FEDERAL COURT OF AUSTRALIA

CM117 v Minister for Home Affairs [2019] FCA 1193

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent 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

GREENWOOD J:

1    This proceeding concerns an appeal from the whole of the judgment and all of the orders of the Federal Circuit Court of Australia (“FCCA”) given ex tempore on 16 February 2018: CMI17 v Minister for Immigration & Anor [2018] FCCA 575. On that date, Judge Jarrett (“the primary judge”) dismissed the appellant’s application for judicial review (in which she sought the issue of the constitutional writs) of a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 15 May 2017. The primary judge also awarded costs against the appellant in the sum of $7,328.

2    The appellant applies to this Court for orders that the decision “of [the] AAT and the [the] [F]ederal [C]ircuit [C]ourt” be quashed. Because of the operation of Part 8 of the Migration Act 1958 (Cth) (the “Act”), the appellant must identify jurisdictional error on the part of the decision-maker in order to succeed with her appeal: see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3    In her notice of appeal, the appellant provides three grounds of review:

Grounds of appeal

1.    I am the Applicant and I am authorised to make this affidavit.

2.    There is jurisdictional error in the tribunal[’s] judgment.

3.    Tribunal member in his decision stated in the paragraph 65, 66, 67 the reason which tribunal considered for the decision.

“The applicant told the Tribunal that her mother and sister were attacked by her brother and she provided photos, an FIR dated 31 December 2016 and medico legal reports as evidence of the attack on 31 December 2016. The applicant also told the Tribunal that this attacked was “unexpected”. However, the applicant’s witness told the Tribunal that the applicant’s mother and sister were attacked on two prior occasions when she had visited India and that both of these attacks were prior to the applicant’s interview with the department in relation to her protection visa application in November 2016. The applicant did not tell the department or the Tribunal about either of these earlier attacks and the Tribunal does not accept the applicant’s explanation for this inconsistency that she was unaware of these incidents and her mother, sister and her witness kept this information from her until the Tribunal hearing due to her claimed stress and/or depression. As set out below, in the absence of any medical evidence, the Tribunal is not satisfied that the applicant suffers from any medical condition.

The Tribunal notes the applicant’s claim that she suffers from stress and depression and she was unable to remember details in the relatively recent past due to stress. She also claimed that this is also the reason why her mother, sister and her witness did not tell her about two previous attacks by her brother on her mother and sister. Following the Tribunal hearing, the applicant provided a statement from Bernice Chong, Psychologist, dated 26 February 2016 relating to the nature of the applicant’s relationship with her husband. The Tribunal notes that Ms Chong states that the applicant and her husband requested the “support letter with comments on the nature of their relationship” and that “both David and Amanpreet presented with current significant distress” which was attributed to Amanpreet’s visa situation and their pending physical separation. The Tribunal also notes that Ms Chong stated that “David has also mentioned their facing difficulties from his family accepting Amanpreet due to differences in culture and religion” but Ms Chong makes no reference to any reciprocal concern for Amanpreet in relation to any non-acceptance of her husband.

While the Tribunal accepts that the applicant was distressed about her visa situation more than one year ago following her partner visa refusal, the applicant did not provide the Tribunal with any evidence to support her claim of depression and stress or that she suffers any medical condition that compromised her evidence to the department or the Tribunal. In addition, the applicant told the Tribunal that it is one or one and a half years since she saw a counsellor and she is not on any medication. The applicant also told the Tribunal at the start of the Tribunal hearing that she was not aware of anything that would impact her ability to give evidence and answer the Tribunal’s questions. In her response to the Tribunal’s invitation to a hearing dated 5 April 2017, the applicant also answered ‘no’ to the question of whether there was any issue that may affect her ability [to] take part in the hearing (including health problem or disability). On this basis, the Tribunal does not accept that the applicant suffers from any condition that compromised her evidence to the Tribunal. As outlined above, the Tribunal does not accept that the applicant’s mother, sister and witness did not tell the applicant information relating to attacks on her sister and mother due to the applicant’s stress.”

Tribunal asked itself wrong question. First tribunal says that applicant [does not] have any medical issues while as in the second paragraph itself it says that it notes [t]here is [a] psychologist letter stating that Amanpreet and her Husband are in distress. Tribunal noted the letter but failed to put weight on the fact that when applicant is in distress about a situation and situation still continues [then] certainly applicant is distressed now. When a person goes through [tough] time and distress certainly it impacts the memory as I was not in a situation to remember everything. Thirdly tribunal is relying on “applicant saying ‘no’ to question whether there was any issue that may affect her ability to take part in hearing (health problems or disability)”. This question is in reference to that if there is some health issues that prevents her from attending the hearing (take part in hearing). I was able to attend the hearing and my stressful life and weak memory did not prevent me from attending it. Tribunal made some wrong meaning of this question and made error in decision.

“The Tribunal also notes that it would appear that the applicant’s mother and sister did not mention any previous attacks to the police given there is no reference to two earlier attacks in the FIR document provided by the applicant which reported the 31 December 2016 attack. The FIR document is not on any official letterhead and in light of the Tribunal’s concerns outlined above regarding the credibility of the claim that the applicant’s mother and sister have been attacked as well as country information regarding the prevalence of document fraud, the Tribunal finds the FIR document dated 31 December 2016 to be fraudulent”.

I [do not] understand what kind of logic tribunal member applied here. I have provided them [with] the copy of FIR [in] the way [it’s] been provide at my place. I told Tribunal officer that they can call police station to make enquiries to check it at his level. If tribunal member had any concern regarding produced document he should have made relevant [enquiry] about it and got it checked by calling police department or through Australian [H]igh [C]ommission in India. Surprisingly tribunal member relied on “country information regarding the prevalence of document fraud” to make decision this is wrong. This means that there are [a] lot of refugees from Africa so all Africans should be refugee or there are [a] lot of extremist[s] in Syria so all Syrian[s] are extremist[s]. Member made absurd logic to come on conclusion. There is jurisdictional error in the decision.

I had applied in Federal [C]ircuit [C]ourt but respected judge failed to find jurisdictional error in judgment. Tribunal made grave jurisdictional errors in the decision. Tribunal asked itself wrong questions and did not put enough weight on right evidences.

4    As the appellant is self-represented before this Court (and, indeed, was self-represented before the Tribunal and the FCCA) it falls to this Court, exercising appellate jurisdiction, to examine the appeal record and form its own view as to whether the decision of the primary judge is correct and determine, within the boundaries of the grounds of appeal and claims raised before the Tribunal and the FCCA, whether the Tribunal took a course that caused it to fall into an error of jurisdiction: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [20] and [30].

5    Accordingly, it is necessary to set out aspects of the procedural background to this proceeding.

Background

6    The appellant was born on 1 February 1984 in Punjab State in India. She arrived in Australia on 1 December 2008 on a higher education student visa (TU-573), granted offshore on 26 November 2008.

7    On 26 August 2011, a subsequent application for a further student visa (TU-572) was refused.

8    On 28 June 2012, the appellant applied for a Combined Partner visa (UK 820/BS 801) and was granted an Associated Bridging visa (WC-030). The application for a Combined Partner visa was refused on 28 August 2013. The review process pursued by the appellant with respect to the Combined Partner visa led to affirmation of the decision to refuse the visa on 19 May 2015.

9    On 15 June 2015, the appellant requested Ministerial Intervention, which was refused on 29 January 2016 on the grounds that it was “Inappropriate to Consider”.

10    The appellant was granted a number of Bridging visas (WE-050), the last of which expired on 16 March 2016. It was on this date that the appellant applied for a Permanent Protection Visa (class XA, subclass 866) (“PV”). On 17 March 2016, the appellant was granted a Bridging visa (WE-050) in association with the PV application.

11    In her application for a PV, the appellant listed her nationality as “Sikh”, her occupation as “unemployed” and listed four family members, apart from her husband. These family members were her mother, father, sister and brother.

