FEDERAL COURT OF AUSTRALIA

AIU16 v Minister for Immigration and Border Protection [2019] FCA 1493

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of this appeal.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    The appellant has appealed from a decision of the Federal Circuit Court of Australia (AIU16 v Minister for Immigration & Anor [2018] FCCA 2104). The primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister of Immigration and Border Protection, to refuse to grant the appellant a Protection (Class XA) visa.

2    For the reasons that follow, the appeal is dismissed.

Background

3    The appellant arrived in Australia on a student visa in May 2008 when she was 19 years old, immediately after having completed her high school studies. She is a citizen of India. Prior to coming to Australia, her home was in a village near Ludhiana in Punjab. She is from a Sikh background.

4    While in Australia, she met online a man from a different part of the Punjab. A relationship developed, and they were married in India in 2011. The circumstances of their marriage and their respective caste status was central to the appellant’s claim for protection as discussed later in these reasons. The marriage has since ended.

5    The appellant has resided in Australia on successive student visas since May 2008. The appellant’s last student visa was cancelled in January 2014. This cancellation was subject to a successful review in the then Migration Review Tribunal (MRT). This visa expired on 1 March 2014.

6    On 7 August 2014 the appellant applied for the protection visa the subject of this proceeding. The appellant claims that if returned to India she fears “death, harassment [and] torture (mentally)” from her family, specifically her father and brother. She says this fear is because in her family’s culture, her marriage is perceived to be a dishonour to her family. The dishonour arises because her ex-husband was from a lower caste, and the marriage was performed in secret without her family’s permission. The appellant claims that upon her father and brother learning of her marriage they told her that they would kill her if she returned to India.

7    On 2 January 2015, the Minister refused the visa application. The Minister was not satisfied that the appellant’s claims of fear of harm in India were credible. The Minister considered that her claims were vague and there was little supporting detail. Accordingly, the Minister concluded that the appellant was not a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) and clause 866.221 of Schedule 2 to the Migration Regulations 1994.

8    On 28 January 2015, the appellant applied to the Tribunal for review of the Minister’s decision. On 23 October 2015 the appellant appeared on her own behalf before the Tribunal and gave evidence. On 20 January 2016, the Tribunal affirmed the Minister’s decision not to grant the appellant the protection visa. The Tribunal accepted that so called ‘honour killings’ occur in Punjab. However, the Tribunal did “not accept that the [appellant] has a real chance of serious harm from her father, brother, family or anyone else due to her marriage and current status as a separated woman…” (at [76]).

9    In arriving at this conclusion, the Tribunal made adverse credit findings concerning aspects of the appellant’s evidence, including in relation to the central facts concerning her claims to fear harm if she were to return to India.

10    By amended application dated 4 April 2017, the appellant applied to the Circuit Court for review of the Tribunal’s decision. That application was dismissed on 15 August 2018. The appellant was represented before the Circuit Court. The grounds of review relied upon in the Circuit Court are the same as those relied upon on this appeal.

Application to this Court

11    On 4 September 2018 the appellant filed a Notice of Appeal in this Court.

12    The grounds of appeal are as follows:

1.    The Federal Circuit Court erred in not finding that the decision of the Second Respondent (the Tribunal) was affected by jurisdictional error, in that:

   a.    The Tribunal made findings that were not logical or rational.

b.    The Tribunal misunderstood or misconstrued the evidence of the Appellant in taking it out of context and by wrongly ascribing to the Appellant evidence which was simply not correct.

c.    The Tribunal failed to comply with ss.424AA and 424A with respect to the information arising from the earlier Tribunal decision in relation to the Appellant’s student visa.

d.    The Tribunal failed to draw to the Appellant’s attention an issue in relation to whether the Appellant may be exposed to persecution or significant harm by reason of being a divorced or separated woman in India.

13    During the appeal, the appellant referred to the grounds in sub-paragraphs (a) to (d) as grounds 1 to 4. It is convenient to adopt that description and to address the grounds in that order.

Ground 1

14    The appellant referred to the Tribunal’s conclusion at [68] of the Decision Record that “[t]he Tribunal has considered all the [adverse findings], individually and cumulatively, concerning the [appellant’s] credibility and finds that overall the [appellant] is not a reliable witness” and contended that this finding was not supported by six of the nine credit findings relied upon by the Tribunal.

