FEDERAL COURT OF AUSTRALIA
SZUTR v Minister for Immigration and Border Protection [2017] FCA 666
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BURLEY J:
1 In these proceedings, the appellant appeals from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal had affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the appellant a protection (Class XA) visa (Visa) under s 36 of the Migration Act 1958 (Cth) (Act) and cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
2 The appellant was granted a subclass 572 Visa (vocational education and training sector) on 12 January 2009 and first arrived in Australia on 26 January 2009. She and her former husband lived together in Australia for two or three months and separated in March or April 2009. They were divorced in June 2011 and the appellant, whilst working as an assistant nurse in a nursing home in Parramatta met an elderly Italian man, whom she married on 27 August 2012. The appellant’s eligibility for the Visa arises from her claims as to the adverse reaction of the Sikh community in her home village in India to her second marriage.
3 In the present proceedings, the appellant was not represented and presented arguments with the assistance of an interpreter in the Punjabi and English languages. She relies on the following grounds of appeal, namely that the primary judge:
1. [F]ailed to hold that the Refugee Review Tribunal committed a jurisdictional error when it failed to find that the Delegate had complied or not complied with the procedures expressly set out in the Migration Act. The decision was flawed on the grounds of Delegate’s constructive failure to exercise jurisdiction. The Refugee Review Tribunal failed to hold that the Delegate breached a duty to afford procedural fairness to the [appellant]. The [appellant] has a legitimate expectation from the Delegate and the Tribunal to afford procedural fairness. His Honour failed to hold that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction.
2. [F]ailed to hold that the Tribunal failed to identify accurately a particular social group (extremely rigid orthodox religious Sikh (Punjabi) group of India) from which the appellant has fear of persecution.
3. [F]ailed to hold that the Tribunal failed to apply the correct test in relation to the complementary protection provision contained in section 36(2)(aa) of the Migration Act. The Tribunal failed to separate the claim to be [a] refugee and the fear of harm test for the provision of complementary protection. The Tribunal’s decision is unreasonable with regards to complementary provision.
4. [Failed] to hold that the Tribunal made inconsistent assertions on the credibility testimony.
5. [Failed to identify] that the Tribunal formed [a] preoccupied [sic – preconceived] view or opinion about the [appellant’s] document[s] and oral evidence. The appellant claims that she was denied natural justice and procedural fairness when the Tribunal, in making [its] decision, … ignored or overlooked the oral evidence of the [appellant]. Whatever she said was true.
4 The appellant filed a written outline of submissions dated 24 April 2017 and the respondent filed an outline of submissions dated 26 April 2017.
2.1 The Visa application and the decision of the Delegate
5 On 12 January 2009 the appellant was granted a subclass 572 (vocational education and training sector) visa. On 26 January 2009 the appellant arrived in Australia. On 10 August 2011 the appellant was granted a subclass 573 (higher education sector) visa. On 6 October 2012 the appellant departed Australia and returned on 17 October 2012. On 9 November 2012 the appellant lodged her application for the Visa pursuant to s 36 of the Act.
6 The Delegate found that there were a number of anomalies and inconsistencies in relation to the evidence presented by the appellant which led him to the conclusion that she was generally not credible. Ultimately, he was not satisfied that Australia has protection obligations to the appellant under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol. As a result, he concluded that the appellant did not meet the criteria for the grant of the Visa.
7 On 4 April 2013 the appellant lodged an application for review of the decision of the Delegate. A hearing was conducted before the Tribunal on 4 November 2013 and the appellant appeared to give evidence and present arguments with the assistance of an interpreter in the Punjabi and English languages.
8 On 27 June 2014 the Tribunal affirmed the decision of the Delegate not to grant the Visa. The Tribunal did not accept that the appellant’s claims for protection were genuine.
9 The Tribunal recorded that the appellant had made the following claims in her Visa application:
(a) She had a strict Sikh religious upbringing. Her father is a priest and a farmer and is respected in the Amritsar Sikh community. Her mother is also strict and her sisters are all married within very respectable Sikh families.
(b) She married her ex-husband in India in 2008, came to Australia on 26 January 2009 and divorced him on 10 June 2011 in Australia.
(c) She was working as an assistant nurse at a nursing home in Parramatta where she met an 80-year-old Italian man. She developed an emotional attachment to him, was depressed after her marriage breakup, and on 27 August 2012 married him. She did not tell her family or obtain their permission to marry and her new husband did not tell his family.