12    As to the appellant’s reasons for claiming protection, the appellant provided the following answers:

Give reasons to Question 89 to 96 in relation to all countries against which you do not wish, or cannot return to.

89    Why did you leave the country(s)? Provide specific details

I came to Australia with my Husband. HE was a student

90    What do you think will happen to you if you return to that country(s)?

I will be killed

91    …

92    Did you seek help within the country(s) after the harm?

No     Give reasons for why you did not try to seek help

This problem was not there when I was there. I was earlier married to a Sikh man. I got divorced to him and now I am married to a Christian. [I]f I go back then Authorities will do nothing about my [complaint] as inter religion marriages is social taboo and may other people are been killed in past and police or authorities [didn’t] do anything about it.

93    Did you move, or try to move, to another part of that country(s) to seek safety?

No     Give reasons for why you did not try to move to another part of the country(s)

Even if I try to move to any other part these people will hunt me down and kill me so no one else in community ever dare to do inter religion marriage.

94    Do you think you will be harmed or mistreated if you return to that country(s)?

No

Yes     Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you).

I am married to a Christian [man] and being a [S]ikh woman if I am married to a person from different faith then I would be killed. Sikhs marrying in inter [religion] or caste have been killed in past as well. It is a social taboo to marry with someone of another religion. I will be killed by extremist [S]ikhs.

95    Do you think the authorities of that country(s) can and will protect you if you go back?

No     Give details about why you think the authorities could not, or would not, protect you

As mentioned earlier that marrying inter religion in our place is social taboo and prohibited. In past many couples have been killed by community member as they got love marriage with person from different faith or religion. Police did not do anything in those cases. I believe they will not do anything in my case as well.

96    Do you think you would be able to relocate within that country(s)?

No     Give details about why you are unable to relocate

It[’s] easy for people to find me out and kill me. They would do this to teach anyone a lesson that if anyone else dares then they will meet same fate as myself.

13    On 24 November 2016, the appellant attended an interview in relation to the application for a PV. A transcript of that interview has not been reproduced in the Appeal Book prepared by the Minister. However, an email from the Department of Immigration and Border Protection (the “Department”) to the appellant on 24 November 2016 seeking further information about matters raised in the interview is before the Court. From that email, it seems clear enough that in addition to the matters specified by the appellant in her answers to questions posed in the PV application form, the appellant also raised in the interview on 24 November 2016 that she feared harm from her brother because he is not happy with the equally divided inheritance from the death of her father. The Department asked the appellant to provide information with respect to that further claim within seven calendar days.

14    On 30 November 2016, the appellant wrote an email to the Department with the subject line “Evidence” and listed nine hyperlinks to news articles published in the Indian Express concerning reported instances of so-called “Honour killings”.

15    On 13 December 2016, the Department wrote to the appellant and informed her that the Department had refused her application for a PV. In short, the delegate found that the appellant did not satisfy s 36(2) of the Act, that is, that she was not a non-citizen in respect of whom Australia has protection obligations.

16    Attached to the letter notifying the appellant of the delegate’s decision to refuse the application for a PV is a 12 page statement of reasons explanatory of the decision. The delegate sets out the following:

SUMMARY OF PROTECTION CLAIMS

The applicant’s detailed written claims are on the Department of Immigration and Border Protection (department) file CLF2016/17336 from folios 23-25. The applicant’s written claims are summarised below:

•    She claims that she would be killed in India.

•    She claims that she had previously [been] married to a Sikh man. She claims that she divorced her first husband and has since married a Christian man.

•    She stated that if she went back to India, authorities would [not] provide protection as inter-religion marriage is a social taboo and many other people have been killed in the past and police or authorities did not do anything about it.

•    She claims that even if she tried to move to another part of India, people would hunt her down and kill her; no one else in community would ever dare to marry someone outside of their religion. She claims that it is easy for people to find and kill her.

The applicant was interviewed over the phone on 24/11/2016. At the interview she provided, among other things, the following information:

•    She stated that she could not return to India because she married outside of her caste and also because her husband was from Sudanese background.

•    She stated that her family approved of her marriage but her relatives and the society did not. She stated that she and her husband could be killed in India by relatives and/or the society.

•    She stated that her father passed away in March 2014 following which her mother divided the family property and the land equally amongst her, her sister and her brother. She stated that her brother was not happy that the property/land was divided equally. She stated that [she] feared that her brother would harm or kill her.

•    She stated that she completed [a] Bachelor of Arts in India. She stated that she also completed a Diploma in Aged [C]are in Australia.

•    She stated that she is fluent in Punjabi and Hindi and also speaks good English.

•    When asked how she found out about lodging PV, she stated that when she was upset about her status in Australia, she discussed with her friends about how she could remain in Australia. She stated that she also did some online research. She stated that her friends suggested that she could lodge PV if she really did not want to go back to India because of the risks.

•    She stated that she has not experienced any harm in India.

17    The delegate then went on to consider what were perceived to be the two key claims advanced by the appellant: the “land/property dispute claim” and the “inter-racial marriage claim”.

18    With respect to the land/property dispute claim, the delegate summarised the essential contention that upon her father passing away in March 2014, the appellant’s mother divided the property equally amongst the three children. The appellant claimed that her brother “was not happy” about this and said it was common for families in India to fight over property. The appellant claimed that she had not spoken with her brother since the first week of January 2016 when she says they engaged in a conversation about the property distribution in which the appellant’s brother got angry. The appellant said that her mother and sister have told her that they have received threats from the brother. However, the delegate notes that no “documentary evidence” has been provided to support of the claim.

19    The appellant says that her mother and sister were still receiving threats which involved aggressive statements seeking to force the land to be transferred to him. Through questioning, the appellant explained that her brother still lived with her mother and sister and that he was seeing lawyers concerning the property matters.

20    The delegate ultimately concluded that the appellant’s testimony on this matter was “vague, inconsistent and unsubstantiated” with particular reference being made to the appellant not providing any evidence despite being given seven days to do so and the appellant not including these matters in her PV application. With respect to that latter matter, the appellant explained that she had not included details of the property matters because the issue “did not exist” at the time of her PV application. As the delegate observes, this is not the case as she applied for a PV on 16 March 2016 and conversations concerning the property transfer occurred in January 2016.

21    As to the inter-racial marriage claim, the appellant says that “her family” is aware of and supports her marriage to a man who is an Australian citizen from a Sudanese background (referred to by the colour of his skin by the appellant in the interview). However, the appellant said that “her relatives” and “Indian society” would not accept the marriage. The appellant defined “relatives” as her mother’s sisters, cousins and “close relatives”. When asked about what would happen if she returned to India, the appellant said that “they” might kill her and her husband. The appellant clarified that she was referring to her brother as well as her relatives and to society, which she said would not accept her. The appellant said she had not spoken to her “relatives” since her marriage but knew that they did not approve and she based her concern of societal rejection on the articles concerning “honour killings”.

22    The delegate referred to the appellant’s characterisation of her marriage as an “inter-caste marriage”. By reference to a Department of Foreign Affairs and Trade (“DFAT”) “Thematic Report” of 7 December 2016, the delegate noted that a caste refers to a system of social stratification which separates communities into hereditary groups and, as the appellant says that her marriage is not accepted because of the colour of her husband’s skin, the claim more properly is characterised as one relating to an inter-racial marriage.

23    The appellant somewhat confusingly referred to her husband as a “Christian Muslim”. The delegate referred to and relied upon this confusing duality in deciding that he/she could not be satisfied that the appellant’s claimed fear of harm is due to inter-religion marriage.

24    The delegate made the following findings:

•    I find that the applicant married a man from a different race to her own.

•    I find that the applicant has a subjective fear of harm in India because of her marriage to her husband who is from a Sudanese background.

•    I find that the applicant has not been harmed or received threats from her relatives in relation to her marriage.

25    The delegate then referred to Australia’s protection obligations under ss 36(2)(a) and 36(2)(aa) of the Act. The delegate considered whether, if the appellant was returned to India, there is a real chance that the appellant would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The delegate was not so satisfied.