15    These findings were said to be irrational, illogical or unreasonable, or a combination thereof.

16    The six impugned adverse credibility findings may be summarised as follows:

(1)    The appellant was evasive when explaining why her father was unwilling to agree to her studying anything other than hospitality;

(2)    The appellant was evasive when explaining how she and her ex-husband met;

(3)    The appellant was unable to recall certain details regarding the circumstances of her and her ex-husband’s wedding;

(4)    The appellant was vague in her recollection of certain details concerning the timing of her and her ex-husband’s visas;

(5)    The appellant was evasive when explaining the course of events concerning her telling her father of her marriage, as she provided a less detailed account to the MRT than she had given at the Tribunal. This finding is also challenged on other bases under Grounds 3 and 4 referred to below; and

(6)    The appellant’s explanation that a trip to India in 2012, after she was married, was a surprise, was unlikely and a ‘very unusual step’.

17    It is necessary to consider each of the impugned adverse credit findings individually to determine whether any of them were illogical, irrational or unreasonable and then to consider those findings jointly, together with the three unchallenged findings.

The first adverse credibility finding

18    The first adverse credibility finding is expressed in the first dot point under paragraph [64] of the Decision Record:

At the hearing, the [appellant] emphasised that her father was not willing to agree to her studying anything other than Hospitality. When, the Tribunal sought an explanation for her father’s views, the [appellant] was evasive and not able to provide any reason. The [appellant] presented as an intelligent and articulate person, and the Tribunal found her evasiveness in this aspect raised questions about the truthfulness of her account.

19    The finding of evasiveness is said to arise from the following evidence given by the appellant at the Tribunal hearing:

[Appellant]:    “It was me, like, who will decide what I want to study.”

Member:    “But how was that different from coming here and studying here, the restriction on what you might study?”

[Appellant]:    “Because my father, he just went to the agent in India, when I had to come here, and the agent suggest to him some course.”

Member:    “Good, good?

[Appellant]:    “I think it was hospitality management, so at the time I was like, okay, I’m not going to argue on this, and then I found on the internet that, like, okay, I can change my course when I go there, so I thought I’d better just keep quiet and go, whatever the course they want me to go in. So I came here and then I changed my course immediately before starting my diploma.”

Member:    “Right?”

[Appellant]:    “I went to the business administration.”

…

Member:    “… Did you tell your father?”

[Appellant]:    “Because I was not going in the right thing.”

Member:    “He would have had to continue to support you financially?”

[Appellant]:    “Because I didn’t tell him I’ve changed my course.”

Member:    “Why not?”

[Appellant]:    “Because, you know, as I told you, like, they all – they decided what I’m going to do. It was only down. It was only him. He decides everything, what I’m going to do. So he spoke to the agent, he said “Okay, this is the best course of you, you can go for this one”. And that’s why he was sending me the fees, because he was thinking I’m doing hospitality management. He didn’t know I’m doing business administration.”

…

Member:    “Did you let your family know how you were going? That sounds like a good qualification to me. They should…?”

[Appellant]:    “About this? No, I didn’t mention anything about that thing, because I know it will create a ruckus.”

Member:    “I think it would have been a positive thing?”

[Appellant]:    “No, I don’t think so, because I know my family. I know my father.”

20    In my view, the finding that the evidence given by the appellant was evasive was not available based upon the evidence referred to above. Firstly, the express subject about which the Tribunal found the appellant to be evasive concerned her father’s views, that is, his state of mind. Second, the questions directed to the appellant were not clearly expressed to elicit her understanding of her father’s reasons based upon what he said to her, but conflated the appellant’s understanding of her father’s reasons with the appellant’s wish to study business administration rather than hospitality. Third, the appellant did impliedly explain the basis of her understanding that her father required her to study hospitality, namely that her father had spoken to an agent who had said to him that hospitality was the best course for the appellant. For these reasons, the finding was not rationally or reasonably open to the Tribunal.

The second adverse credibility finding

21    The second particular concerns the Tribunal’s finding that the appellant was evasive when asked about how she met her husband. This finding is expressed in the second dot point under paragraph [64]:

The [appellant] initially stated that she did not know how her husband got her name from facebook and stated that it was random. When pressed, the [appellant] stated that they were connected because they were both members of a group called the Golden Temple, an on-line Sikh religious group. The Tribunal found her evasiveness on this point raised doubts about the manner of their meeting.

