AHL15 v Minister for Immigration

[2017] FCCA 232

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHL15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 232

Catchwords:
MIGRATION – Protection visa application – failure to consider relevant facts and circumstances – failure to consider availability and effect of social media generally.

Legislation:

Migration Act 1958 (Cth), ss.91R, 424A, 424AA

First Applicant: AHL15

Second Applicant: AHM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMNISTRATIVE APPEALS TRIBUNAL

File Number: MLG 625 of 2015

Judgment of: Judge Riethmuller

Hearing date: 14 November 2016

Date of Last Submission: 20 December 2016

Delivered at: Melbourne

Delivered on: 17 February 2017

REPRESENTATION

The Applicants appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. A writ of certiorari issue directed to the Second Respondent quashing the decision of the Tribunal dated 26 February 2015 (RRT case number 1411512 and 1411514).

2. A writ of mandamus issue directed to the Second Respondent requiring it to reconsider and re-determine the review application made on 30 June 2014 according to law.

3. There be no order for costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 625 of 2015

AHL15

First Applicant

AHM15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) made on 26 February 2015.

2. The applicants are citizens of India.  Both arrived in Australia as holders of Student (Subclass 573) visas.  The applicant husband arrived in June 2007 and the applicant wife arrived in April 2008.  On 8 January 2014, the applicants separately applied for Protection (Class XA) visas.  On 28 May 2014, separate delegates of the First Respondent refused to grant the applicants visas.

3. On 30 June 2014, the applicants applied to the Tribunal for review of the delegates’ decisions.

4. On 11 December 2014, the applicants appeared before the Tribunal to give evidence and present arguments with the assistance of their migration agent and an interpreter.  On 26 February 2015, the Tribunal affirmed the delegates’ decisions not to grant the applicants visas. 

5. The substance of the applicants’ case relates to their fear of serious harm arising from their families’ opposition to their same-gotra marriage, which brought shame and dishonour to their families.  The Tribunal summarises the applicants’ evidence on this issue as follows:

   35. … On the evidence before it, the Tribunal accepts that the applicants remain in a committed and ongoing marriage.

   36.  The applicants have claimed that they come from the same gotra although they did not realise this initially.  In their Protection visa statements they claimed that the husband applicant’s family has the same gotra or family name as the wife applicant’s mother.  They claimed further in their statements that “our ancestors believe any boy or girl having same gotra are brother and sister and do not allow marriage between them under any circumstances.  Before arranging marriage between a boy and a girl they check the gotras of both families…”.  The applicants claimed that as they grew closer they realised the problem and so kept the relationship secret from their parents.

   …

   43.  The applicants have claimed that in January 2005 the wife applicant’s elder sister caught her talking on the phone with the husband applicant and that her sister beat her and locked her in the store room for a few hours until the wife applicant begged and told her sister she would end the relationship with the husband applicant.  Her sister warned her that she would tell their father but they kept seeing each other. Her father became aware of the relationship in June 2006; he got so aggressive he tried to kill her, choking her very hard but her mother and sister stopped him saying that was enough, now she would understand and not see that boy any more.  She was so badly beaten by her father that she was hospitalised; while she was still in hospital her father warned her that f she saw the husband applicant again he would kill him.  The wife applicant’s father also asked one of her cousins to confront the husband applicant and her cousin went with some friends and beat the husband applicant badly but he was saved from serious injuries because some of his friends came and helped him.

Tribunal’s Findings

1. The Tribunal accepted that the applicants ‘remain in a committed and ongoing relationship’ (at [35]) and the applicants ‘are in a same-gotra marriage’ (at [38]).

2. The Tribunal found that the applicants were credible witnesses, saying:

   28. The substance of the applicants’ claims with respect to their relationship and their families’ reactions has remained consistent throughout both internally and with each other.  As noted above, the Tribunal considers that some different responses to the same question may reflect the applicants’ different thought processes rather than inconsistency going to their credit.  As set out in more detail below, the Tribunal is satisfied that the applicants have credibly and coherently explained the periods in which they have lived separately since their marriage and accepts also that the passage of time may change an individual’s perception of events within a relationship.  The Tribunal finds the applicants are credible witnesses.

