FEDERAL COURT OF AUSTRALIA

AIM15 v Minister for Immigration and Border Protection [2017] FCA 734

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1    The appellants have appealed the decision of the Federal Circuit Court dismissing their application for judicial review of a decision by the then Refugee Review Tribunal (the Tribunal). The Tribunal’s decision on 5 March 2015 affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant Protection (Class XA) visas (the protection visas) to the appellants.

2    This matter first came before me on 22 May 2017. On that occasion it became apparent that one complaint of the appellants was that the primary judge had not listened to an audio tape of the hearing before the Tribunal, which it was said supported the appellants’ case. The reasons of the primary judge do not disclose whether the tape was listened to, although I should note at this point that there is no absolute duty on a judge to do so, the necessity or desirability being context dependent. Nevertheless, in the circumstances I considered it appropriate to have the tape transcribed so that the parties and I could have the benefit of reviewing the transcript. I so ordered and adjourned the matter over until yesterday, which was a date requested by the appellants after the end of Ramadan. I heard further argument yesterday.

3    In the appeal before me, the appellants have persisted with arguments that in my view were correctly rejected by the primary judge as being either misconceived or amounted to impermissible merits review.

4    First, before the primary judge the appellants argued that the Tribunal failed to exercise its jurisdiction because it “gave significant weight to only some of the information as evidence to the exclusion of all others”. But the primary judge rightly found that this ground was simply an attack on the fact-finding function of the Tribunal and that it involved impermissible merits review. Moreover, now having read the transcript, it seems to me that the Tribunal’s determination and reasons fairly and accurately assess the evidence put before it.

5    Second, the appellants argued before the primary judge that the Tribunal failed to take into account their “claims”, being evidence of an address in a passport and a marriage certificate. But the primary judge observed correctly that the Tribunal specifically referred to these items of evidence in its decision. The complaint lacked substance.

6    Third, the appellants also argued before the primary judge that the pronouncement of the Tribunal’s determination immediately after the conclusion of the hearing (with reasons published later) meant that it was biased. This argument had no merit as the primary judge found.

7    Fourth, the appellants argued before the primary judge that the “Tribunal’s finding with regard to a real chance of persecution and real risk of significant harm were based on an incorrect test”. I agree with the primary judge that the Tribunal applied the correct test.

8    Fifth, at the hearing before the primary judge, the appellants sought to introduce medical evidence and various documents which were not put to the Tribunal. The primary judge, correctly in my view, found that it was not open for the appellants to introduce such evidence for the purpose of inviting him to disagree with a factual conclusion reached by the Tribunal. In any event, I have considered this new evidence and do not consider that if it had been put to the Tribunal that it would have impacted on the Tribunal’s credibility findings in a way favourable to the appellants.

9    Generally, before me the appellants have largely sought to rerun the principal complaints as to the Tribunal’s decision which were rejected by the primary judge. But there have been some additional arguments put to me that I have conveniently grouped in a separate section at the end of my reasons. For the reasons that follow, the appellants’ grounds of appeal have not been made out and their appeal should be dismissed. But before elaborating further, it is appropriate to set out some of the background.

BACKGROUND

10    The first appellant is a citizen of India. The second appellant, also a citizen of India, is her husband and the third appellant is their son. They share the same religion. The first appellant came to Australia in June 2009 on a student visa which ceased on 2 August 2011. As her advocacy before me demonstrated, she is proficient in the English language and a capable and intelligent young woman. The second appellant was a dependent visa holder under the first appellant’s student visa. The third appellant was born on 13 March 2011 in Australia.

11    The first appellant lodged an application for a skilled graduate visa on 22 July 2011. This application was unsuccessful. The first appellant had provided no evidence that she met the English language requirements for the grant of the visa. A subsequent application for merits review to the then Migration Review Tribunal was rejected, it having been made out of time.

12    Since the cessation of the student visa on 2 August 2011, the appellants have held a series of bridging visas, including visas permitting them to depart and return to Australia. The appellants departed Australia between 17 January 2012 and 31 March 2012 to return home to India.

13    The appellants applied for the protection visas on 29 October 2013. They claimed to fear persecution from their families on the basis that they did not approve of their marriage due to “communal differences”. They claimed that their parents had threatened to kill them if they did not divorce. The first appellant claimed that because of the “emotional and mental” torture from their families she and the second appellant could not live together in India after they married. She also claimed that their families beat and threatened to kill them and that this is why she applied for a student visa in Australia. The first appellant also claimed that after she arrived in Australia, she had an abortion after being pressured by her parents. The appellants claimed that they were attacked when they returned to India in January 2012 and that their families had threatened the third appellant.