22    The relevant evidence given by the appellant during the hearing was as follows:

Member:    “Back to your relationship. You met on Facebook?”

[Appellant]:     “Facebook.”

Member:     “How did you meet?”

[Appellant]:    “He sent me a friend request.”

Member:    “How did he know about you?”

[Appellant]:    “I don’t know, you know. Guys do these kind of things, and like, randomly, they keep sending the request. I don’t know, he got a kind of suggestions, you know, there’s – comes a friend suggestion list on Facebook, and he sent me that, and I kept deleting it, and then one day I accept it, and then we started talking on Facebook.”

Member:     Can I just go back to this? You came up. Is there a connection there? That means there must be a connection for his name to keep coming up on your Facebook. Is he friend of a friend, or something like that?

[Appellant]:    “He wasn’t like a friend of a friend or anything, because maybe, you know, even, he joined the – there was a Golden Temple in Amritsar. He joined that. There was a group of that under that name on Facebook. I also joined that one. I was in that group and he was in that group too.”

…

Member:    “So you were both part of a group, and then – so that’s how he would see your…?”

[Appellant]:    “That’s how. And then we started talking on Facebook, and then it started happening every day, and it started happening for hours and hours during the day, and then we exchanged the numbers, and then we started talking on the phone, and then how it starts, the relation [sic].”

23    In my view, the finding that the appellant was evasive on the basis of the above evidence was not reasonably open. The appellant said she met her husband on Facebook. She was then asked how that occurred, to which she replied “He sent me a friend request”. The appellant was then asked “How did he know about you?” If the Tribunal was bound by the rules of evidence (which it is not) that would be an inadmissible question, because expressed in that way it calls for evidence from the appellant about her former husband’s knowledge rather than her belief about his knowledge of her. Even though the Tribunal is not bound by the rules of evidence (Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c)), the question framed in that way is apt to be misleading and invites speculation on the part of the witness. The appellant’s response was necessarily speculative. Her initial response was “I don’t know”, and thereafter she gave a speculative series of explanations. “Guys do these kinds of things, and like, randomly, they keep sending the request”. The reference to “randomly” could be a reference to the person concerned repeating the request or, more likely, the repeated regeneration of the request by the relevant Facebook program. In context, the latter is more likely to have been what the appellant meant to say. However, if there is any ambiguity, the appellant could have been asked directly whether her evidence was that the friend request was entirely random.

24    The second part of the appellant’s answer was in effect a development of the speculation that the question invited, when she said “I don’t know, he got a kind of suggestions, you know, there’s comes a friend suggestion list…”. It is plain that the appellant was continuing to give a speculative answer, as she prefaced what she said by again saying “I don’t know”. The appellant developed her speculative answer further as she was prompted by questions concerning the connections she understood were used by the Facebook platform to generate friend requests. In my opinion, the appellant’s evidence was simply a progressive response to a speculative series of questions. She did not first say that the friend request was random and later concede that the request was generated by a pre-existing connection. At best, there is ambiguity about what she referred to as having “randomly” occurred, but the finding wrongly characterises her evidence as being to the effect that her husband got her name randomly from Facebook.

25    The respondent submitted that the credit finding was in any event reasonably open to the Tribunal on the basis that it had the benefit of observing her giving evidence. I do not agree. The opportunity to observe a witness, sometimes described as the “advantage” of the primary judge, or in this case the Tribunal, does not in all circumstances give additional weight to the finding. If, as here, the finding is not as a matter of analysis rationally and reasonably supported by the evidence, it will generally not be sufficient to rely upon an abstract assertion that the Tribunal had the benefit of observing the witness: see generally SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as cited in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [62].

26    The appellant further submitted that the evidence concerning the circumstances of meeting her husband was in any event not relevant because the fact of the marriage was accepted. I do not agree but it is unnecessary to say anything further in relation to this finding for the reasons given above. The same contention as to relevance arises in relation to the third to fourth adverse credit findings, to which I now turn.

The third and fourth adverse credibility findings

27    The third and fourth adverse credibility findings are stated as follows (dot points three and four at [64]):

The [appellant] could not recall the name of the hotel in Amritsar in which she stayed for 21 days. She could not recall the name of the town where she was married. The Tribunal considered these to be points that it would be reasonable to expect the [appellant] to be able to recall. The [appellant’s] vagueness in these respects raises doubts about the veracity of her claims.