3. The Tribunal accepted the applicants’ evidence, saying:

   [63] The Tribunal has accepted above that the applicants’ families are strongly opposed to their marriage and that both their fathers have threatened to kill them.  The Tribunal has also accepted that the wife applicant was assaulted by her father when he first learned of her relationship with the husband applicant, long before they were married and that the assault amounted to serious harm.  The Tribunal found that the applicants are credible witnesses…  The Tribunal finds there is a real chance that the wife applicant will be seriously harmed or killed by her father or other relatives or by her husband’s father or his relatives if she returns to the state of Punjab now or in the reasonably foreseeable future.  The Tribunal finds also on the evidence before it that there is a real chance that the husband applicant will be seriously harmed or killed by his father or other relatives or by his wife’s father or her relatives if he returns to Punjab now or in the reasonably foreseeable future.” (emphasis added)

4. The Tribunal found that ‘the harm the applicants would face would amount to serious harm capable of amounting to persecution for the purposes of s.91R(1)(b) of the Act.’ (See [66]).

5. The real issue then became whether the applicants could relocate within India, outside the Punjab region.  On this issue, the Tribunal said:

   86. The Tribunal finds on the evidence before it that the harm faced by the applicants is localised to their home state of Punjab… It follows that the Tribunal finds that there is not a real chance the wife applicant or the husband applicant would be seriously harmed because of their marriage to each other or for any other reason if they relocated to an area in India outside the state of Punjab.’

6. As a result, the Tribunal was not satisfied that the applicants were persons in respect of whom Australia had protection obligations under the Refugees Convention or complementary protection criteria and therefore affirmed the decision not to grant the applicants protection visas (see [68] – [72]).

Grounds

1. The applicants raised three grounds in their written application:

   1. The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the tribunal.

   2. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicants understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   3.  The Tribunal constructively failed to exercise its jurisdiction;

   Particular:

   The applicants provided documents to the Tribunal to corroborate their claim.  The Tribunal failed to engage in an active intellectual process of these documents.  The Tribunal ultimately gave the documents no weight on the basis of credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.   It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated their claim.

Ground 1

1. A significant issue in this case is whether or not the Tribunal properly turned its mind to considering the risk to the applicants if were they to relocate.  The Tribunal’s reasoning in this regard is significant.  The Tribunal found that the applicants would not contact their family members if they returned to India, saying:

   18.  The applicants have not claimed that they would need to or would seek to contact their families if they returned to India.  As they have both claimed, and the Tribunal has accepted, they have had no contact with their families for more than two years the Tribunal finds that it would be reasonable for them to return to India but not disclose this to any members of their families or to contact their families.  The Tribunal finds on the evidence before it that the applicants would and could return to India without disclosing their return or their location to their families.

2. However, the Tribunal went on to consider the prospects of family members locating the parties, saying:

   83. In oral submissions to the Tribunal the representative stated that people in India are much more interconnected in India than in Australia and that as a result of the cultural factors at play there word will spread about them so that it will be harder for the applicants to “get lost” than it would be in Australia.  The Tribunal explained that given the geographic and population size of India it may not accept they would be found by family members if they relocated outside Punjab and it may find it would be safe for them to do so.

   84. The applicants have claimed also that the husband applicant’s father is a powerful man with significant wealth and influence to exert harm anywhere in the country.  At hearing the husband applicant stated that his father is a building contractor.  The applicants have provided only very limited evidence in relation to this claim and the Tribunal has some doubts on the evidence before it that the husband’s applicant’s father is powerful and has influence throughout India.  However, even if the Tribunal did accept that the husband applicant’s father has the capacity to exert harm anywhere in the country, the Tribunal has found that the applicants would not tell their families they were returning to India or where they were going.  It follows that the Tribunal finds that irrespective of his wealth or influence, the husband applicant’s father would not know the applicants had returned to India or where they were.