(d) After one week of marriage, her former parents-in-law found out about it, her father-in-law was very angry because she married a man who is not a Sikh and was old. News of her second marriage spread in the Sikh communities in Sydney and India.
(e) On the Sunday after her second marriage a Sikh priest called her to the temple. It is the Sikh custom to organise a big feast (“Lunger”) within the community after a marriage, during which the priest blesses the bride and groom. The appellant did not hold one because she was afraid to face the Sikh community because she was married against custom and to an old man. She said that “everybody started to look at me as discreet”.
(f) Many Sikhs advised her to discard her second marriage and some asked the Sikh priest not to allow her to attend ceremonies.
(g) Her former parents-in-law and former husband spread news of her second marriage in India, where they created an atmosphere of hatred against her which she regarded as torture. She was depressed and decided to visit her parents in India to relieve her depression.
(h) She arrived in India on 6 October 2012 and everybody in the village looked at her in a very different way, they were abusive and treated her as an untouchable or “desecrate”. Her mother advised her to leave the village before sunrise the next day because everybody knew what she had done and she had lost face. People in the village believed that she had married the old man for money and had sold the prestige of her family to an old man of a different religion.
(i) She went to a guest house with her sister, could not sleep, and her brother arrived early in the morning with two strongmen to protect her. She gave her brother 10,000 rupees to pay the men. At 10.00 am more than 30 people arrived at the door of the guesthouse. The local Sikh priest arrived and asked her to go to the temple with her brother.
(j) The situation worsened and she wanted to inform the police, but her brother stopped her from doing so, saying that the police would make the matter more publicised, were corrupt and would ask for protection money. She asked her brother to provide more protection.
(k) Her brother returned an hour later with a car and with the village head, who helped calm the situation. He took her to his house and told her to leave the country because she may be killed or tortured or assaulted by fanatical Sikhs and by people sent by her former husband. She regarded this as a threat to her personal security and dignity, and lived in different places to escape from the trauma and fear of harm. Some people threatened to kill her.
(l) She managed to get an air ticket and left India for Australia. She fears that if she returns she faces trauma, torture and harassment. Her village is in the Amritsar District and is very much guided by Sikh priests. Most people, including police officers, are Sikh and strictly follow their religion. She would not be protected. Her former husband has created a poisonous atmosphere against her in her village.
10 The Tribunal considered these claims together with the evidence and arguments presented during the course of the hearing. Whilst it accepted a number of matters of fact (set out in [11] – [16] below), it concluded that there were several reasons to support the conclusion that the appellant’s claims for protection are not genuine.
11 The Tribunal accepted that the appellant’s first marriage, which took place on 6 June 2008, was arranged so that her first husband could come to Australia and work while she studied. The Tribunal also accepted that she and her husband lived together for only two or three months in Australia before they separated in March or April 2009, when her former husband moved to Griffith for work. It also accepted that at this point, her husband’s family stopped paying for her studies even though when they were married they had agreed to pay for her studies for two years. Before her fees were due, she called her husband but the telephone had been disconnected and she attempted to contact her parents-in-law who said that they had not spoken to their son and did not know where he was. Following this, the appellant’s parents paid for her studies for the following two years while she completed a hairdressing course, and then started a Bachelor of Accounting degree.
12 The Tribunal accepted that the appellant believed that her marriage was genuine and did not think that it was for the purpose of getting her husband his visa to travel to Australia.
13 The appellant applied for a divorce in about March 2011 which was finalised in June 2011, after which she was too depressed to finish her studies. She did one semester of the Bachelor of Accounting. She then chose another course, a Diploma in Human Resources, but felt that although she was in financial difficulties, her parents had paid enough and that she should work and pay her own fees. She finished the Human Resources Diploma in six months, starting in the morning and working in the afternoon and finished in August or September 2012. She has not studied since.
14 The appellant’s first temporary visa was for two years and three months and her second visa, which she applied for herself, was granted on 10 May 2011. That visa was due to expire on 10 May 2013, but before that date, on 9 November 2012, she applied for the Visa.
15 In October 2011, the appellant began working as an assistant nurse in a nursing home. She married her elderly Italian husband on 27 August 2012. She has never lived with him. He is not demented. He moved out of the nursing home about three months before they were married and lives by himself and has hired a carer. The appellant knows that he has two sons but she does not know them and after the marriage she received a telephone call from one of the sons, who was aggressive and abused and threatened her. She was frightened and on the day of the call did not go to her husband’s house. After a week she went to the house but found that it was locked up and no one was there. She tried to call the landline and no one answered. She became depressed.