14    On 17 February 2014, a delegate of the Minister refused to grant the protection visas.

15    On 5 March 2014, the appellants applied to the Tribunal for a review of the delegate’s decision. Pursuant to an invitation sent on 24 November 2014, the appellants appeared before the Tribunal to give evidence and present arguments on 22 January 2015 and again on 5 March 2015, the latter date being the substantive hearing.

16    On 5 March 2015, the Tribunal affirmed the decision of the delegate. In written reasons delivered on 10 March 2015 the Tribunal made, inter alia, the following observations and findings in rejecting the appellants’ claims on credibility grounds:

(a)    First, the Tribunal identified inconsistencies between the appellants’ claims and information provided by them in their previous visa applications. The Tribunal therefore had serious and fundamental concerns with their claims.

(b)    Second, the Tribunal noted that the first appellant had indicated in her student visa application that her parents had provided her with financial support to live and study in Australia. The Tribunal found that it was likely that the first appellant’s parents provided financial support to her for the purposes of the student visa application in full knowledge that the appellants were applying as a couple.

(c)    Third, the Tribunal noted that the first appellant’s student visa application showed her address at that time as the second appellant’s family home address. Further, the Tribunal noted that the appellants had indicated in their skilled visa application form that, between 2008 and 2009, the first appellant had lived at the second appellant’s family’s address. The Tribunal found that it was far more likely that the reason the appellants listed the family address of the second appellant’s family in the student visa and skilled visa applications was because the first appellant lived with the second appellant and his family after their marriage.

(d)    Fourth, the Tribunal noted that in a bridging visa application lodged in December 2011, the appellants had listed their reason for travelling to India as “brother marriage” and had listed their address while they were travelling as the second appellant’s family’s address. The Tribunal found that it was highly unlikely that the appellants would have recorded in their bridging visa application that they were returning to live with the second appellant’s family if they had difficulties with their families as claimed.

(e)    Fifth, the Tribunal gave significant weight to the fact that the appellants returned to India in 2012. The Tribunal said that, if the appellants had been mistreated by their families as they claimed, it is highly unlikely that they would have returned to India in 2012.

(f)    Sixth, the Tribunal found that the explanation given by the appellants for their delay in applying for the protection visas, being that they did not wish to reveal their family problems, to be “highly implausible”. The Tribunal did not accept the appellants’ claim that the delay was also due to medical and mental health problems.

(g)    Seventh and generally, the Tribunal found the appellants’ claims to be exaggerated, implausible and lacking in credibility. The Tribunal did not accept that any members of the appellants’ families, or any members of their tribal communities, disapproved of or objected to the marriage between the first appellant and second appellant. The Tribunal did not accept that the first or second appellant had been mistreated or subjected to harm by any members of their family. Nor did the Tribunal accept that the appellants lived separately from their families when they returned to India in 2012. The Tribunal did not accept that any members of the appellants’ families posed a risk of harm to them. In summary, the Tribunal rejected the factual substratum of the appellants’ claims on credibility grounds.

17    As I have indicated, the appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court, which application was unsuccessful. At this point, it is convenient not to dwell on the primary judge’s reasons but to go directly to the appellants’ principal complaints, which involved a re-run of the matters put to the primary judge as well as some additional issues with respect to the process and decision of the Tribunal.

THE PRESENT APPEAL

18    From the material filed by the appellants, being their notice of appeal and the attached written reasons, it would seem that the following grounds of appeal have been raised:

(a)    First, “[t]he Federal Circuit Court [FCC] has erred in its decision and comes to the conclusion at [13] of the judgement [sic] ...” (relating to ground 1 of the amended application before the primary judge). Ground 1 stated: “The tribunal failed to complete the exercise of its jurisdiction”.

(b)    Second, the primary judge’s findings in relation to ground 2 of the amended application were unreasonable. Ground 2 stated: “The tribunal erred by failing to take into account written submissions/documents and arguments put to it as claims”.

(c)    Third, the primary judge erred in relation to his findings regarding ground 3 of the amended application. Ground 3 stated: “The tribunals [sic] finding with regard to a real chance of persecution and real risk of significant harm were based on an incorrect test”.

(d)    Fourth, the primary judge ought to have allowed the appellants to submit fresh evidence during the hearing.

19    It is convenient to deal with each of these matters in turn. I should say that the scope of the appellants’ grounds both before the primary judge and before me were in some respects uncertain, but I will endeavour to address the substance of the complaints under the following convenient headings as well as a more general section at the end of these reasons.

