ADV16 v Minister for Immigration

[2017] FCCA 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADV16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2020

Catchwords:
MIGRATION – Application for an extension of time – application for judicial review made one day out of time – where Applicants’ substantive application not arguable – extension of time refused.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B)(a), 477

First Applicant: ADV16

Second Applicant: ADX16

Third Applicant: ADY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 125 of 2016

Judgment of: Judge Hartnett

Hearing date: 19 May 2017

Delivered at: Melbourne

Delivered on: 23 August 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Mr Rogers

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $3606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 125 of 2016

ADV16

First Applicant

ADX16

Second Applicant

ADY16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for an extension of time and an application for judicial review filed 22 January 2016 of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 17 December 2015 which affirmed a decision of a delegate of the Minister to not grant to the Applicants protection (Class XA) visas (‘the visas’).

2. The grounds for the application for extension of time are as follows:-

   “1. Was not sure of holidays

   2. We were thinking it is 35 working days.

   3. Migration agent told it is 35 business working days.”

3. The grounds of the substantive application are as follows:-

   “1. unreasonableness

   2. unfair decision

   3. submission attached”

   The Applicants submission, filed with the application for judicial review, also raises the ground:-

   “not willing to go back because of fear of procecution (sic)”

4. The First Respondent filed a response on 4 February 2016 seeking dismissal of the application and that the Applicants pay the First Respondent’s costs of the proceeding.  The dismissal of the proceeding was sought on the basis that the decision under review is not affected by jurisdictional error. In addition, the First Respondent submitted in written submissions filed 1 May 2017 that the application for extension of time should be dismissed with costs.

5. The matter proceeded before Registrar Buljan, and on 22 June 2016 orders were made by consent which included that the Applicant file and serve any amended application with proper particulars of the grounds of application and written submissions on or before 17 April 2017.  The Applicants did not amend the application and nor did they file any written submissions.

6. The First Applicant filed an affidavit affirmed by him on 22 January 2016 at the time of filing of the application which essentially annexed the decision of the Tribunal to affirm the decision not to grant the Applicants protection visas.  In respect of the grounds of review, the First Applicant said in that affidavit:-

   “Submission

   The unreasonableness the ground is clear when I was required to answer that I am unable to go back to India with my 3 year old son and with my wife. Because of fear of procecution (sic) and threat of harm from my family and community.

   The respected Tribunal member assumed that we can relocate to another Part of India. The Tribunal Member considered that if we relocate to India we will be safe but we disagree with the decision.

   Where as the realty (sic) is… we go back to India and relocate any part of India or other country such as Nepal. We will be killed by my parents because they have link in Police Department and with politices (sic).

   We indicated to Tribunal member that India Police and Political People are corrupt. It is easy to get information from police if you pay them. The Tribunal Member gave the decision based on country information but the realty (sic) is different. The Tribunal Member said there is no central name registration in India. It is not true. India has central name regestred (sic) system.

   The Respected Tribunal Member accept that we have harm to our lives but still Tribunal Member said to us we can relocate to India if something happen to our life if we go back who be responsible for that.”

7. The Court had before it the Court Book, filed on 6 July 2016, and the contents therein which are evidence in the proceedings.

History

1. The First Applicant is an Indian national who arrived in Australia on 11 June 2009 on a student visa. The Second Applicant is also an Indian national who arrived in Australia on 18 May 2009 on a student visa. The First and Second Applicants married in Australia on 15 April 2011 and had a child, the Third Applicant, born 28 May 2012 in Australia.

2. On 6 August 2012 the Applicants applied for protection (Class XA) visas. A delegate of the Minister refused to grant the visas on 20 August 2014, and the Applicants lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (as it was then known) on 22 September 2014.

3. The Applicants appeared before the Tribunal on 28 October 2015 to give evidence and present arguments. The Applicants visa applications claimed that the Applicants would be harmed for marrying “outside” their religions and ethnicities due to the First Applicant being a Sikh and the Second Applicant being a Christian.  The Applicants claimed that they would be killed because their marriage had dishonoured their families and that their families have connections with the police, politicians and the courts which will permit them to find the Applicants wherever they lived in India.

The Tribunal

1. The Tribunal’s findings and reasons are accurately and succinctly set out in the First Respondent’s submissions and I adopt them below:-

   “14. The Tribunal had regard to country information before it about so called “honour killings” committed by family and community of those who married outside their religion and or caste. The Tribunal found that honour killings continue to be a problem in India, particularly in the applicants' home region of Punjab.

