four below. However, in relation to ground one it exemplifies the confused nature of the applicants’ arguments before the Court.

9. Third, particular (b) to ground one asserts that “[t]he Tribunal then took a conflated approach in dealing with the two social groups”, in context as identified by the Tribunal at [24] (at CB 181 to CB 182).

10. The explanation proffered by the applicants’ legal representative before the Court was that the Tribunal “looked at” those two social groups (see the Tribunal’s understanding at [13] above), appeared to spend a lot of time on the “second one”, and it was not clear “what the Tribunal was trying to achieve”.

11. Plainly, this “explanation” did nothing to explain particular (b) of the ground, and its relevance to ground one. At best, I understood the complaint to, possibly, be that the Tribunal approached the two “groups” as if they were one.

12. That is, demonstrably not the case. If nothing else, the Tribunal dealt separately with each issue at [28] (at CB 182) and [29] (at CB 182) to [30] (at CB 184). At [24] (at CB 181 to CB 182), the Tribunal set out its understanding of the applicant’s claims and that the claims “might be relevantly defined as” the two subsequently expressed groups.

13. In relation to the first, as stated above, the Tribunal found that their marriage was not an inter-caste marriage. Therefore, the applicant was not a member of the “first” group. As to the second, it addressed the claim that her parent’s disapproved of her (second) marriage but that this would not result, and nor was it claimed that it would result, in serious or significant harm.

14. In all ground one is not made out. At its highest, it seeks impermissible merits review from this Court. It must be said that the ground lacked merit. It was bound to fail, and the various submissions only reinforced this state of affairs.

15. Ground two asserts a breach of s.424AA of the Act. The particulars assert that the Tribunal failed to put the applicant on notice that her credibility would be “the reason, or a part of the reason, for affirming the delegate’s decision under review”. The particulars direct attention to [27] of the Tribunal’s decision record:

    “I have a number of concerns as to the credibility of the Applicant’s account of the harm she fears in India.”

16. I note that the Tribunal’s concern was not the applicant’s credibility generally. The Tribunal’s concerns were related to her account of feared harm in India. For example, the Tribunal did not express concern that the claim that the applicants were married was not true. Rather, the concerns were about the way the applicant sought to characterise that marriage as an inter-caste marriage.

17. Section 424AA of the Act bears a particular relationship with s.424A of the Act. The relevant statutory scheme is that s.424A(1) of the Act obliges the Tribunal to put to an applicant, in writing, “information” which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162). Section 424AA of the Act is a facility available to the Tribunal to discharge this obligation orally at a hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 and SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3).

18. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, the High Court relevantly gave direction as to what constitutes “information” for the purposes of s.424A, and by association s.424AA of the Act. Relevantly the High Court stated at [18]:

    “Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’

    ‘does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.’

    If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”

19. Before the Court the applicants sought to argue that the circumstances in their case were factually different from those in SZBYR. This was explained as follows. In SZBYR there was a “discrepancy” between a written statement and evidence given at the Tribunal hearing.

20. That may be the case, but the circumstances in this case are nonetheless caught by the explanation of what constitutes “information” for the purposes of s.424A of the Act as explained by the High Court. When pressed to explain the circumstances in the current case in light of what was said in SZBYR the applicants were unable to proffer any explanation beyond the “factual” distinction as originally pressed. At its highest, the assertion of error appears to be that the Tribunal did not put its concerns about the applicant’s account to her. The ground must fail, given, as explained by the High Court, the Tribunal’s view or subjective appraisal of an applicant’s evidence is not “information” for the purposes of s.424A of the Act. In the current case, therefore, s.424AA of the Act was not engaged. Ground two is not made out.

21. As stated above, ground three of the amended application was not pressed.

22. Ground four asserts that the Tribunal took into account an irrelevant consideration. The complaint, as understood from the applicant’s written submissions, is that the Tribunal’s deliberations were “substantially devoted” to “honour killings in India” in circumstances where the applicant made no claim, either in her application, or at the hearing before the Tribunal, to fear harm on that basis.

23. It must be said that during the hearing before the Court it was not entirely clear that the applicants’ legal representative had looked at the entirety of the Court Book in preparation of the amended application or the hearing before the Court.

24. The applicants’ ground is factually misplaced. The applicants made their application for protection visas on 22 March 2013 (CB 1 to CB 36). Accompanying this application were a number of documents submitted by the applicant (CB 37 to CB 82).

25. These documents included relevant pages of their passports, divorce and marriage documents, and various documents which appear to be media and other reports downloaded from the internet (CB 64 to CB 72).

26. It is clear that the focus of these media and other reports is “honour killings” (see for example, “Spate of dishonour killings shakes up Punjab” at CB 68) of persons who have entered into relationships disapproved by their families and the wider community in Punjab and more broadly in India. One of these documents makes specific reference to a case where death was caused by a group including “members of a caste panchayat that declared their marriage unacceptable” (CB 72.5).

27. On 13 May 2014, the applicant provided further documents in the form of downloaded reports to the Minister’s delegate also dealing with the matter of “honour killings” in India (CB 76 to CB 82).

28. The Tribunal noted both these sets of documents in its decision record (see [10] at fourth dot point at CB 175 and [11] at second dot point at CB 176).

29. Before the Court, the applicants’ legal representative again submitted that the Tribunal’s “deliberations” were “substantially devoted to honour killings”. Factually that is not correct. The Tribunal’s consideration of all the claims and evidence is at [23] (at CB 181) to [38] (at CB 185). It cannot be said that that analysis was substantially devoted to honour killings.

30. Prior to these paragraphs, the Tribunal set out in its decision record country information available to it on the issue of honour killings ([18] at CB 179 to [22] at CB 181). I agree with the Minister that it was open to the Tribunal to set out such country information given what the applicant herself had provided in support of her application. Further, given the applicant’s claim to fear harm on return, including that she may be the subject of sexual assault (see CB 21.10), it was encumbent on the Tribunal to set out information concerning violence against women in India in “honour” situations.

31. As to its analysis, contrary to the applicants’ complaint now, the Tribunal did not rely on “this issue in its decision record to the detriment” of the applicant (as submitted at [23] of the applicants’ written submissions). As set out above, the Tribunal found adversely to the applicants for reasons not immediately relevant to honour killings. This was because it found that the applicants would not be put into that situation given that their marriage was not an “inter-caste marriage”, as the applicant had otherwise claimed. Ground four is not made out.

Conclusion

1. In all, none of the grounds of the application are made out. It is appropriate to dismiss the application. I will make that order.

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

Date: 13 May 2016

CORRECTIONS

1. Page 3 of Cover sheet and Orders, the third Order has been amended to “$4800”.