Ground 1

20    By ground 1 of the amended application before the primary judge, the appellants took issue with the Tribunal’s reliance on their return to India in 2012 and their delay in applying for the protection visas as adversely affecting their credibility. But the primary judge was plainly correct to reject this ground. It was an attempt to seek impermissible merits review of the Tribunal’s decision.

21    The appellants also argued that the primary judge erred by not taking into account the audio CD record of the proceedings before the Tribunal. It is unclear whether the primary judge did take this into account. In any event, I have had the tape transcribed and upon my review of the transcript it does not assist the appellants. I will discuss aspects of the transcript later.

22    Further, the appellants made reference to alleged fraudulent activity by their agent in relation to their previous application for a temporary skilled visa. The appellants contend that the Tribunal should not have relied upon the information given in that application regarding their home address in India. But the appellants are seeking to revisit the merits of the Tribunal’s decision by complaining about what evidence the Tribunal should, or should not have, relied upon, an endeavour correctly rejected by the primary judge. In any event the addresses stipulated on previous applications were hardly related to any question of “fraud” on the part of an agent. The Tribunal concluded that the addresses were those presumably nominated by the appellants.

23    It is also said by the appellants that the Tribunal gave inadequate weight to the alleged harm that they would face upon return to India. But this ground has no substance given that the Tribunal rejected the factual substratum for the perceived risk of harm on credibility grounds.

24    I will return to some other questions which relate to ground 1 in a later section of my reasons.

Ground 2

25    The appellants appear to complain that the Tribunal failed to consider the third appellant’s passport and the marriage certificate of the first and second appellants. But the Tribunal referred to and considered these documents.

26    Further, the appellants also complain that given that the Tribunal made its decision orally immediately upon the conclusion of the hearing, this evidences some kind of actual or apparent bias. But the primary judge correctly rejected this claim (see SZANH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1280 at [39] per Sackville J).

Ground 3

27    The appellants assert that the Tribunal applied the incorrect test in considering their application for the protection visas. The appellants cite MZAFH v Minister for Immigration and Border Protection [2016] FCA 57 in support of this proposition. But in my view, MZAFH does not assist the appellants.

28    The appellants submit that they argued before the Tribunal and gave evidence that the second appellant was treated for “bruised stitches” in 2012, and that this therefore undermined the Tribunal’s findings regarding the fear of harm and the delay of the appellants in applying for the protection visas. I disagree. To the extent the second appellant claimed that he experienced medical problems as a result of being harmed by the families in 2012, the Tribunal rejected these claims by rejecting the evidence given as to the assaults or beatings.

29    Further, the primary judge correctly considered the submission that was made by the appellants regarding the Tribunal’s findings at [76] to [78]. In particular, the primary judge observed the provisions of the Migration Act 1958 (Cth) that the Tribunal cited, and found that the Tribunal considered the claims of the appellants by reference to those provisions but ultimately rejected the claims made.

30    Further, there is no substance to the complaint made by the appellants that the Tribunal failed to apply the correct statutory tests in terms of s 36(2)(a) criterion or the s 36(2)(aa) criterion. The Tribunal correctly analysed and applied these tests at [79] to [86] of its reasons and correctly described the relevant law in Appendix 1. The factual substratum for either criterion was not made out.

Ground 4

31    Finally, the appellants complain that the primary judge erred by not admitting fresh evidence which went to the factual conclusions reached by the Tribunal. Part of the evidence which the appellants sought to tender related to a medical condition of the second appellant in 2012. But the primary judge was correct to reject this evidence (see MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] per Nicholson J). But in any event, I have reviewed for myself the new evidence sought to be adduced before the primary judge and would note the following:

(a)    First, the appellants sought to deploy a cervical spine x-ray of the second appellant in March 2012 and one medical certificate dealing with his condition at this time. None of this was put before the Tribunal. In any event, even if it had been before the Tribunal, it hardly provided a satisfactory excuse for the appellants’ tardiness in making their protection visa applications. Moreover, this condition was not mentioned to the Tribunal. Further, before me it has also sought to be deployed to corroborate the appellants’ version that the second appellant was assaulted in 2012 when they returned to India. But this material does not on its face support an injury caused by an assault. Rather it refers to a disease.

(b)    Second, the marriage certificate of the second appellant’s brother was not before the Tribunal but the appellants’ excuse for not putting it before the Tribunal was tenuous to say the least. Moreover, there was a belated effort before the primary judge and myself to seek to deploy this in an attempted merits challenge. But in my view none of this was permissible or established any jurisdictional error on the part of the Tribunal. Further, I would note (T13 and T24) that the reason for the return to India as advanced by the appellants to the Tribunal related to their son’s first birthday.