   15. The Tribunal also had regard to country information about the availability of state protection from religiously-motivated harm from non-state actors like families and communities.

   16. The Tribunal further had regard to country information about relocation options in India.

   17. The Tribunal accepted that the first and second applicants were generally credible. It accepted that the first applicant is from a Sikh family, and the second applicant from a Christian family, and that they married without their families' agreement. The Tribunal further accepted that the first and second applicants' fathers have threatened to kill them and that they fear harm from their families.

   18. The Tribunal was satisfied that the applicants face a real chance of persecution, and a real risk of significant harm, in their home state of Punjab. The Tribunal found that state protection would not be available to them in Punjab.

   19. The Tribunal proceeded to consider whether the applicants could relocate to another part of India where they would not face a real chance of harm. In short, the Tribunal concluded that:

   19.1. there would be no appreciable risk of the applicants facing the feared harm if they were to relocate to an urban centre outside their home state of Punjab; and

   19.2. relocation would be reasonable, having regard to all of the applicants' circumstances.

   20. In relation to the risk of harm to the applicants on relocation, the Tribunal considered the risk of the applicants' families locating them if they moved elsewhere in India such as one of the country's urban centres. The Tribunal found that there was no more than a remote chance of the applicants' families locating them if they moved elsewhere in India. The Tribunal also considered the risk of the applicants facing ostracism in the community if they relocated due to the first and second applicants' marriage. The Tribunal did not accept that the applicants faced a real chance of serious or significant harm on these bases. The Tribunal concluded that the real chance of serious or significant harm was localised in their home state of Punjab. It found they could relocate to a place within India where there would be “no appreciable risk” of the occurrence of the feared harm.

   21. In relation to the reasonableness of relocating within India, the Tribunal considered in detail whether it would be practicable for the applicants to relocate in all their circumstances. It found that it would. Amongst other things, the Tribunal found that the first and second applicants had the necessary language skills and would be able to find employment. The Tribunal also took into account the applicants' health concerns, and the potential for social ostracism as a result of the first and second applicants' inter-faith marriage as factors potentially making relocation unreasonable.

   22. The Tribunal concluded that the applicants could reasonably relocate within India such that:-

   22.1. they did not have a well-founded fear of persecution in India and therefore did not meet the refugee criterion in s 36(2)(a) of the Migration Act 1958 (the Act); and

   22.2. under s 36(2B)(a) there is taken not to be a real risk that they will suffer significant harm, so that they did not meet the complementary protection criterion in s.36(2)(aa).”

Consideration

1. The application for judicial review was filed one day outside the period in which the application was to be filed pursuant to s.477(1) of the Migration Act 1958 (Cth) (‘the Act’). There is a satisfactory explanation for this very minor delay and there is no prejudice to the Minister in granting any extension. However the interests of justice do not require that an extension be granted because the Applicants substantive application is not arguable, it is without merit. The extension of time application will therefore be refused.

2. The Applicants fail to properly particularise the grounds of review. The Applicants submission is essentially a disagreement with the findings of the Tribunal. There is no suggestion of, let alone identification of jurisdictional error in the decision of the Tribunal.

3. The Tribunal carefully considered the Applicants claims and country information relevant to those claims. Indeed the Tribunal said in paragraphs 85 and 86 of the Decision Record:-

   “85. Based on the oral evidence of the applicants, the Tribunal accepts that the families have threatened to kill the applicants, and the Tribunal finds this amounts to serious harm for the purpose of s.91R(1) of the Act. Given the threats of the families, and considering independent country information concerning reports of violence and honour crimes involving inter-faith couples, the Tribunal finds that the applicants face a real chance of serious harm at the hands of the applicants’ families in the reasonably foreseeable future in their home area of Punjab on account of their religion.

   86. Based on the evidence of the applicants, and having regard to s.36(2)(aa) of the Act cited above, the Tribunal finds that all the applicants face a real risk of significant harm for the purpose of s.36(2).”

4. The Tribunal, having made these findings, then proceeded to consider internal relocation and, adopting the correct legal principles, made the findings referred to in paragraph eleven above. The Tribunal clearly considered the safety of, and risks that may be posed to the Applicants, and the reasonableness of any relocation. The Tribunal carefully and in some detail considered this matter of internal relocation. The findings of the Tribunal were open to it on the evidence before it. All of the Applicants’ relevant circumstances were considered by the Tribunal.

5. No jurisdictional error attends the decision of the Tribunal.  

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 23 August 2017