26    In considering that matter, the delegate had regard to a DFAT Country Information Report which said that India is a secular and multi-ethnic country whilst acknowledging that there exists social pressure in India to marry intra-caste and that honour killings remain a problem in Punjab, Uttar Pradesh and Haryana. The delegate was not satisfied that there was a real chance that the appellant would be persecuted because of her marriage to her Sudanese husband for the following reasons (summarised from the delegate’s statement of reasons):

(a)    the appellant did not lodge her PV application until 16 March 2016, despite having been married (the source of her fear of returning) on 18 April 2012 and provided no satisfactory explanation of the delay;

(b)    when the appellant appeared before the Tribunal on 12 May 2015 in relation to her partner visa application the appellant stated that she had no problem returning to India and did not provide a satisfactory explanation of the inconsistency;

(c)    the appellant, despite being counselled by Departmental officers about the possible need for her to depart the country and return to India, never raised concerns about her safety should she be returned;

(d)    returning to India is a safe and reasonable option as the appellant’s husband (as an Australian citizen) is free to return to Australia from visiting her.

27    The delegate accepted it as a plausible that the appellant may be subject to “some form of censure from her relatives and society” but was not satisfied that it can be concluded from the appellant’s testimony and evidence that there is a substantial basis upon which it can be found that a real chance of persecution exists. The delegate found that the appellant’s fear of harm is not well-founded and accordingly, the appellant is not a refugee within the premises of s 5H of the Act and the criterion in s 36(2)(a) is not satisfied for that reason.

28    The delegate then briefly considered the complementary protection provision in s 36(2)(aa) and, for the reasons referred to above, was not satisfied that the appellant, as a necessary and foreseeable consequence of being removed to India, would be exposed to a real risk of suffering harm.

29    Accordingly, the delegate found that the appellant is not a person in respect of whom Australia has protection obligations.

Application to the Tribunal

30    On 6 January 2017, the appellant applied to the Tribunal for a review on the merits of the delegate’s decision.

31    On 6 February 2017, the appellant provided by email to the Tribunal a number of documents. They consisted of a medical report (which is essentially unreadable), a series of photographs of a number of women with bruises and an elderly woman with a bandage wrapped around her hand. The appellant also supplied a document in English and Punjabi entitled “FIR”, which I understand stands for First Incident Report. These pieces of evidence are said by the appellant to demonstrate that her brother had attacked her sister and mother. The FIR and medical reports are difficult to decipher but appear to go to the same topic.

32    On 3 April 2017, the Tribunal invited the appellant to attend a hearing before it. On 5 April 2017, the appellant responded to that invitation and provided a contact number and confirmed that there were no health problems or disabilities that would prevent her from taking part in the hearing. In that response, the appellant also identified a friend as a witness whom she wished to give evidence at the hearing.

33    On 28 April 2017, the appellant again emailed the Tribunal with a message with the subject line “translation”. Attached to that email was a document with the words “Translation Punjabi to English” of a “Transfer Deed” for a “Mother in favour of Son and Daughters”. The document relates to the transfer of property of a certain address on 27 June 2016 to the appellant and 3 other people (the appellant’s siblings) in “equal three share[s]”.

34    Also on 28 April 2017, the appellant sent an email to the Tribunal with the subject line “documents”. Attached to that email is a number of documents entitled “Register Mutation” in Punjabi dated 7 July 2016 with a certified English translation, a document entitled “Legal Notice” dated 6 October 2016 served on SM Bricks regarding payment for a lease of land.

35    In a further email of 28 April 2017, the appellant provided an affidavit of her mother dated 28 April 2017 that deposed to, among other things, that her daughter is in a “[loving] marriage” with her now husband; that there are “several conflicts” in the family home concerning the appellant’s marriage; and that the appellant’s brother “threatened” the appellant and her husband with death should they return to India. The affidavit also refers to the property matters and says that as a result of those issues, the appellant’s brother had physically abused his mother and other sister. The appellant’s mother also deposes that the incident report was lodged with the police and it is authentic. The appellant’s mother also refers an incident that she alleges occurred in Australia when she and her other daughter were visiting the appellant.

36    On 28 April 2017, the appellant sent an email to the Tribunal enclosing a psychological report from Bernice Chong, a Brisbane-based Psychologist. Ms Chong notes that, in her professional opinion, the appellant and her husband evidence a genuine and continuing relationship and that each commented that they “could not live without each other” and that they have a “deep physical, mental and emotional attachment”. Ms Chong concluded that the appellant and her husband have a genuine and continuing relationship and their separation through the appellant’s return to India would have a “significant negative impact on their mental, emotional and functional wellbeing”.

37    In a further email dated 28 April 2017, the appellant provided a Statutory Declaration of the appellant (although unsigned and undated), and a “Witness Statement” on Queensland Police Service (“QPS”) letterhead, also unsigned and undated. In the Statutory Declaration, the appellant says that her mother and sister were assaulted in “[N]ovember” (which I assume to mean November 2016), and did not inform her (the appellant) to avoid “stress[ing]” her and the appellant says that her mother and sister have been subject to two previous attacks. The email also attaches the QPS Witness Statement concerning an alleged offence that occurred on 17 July 2016. In the QPS statement, the appellant says that she was assaulted on 17 July 2016 by a person she says she knows. The appellant says that the alleged offender punched her in the face and neck 10 or 15 times. She says that the alleged offender (and it is not necessary to name the offender in these reasons) made comments which led the appellant to believe that this person would cause harm to her sister and mother when the offender returned to India.

38    On 16 May 2017, the Tribunal notified the appellant that the Tribunal had decided to affirm the decision under review. The Tribunal annexed a decision record with a statement of reasons explanatory of its decision.

39    In its decision the Tribunal summarised the appellant’s claims as follows:

Claims

17.    The applicant’s claims, sourced from her protection visa application and evidence at interview as set out in the delegate’s decision record provided to the Tribunal by the applicant, can be summarised as follows:

•    The applicant will be killed by extremist Sikhs if she returns to India.

•    The applicant was previously married to a Sikh man and she claims she divorced her first husband and has since married a Christian man.

•    She claims that “inter religion marriages” are social taboo and many other people have been killed in the past and police or authorities didn’t do anything about it.

•    Even if she tried to move to another part of India, people would hunt her down and kill her, no one else in the community would ever dare marrying someone outside of their religion.

•    The applicant claims it is easy for people to find her and kill her.

•    The applicant stated at interview that she could not return to India because she married outside of her caste and also because her husband was from Sudanese background.

•    She stated that her family approved of her marriage but her relatives and the society did not. She stated that she and her husband could be killed in India by relatives and/or the society.

•    The applicant also stated at interview that her father passed away in March 2014 following which her mother divided the family property and the land equally amongst her, her sister and her brother. She stated that her brother was not happy that the property/land was divided equally. She stated that she feared that her brother would harm or kill her.

•    The applicant stated that she completed a Bachelor of Arts in India and she also completed a Diploma in Aged Care in Australia.

•    She stated that she is fluent in Punjabi and Hindi and also speaks good English.

•    When asked how she found out about lodging PV, the applicant stated that when she was upset about her status in Australia, she discussed with her friends about how she could remain in Australia. She stated that she also did some online research. She stated that her friends suggested that she could lodge PV if she really did not want to go back to India because of the risks.

•    The applicant stated that she has not experienced any harm in India.

40    The Tribunal was satisfied on the basis of information provided that the appellant is an Indian national.

41    Before the Tribunal, the appellant confirmed that her claims for protection relate to her marriage and a property dispute with her brother.

42    When asked by the Tribunal, the appellant confirmed that she feared returning to India because her relatives and society do not accept her marriage because it is “out of caste”. The appellant said that her family accepted the marriage but in relation to her “relatives” they think she should marry a Sikh. The appellant clarified that by referring to “relatives” she was referring to her maternal aunt and uncle. The appellant gave evidence that she first developed her fear about returning because of her marriage in April 2012 when her mother told her that “[as] she was getting married ‘out of caste’ [she] should not come back to India”. Upon questioning by the Tribunal, the appellant said her “relatives” had said that she should not return to India when asked if she had been threatened.

43    When asked by the Tribunal concerning what she meant by “caste” the appellant said that she was a Jat Sikh and that her husband was a Sudanese Christian. The Tribunal’s reasons note that the appellant referred to her husband as a “black guy”. The appellant said, in answer to a question about why she thought she and her husband would be targeted, that there were “a lot of cases” where Punjabi people married Hindus and were killed. The appellant said that her mother had told her that her parents had been told by “relatives” that they would kill her and her husband and, since the time of the marriage, they have also said that the appellant and her husband ought to get divorced, and, again, that they will kill her if she returns.

44    When asked by the Tribunal about threats to her safety, the appellant said that she had never received any threats from her relatives and had never been harmed by them. The Tribunal then asked the appellant why she had not told the delegate about threats made against her. She explained that she did mention, to the delegate, that she was afraid of her relatives and that threats made against her were relayed to her through her parents. The appellant said that she sometimes could not remember things because she is “under a lot of stress and she is depressed”. She said she used to see a counsellor one to one and a half years ago. The Tribunal noted that the appellant would need to provide medical evidence to support her claim that she suffers from a condition that affects her memory.

45    The Tribunal then asked the appellant to address the question of why she did not include in her PV application claims of threats to kill her. The appellant said that she did not mention the conduct of her relatives because she had referred to “society” and thought that this included her relatives. The Tribunal also asked the appellant to explain why, if she was married in 2012 and her fear of returning to India hinged upon that date, it took her four years to apply for a PV. The Tribunal said that this delay could lead to doubts about the appellant’s credibility. In answer to these concerns, the appellant said that she thought she would be able to stay in Australia and it was only when her other visa applications were declined that she knew that she could not go back to India.

46    The Tribunal also noted that, before a differently constituted Tribunal, the appellant had said in May 2015 that she had no problem returning to India. The Tribunal noted that this was inconsistent with the appellant’s claims that she feared for her life should she be required to return to India. The appellant said that, in May 2015, she had thought her visa application would be accepted and that she would not have to return to India.

47    The Tribunal also noted that the appellant was contacted on a number of occasions by departmental compliance officers between June 2015 and December 2015 whilst her Ministerial intervention request was ongoing in order to alert her to the fact that she should be prepared for possible departure from Australia as it was “highly unlikely” the Minister wold intervene. However, the appellant did not raise any safety concerns with these officers. The appellant explained that she thought that her case would not be refused.

48    The Tribunal also referred to the appellant’s description of her fear as a fear relating to religion rather than issues relating to “caste”, and the Tribunal enquired whether she was also fearful of returning to India on the basis that she is Sikh and her husband is Christian. The appellant said she was concerned about this too and that, because of the colour of her husband’s skin, she was fearful of harm to him as “people don’t like black people”.

49    The Tribunal then referred to DFAT Country Information for India dated 15 July 2015 from which the Member noted that India is officially a secular and multi-ethnic country and, whilst there is significant social pressure for individuals to marry within their own case and/or religion and that honour killings do occur, the Tribunal referred to five factors that would cause the Tribunal to conclude that the appellant does not face a real chance of serious harm or a real risk of significant harm on account of her marriage. These factors were:

•    The applicant’s family support the marriage.

•    There does not appear to be any specific threats against the applicant.

•    The applicant said she has held this fear since her marriage in 2012 but did not apply for a protection visa for almost 4 years.

•    The applicant told the Tribunal in 2015 that she had no problem returning to India.

•    The applicant had multiple opportunities to raise her concern about returning to India throughout her partner visa application process but did not do so.

50    In response, the appellant said that she thought that her partner visa application would not be refused and she thought that she would not be returned to India; that when she was told she would have to return to India, she did not have a problem with returning but would have to take her husband with her as he could not stay in Australia without her due to depression. The appellant emphasised that she cannot go back to India because if she does return, her husband will have to go with her and, in those circumstances, they both fear for their lives.

51    The Tribunal also asked the appellant why her husband was not attending the hearing. The appellant answered that she thought she had to come alone. The Tribunal said that it had difficulty accepting this answer having regard to the fact that she brought a friend with her (although, of course, the friend was going to be a witness).

52    The Tribunal then turned to the question of why the appellant feared returning to India having regard to the matters related to her brother and the property dispute. The appellant essentially said that her brother “wants everything” in his name and, as a result, her brother has fought with the appellant’s sister and mother leading to the appellant’s fear of harm should she return.

53    The Tribunal asked the appellant about the circumstances of the property dispute. In particular, the appellant explained that when her brother realised he would not get “everything”, he attacked the appellant’s mother and sister with a hockey stick. They lodged a police report. The appellant explained that her brother used to live in the house with her mother and sister but has since moved out of the house, although he continues to be threatening. The appellant said she had provided the Tribunal with all documents relating to the injuries to her mother and sister, the FIR, medical report and documentation concerning the division of property. The Tribunal noted that it had not received any document regarding the division of property. The appellant said she would provide documents relating to that issue by the day after the hearing.

54    The appellant informed the Tribunal that she was not sure when the property division occurred, but thought it “was around February or March 2016”. The appellant said that “the issues” began in January 2016 and around 1 January to 2 January 2016, the appellant’s brother “asked for someone to come over” to convince her mother not to divide the property but to give it all to him. The appellant said that arguments then continued over the subsequent months.

55    The appellant explained to the Tribunal that her brother moved out of the home in which her mother and sister lived after he attacked them and because of the FIR. The appellant said that her sister-in-law convinced him to move out of the house and although she did not know why he did so, the appellant thought it might have been so that his mother would convince him to stay by agreeing to his demands.

56    The Tribunal then explained that it had asked the appellant what she fears in relation to her brother. The appellant said that her brother wants her to give “him her share [of the property]” and that he “could attack her” (on the basis of his alleged conduct against her mother and sister). The appellant explained that it is “normal” in India for family members to be killed for property and that “sons kill their fathers”. The appellant informed the Tribunal that she last spoke to her brother in January 2016, when he asked her for her share of the inherited property and she refused.

57    The Tribunal clarified with the appellant the following timeline with respect to the appellant’s claims:

•    In January 2016, she last spoke to her brother, he asked for the land and she said no.

•    In February or March 2016, the house was divided and there was talk of dividing the land and her brother said it should not be divided that way but the land was actually divided later. The income they used to receive from the land should have gone to her mother but her brother kept it.

•    The applicant was not sure when the land was actually divided as she had just received the paperwork. Before her interview with the department, she found out about the land but she did not receive the paperwork until after.

58    The appellant explained to the Tribunal that she was not sure whether she sent evidence to the Department about her property ownership after the delegate’s decision to refuse her visa because she sent it to the Tribunal. The Tribunal put to the appellant that her account is “vague and confusing” and that the Tribunal “did not understand” why the appellant last spoke to her brother in January 2016 regarding the land division when the division did not occur until February or March 2016. In answer, the appellant said that the land was to be divided in four names and that her brother did not know their mother had already divided the house in three names.

59    The Tribunal also put to the appellant that her account of the property dispute provided to the Tribunal is inconsistent with that provided to the delegate. It is said to be inconsistent because the delegate’s decision record notes that the appellant says that she became aware of the property division in July or August 2016, whereas she informed the Tribunal that she became aware of it in January 2016. The appellant explained that she struggled to remember dates. The Tribunal accepted that it can be difficult, but said it had concerns about her inability to remember “general timeframes” for “recent history”.

60    The appellant explained to the Tribunal that she did not include details of the dispute in her PV application because she did not know that “it would get so out of control”.

61    The Tribunal asked the appellant about the document relating to the property distribution, which the appellant had not provided. The appellant said that the document shows that the house was divided into three names and the land was distributed into four names. It was said to be a document issued through the courts and it is an official land register. The appellant was not able to say how much land she owns (although she said the total amount of land divided was six of seven “kille”, which the Tribunal researched to be about six to seven acres). The appellant also could not say how much her share of the income generated from the land amounted to, but said that she was happy for the income to go to her mother.

62    The Tribunal raised, in respect of this document, further concerns about the inconsistencies in the appellant’s account. The appellant said that it was the stress of her mother and sister being attacked and due to “all the stress and the depression” that meant she had difficulty remembering events. The Tribunal noted that it required medical evidence to that effect to assist in establishing whether that claim was credible.

63    The appellant said that after the FIR was lodged with police, the police told her mother and sister to “be alert”. When the Tribunal referred to the FIR and said that it was hand written and not on any official police letterhead, the appellant said that the Tribunal could call the police station to confirm that she had provided all the evidence about the incident and that the document is not false or manufactured. The Tribunal referred to DFAT country information that states that the manufacture and use of fraudulent documents is prevalent in India. The Tribunal explained to the appellant that having regard to the Tribunal’s concerns regarding her claim; the unofficial nature of the FIR document; and the country information considered by the Tribunal, the Tribunal would need to consider how much weight to attribute to the document.

64    The Tribunal said that it had “some concerns” about the plausibility of the appellant’s brother moving out of the house as a way to change her mother’s mind about the property distribution. The appellant said that her sister-in-law convinced her brother to move out because the police were coming to the house. The Tribunal noted that the police appeared to have acted quickly with respect to the matters the subject of the FIR. The Tribunal noted that it had to consider whether the appellant faces a real chance of serious harm of a real risk of significant harm, which is not satisfied by a remote chance.

65    The Tribunal then considered the evidence of a witness who accompanied the appellant to the hearing. The witness told the Tribunal that she had visited India on 22 October 2016 and that, during her stay, she visited the appellant’s family and was present on the day that the appellant’s brother attacked the appellant’s mother and sister with a hockey stick. The witness said that she thought this attack occurred on 2 November or 3 November 2016 in the morning and the witness visited the house at around 3.30pm that afternoon.

66    The witness said that she was in India for five weeks and the appellant’s brother attacked the appellant’s mother and sister twice during that time. The second time was approximately one week prior to the witness leaving India. The appellant’s sister told the witness about this attack and said that her brother had hit her “badly”. The appellant’s sister told the witness that she could not travel in order to avoid revealing her bruises. The witness said that the appellant’s mother and sister then went to the police after the third attack.

67    The witness explained that she did not believe that the appellant wanted to remain in Australia “for the money” as she had property in India. The witness said that because the appellant’s husband is Sudanese, the appellant could not leave her husband in Australia and, should he accompany her to India, he would experience racism.

68    Pursuant to s 424AA of the Act, the Tribunal put the following particulars to the appellant:

•    Ms Dabra claimed that the applicant’s mother and sister were first attacked by the applicant’s brother around 2 or 3 November 2016 and there was a second attack a couple of weeks later.

•    It would appear that both of these attacks occurred prior to the applicant’s interview with the delegate on 24 November 2016 but the applicant did not mention either of these incidents to the delegate.

•    The applicant did not raise either of these incidents with the Tribunal during the hearing despite having spoken at length about the claim and the applicant had also referred to the one incident she had discussed as being “unexpected”.

•    The FIR provided by the applicant which provides an account of the incident the applicant had referred to does not mention anything about two previous attacks.

69    The Tribunal said that it outlined the inconsistencies in the appellant’s claims because the inconsistencies could cause the Tribunal to doubt the credibility of the claim that the appellant fears her brother due to a property dispute or that her sister and mother had been attacked by her brother.

70    The appellant did not seek additional time to respond and said that she was only made aware of the previous attacks on her sister and mother when the witness told the Tribunal. Otherwise, she said she was only aware of the third attack and that when the other attacks had been mentioned by the witness she had felt dizzy and an adjournment of the hearing was needed. The appellant said that the witness knew her family well which is why she knew about the other attacks.

71    The Tribunal explained that it may have difficulty accepting that the witness knew the appellant’s family well when the appellant was unaware of two previous attacks. The appellant explained that “they” (presumably, the witness and the appellant’s family) had not told her about the other assaults because they were worried she would be stressed.

72    The Tribunal, following the hearing, listened to the appellant’s interview with the Department on 24 November 2016 and was satisfied that the delegate’s account of the appellant’s interview is accurate.

73    From paras 57-61 of the Tribunal’s reasons, the Tribunal sets out its approach to assessing whether it can be satisfied about factual contentions made by the appellant. Those paras are set out below.

57.    The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

… care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

58.    The Tribunal also accepts that “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt” (The United Nationals High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

59.    When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

60.    The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

61.    However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

74    At paras 62 and 66 the Tribunal sets out its findings on credibility. Paragraph 62 is set out below and para 66 is set out at [75] of these reasons.

62.    The Tribunal does not accept that the applicant is a witness of truth and does not accept her evidence about her problems in India, or her fear of returning to India as credible for the following reasons:

•    There are significant differences between what the applicant claimed in writing, what she told the Department and what she told the Tribunal (including a differently constituted Tribunal) which causes the Tribunal to consider her evidence lacking in credibility and unreliable.

•    The applicant’s evidence was vague and confusing and at times, her evidence evolved throughout the course of the Tribunal hearing.

•    In addition to the above concerns, the applicant’s witness provided contradictory evidence regarding attacks on the applicant’s family in India which contributes to the Tribunal’s finding that the applicant is not genuine in her claims.

75    At paras 64-71 (introduced by para 63) the Tribunal sets out the detail of the considerations leading to the views expressed at para 62. As to the appellant’s fear of returning to India due to factors related to her marriage, the Tribunal expressed the following considerations and conclusions at paras 64-66.

63.    The detail of the Tribunal’s findings and reasons are outlined below.

Fear of returning to India due to her marriage

64.    While the Tribunal has some doubts about the genuineness of the applicant’s marriage and whether they are still together, for the purposes of this review, it is prepared to accept that the applicant is married to an Australian citizen of Sudanese background.

65.    The Tribunal acknowledges country information that outlines significant social pressure for individuals to marry within their own caste and/or religion and that “honour killings” do occur in India. However, the Tribunal also notes that inter-caste and inter-religious marriages are legal in India and it does not accept the applicant’s claim that she (and her husband) will be killed or face a real chance of serious or significant harm if the applicant (or the couple) returns to India on the basis of this marriage as credible, for the following reasons:

•    The applicant has consistently said that her family supports the marriage. The Tribunal finds it difficult to accept that the applicant or her husband face a real chance of harm in India when the applicant’s immediate family accept the marriage. However, the Tribunal asked the applicant on a number of occasions who she feared in relation to her marriage and the applicant’s response was vague, generalised and inconsistent referring to “relatives”, and then a maternal aunt and uncle and society generally. The Tribunal also put to the applicant that in her protection visa application, she said she feared Sikh extremists and society but not relatives. The Tribunal does not accept he applicant’s explanation for this inconsistency that when she said “society”, she thought this included “relatives” and the Tribunal notes that the applicant never again mentioned Sikh extremists. The Tribunal is of the view that if the applicant had genuinely been threatened and/or held a genuine fear of named relatives, she would have said so in her protection visa application and she would have been able to articulate this with greater detail to the Tribunal. The Tribunal finds these accounts contradictory and lacking in credibility. In addition, the Tribunal is not satisfied that country information supports a conclusion that society generally will harm the applicant or her husband on account of their marriage and finds the risk of harm from society to be remote.

•    It follows that the Tribunal finds the applicant’s claim during the Tribunal hearing that she has been threatened by relatives to be lacking in credibility. The Tribunal is of the view that the applicant’s evidence in this regard evolved throughout the Tribunal hearing. As outlined in the delegate’s decision, when asked specifically by the department whether relatives (which the applicant had said were her mother’s sisters and cousins) had caused the applicant any harm or threats, the applicant said no, because she had not spoken to them since she was married when she was aware that they did not accept it. In addition, the affidavit from the applicant’s mother dated 28 April 2017, the day after the Tribunal hearing states that the applicant’s brother threatened the applicant and her husband that if they come to India he will kill them which was not mentioned by the applicant. The Tribunal finds these significant inconsistencies lacking in credibility and the Tribunal places no weight on the affidavit of Parmjit Kaur dated 28 April 2017.