16 The appellant enrolled in a 14 month Bachelor of Business course which was supposed to start in November 2012. She enrolled in the course because she had a student visa and had to study, but she deferred.
17 The reasons of the Tribunal indicate that there were substantial elements of the appellant’s claims that it did not accept as credible, some of which are summarised below.
18 First, it found that there was an inconsistency between the statement in her Visa application that she had returned to India because she was depressed, when during the hearing she said that she had returned to India because her mother was ill.
19 Secondly, the Tribunal noted that in her application she had claimed to have stayed at a guesthouse in her village after going to the temple, but in her oral evidence she claimed to have stayed at her parents’ house. This was explained as a mistake. Further, the Tribunal noted that in her application she had stated that when the village head had come to the door the following day she had asked him to make a note and put it in his file as to what was happening. She claimed at the hearing that the note and a translation had been provided with her application, but the Tribunal noted that none was recorded on the departmental file.
20 Thirdly, and centrally, the Tribunal rejected the appellant’s claim that her former parents-in-law had found out about her second marriage within one week and that the news had spread to the Sikh community in India and Sydney. The Tribunal accepted that she had been treated poorly by her first husband and her former parents-in-law and that they had separated in March or April 2009 and were divorced in May 2011. The Tribunal found that the first husband’s family had shown no interest in her for several years by the time of the events surrounding her second marriage. It found that the first marriage, from the perspective of her former husband and his family, was a sham arranged in order for him to get a visa to come to Australia to work.
21 Against this background, the Tribunal did not accept that her former husband or his family had any interest in the appellant since the husband arrived with her in 2009. It considered that the appellant had provided no probative basis for the assertion that the family of her former husband were involved and it rejected her claim that anyone in her village in India knew of her marriage to her Italian husband.
22 Fourthly, during the hearing, the appellant said that she did not tell anyone about her second marriage, including her parents, and that marriage to someone of a different culture is not allowed. The Tribunal rejected that evidence and found that her family does not pose a threat of harm to her, that her parents are likely to have become aware of her marriage because her maternal uncle filled out her Visa application and her cousin witnessed her marriage. Further, her family have supported her, her mother gave her money to pay for her return ticket and her maternal uncle (who lives in New Delhi) is a lawyer and prepared the documents for her application.
23 Fifthly, the Tribunal observed that there were other inconsistencies in the appellant’s evidence about what happened to her in India. For instance, there was a discrepancy between her oral accounts as to where she stayed and for how long when she returned to her village in October 2012, and the documentation that she provided. There was a further inconsistency between the appellant’s claim at the hearing that no one in Australia knew about her marriage and her claim that the news spread in the Sikh community in Sydney. The Tribunal rejected the claim that the Sunday after her marriage a Sikh priest had contacted her, that fellow Sikhs in Sydney had started to look at her as “discrete” or that she was advised to discard the marriage. It found that she continues to attend the temple weekly.
24 The appellant filed an application for review of the decision of the Tribunal on 18 July 2014 and the hearing was conducted on 10 November 2016. The appellant appeared in person with the assistance of an interpreter.
25 The grounds upon which the appellant relied were as follows:
1. The Refugee Review Tribunal made a jurisdictional error when it misunderstood and misconstruid the facts.
Particulars:
The Tribunal failed to account relevant and integral parts of the Applicant’s claim. The applicant is a truthfull witness. Applicant accepts that it might be she was not sure about the timing and date of her movements and travelling time and date but she never mislead the Tribunal telling about circumstances and tense environment in which she lived in India and departed from India. The Tribunal unreasonably come to conclusion that:
“there were other inconsistencies in the applicant’s evidence about what happened when she was in India. She arrived in [her home district] at 9.35 am on 7 October 2012. She claimed that she stayed in guesthouse in her village in her application. At the hearing she claimed that she stayed at home and said that the guesthouse was a mistake. The Tribunal does not accept that because it does not accept that her claims are genuine. On both her accounts, in village. At the hearing she said that she went to [another city] the day after going to the temple which took six hours. On her evidence, the applicant would have arrived in [the other city] on 8 October 2012. She claimed that she stayed in a guest house there and provided a receipt to support that claim. lt shows that she arrived on 10 October and left on 15 October 2012. That is not consistent with her claims.” (Document Book Page 165 Para 51)
The applicant claims that she was denied procedural fairness when due to inconsistencies in providing details of her movements, her claims for protection were rejected by the Tribunal. The applicant is human being and because of mental distress she was unable to remember the dates. She claims that she should not be deprived her claims. Applicant has a legitimate expectation from a judicial body and it would consider all of the factors and issues when it is determining the application for protection visa. The Tribunal would account the applicant’s details very seriously. The Tribunal failed to understand the real core of problems and discredted her evidence.