The [appellant] was vague in relation to timeframes connected with her relationship and her husband’s visa details. For example, she stated that it was a couple of months between her return to Australia and providing her husband with documents. When prompted later by the Tribunal, she agreed that it was over 18 months before she provided the documents needed for her husband to come to Australia.

28    Ultimately the Tribunal did not accept the appellant’s description of her wedding and the circumstances (at [67]):

The Tribunal does not accept the [appellant’s] claim that she married without discussion with her family and that she married without her family consent. The Tribunal does not accept that the [appellant’s] family first knew of the marriage in 2013 when they found out from an unknown source.

29    The appellant submits that these findings were not relevant to any issue in the review because it had been accepted that “the appellant had married and the marriage had ended”. This is a self-evidently untenable contention in circumstances where the appellant alleged fear of harm arising from the fact of her marriage and the allegedly covert circumstances under which it was arranged. There is no other basis relied upon by the appellant to impugn these findings and accordingly I reject the appellant’s contentions in relation to them.

The fifth adverse credibility finding

30    The appellant submits that the Tribunal erred in its finding that the appellant was evasive in her evidence about her father’s hospitalisation when compared with evidence she had previously given during a student visa interview before the MRT. The Tribunal stated (dot point 5 at [64]):

The [appellant] was evasive in relation to significant issues in relation to her claims. When prompted by the Tribunal for more information, she stated that her father had fainted, became unconscious and in a critical position because of her actions, but that when he came out of hospital, she called him and said I know you’re sick but I need money. He refused because he wanted nothing to do with her. She stated that she had told the Migration Review Tribunal that she had not re-enrolled because her father had not been able to send her money for the next part of her course because he had been in hospital, and she asked a family friend to write a letter confirming this. She stated that she did not think she needed to mention why her father had not provided the money and that she had borrowed $5,000 from a friend for the course. The Tribunal found this explanation expedient and formed the view that the [appellant] was not reliable in her evidence in this respect.

31    The relevant portion of the transcript of the Tribunal hearing is as follows:

Member:    “Now, at the MRT you did provide information that your father was very sick and was in hospital?”

[Appellant]:    “Yes, he was sick. Yes, he was sick when he found out about this thing. He was sick at that time.”

…

Member:    “So he was sick. What happened to him when he found out about what you were doing?”

[Appellant]:    “Yes, he got sick. I don't - I just came to know, like, my father is in a hospital.”

Member:    “What was the matter with him?”

[Appellant]:    “I spoke to my mother at that time, like, what happened to him? She said, I don't know what happened to him. He just was sitting and fainted. He's unconscious. He was in a critical condition at that time, when he find out about, like, what I've did, and then when he recovered…”

Member:    “Can I just - this doesn't seem very understandable, to become in a critical condition. It's one thing to be upset, but a critical condition and to become unconscious. What happened? Did he have a heart attack or do you know what was wrong with him?”

[Appellant]:    “I don't know exactly what's wrong with him, because at that time they didn't talk to me, nobody, after that. I tried calling them, like, through my friends, and they told me he's in a critical - he's been hospitalised, and after that I tried calling them, and when he came back home I tried talking to him, like, "I know you're sick. I know you've been hospital because of me, but I need money. I need to pay my fees", and even over here at the time I couldn't tell anybody why my father is sick, why he's been to the hospital. My friends knew, like, my father is in the hospital. I was - because at that time everything came altogether, my visa problem, my father said, like, "I don't have any relation with you", this and that. He got hospitalised. I was so stressed out. Whenever someone asked me "What happened to you?" I was like, "Okay, my father is sick. That's why I'm stressed", because I just didn't want to reveal the whole picture in front of everybody.”

Member:    “You provided a statement to the Migration Review Tribunal. That's under oath, so I - so it was expected - - -?”

[Appellant]:    “But he was sick at that time. He was sick.”

Member:    “Yes, and in that statement you said that this was why he would not provide finances to you. Why didn’t you tell the MRT what the situation was?”

[Appellant]:    “Because they just asked, like, asked me why I couldn’t pay the fees. Like that - when I told them, like, because my father couldn't send me, because he was in the hospital. I thought this is not necessary to tell them why he's in the hospital.”