(c)    Third, the appellants sought to deploy 2016 certificates from various health professionals including a psychiatrist and a psychologist referring to the first appellant’s condition in 2016. But none of this could establish any jurisdictional error on the part of the Tribunal.

Other matters

32    It is appropriate that I say something briefly about some of the other submissions put to me to the effect that the Tribunal had erred.

33    First, the appellants have taken issue with the fact that the Tribunal’s reasons did not set out all of the evidence or the appellants’ submissions put to the Tribunal. But having now reviewed the transcript, I consider that the reasons fairly reflect the evidence of the first and second appellants and what was put. Further, I would note the observations in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 and 272 generally in terms of avoiding an over-meticulous analysis and parsing of the reasons and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [62] to [75] specifically concerning any so-called “duty” to make findings. I do not consider that the Tribunal’s reasons, by the absence of reference to all of the appellants’ evidence and propositions, reflect any failure to take account of a relevant consideration or, for that matter, disclose any other jurisdictional error. Moreover, the Tribunal was not required to refer in detail to every piece of evidence advanced by the appellants in support of their claims. No line by line refutation was required.

34    For example, the appellants made reference to the fact that the Tribunal did not make reference to their evidence concerning bruises/stitches. But in the circumstances where the Tribunal had rejected their evidence concerning the attacks (see at [78] for example), there was no need to make reference to the further detail given the implicit rejection of the detail by the explicit rejection of the incident(s).

35    Second, the appellants have asserted that the Tribunal was somehow bound to identify deficiencies in their evidence and to then advise them of how they could be rectified. For example, it was suggested that the Tribunal should have advised them to obtain the brother’s marriage certificate or medical evidence supporting their version of what happened in 2012. But there was no such duty on the Tribunal.

36    Third, at the first hearing before me the appellants suggested that they had requested before the Tribunal an opportunity and a consequent adjournment to obtain documentary material to support their case. But the transcript of the Tribunal hearing reveals that they made no such request. Indeed, the Tribunal at the hearing on 5 March 2015 expressly invited them to put what they wanted to in terms of documentary material and they at no stage indicated that they wanted the opportunity to put further material.

37    Fourth, it was said somehow that the Tribunal had sought to shut out the appellants from giving evidence of their depression as an excuse in and after 2012 for not applying promptly for the protection visas when they returned to Australia from India in 2012. But from my review of the transcript, there is no substance to that complaint. I would also note that there appear to be conflicting versions given by the appellants for their tardiness: (a) problems with a migration agent; (b) depression; (c) a suggestion that either or both of the first and second appellants did not know what a protection visa was in early 2012 or that they could have applied for one in March 2012. I have reviewed the transcript which suggests that the second appellant had less knowledge than the first appellant on this aspect. But it is well apparent that the first appellant in giving evidence before the Tribunal did not give as an excuse for the delay any such absence of knowledge.

38    Fifth, in the first hearing before me the appellants asserted that bias was displayed by the Tribunal in comments made during the course of the hearing. But on reviewing the transcript, in my view there is not a scintilla of material to support that assertion.

39    Finally, the Tribunal, from my review of the transcript, fairly put to the appellants its concerns as to the reliability of their versions of events. The Tribunal was concerned by:

(a)    information in its possession suggesting that they had lived together after their marriage with one of the families;

(b)    information that at least one of the families had funded the studies in Australia;

(c)    their visit to India at the start of 2012 and that they had stayed with one of their families;

(d)    the conflicting evidence of why they returned to India in 2012; and

(e)    their substantial delay in applying for the protection visas and the conflicting reasons given for such delay.

40    All of this was considered by the Tribunal to be inconsistent with the risk of harm asserted by the appellants. The appellants’ principal complaint involves little more than a merits challenge. The Tribunal was not obliged to uncritically accept evidence of or submissions made by the appellants. Further, a finding on credibility is the function of a primary decision maker par excellence. Moreover, questions of the weight of the evidence or particular aspects thereof were a matter for the Tribunal and not amenable to judicial review (MZARJ v Minister for Immigration and Border Protection [2016] FCA 1303 at [30] and [31]). Finally, there is no legal unreasonableness or irrationality established in relation to the Tribunal’s reasoning process.

CONCLUSION

41    None of the appellants’ grounds of appeal have been made good. Their appeal will be dismissed with costs.

Associate:

Dated: 30 June 2017