•    The applicant was vague and confusing when referring to her fear based on her “out of caste” marriage. When the Tribunal asked the applicant what she meant by “out of caste”, the applicant said that she was Jat Sikh and her husband was Sudanese Christian. At other times throughout the Tribunal hearing, the applicant referred to her husband as a “black guy” and when the Tribunal raised its concern regarding the applicant’s reference to caste yet her description often related to their different religions, the applicant still referred to her husband being a “black guy” and that she is “Sikh Punjabi”. The applicant’s witness also referred to the applicant’s husband as Sudanese and raised associated racism in India. When considered alongside the Tribunal’s concern regarding the lack of any credible or plausible threat, the applicant’s inability to articulate the reason for why there is a risk of harm to her and her husband (inter-caste, inter-religion and inter-racial marriage) the Tribunal finds that the overall claim is lacking in credibility.

•    The applicant claimed to have held the fear of returning to India on the basis of her marriage since she was married in April 2012. However, the applicant told the Tribunal (differently constituted) in May 2015 that she had no problem returning to India. The applicant was also counselled by compliance officers at the department regarding her need to prepare to return to Indian between June-December 2015 and the applicant never raised any concern about returning to India. The Tribunal does not accept the applicant’s explanation that she was being positive that she would be able to remain in Australia given her partner visa application. The Tribunal is of the view that if the applicant held genuine fear for her life or the life of her husband, and had done for more than three years, that she would have raised this with the Tribunal or the department when provided with multiple opportunities to do so.

•    Similarly, the applicant did not apply for a protection visa for almost four years after she claims to have feared returning to India following her marriage in April 2012. If the applicant genuinely held the fears claimed, the Tribunal would have expected her to have lodged a protection visa application, or to have at least made enquiries of the department, shortly after her marriage and, as noted above, when provided with multiple opportunities to do so when discussing the possibility of returning to India with the department and the Tribunal.

66.    When these factors are considered together, the Tribunal finds the applicant’s claims in relation to her fear regarding her marriage to be completely lacking in credibility. Accordingly, the Tribunal finds that the applicant has not been threatened by any relatives, society or Sikh extremists regarding her marriage and neither she, nor her husband, face a real chance of serious harm or a real risk of significant harm in India on account of their inter-religious or inter-racial marriage.

76    As to the appellant’s fear of returning to India due to tension and fears relating to the property dispute , the Tribunal expressed the following reasons and conclusions at paras 67-71:

Fear of returning to India due to family property dispute

67.    The Tribunal does not accept the applicant’s claim that she faces a real chance of serious or significant harm if she returns to India on the basis of a property dispute with her brother as credible, for the following reasons:

•    The applicant’s account of the issues relating to the property division and her brother were vague, confusing and inconsistent with the account the applicant provided to the delegate as set out in the delegate’s decision record. Firstly, the Tribunal is not persuaded that the applicant and her brother were talking about her giving him her share of either or both the property or the land prior to any property division. It does not follow that the applicant and her brother spoke for the last time over her refusal to give him “her share” of something she did not have. Secondly, the applicant told the Tribunal that the house was divided in February or March but the land was not divided until sometime after although the applicant could not remember when which adds further weight to the Tribunal’s finding that it is not plausible that the applicant and her brother spoke for the last time about the applicant’s share of something she did not have and was not decided for some time following. This account is also inconsistent with the account provided to the delegate that records the applicant as being told by her mother about the property division in July or August 2016. While the Tribunal notes that it can sometime[s] be difficult for applicants to remember exact dates or details, in this case, the events occurred in the relatively recent past 12-18 months and the Tribunal was only discussing general timeframes with the applicant rather than specific dates. On this basis, the Tribunal expects that the applicant would be able to recall whether the property division occurred in February or March 2016 or July or August 2016. The Tribunal finds these two accounts contradictory and lacking in credibility.

•    The applicant told the Tribunal that the issues with her brother began from January 2016 but the applicant did not include anything regarding the property dispute in her protection visa application which was not lodged until 16 March 2016. The Tribunal also notes that the applicant said that these kinds of disputes were “normal” in India and people kill family members for property and sons kill their fathers. On this basis, the Tribunal is not satisfied of the applicant’s explanation for not raising these concerns in her protection visa application that she did not know the situation would get so out of control. The Tribunal is of the view that the two explanations are contradictory. If such issues are common place in India then the Tribunal would expect that the applicant would raise this concern in her protection visa application given that according to her evidence, there had been a couple of months of arguments prior to her protection visa application and she had not spoken with her brother in more than two months prior to lodgement of her protection visa application. The fact that the applicant did not mention this claim in her application contributes to the Tribunal’s finding that the claim is lacking in credibility.

•    The applicant was vague and evasive when asked to detail the document regarding property distribution (which the Tribunal had not received prior to the hearing) and she was unable to articulate or quantify her ownership in either the land or the property beyond a one-third or one-quarter share (which the Tribunal also notes is inconsistent with the delegate’s decision record that states that the applicant said the property and land was distributed equally among her, her sister and her brother). The applicant was also unable to detail the value of the income derived from her share of the ownership of the land. Given the claims resulting from this property, land and income distribution, the Tribunal expects that the applicant would be able to provide the Tribunal with greater detail regarding the applicant’s shareholding.

•    The Tribunal notes that the applicant provided documents titled “Legal Notice”, “Register Mutation” and “Transfer of Property” the day after the Tribunal hearing. However, these documents are dated 6 October, 7 July 2016 and 27 June 2016 respectively and the “Register Mutation” and “Transfer of Property” are dated with a certification stamp on 25 November 2016. The applicant was interviewed by the department on 24 November 2016 and was provided time following the hearing to produce these documents but they were not received by the department prior to decision and they do not appear on the department file following decision. Given the concerns outlined above in relation to the credibility of the applicant’s claim and country information regarding document fraud in India, the Tribunal places no weight on these documents.

•    The applicant told the Tribunal that her mother and sister were attacked by her brother and she provided photos, an FIR dated 31 December 2016 and medico legal reports as evidence of the attack on 31 December 2016. The applicant also told the Tribunal that this attack was “unexpected”. However, the applicant’s witness told the Tribunal that the applicant’s mother and sister were attacked on two prior occasions when she had visited India and that both of these attacks were prior to the applicant’s interview with the department in relation to her protection visa application in November 2016. The applicant did not tell the department or the Tribunal about either of these earlier attacks and the Tribunal does not accept the applicant’s explanation for this inconsistency that she was unaware of these incidents and her mother, sister and her witness kept this information from her until the Tribunal hearing due to her claimed stress and/or depression. As set out below, in the absence of any medical evidence, the Tribunal is not satisfied that the applicant suffers from any medical condition.

•    The applicant told the Tribunal that her brother had not threatened her but her mother and sister told her that she should not come back to India because her brother had attacked them and he could do the same to her. The Tribunal finds this account implausible for two reasons. Firstly, the applicant’s mother and sister advised the applicant not to return to India on the basis that they were attacked on 31 December 2016 yet the applicant raised the fear for her life during her interview with the delegate on 24 November 2016, more than one month prior to the attack. Secondly, if the applicant’s mother and sister provided this advice to the applicant following the attack on 31 December 2016, it does not make sense that they did not similarly advise the applicant following two earlier attacks in November. The Tribunal finds it implausible that the applicant’s mother, sister and witness withheld information from her that could be important to consideration of her protection visa application when, according to the applicant, they were the ones advising her not to return to India.

•    The Tribunal also notes that it would appear that the applicant’s mother and sister did not mention any previous attacks to the police given there is no reference to two earlier attacks in the FIR document provided by the applicant which reported the 31 December 2016 attack. The FIR document is not on any official letterhead and in light of the Tribunal’s concerns outlined above regarding the credibility of the claim that the applicant’s mother and sister have been attacked as well as country information regarding the prevalence of document fraud, the Tribunal finds the FIR document dated 31 December 2016 to be fraudulent.

•    In addition, the Tribunal also finds it implausible that the applicant, when given the opportunity to invite any witness she thought relevant to the Tribunal hearing, did not discuss with her witness what she intended on telling the Tribunal. On this basis, the Tribunal does not accept that the applicant’s mother or sister have ever been attacked by the applicant’s brother due to a property dispute. In addition to the Tribunal’s finding that the FIR document is fraudulent and given the Tribunal does not accept that the applicant’s mother and sister were attacked by the applicant’s brother the Tribunal does not place any weight on the photos of the applicant’s mother and sister (showing bruises) or the medico-legal report for Amritpal Kaur which the applicant claims relates to the attack because there is no corroborative evidence that either the photos or the [medico-legal] report relate to any attack.

68.    Again, when these factors are considered together, the Tribunal finds the applicant’s claims in relation to her fear regarding a property dispute with her brother to be completely lacking in credibility. Accordingly, the Tribunal is not satisfied that the applicant is a part-owner of any house or land in India and finds that the applicant has not been threatened by her brother or anyone else regarding any land or property. In addition, the Tribunal does not accept that the applicant’s mother or sister have been attacked by the applicant’s brother over any property dispute. It follows that the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm in India on account of any property dispute.

69.    The Tribunal notes the applicant’s claim that she suffers from stress and depression and she was unable to remember details in the relatively recent past due to stress. She also claimed that this is also the reason why her mother, sister and her witness did not tell her about two previous attacks by her brother on her mother and sister. Following the Tribunal hearing, the applicant provided a statement from Bernice Chong, Psychologist, dated 26 February 2016 relating to the nature of the applicant’s relationship with her husband. The Tribunal notes that Ms Chong states that the applicant and her husband requested the “support letter with comments on the nature of their relationship” and that “both David and Amanpreet presented with current significant distress” which was attributed to Amanpreet’s visa situation and their pending physical separation. The Tribunal also notes that Ms Chong stated that “David has also mentioned their facing difficulties from his family accepting Amanpreet due to differences in culture and religion” but Ms Chong makes no reference to any reciprocal concern for Amanpreet in relation to any non-acceptance of her husband.

70.    While the Tribunal accepts that the applicant was distressed about her visa situation more than one year ago following her partner visa refusal, the applicant did not provide the Tribunal with any evidence to support her claim of depression and stress or that she suffers any medical condition that compromised her evidence to the department or the Tribunal. In addition, the applicant told the Tribunal that it is one or one and a half years since she saw a counsellor and she is not on any medication. The applicant also told the Tribunal at the start of the Tribunal hearing that she was not aware of anything that would impact her ability to give evidence and answer the Tribunal’s questions. In her response to the Tribunal’s invitation to a hearing dated 5 April 2017, the applicant also answered “no” to the question of whether there was any issue that may affect her ability [to] take part in the hearing (including health problem or disability). On this basis, the Tribunal does not accept that the applicant suffers from any condition that compromised her evidence to the Tribunal. As outlined above, the Tribunal does not accept that the applicant’s mother, sister and witness did not tell the applicant information relating to attacks on her sister and mother due to the applicant’s stress.

71.    The Tribunal also notes the QPS witness statement dated 20 July 2016 provided by the applicant following the Tribunal hearing which the applicant relies on as further evidence of her stress. However, as the document is unsworn and unsigned, the Tribunal places no weight on this document.

                                [Emphasis added]

77    On the basis of those matters, the Tribunal concluded that in considering the appellant’s individual circumstances on a cumulative basis, the appellant’s fear of persecution is not well-founded as required by s 5J of the Act and therefore the appellant is not a refugee within the meaning of s 5H of the Act.

78    On the basis of a consideration of the appellant’s individual circumstances and country information, the Tribunal found that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there is a real risk that she will suffer significant harm.

79    The Tribunal was accordingly not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The Tribunal also considered the alternative criterion in s 36(2)(aa) and was also not satisfied that the appellant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

80    The Tribunal affirmed the decision under review.

Appeal to the FCCA

81    On 8 June 2017, the appellant filed an application for an order that the decision of the Tribunal be quashed. The grounds of the appellant’s application were the same as set out at [3] of these reasons.

82    The appellant also filed an affidavit on 8 June 2017. That affidavit effectively restates the grounds of appeal in the application filed on the same date.

83    The appellant’s application was heard on 16 February 2018, with the primary judge delivering ex tempore reasons for judgment and orders on the same date.

84    In his Honour’s reasons, the primary judge observes that the appellant’s claims before the Tribunal were “properly and accurately” summarised by the Tribunal and that the appellant did not take issue with the way in which the Tribunal had identified her claims. Similarly, no particular error was identified with respect to the Tribunal’s consideration of the evidence before it.

85    At [6] of the primary judge’s reasons, the primary judge correctly summarises the appellant’s claims: that is, first, that the appellant would be killed by extremist Sikhs if she returned to India; second, that she was previously married to a Sikh man (whom she divorced) and she is now married to a Christina; third, that she claimed that inter-religious marriages were frowned upon in India and that people have been killed in the past because they married somebody from another religion or, alternatively, married somebody from another caste. The primary judge notes that the appellant claimed that the police and authorities are not interested in addressing so-called honour killings and that the appellant claimed she could not live in India because she may be found and harmed. She claimed her relatives, including her brother, were against her marriage and threatened harm against her. Finally, the appellant made a claim that because there was a dispute which arose following her father’s death about property division, she feared harm from her brother.

86    The primary judge accurately summarises the Tribunal’s findings at [7]-[13] of his Honour’s reasons. At [14]-[16] of the reasons, the primary judge summarises the appellant’s application in this way:

14.    By this application, the applicant suggests that the Tribunal made an error when it rejected the authenticity of a particular document, namely, a document referred to in the Tribunal’s reasons as a “FIR” document. She says that the Tribunal ought not to have rejected that document, first, because it was important to her claim; secondly, it corroborated her claims; and, thirdly, if the Tribunal had any doubts about its authenticity, the Tribunal ought to have made its own inquiries about it from the people that she says had issued it.

15.    She also says that the Tribunal asked itself the wrong question. She says that whilst the Tribunal determined that the applicant didn’t have any medical issues – no stress or depression – sufficient to explain the inconsistencies in her evidence, she says the Tribunal paid no attention to the psychologist’s opinion that the applicant and her husband “are in distress”. Her complaint about this is that the Tribunal did not give any weight to that opinion from the psychologist.

16.    Finally, she makes a complaint that the Tribunal’s decision is illogical, it seems, or perhaps irrational, given its findings and the way in which it dealt with the FIR document.

87    From [17]-[22], the primary judge reached the following conclusions:

17.    Dealing with the question of the medical condition first, it seems to me that the applicant’s complaint there is simply that the Tribunal has chosen not to give any weight to that information. It is, of course, a matter for the Tribunal to determine what weight ought to be given to any material before it. To the extent that the applicant suggests that the Tribunal has misinterpreted that evidence, I am against the applicant. The psychologist’s report does not suggest that the applicant is stressed or depressed beyond that which might ordinarily be expected for an applicant in the same position as this applicant, given her visa application and its rejection. There is nothing remarkable in the psychologist’s report and certainly nothing which would go to explain the inconsistencies that troubled the Tribunal.

18.    It was a matter for the Tribunal to consider what weight it placed on the psychologist’s view and the Tribunal plainly thought that it was of no particular assistance to the issues that the Tribunal needed to determine.