Member:    “All right. So anyway, you were in contact with him, so that's good, and you're on a regular basis?”

[Appellant]:    “No, no, no, no. After that I wasn't in contact with him. I contacted him before applying for a protection visa.”

Member:    “Right?”

[Appellant]:    “Just to let them know, like, I don't have any relation with that person. I thought maybe they've forgiven me now.”

Member:    “How long was he in hospital?”

[Appellan]t:    “At that time? I don't know the - exactly. It was few days or - I don't know.”

Member:    “A short time?”

[Appellant]:    “Because after that I didn't talk them, and they were not ready to talk to me either.”

Member:    “Right, so yes, at that time you said that you couldn't - your father couldn't send the money because he was in hospital, and somebody, Bishan Kohar, made a statement to say that he'd personally known you for the past three years and that your father was severely sick. Who is Bishan Kohar?”

[Appellant]:    “He's a family friend and he knew - he knows me, and that's why he knew that, like, my father - he - at that time he knew that my father is in the hospital. He knew, like, my father is in the hospital, but he didn't know why he is in the hospital.”

Member:    “Does he know your situation? Well I guess the reason why he's in the hospital appears to be that he was sick. He's saying- - -?”

[Appellant]:    “No, no, like why he's sick (indistinct).”

Member:    “But you get sick for many different reasons. There can be many reasons why you get sick. Why do you assume that it's because you talked to him?”

[Appellant]:    “No, no, no, because - not because I talked to him, because he found out about that thing. Maybe it's a shock, or - I don't know. This is what they told me, like, he got sick, he was -"He's in a hospital just because of you".”

Member:    “Who told you?”

[Appellant]:    “Everybody in my family, they were blaming me, like.”

Member:    “So when you say, "They told me, everyone in my family", who got in touch with you?”

[Appellant]:    “Like I call at my home and I asked for money. I called for money, like I need to pay my fees and then there's like, "Your father is in the hospital" and then everybody was like at me like, "Just because of you, you didn't (indistinct) your family, just everybody in the society is laughing at us just because of you and we are the one who is facing all this comment and everything (indistinct) whenever we go out of the house.”

32    The evidence given by the appellant concerning her father’s illness was in substance that she was accused of being the cause of his illness after he found out about her marriage: “He’s in a hospital just because of you.” The appellant’s explanation for not explaining why her father had not provided the money and that she had borrowed $5,000 from a friend to pay for her studies was characterised as ‘expedient’ by the Tribunal. I take that characterisation to mean that it was not accepted and accordingly it was found to be a further instance of the appellant not giving reliable evidence.

33    It is not the function of this Court upon judicial review to assess the evidence upon which the credit finding was made and reject the finding if it would not have reached the same conclusion, nor substitute the finding with some other finding it would not have reached. However, the Court may examine the reasons given by the Tribunal for its conclusions and the evidence upon which it relied to determine whether the conclusion is rationally and reasonably supported by the analysis exposed in the reasons and the evidence upon the finding was based. If there are demonstrable errors of analysis, as in the cases of the first and second adverse credibility findings referred to above, the finding constitutes a legal error.

34    In my view the Tribunal’s credit finding was not reasonably open for the following reasons. Firstly, the subject matter that was not disclosed to the MRT was, properly understood, an accusation that she was responsible for causing her father’s illness and consequently a breakdown in her relationship with him and her family. There was no apparent reason why the appellant should reasonably be expected to explain the circumstances of her marriage and her father’s reaction to it to the MRT. Secondly, the appellant was not asked a range of questions at the Tribunal that would have been relevant to eliciting an explanation for her not having disclosed the above matters to the MRT. It is unnecessary to provide a list of questions or topics, but questions directed to the appellant’s state of mind concerning any perceived threat from her father or other family members at the time she gave evidence at the MRT were plainly relevant. Also of relevance was her understanding as to the state of the breakdown of relations with her family at that time, whether she believed that there was scope for reconciliation, whether any express or implied threats had been made by the time she gave evidence at the MRT, whether she had considered seeking protection by that time, or indeed, whether she was aware at that time that she was able to apply for protection. Having regard to the appellant’s reasons for seeking protection, any inquiry into the veracity of her claims based upon a comparison between what she might reasonably have said during the earlier MRT hearing, but did not say, must include an examination of what, if anything, the appellant believed about the threat from her father and family at that time.