2. In making decision, the Refugee Review Tribunal acted without jurisdiction or in excess of jurisdiction when it failed to take into account relevant considerations.
Particulars:
RRT unreasonably raised doubt over the applicant’s marriage with a 80 Years old man who is not from her Sikh Community and information related about marriage in India and among her Sikh Community in India and Australia.
The applicant categorically and truthfully said to the Tribunal that how and when she was married and how her former husband disappeared and acted against her by informing the applicant’s community about the marriage with a person from another community.
The Tribunal raised several irrelevant issues to discredit the facts.
3. The Tribunal made a Jurisdictional error when it failed to identify accurately the particular Social group from which she has a fear of persecution.
The applicant submitted that the applicant fears persecution from a Group of extremist Fanatic Sikh Community who never tolerate a Sikh woman should marry with a member of another Community. Not only that they (Extrimist Sikh Religious Priest ) give strict direction to the woman member of Sikh Community that she should not wear Sari as it is very common in the Hindu family. Wearing sari is identified as Hindu woman. The applicant is very known aware of the rigid customary practice of Sikh Community. Because of fear of resistence she decided to live in a guest house. The parents helped her to save her from the effects of reaction from the rigid customary practice and consequences from any possible attacks on her due to marriage with the another community.
The applicant claims that the Tribunal unreasonably discredited the reason for living in a Guest House. She stayed in Guest house because of fear of harm from the Extrimist Sikh Community of the Village.
The Tribunal misconstrued the facts and concluded that there was no harm when she lived with the parents or in her village.
4. The applicant claims that the RRT made a jurisdictional error when it made decision on assumption and probability. The Tribunal’s finding of reasons is Confused and the test for persecution was not applied according to the Rules of the Migration Act
Particulars:
The applicant claims that the Tribunal formed the above opinion based on the limited information about the possible harm to the applicant. The Tribunal ignored all other independent information about the victims of practice of rigid Social behaviours and customs in India. Thousands of woman are killed because of the practice and actions by the extrimists fanatic religious practices despite the Government’s efforts to make a harm less and secular society in India. The applicant claims that she is treated as discrate or untouchable when a Sikh woman is married to another caste or community.
5. The Tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2) (aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.
Particulars:
The applicant claims the Tribunal, which is a independent judicial body. The applicant has a legitimate expectation from the Tribunal that it would assess the applicant’s claim according to required procedural fairness.
The RRT ignored the relevant consideration related with complementary Protection set out in s 36(2) (aa).
The harm or the mistreatment feared by the applicant on return is for reason of one or more of five grounds of recognized in the Refugee Convention.
Applicant claims that his fear of harm or mistreatment is for the Convention reasons of political opinion and membership of the particular social group.
Applicant’s fear of harm is well-founded and that there is a real chance that he will suffer persecution if he returned to India.
(Errors in original)
26 The primary judge summarised the background facts and the Tribunal’s decision and reasons and then addressed each of the grounds raised.
27 In relation to ground 1, the primary judge found that the appellant was in reality saying no more than that the Tribunal reached factual conclusions with which she disagreed and which she considered were wrong. However, the primary judge considered these complaints did not raise questions of jurisdictional error and rejected the ground.
28 The primary judge found that the first premise of ground 2 was that the Tribunal had raised doubt over the appellant’s marriage with the eighty-year-old Italian man. That premise was not made out because it is apparent from the reasons of the Tribunal that it accepted the fact of that marriage. The other element of the ground concerned the activities of the appellant’s former husband and his family. The primary judge observed that the Tribunal accepted that the appellant had been treated poorly by them but did not accept that they would have been concerned about her second marriage. The primary judge rejected the contention that this factual matter amounted to jurisdictional error.