19.    Nor is there any apparent difficulty with the way in which the Tribunal has chosen to deal with the authenticity of the FIR document. It is not for the Tribunal to make its own inquiries. It can, but there is no obligation on it to do so except in the clearest of cases. This is not one of those cases. It is for the applicant to satisfy the Tribunal of her claims. The applicant asked rhetorically in her oral submission to me “What else is it that I could do?” There is no answer that I can give to that other than to say that it is her obligation to satisfy the Tribunal.

20.    The written submissions for the first respondent set out in some detail the authorities for each of those propositions. I will not repeat them in these reasons. To the extent that the applicant suggests that the Tribunal’s reasons are illogical or its conclusions unreasonable, in my view, that is no more than the applicant suggesting that she disagrees, vehemently, with the Tribunal’s reasons and decision and having regard to what has fallen from the High Court in cases like Minister for Immigration v Li (2013) 249 CLR 332, that does not amount to unreasonableness for the purposes of establishing jurisdictional error on an application for review like this.

21.    In those circumstances, in my view, the application for review does not reveal that the Tribunal’s decision is attended by jurisdictional error.

22.    My own consideration of the Tribunal’s reasons does not reveal that the Tribunal has made any error, let alone a jurisdictional error. In those circumstances, the application for review must be dismissed.

Appeal to this Court

88    On 2 March 2018, the appellant filed a notice of appeal in this court against the primary judge’s decision. The appellant’s grounds of appeal are set out at [3] of these reasons.

89    Put simply, the appellant asserts a number of things, apart from her bare claim that the Tribunal has fallen into jurisdictional error: ground 2. The appellant essentially says that the Tribunal fell into error by making findings at paras 65-67 (inclusive, as set out at [75] and [76] of these reasons) that the appellant had a medical condition that caused her memory to be detrimentally affected (presumably explicable of the appellant’s inconsistent evidence to the Tribunal and delegate of the Minister); that the Tribunal failed to attribute appropriate weight to the FIR; that the Tribunal failed to properly discharge its review function because it made a generalised finding based on a DFAT Country Information Report, and failed to make appropriate enquiries as to the provenance of the FIR document before making a finding that is was fraudulently made.

90    As to the first of these complaints, the Full Court of the Federal Court in AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 (“AVQ15”) at [41] explains the relevant principles to be applied in determining whether adverse credibility findings (drawn from inconsistent evidence given by an appellant) lead to a conclusion of jurisdictional error on the footing that the Tribunal has failed to discharge its statutory review function by reason of findings that are not properly open on the evidence. At [41], the Court identified these principles:

(a)    The question of whether an administrative decision suffers from jurisdictional error requires a careful examination of the statutory framework with particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.

(b)    While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.

(c)    Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.

(d)    Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was not material, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).

(e)    Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that, on its face, bears on a finding may indicate that that evidence has not, in fact, been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).

(f)    Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.

91    In AVQ15 at [40], their Honours identify a range of authorities which address the legal principles informing judicial review of adverse credibility findings and whether the failure to take into account particular material in making such findings gives rise to jurisdictional error on grounds of irrationality, illogicality or unreasonableness. In that context, a particularly important decision is the judgment of Robertson J in Minister for Immigration and Citizenship v SKRKT (2013) 212 FCR 99. See also DAO16 V Minister for Immigration and Border Protection (2018) 353 ALR 641 at [30] and CWR16 v Minister for Immigration and Border Protection [2018] FCA 859, Allsop CJ at [65].

92    In AVQ15, the Full Court determined that where the Tribunal did not refer to the transcript of interview with a Departmental officer when making a finding that the appellant had given inconsistent information (as between his statutory declaration and oral claims), it engaged in irrational or illogical reasoning and therefore failed to exercise its jurisdiction and discharge its statutory review function under the Act.

93    In this proceeding, the Tribunal considered the appellant’s medical evidence placed before the Tribunal (see, particularly, paras 39, 42, 54, 69 and 70) and the appellant’s explanation concerning her affected memory, and ultimately reasoned that the inconsistencies in the appellant’s account properly supported a finding that the appellant was not a witness of truth and provided a proper basis upon which the Tribunal did not accept the appellant’s evidence about her problems in India, or her fear of returning to India. The evidence related to the appellant’s contended stress was not an answer to, or explanation of, evident inconsistencies in the appellant’s evidence. Whilst the Tribunal, at para 62 of its reasons, did not specifically address the medical evidence of Ms Chong and the appellant’s claim that her stress impacted upon her memory, the Tribunal addressed these matters in the course of its reasoning at ##. The Tribunal exposed a path of reasoning to reach its conclusion on the ultimate question of whether the appellant had a well-founded fear of persecution. It would be wrong to engage in an “over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

94    As to the second complaint, the Minister points to the oft-quoted decision of NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (at [10]-[11]) as authority for the proposition that it is a matter for the Tribunal alone, as part of its fact-finding function, to decide the weight to be apportioned to particular pieces of evidence. The Tribunal is not bound by the rules of evidence and may consider whatever information it considers relevant. It is a matter for the Tribunal, performing its role of undertaking a review on the merits, to consider DFAT country information with respect to the prevalence of fraudulently composed documents and balance that information with the specific facts concerning an unsigned, hand written document known as the FIR. The weight to be attributed to that document is a matter for the Tribunal. Nevertheless, it should be remembered that in reaching a decision about whether a document is fraudulent (manufactured) or not (whether including consideration of country information), the process of reasoning must withstand the analysis described at [90] of these reasons.

95    The appellant says that the Tribunal did not make appropriate enquiries about the authenticity of the FIR. It is important to note that there is generally no positive duty cast upon the Tribunal to investigate claims by making enquiries outside the material presented to it by the applicant for review in support of his or her claim for a protection visa: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“SGLB”) at [43]; see also Gleeson CJ at [1] and [17] and Callinan J at [124].

96    In SZGRK v Minister for Immigration and Citizenship [2010] FCA 153, Rares J considered three letters which the Tribunal had accepted (as to parts) but ultimately considered the letters to be of “questionable” authenticity. The appellant in that case, as here, complained that the Tribunal had acted unreasonably in failing to make enquiries about the origin and reliability of the writer’s statements. At [23]-[25], his Honour said this:

23    But, I am of opinion that it was not open on the evidence before the tribunal to impose upon it a duty to consider whether it ought to contact the guru to pursue what was contentious in his letters. The tribunal noted that the appellant’s evidence, itself, was inconsistent with one of the important assertions in the guru’s 2006 letter, namely, that the appellant had not had an opportunity to go back to his village after his father’s alleged assassination, because his life was at risk. In contrast, the appellant had told the tribunal that he had been back to the village in 2001, and had done so at the guru’s suggestion. In those circumstances there was no occasion for the tribunal to take upon itself a duty to pursue whether or not the guru’s letter was accurate. The appellant’s own evidence had called its accuracy into question.

24    While the appellant may have told the writer of the third letter that he had come to India because of a fear for his life, the writer did not appear to have any personal knowledge of any circumstance that could establish relevantly that, in Bangladesh, events had occurred that may have given rise to a well-founded fear of persecution for any reason, let alone for a convention reason, concerning the appellant. Nor did the writer identify in the letter any basis upon which he “found” that Bangladesh was not a suitable place for the appellant to remain. In my opinion, there was nothing in this letter that could reasonably have given rise to any obligation in the tribunal to consider the third letter further, let alone to make further inquiries about it.

25    The appellant had to satisfy the tribunal, for the purposes of s 36 of the Act, that he was entitled to a protection visa.  In the particular circumstances before the tribunal no duty could have arisen for it to make enquiries or to seek to fill in gaps, or explore further, in the significant differences between the appellant’s account to the tribunal of what happened and the inconsistency with that account in what the guru had written.

97    The appellant was required to satisfy the Tribunal of the merits of granting her a PV (see Minister for Immigration, Multicultural Affairs and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 at [76]). She did not do so. The Tribunal engaged with the protection claims and made findings upon them. The primary judge was correct to find that there was no jurisdictional error on the part of the Tribunal.

98    Accordingly, the appeal must be dismissed with costs.

Associate:

Dated:    1 August 2019