35    In my view, the characterisation of the appellant’s evidence as ‘expedient’ in the absence of an inquiry into her relevant state of mind at the earlier time, is a conclusion without proper foundation. It is a purported comparison without ascertaining and identifying the content of one comparator. It therefore lacks proper foundation and constitutes a legal error.

The sixth adverse credibility finding

36    Paragraph [65] contains three findings adverse to the appellant’s credibility, as underlined below. The appellant challenges the reasonableness of the second of these three findings, being the Tribunal’s finding that it is a “very unusual step” for a person living abroad to surprise their family with a visit home. The appellant does not challenge findings 1 and 3.

37    In paragraph [65] of the Decision Record the Tribunal stated:

The Tribunal found a number of claims to be difficult to believe. For example, while the Tribunal is willing to accept that at 21 years, the [appellant] may have been impressionable and in love, the Tribunal has difficulty in believing that she returned to India in 2011 using money she borrowed from friends for a clandestine marriage ceremony; and that in 2012 she returned again to India and took the very unusual step of surprising her family with a visit. As mentioned above, the [appellant] presented as an intelligent person, and while recognising that she was relatively young, the Tribunal finds it difficult to believe that she has no documentation at all of her marriage ceremony or registration because at the time she did not think it was important. These aspects raise serious questions about the [appellant’s] credibility.

(Emphasis added)

38    It is difficult to know quite what to make of the impugned finding. The appellant submitted that the finding is untenable because as a matter of common experience it is not “a very unusual step” for a person to make a surprise visit to his or her family. I do not know whether that is so any more than I know whether the opposite is true, as the Tribunal found. If anything may be said to be a matter of common experience, it is that unusual events can and do occur. However, viewed in the context of the appellant’s reasons for seeking protection, namely her fear of harm from her father and brother, the finding, if it is properly described as a finding, is reasonably open. In any event, I regard the impugned finding as more in the nature of a general observation or comment. Having regard to the Tribunal’s reasons as a whole, this observation was of little, if any, relevance to the Tribunal’s conclusions concerning the appellant’s credit.

Jurisdictional error – credit findings

39    The conclusions I have reached concerning the credit findings which may be impugned on recognised grounds, are neither necessary, nor sufficient, to conclude that the Tribunal’s finding that the appellant’s evidence should not be accepted is infected by jurisdictional error. The impugned credit findings must be considered in the context of the entirety of the Tribunal’s reasons and the objective significance of those findings compared with other credit findings for which there was a proper basis, including the unchallenged findings. In CWR16 v Minister for Immigration and Border Protection [2018] FCA 859, Allsop CJ at [60]-[65] discussed the authorities concerning the judicial review of credit findings for jurisdictional error. His Honour at [64] referred to the principles relating to such review in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 353 ALR 641 at 649-650 [30]. In DAO16 at [30(3)], Kenny, Kerr and Perry JJ said:

By way of example, in SZRKT [Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317] at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims.

40    However, a “high degree of caution” must be exercised in conducting this analysis (DAO16 at [30(5)] citing SZMDS 240 CLR 611 at [96]). In relation to credit findings, jurisdictional error will be found only where “extreme” illogicality is demonstrated as “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135]); “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [61], citing SZMDS at [124].

41    In paragraphs [66], [67] and [68] of the Decision Record the Tribunal said:

66.    In considering the [appellant’s] credibility as a witness, the Tribunal has particularly taken into account that her account of events in relation to significant details at the hearing did not accord with those she had provided in her application. At the hearing, the [appellant], who is fluent in English, confirmed that she had written her Protection visa statement herself. The [appellant] confirmed the details were correct. The [appellant’s] account in her statement and at the hearing differ significantly in relation to her interactions with her father and brother. After, the [appellant] had presented oral evidence, the Tribunal reminded the [appellant] of her statement accompanying her application that:

In 2010, I met a person... on a social networking site and then we started talking on the phone and started liking each other. I told my parents about him but they refused to get my alliance with him. I tried to convince my father and brother but they didn't give me their permission to marry him because they didn't find him a suitable life partner for me, and they strictly told me if I would continue my relation with him they wouldn't spare me. ... Despite knowing the fact that my parents would never accept him as my life partner, I didn't change my mind and chose to continue my relation with him. So in July 2011, I went back to India and got married to him without my parents knowing about it... I took this decision against their wish and consent, but we didn't register our marriage until 2012 because I was scared of my parents that if they would find out about my marriage they would kill me because they had already warned me to stay away from him.