29 Ground 3 involved the allegation that the Tribunal fell into error when it failed to identify accurately the particular social group of which the appellant is a member, and for this reason, has a fear of persecution. The primary judge rejected this ground on the basis that the appellant did not in fact claim to fear persecution because she was a member of a particular social group, and so the particulars of the social group that the ground of appeal identified were not relevant to the claims advanced by the appellant.
30 The primary judge summarised the essence of the first aspect of ground 4 as being that the Tribunal’s decision was arbitrary and capricious in that it was based on assumptions and guesswork, rather than evidence. The primary judge rejected this contention on the basis that the principal factual finding arrived at by the Tribunal, namely that the news of the appellant’s second marriage had not spread to the Sikh community in her village or been of concern to her former husband and former parents-in-law, was a finding that was open to the Tribunal on the evidence. It was not an arbitrary or capricious conclusion.
31 The primary judge summarised the second aspect of ground 4 to be a complaint that the Tribunal had ignored independent information about the victims of strict social norms in India. His Honour concluded that it was not apparent that the appellant had provided such information to the Tribunal or that the Tribunal had such information before it through its own resources. In any event, the primary judge found that the ground was not made out because the Tribunal’s decision turned upon the Tribunal’s conclusion that the appellant’s former husband and his family had not spoken about her in her home village.
32 In relation to ground 5, the primary judge considered that the particulars provided reflected a confusion between the complementary protection test and the test set out in the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Convention), and noted that the particulars in relation to the latter appeared to come from a different person’s application. In any event, the central matter, the primary judge found, is that the claims of the appellant seek to engage the complementary protection obligations under the Act and that depended on the Tribunal accepting the fundamental facts underlying the claims, which the Tribunal did not accept.
33 In the result, the primary judge rejected the application for review with costs.
34 I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the Visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the Visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant a Visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).
35 I now turn to the specific grounds of appeal that are raised.
3.1 Ground 1: Jurisdictional error arising from review of the decision of the Delegate
36 The present proceeding is an appeal from the decision of the primary judge. That in turn is an application to review the decision made by the Tribunal as to the merits of the application. Neither the Tribunal nor the FCCA conduct a review of the decision of the Delegate. In the circumstances, because ground 1 alleges error on the part of the Delegate, it raises no basis upon which this Court might find jurisdictional error in the decision of the primary judge. Accordingly it is dismissed.
3.2 Ground 2: Failure to identify the social group from which the appellant fears persecution
37 In ground 2, the appellant contends that the primary judge failed accurately to identify a particular social group, being an extremely rigid, orthodox Sikh community group in India, from which the appellant has fear of persecution. This ground was raised in a similar form in ground 3 before the primary judge.
38 In her written submissions, the appellant submits that there is a particular group of extremist fanatics in the Sikh community who never tolerate a Sikh woman marrying a member of another community. Further, the appellant submits that the priests in this sect give strict directions to the women in the community that they should not wear the Sari as it is a Hindu item of clothing. The appellant submits that the primary judge failed to find error in the Tribunal’s reasoning where it ignored independent information about the victims of such rigid social behaviour and customs in India.
39 The difficulty with this ground, and the appellant’s submissions, is that neither form the basis of the appellants claims made in her application for the Visa or before the Tribunal. The claims made have been summarised in [9] above. In essence, the appellant’s claims to fear harm were by reason of the fact that news of her second marriage had spread to the Sikh community in her village and in Australia. However, the Tribunal rejected the premise of the claim and found that the news of her second marriage had not spread to India. Rather, the Tribunal found that with the exception of some members of her family in her village and in Australia and her second husband and one of his sons, the marriage was not known to others either in Australia or in India. More particularly, the primary judge found that the appellant did not claim to fear persecution more generally because she was a member of a particular social group, but rather because of the subjective circumstances of the appellant’s second marriage.
40 In these circumstances, it was not necessary for the Tribunal to consider information about the characteristics of a particular Sikh community group. It was not those characteristics which the appellant claimed led to her fear of persecution. Accordingly, ground 2 is dismissed.
3.3 Ground 3: Complementary protection, s 36(2)(aa) of the Act
41 In ground 3, the appellant contends that the Tribunal failed to apply the correct test in relation to complementary protection contained in s 36(2)(aa) of the Act by not following the fear of harm test for the provision of complementary protection.
