AHE17 v Minister for Immigration

[2017] FCCA 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHE17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2017

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where Tribunal found it reasonable for the applicant to relocate within receiving country – no jurisdictional error revealed.

Legislation:

Migration Act 1958 (Cth), s.5J(1)(c)

Applicant: AHE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 40 of 2017

Judgment of: Judge Jarrett

Hearing date: 4 August 2017

Date of Last Submission: 4 August 2017

Delivered at: Brisbane

Delivered on: 4 August 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Minter Ellison

The Second Respondent entered a submitting appearance

ORDERS

1. The application for review filed 19 January, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 40 of 2017

AHE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal as made on 19 December, 2016.   That decision affirmed a decision of a delegate of the first respondent to refuse the applicant a protection (Class XA) visa.   The applicant is a citizen of India. 

2. He arrived in Australia in November, 2007 on a student visa that was valid until March, 2010.   In March, 2010 he applied for a Skilled (Subclass 457) visa.   The application for that visa was refused and his bridging visa that was in existence for the purposes of his substantive visa application ceased in September, 2010.   

3. The applicant has remained in Australia since that time.   He applied for a protection visa on 5 December, 2014.   It was refused by a delegate of the first respondent on 20 October, 2015 and as I say, the Administrative Appeals Tribunal confirmed that decision on 19 December, 2016.   

4. The applicant claimed before the delegate to fear arrest in India from the police in relation to attempted murder of two brothers in the applicant’s home in the Punjab province.   The applicant also claimed to fear harm from the brothers and their families who wanted revenge. 

5. In support of his claims, the applicant recounted the following events.   Between 2004 and 2006, his friend, Valjip was bullied and beaten by two brothers, Jagar and Pacau Singh.  In December, 2005 the applicant was attacked by the two brothers whilst in a playground.  In June, 2006 during a particular festival, the applicant and Valjip were again beaten by the same brothers.  In June, 2007 during the festival, Valjip and some of his friends attacked the brothers.  The applicant subsequently departed India for Australia to study in November, 2007.  Valjip was subsequently arrested and is now in jail after being charged with attempted murder.  The police suspect that the applicant was one of the other unknown attackers and want him to return to India for investigation.   

6. The Tribunal considered those claims.  It invited the applicant to a hearing because it could not make a decision favourable to him on the papers.  The Tribunal, in its reasons, expressed some doubts about the applicant’s credibility, but notwithstanding those doubts, the Tribunal did accept parts of the applicant’s claims.  For example, it was prepared to accept that the applicant and his friend, Valjip, had been bullied by the brothers whilst they were at school and attacked by them in June, 2006.

7. The Tribunal also accepted that the brothers had been attacked by Valjip in 2007 and that Valjip was arrested and imprisoned.   However, the Tribunal did not accept that the police were ever interested in the applicant or that the applicant left India because he feared arrest from the police.   Nevertheless the Tribunal accepted that the applicant might face a real chance of persecution and a real risk of significant harm from the two brothers and their family in his home area of Punjab.   

8. The Tribunal also accepted that the applicant could not obtain protection from the Indian authorities in connection with the risk of harm from the family of the brothers.  The Tribunal made those findings in its reasons at paragraphs 97 and 98.  They are important because those findings were a trigger for the Tribunal to go on and consider the prospects of the applicant’s relocation within India.   

9. The Tribunal determined that it would be open for the applicant to relocate his own residence to other Indian states where there was only a remote risk of the harm that the applicant feared.   The Tribunal considered whether it would be reasonable for the applicant to relocate and it observed that the applicant can read, speak and write Punjabi and English and is young and able-bodied.  It did not accept his claims that he could not move to another part of India or obtain employment sufficient to support himself.   He claimed that he could not move to another part of India for, amongst other reasons, the fact that he could not leave his family.  He made that argument notwithstanding that he had lived in Australia since 2007.  The Tribunal considered the applicant’s individual circumstances and it found that it would be reasonable for him to relocate to another state in India to avoid the localised threat of serious harm in Punjab.   

10. The Tribunal considered the applicant’s claims in their entirety but did not accept that he had a well-founded fear of persecution.   For similar reasons, the Tribunal was not satisfied that Australia owed the applicant obligations under the complementary protection criteria. 

11. The applicant’s grounds of review are rudimentary to say the least.  That is no criticism; it is simply an observation which is designed to demonstrate that the grounds themselves do not identify any particular jurisdictional error in the Tribunal’s decision.  His oral submissions to me today confirm that the applicant’s real argument with the Tribunal’s decision is that it did not believe him.   As I have attempted to demonstrate in these reasons, however, the Tribunal did believe some of what the applicant said; just not all of it. 

12. His grounds of review are in the following terms:

    All the facts and things I told the Tribunal in my hearing, they said they are not true.

    I don’t want to go back to India because some people will try to harm me. 

    The Tribunal said I can be relocated in India and survive, but the facts they gave are nowhere near ground realities in India. 

    There are people in Australia who know me and they are from the same where I am from India.   If I go back, the other party and police will find out and try to harm me. 

13. The first respondent submits that the gravamen of the application is in paragraph 3 of the applicant’s grounds of review, that is, the gravamen of this application is his contention that the Tribunal was wrong to find that he could be relocated to some other state in India. As the first respondent points out, it is useful to record that the visa application being dealt with in this application predates the introduction of s.5J(1)(c) of the Migration Act 1958 (Cth) and so the older definition of refugee and the principles that were developed under the Act as it stood when this visa application was made in relation to internal relocation in respect to both the refugee and complementary protection criteria apply.

14. The Tribunal was alive to that, of course, and the Tribunal considered the internal relocation principle as it had been developed in the authorities under the old form of the Act.   The Tribunal specifically referred to some of those authorities. 

15. The Tribunal turned its mind to what was reasonable in the circumstances in the sense of what was practicable and it considered the particular circumstances of the applicant and the impact upon him of that relocation.   There were a number of relevant factors identified by the Tribunal in its reasons and there is a fulsome discussion of those matters and the country information that the Tribunal had before it in relation to the issue of relocation from paragraph 79 of its reasons onward.   In paragraph 99 of the Tribunal’s reasons onward, it makes findings in relation to the question of relocation.   

16. As the first respondent quite properly submits, the findings that are recorded in paragraphs 99 and onwards in the Tribunal’s reasons that relate to relocation were open to it on the evidence.  They were findings which were neither illogical nor irrational in the sense used in the authorities.  Nor is the decision or the conclusions reached by the Tribunal unreasonable in the relevant sense.   

17. In those circumstances, the decision of the Tribunal is not attended by jurisdictional error.   The application, therefore, must be dismissed with costs.   

[RECORDED: NOT TRANSCRIBED]

1. Ordinarily costs follow the event in these applications.  Unless there are special circumstances attending the case, the ordinary rule should apply.   It is often said, and the applicant says in this case, that the amount sought for costs is high and he may not have the means to meet it.  But impecuniosity has never amounted to special circumstances sufficient to displace the usual rule that costs should follow the event.  The applicant should pay the first respondent’s costs in the amount fixed by the Courts’ rules. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  23 August 2017