67.    In her oral evidence the [appellant] provided different information. She stated that in 2011, she spoke with her mother about her relationship. Her mother discouraged her from speaking with her father and she did not speak with her father or brother about her relationship; she never sought their permission or consent, and she had no word from her father that he would not accept her boyfriend. The [appellant] stated that she did not mention her relationship to her parents when she returned to India in 2012. She stated that she did not speak to her father about the relationship until September/October 2013 when he found out about the marriage from an unknown source. When the discrepancy in her evidence was discussed, the [appellant] stated that she spoke with her father about the relationship but not the marriage in 2012 and that he said marriage to this person was not possible. The Tribunal considers that the [appellant’s] explanation did not satisfactorily clarify the discrepancy. The [appellant] also said that she was stressed at the time she wrote her statement and this might account for it being inaccurate. As the [appellant’s] relationship with her father and brother are an important part of the [appellant’s] claims, and as the [appellant] had earlier confirmed the statement was accurate, the Tribunal would expect her account in this regard to be consistent. The lack of consistency leads the Tribunal to have serious concerns about the [appellant's] credibility. On this basis, the Tribunal does not accept the [appellant's] claims in relation to her family's involvement in her marriage. The Tribunal does not accept the [appellant's] claim that she married without discussion with her family and that she married without her family consent. The Tribunal does not accept that the [appellant's] family first knew of the marriage in 2013 when they found out form an unknown source.

68.    The Tribunal has considered all the factors above, individually and cumulatively, concerning the [appellant’s] credibility and finds that overall the [appellant] is not a reliable witness.

42    In my view, notwithstanding the impugned credit findings, the Tribunal’s conclusion concerning the appellant’s credit is not infected with jurisdictional error. The impugned findings are objectively of minor, perhaps even of peripheral significance, compared with the credit findings referred to in paragraph [67] which concern the gravamen of the appellant’s claim for protection. The relevant unchallenged credit findings in this case, in terms of their objective significance, are the inverse of the example to which Robertson J referred in DAO16 referred to above.

43    For the above reasons, I reject ground 1 of the notice of appeal.

Ground 2

44    Under Ground 2 the appellant contends that the Tribunal erred in its characterisation of the appellant as having agreed with a statement of the Member during the hearing that the appellant’s father’s actions in sending her to study in Australia aged 19 and supporting her in doing so were not those of a conservative Sikh. The Tribunal said at paragraph [69] of the Decision Record:

…The Tribunal has also considered evidence that her father and brother do not hold strict and conservative Sikh views such that they will harm or kill her. At the hearing the [appellant] agreed with the Tribunal’s observation that her father’s financial and other support to her as a 19 year old daughter to undertake study and stay by herself overseas, which he continued for a long period, was not the action of a conservative traditional Sikh man who would commit an ‘honour’ killing.

45    The exchange between the member and the appellant was as follows:

Member:    “What do you mean?”

[Appellant]:     “You know, like, obviously he wouldn’t let me come here all by myself at the age of 19. But then I was - I convinced them, like, I will not do anything of such kind of things which you are scared of that I might do, that might hit your dignity or anything. I will just focus on my studies, that’s all, and even I wanted to do that thing only. I just wanted to my studies, that’s all. That was my motive when I came here, just studies and studies. That’s it. I just wanted to get a - achieve a degree.”

Member:    “All right?”

[Appellant]:     “Even I - it was a miracle for me, like, my father let me come here. I was shocked.”

Member:    “It would seem to me - yes - that this is not the action of someone who is very traditional?”

[Appellant]:    “Yes, even it was shock for me.”

46    The statement in paragraph [69] of the Decision Record that the appellant agreed that her father’s support was not the action of a conservative traditional Sikh man who would commit an “honour killing”, is not sustained by the above exchange at the Tribunal hearing. In context, the appellant’s agreement conveyed her belief that her father’s actions were out of character. Her answer did not convey assent to the proposition that her father was not conservative or traditional. Furthermore, the exchange did not include any supposition about what her father was or may be capable of doing. It appears that in [69], the Tribunal conflated what was said by the appellant concerning her surprise about her father’s action, with an inference the Tribunal drew about the appellant’s father based upon his actions.

47    However, the relevant finding is contained in the last sentence of paragraph [69] of the Decision Record:

While the [appellant] stated it was a miracle that he agreed, and that he trusted her to act responsibly, the fact remains that her father did agree to her prolonged stay in Australia and financed her stay for five years. The [appellant] describes her father supporting her plans and taking responsibility for organising her study though an agent, even though this meant that she was not initially enrolled in her preferred course. On the basis of these actions, the Tribunal does not accept that her father has strict and traditional Sikh values such that he would harm her in any way, or kill her, to protect his “honour” in the event that he was humiliated by her marriage or any other conduct.

48    This finding was reasonably open to the Tribunal, irrespective of whether the appellant agreed with the Tribunal’s characterisation of her father. It was open on the objective basis upon which it was expressly found, namely the father’s action in permitting the appellant to travel abroad on her own to study. It must also be considered in the context of the whole of the Tribunal’s reasons, including importantly the findings in [67] referred to above.

Ground 3

49    Under ground 3, the appellant contends that the Tribunal failed to comply with ss 424AA and 424A of the Act with respect to information provided to the MRT in relation to the appellant’s student visa. The subject matter of this ground is the discrepancy between what was said by the appellant in her statement to the MRT compared with the evidence she gave before the Tribunal discussed above under the heading “the fifth adverse credibility finding”. Under this ground the appellant relies upon the appellant’s statement to the MRT for a different purpose, namely that the statement she made to the MRT was information within the meaning of ss 424AA and 424A and accordingly should have been disclosed to her.

50    I disagree. The statement to the MRT was relied upon by the Tribunal as a basis for an adverse credit finding. For the reasons I have given above, I do not accept that the suggested discrepancy, arising from omissions in the statement given to the MRT compared with the evidence she gave at the Tribunal, was a proper basis for the inference concerning her credit. Nevertheless, the relevance given to the earlier statement by the Tribunal was for the purpose of identifying omissions in the earlier statement, not for what it contained. It is well settled that “information” in ss 424AA and 424A does not include inconsistencies or the absence of evidence. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 31 ALJR 1190; (2007) 235 ALR 609; 96 ALD 1 at [18]-[19] the High Court said:

…However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing, no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the Tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearing itself.

51    Counsel for the appellant accepted that information for the purposes of ss 424AA and 424A does not include omissions, but sought to distinguish the lacuna in the appellant’s statement to the MRT with the statement itself. Having regard to the forensic and analytical purposes for which the Tribunal considered the appellant’s statement, the perceived lacuna was the only relevance of the statement. There was no relevance given to the content of the statement save for the purpose of identifying an omission or omissions from it. Accordingly, I reject the third ground of appeal. If I am wrong in this conclusion, in my view and for the reasons I have referred to above concerning the question of whether the impugned credit findings constitute jurisdictional error, I would reject the third ground on the basis that the failure to comply with ss 424AA and 424A was not material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780; 359 ALR 1 at [29]-[31].

Ground 4

52    The appellant contends that the Tribunal failed to draw the appellant’s attention to an issue in relation to whether the appellant may be exposed to persecution or significant harm by reason of being a divorced or separated woman in India. It was submitted that the Tribunal failed to satisfy the obligations to afford procedural fairness to the appellant as required. That section provides:

425 Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)     Subsection (1) does not apply if:

(a)     the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

53    The primary judge at [80]-[85] referred to the authorities which have considered s 425, relied upon by the appellant below and in this appeal. I respectfully agree with the primary judge’s reasons for rejecting this ground. It is also evident that the Tribunal considered whether there would be any sufficient allied threat to the safety of the appellant by reason of her status as a separated woman. The Tribunal concluded at [74] that there is no more than a remote chance that her family or community or anyone else will harm the appellant.

54    In circumstances where the appellant’s claim for protection concerns an alleged specific threat motivated by the dishonour alleged to attend her marriage not authorised by her family, in my view the Tribunal addressed appropriately and fairly the question of whether there was any other more general risk associated with the appellant’s status. Accordingly, I reject the contention that the Tribunal failed to comply with s 425.

Disposition

55    For the above reasons the appeal is dismissed with costs.

Associate:

Dated:    13 September 2019