42 This ground equates to ground 5 which was advanced before the primary judge.
43 Subsection 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Convention. Australia is a party to the Convention and has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
44 Leaving aside presently immaterial qualifications to the application of Article 1A(2), the four key elements of the Convention definition require first, that an applicant be outside his or her country, secondly, that an applicant fear persecution, thirdly that the persecution which the applicant fears be for one or more of; race, religion, nationality, membership of a particular social group or political opinion. Fourthly that the fear of persecution is “well-founded”. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail him or herself of the protection of his or her country. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act.
45 In the present case, the Tribunal did not accept that the appellant’s claims for protection are genuine. It was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the appellant’s removal from Australia to India, there is a real risk that she will suffer significant harm. The Tribunal made this finding in terms at [58] of its reasons which led to the conclusion that it was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
46 It is apparent from the Tribunal’s reasons that the basis for this finding is to be found in the Tribunal’s rejection of the fundamental premise of the appellant’s claim, namely that people in her village in India know of and disapprove, for religious reasons, of her marriage to her Italian husband. The Tribunal relevantly said in this regard at [49], [50]:
49. The Tribunal does not accept her claim in her application that her former in-laws had found out about her second marriage within one week of after [sic] marriage and the news spread to the Sikh community in Sydney and India. … It does not accept that her former husband or his family has had any interest in the applicant since her husband arrived in Australia with her in 2009. She provided no probative basis for the assertion she made. She claimed at the hearing that she did not know how people in her village knew of her marriage. The Tribunal does not accept that anyone in her village knows of her marriage to her Italian husband.
50. The applicant’s parents may know of her marriage because her maternal uncle filled-out her protection visa application and her cousin witnessed her marriage. But the Tribunal finds on the applicant’s evidence that her family does not pose a threat of harm to her. To the contrary, they have supported her. …
47 It follows that the Tribunal rejected the premise that the appellant advanced, which is that the foreseeable consequence of the appellant being removed from Australia is a real risk that she will suffer harm. Accordingly, the primary judge was, in my view, correct to reject this ground.
3.4 Ground 4: Tribunal made inconsistent assertions in relation to credibility
48 In ground 4 the appellant, in substance, contends that the Tribunal made inconsistent findings in relation to the credibility of her evidence. This ground is broadly equivalent to an aspect of ground 1 as it was raised before the primary judge, insofar as it challenged the credibility findings that the Tribunal made. No particulars of the alleged inconsistencies have been provided. Nevertheless, I have carefully reviewed the findings of the Tribunal.
49 Findings as to credit are matters for the fact-finding decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] (McHugh J). In the present case, the findings of the Tribunal which led to the conclusion that the appellant’s claims were, in substance, to be disbelieved arose from inconsistencies and incongruities that the Tribunal found in the appellant’s evidence. The Tribunal is not obliged to accept the evidence put to it uncritically: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 per Beaumont J at 451; and it is not required to have received contradictory evidence before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; (1994) 34 ALD 347 at 348 per Heerey J. However, in the present case, the Tribunal’s reasons adequately exposed the basis upon which it found the appellant’s case not to be credible, which was based on inconsistencies and incongruities and formed the basis for the finding that it was deficient. This might be contrasted with the facts that provided the basis for the decision of the Full Court in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [72] (Kenny J). In my view the primary judge made no error in rejecting ground 1 of the appeal below. Accordingly, I dismiss ground 4 of the appeal.
3.5 Ground 5: Denial of natural justice and procedural fairness
50 The appellant contends in ground 5 of her appeal that the Tribunal formed a preconceived (I assume the word “preoccupied” is a typographical error) view or opinion about the appellant’s evidence and that as a consequence she was denied natural justice and procedural fairness, and ignored or overlooked the oral evidence of the appellant in concluding that her evidence was untrue.
51 No details have been provided as to the evidence which the Tribunal is said to have approached with a preconceived view. Nor are details provided as to the evidence which was said to have been ignored or overlooked. In substance, it appears that this ground simply seeks to challenge the factual findings of the Tribunal in so far as they disagree with the version of events offered by the appellant. In the opening paragraph to this part of my reasons I have explained that it is not the function of this Court, or of the FCCA, to review the decision of the Tribunal on a merits basis. Ground 5 invites the Court to do just that. Accordingly, I dismiss ground 5 of the appeal.
52 For the reasons set out above I dismiss the appeal and order that the appellant pay the first respondent’s costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. |
Associate:
