AGP16 v Minister for Immigration
[2018] FCCA 3161
•30 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGP16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3161 |
| Catchwords: PRACTICE AND PROCEDURE – Applicants failed to appear on penultimate and final hearing dates – proceeding considered on the merits pursuant to r 13.03C(1)(e) of the court’s rules – application dismissed. |
| Legislation: Migration Act 1958, sub-s.91R(1) Federal Circuit Court Rules 2001, sub-rr.13.03C(1)(c), (e). |
| Cases cited: SZATV v Minister for Immigration and Citizenship (2007) 231 CLR 18 |
| Applicant: | AGP16 |
| Second Applicant | AGQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 229 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 9 August, 6 September and 30 October 2018 |
| Date of Last Submission: | 30 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2018 |
REPRESENTATION
| First Applicant: | No appearance |
| Solicitors for the First Applicant: | None |
| Second Applicant: | No appearance |
| Solicitors for the Second Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed on 9 February 2018is dismissed for non-appearance pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $6 825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 229 of 2016
| AGP16 |
First Applicant
And
| AGQ16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
This proceeding was fixed for hearing on 9 August 2018 at 2:15pm. At the time the parties were ordered to file written submissions and the proceeding was adjourned to 6 September 2018 at 2:15pm. On 6 September 2018 the applicants did not appear. After hearing from the solicitor for the minister, I granted leave for the minister to file written submissions addressing a particular aspect of the case that was raised. The minister duly filed submissions that addressed that residual issue and the case was listed before me today. The applicants have not appeared. I asked Ms Montalban, who appeared for the minister, what she wanted to be done with the case in the face of that non-appearance, it being identical to the non-appearance on 6 September 2018.
Ms Montalban initially suggested the case be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules (“rules”). After discussion, that position was altered to the minister requesting this case to be dealt with on the merits pursuant to r 13.03C(1)(e) of the rules, which seemed to me to be appropriate notwithstanding the applicants’ non-appearance. I was told that both applicants are no longer in Australia and that their prospects of re-entering are slender. In those circumstances, it seemed to me appropriate to deal with the case on the merits. That I now do and dismiss this proceeding with costs.
Let me turn to some of the background. The first applicant is a male citizen of India born 30 June 1983. The second applicant is his wife and also a citizen of India. They arrived in Australia on 3 April 2009 on student visas. The applicants have a son born in Australia in 2009. On 17 June 2014, the first applicant applied for a protection (class XA) (subclass 866) visa. His claims were set out in a statement accompanying the application. On 5 March 2015, a delegate of the minister refused the application.
On 19 March 2015, the applicants applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. The applicants appeared before the tribunal to give evidence on 30 October 2015, and on 2 February 2018 the tribunal affirmed the delegate’s decision not to grant the applicants the protection visas they sought. On 3 February 2016, the tribunal wrote to the applicants informing them of the tribunal’s decision affirming the delegate’s decision not to grant the applicants the protection visas they sought.
Let me now turn to the substance of the claims that were rejected by the delegate then later by the tribunal. The first and second applicants were from a small village in Gujarat, India. They commenced a romantic relationship in 2008. They asserted that the second applicant informed her family of the relationship and of her intention to marry the first applicant. The first applicant claimed that as a result in April 2008 the applicant was brutally beaten by the second applicant’s uncles.
They married in July 2008 in a neighbouring village without the consent of their respective families as a result of which the first applicant’s parents disowned him and the second applicant’s uncles placed an advertisement in a newspaper stating she was no longer under their guardianship and thereby cutting her off from her inheritance of certain land and assets. Both applicants filed a police report but were unable to obtain support from the police.
The first applicant claimed his wife’s family disapproved of their marriage because he was a divorcee and of a different caste insufficiently high for their purposes. The family also believed the applicant married their daughter for her money as she was from a wealthy family of tobacconists and landowners. The first applicant’s mother demanded a dowry from the second applicant’s family, and upon refusal to provide such a dowry, the first applicant’s mother refused to accept the first applicant’s proposed wife in marriage.
Consequently, the applicants moved to a village some distance away and lived in Vadodara, Ahmedabad and in other cities. They stayed with various family members. In 2009, the applicants travelled to Australia on a student visa, and they had a child in 2010. Their son became ill in 2011, and the first applicant sent his son to live with his sister who lived in a village in India so that the son could obtain medical attention. In 2012, they visited their son as a result of which the applicants’ claim that they had received threats from the second applicant’s maternal uncle who threatened to kidnap their son, hold him for ransom and kill him.
As mentioned above, the delegate did not accept that version of events and refused to grant the protection visa. On a merits review to the tribunal, the tribunal made a number of factual findings but ultimately affirmed the delegate’s decision not to grant the applicants the protection visa they sought. The tribunal found the applicants to be generally credible and accepted they were from the same village in a rural area of India, that they formed a relationship without their families’ approval and considered themselves to be shamed by reason of that relationship.
The tribunal accepted that the applicants sought assistance from local police but were unable to obtain such assistance and the tribunal accepted the applicants’ account of their relationship, finding that it was consistent with country information available in relation to love marriages in India. However, the tribunal did not accept that an advertisement was issued in an Indian newspaper identifying the second applicant or that the newspaper article was published with the intent that the applicants would be located.
In the overall, the tribunal accepted that the applicants were at risk of harm from the second applicant’s family members and it considered that such harm amounted to serious harm for the purposes of s 91R(1) of the Migration Act. The tribunal considered that the applicants would not be able to access a level of state protection in their home area of India. The tribunal then addressed the elements set out in the High Court decision in SZATV v Minister for Immigration and Citizenship[1] and in the High Court decision in SZFDV v Minister for Immigration and Citizenship[2] on the question of whether it would be reasonable for the applicants to relocate elsewhere in India to a region where, objectively, there would not be an appreciable risk of the occurrence of the feared persecution.
[1] (2007) 231 CLR 18
[2] (2007) 233 CLR 51
Addressing country information, the tribunal considered India’s urban centres and concluded that it was unlikely that the second applicant’s family would be able to find the applicants in any other area of India. The tribunal had regard to country information. That did not support a finding that local police, through their own networks, could locate the applicant’s at the behest of the second applicant’s family. The tribunal considered that the applicants were educated and it observed that the first applicant himself stated he did not have concerns about obtaining employment. In the result, the tribunal found it would be reasonable for the applicants to relocate to another state in India where there was no appreciable risk of harm, and that on that basis, the applicants do not have a well-founded fear of persecution in India.
The tribunal found it would be reasonable for the applicants to relocate to an area of India where there would not be a real risk of significant harm under s 36(2B)(a) of the Act, and therefore there were no substantial grounds for believing the applicants faced a real risk of significant harm.
Being dissatisfied with the decision of the tribunal, the applicants applied to this court for judicial review by application filed 30 March 2016. The application to this court was prepared by the first applicant in person. It was discursive in nature and relied on, apparently, one ground although the ground did not contain propositions of fact or law by which it could be discerned that some complaint in the nature of jurisdictional error was alleged.
It is useful to set out the ground (with errors in the original) in the following terms –
Tribunal officer said I can relocate in India, but it is not possible to moving from some place where I was living. I know India is 1200 million people, it is easy to moving from Victoria to Queensland because it is same language, same culture and security of your life, but it has hard for me and family, my son, is 5 years old, my in-laws family have good contact in India They will find us and kill us. I already faced so many problems, I know they if they will know one day and How I can I live my whole life with scaring from them, In India It is easy to kill people, every too many cases happen and police can’t do anything. I have no one there who back me up, if they kill us then no one care about us.
The minister construed that as an allegation that addressed the reasonableness or otherwise of relocation. The question of relocation has been set out in a number of authorities, but the locus classicus for present purposes is the decision of Mortimer J in MZANX v Minister for Immigration and Border Protection.[3] I considered and applied her Honour’s decision in CSJ17 v Minister for Immigration & Anor.[4]
[3] [2017] FCA 307
[4] [2018] FCCA 269
Essentially, her Honour examined a collection of authorities, including the extensive authoritative writings on the point by Professor Hathaway[5] requiring the examination of a fact intensive investigation about the reasonableness of an applicant’s relocation. In this case, the minister contended that due consideration was given by the tribunal of the necessary elements for the validity of a proper consideration of relocation principles.
[5] The Law of Refugee Status (Toronto: Butterworths, 1991)
It is to be observed that the tribunal’s decision in this case was given on 2 February 2018 whereas her Honour’s decision was in early 2017 and my own decision was given in early 2018. At all events, on behalf of the minister, Ms Montalban embraced the following propositions –
a)the applicants’ claimed inability to give information about themselves in the relocated region was specifically addressed in paragraph 91 of the tribunal’s reasons;
b)in paragraph 94 of the tribunal’s reasons the tribunal specifically addressed the applicants’ capacity to get a new job in the relocated region and the resultant standard of living that applied;
c)in paragraph 95 of its reasons the tribunal addressed the availability of family support and in particular emotional and social support from the first applicant’s sister, albeit not a resident in the relocated region;
d)in paragraph 97 of the tribunal’s reasons the tribunal addressed the applicants’ son’s health condition and the applicants’ ability to engage with healthcare and its quality in the relocated region; and
e)between paragraphs 98 and 99 of the tribunal’s reasons the tribunal addressed the first applicant’s own health condition, both medical and physical, and the applicants’ capacity to obtain access to affordable health care.
Those were among the considerations in which the tribunal was required to engage for a proper and exhaustive fact intensive examination of the sort canvassed in both MZANX and CSJ17. Ms Montalban contended that the tribunal thoroughly considered the applicants’ circumstances, taking into account their education, qualifications, ability to obtain employment, linguistic skills and remoteness of any threat to the first applicant’s safety, in reaching the conclusion that it would be reasonable for the applicants to relocate to another state in India.
I agree.
In my assessment, the tribunal properly discharged the obligations that fell upon it and made no error, whether of the sort alleged or at all. In those circumstances, it is appropriate to dismiss this proceeding for the reasons that the applicants did not appear to make out their grounds for jurisdictional error and in any event in my view the tribunal made no jurisdictional error.
Therefore, I dismiss this proceeding and order the applicants to pay the minister’s costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 8 November 2018
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