   85. The Tribunal accepts that the wife applicant has relatives in Delhi and Bombay and the husband applicant has an uncle in Delhi.  The Tribunal accepts that there may be people from the husband applicant’s village living in Mumbai.  The tribunal also accepts that social interconnections are more significant in India than they are in Australia.  However, the Tribunal finds that given the vast population of India and the length of time the applicants have been outside the country there is less than a remote chance of either of the applicant coming in contact with and being recognised by those relatives or villagers and of those relatives or villagers contacting the applicants’ immediate families or taking action in relation to the applicants’ immediate families’ opposition to their marriage.

3. The Tribunal also considered the difficulty of whether or not the parties would need identity documents, saying:

   87.  Asked if there were any reasons it would not be reasonable for them to relocate within India the applicants referred again to needing references and ID to get rental accommodation; they said they would need to get multiple documents to get a place.  The Tribunal explained to the applicants that it may find it would be reasonable for them to relocate within India.

4. The thrust of the Tribunal member’s findings with respect to whether or not the family may locate them within India are set out in paragraphs [81] and [86] respectively, which provide:

   81. The Tribunal asked whether they would be safe in a city or state outside the Punjab from the harm they fear from their families.  The wife applicant said there is still a fear that someone might see them any day, anywhere.  Her father travels a lot for work distributing vegies in all direction to the cities around their area.  She stated that people will share information about them.  The husband applicant stated that there are about ten people from his village in Mumbai and a couple of guys in Australia although they don’t see them.  He doesn’t think they will know if he has left Australia but they might think he has gone and tell his family.  He stated that even though they will not tell their families where they are going, and they might not find them immediately, it will just be a matter of time until they do even if it takes three or four years.  The Tribunal finds that the applicants’ claims that someone might notice their absence in Australia or see them somewhere in India and tell their parents are highly speculative.  On the evidence before it the Tribunal finds that the chance the applicants’ absence from Australia or presence in another part of India outside Punjab would be reported to their parents is less than remote.

   …

   86. The Tribunal finds on the evidence before it that the harm faced by the applicants is localised to their home state of Punjab.  On the evidence before it the Tribunal does not accept that in a country the size of India with a population in excess of 1.25 billion[1] that if the applicants moved to a location outside Punjab without disclosing to their families their departure from Australia, return to India or whereabouts in India, there would be a real chance they would be located by their families now or in the reasonably foreseeable future.  It follows that the Tribunal finds there is not a real chance the wife applicant or the husband applicant would be seriously harmed because of their marriage to each other or for any other reason if they relocated to an area in India outside the state of Punjab.

   [1] India population, 2015, Accessed 20 February 2015

5. Given the findings at the end of paragraph [84], it seems that the issue turned entirely upon whether or not the applicants’ families are likely to be able to locate them within India or become aware of their location within India if they return.

6. In relation to Ground 1, the applicants submitted that the‘Tribunal failed to consider the possibility of the applicants being located by their prosecutors through electronic forms of communication’ (at [35] of the Applicants’ Written Submissions dated 19 December 2016). 

7. At the Tribunal hearing, the applicants’ representative made submissions to the effect that ‘people in India are much more interconnected in India than in Australia and that as a result of the cultural factors at play there word will spread about them so that it will be harder for the applicants to “get lost” than it would be in Australia.’ (see [83] of the Tribunal’s decision).

8. In their written submissions dated 19 December 2016, the applicants state that:

   23.  The Applicants concede that they made no express claim that social media and the internet would make it easier for their family to discover that they had left Australia and returned to India.  However, implicit in the claim that Indian society is more interconnected is the notion that interpersonal connections are more significant and extensive.  In a modern world, interconnectedness is not only limited to face-to-face contact but also includes electronic connections though social media and other forms of electronic communication.

   …

   25. Although the Tribunal acknowledged that “social interconnections are more significant in India than they are in Australia”, it failed to consider the impact of electronic forms of communication, such as the internet and social media on the Applicants’ families’ ability to locate the Applicants outside of the Punjab reason.  Instead, the Tribunal confined itself to considerations relevant to face-to-face contact between the Applicants and their families or persons who might recognise them and inform their families.  This approach is apparent from the Tribunal’s focus on the following factors:

   a) the large population of India;

   b) the large geographical size of India;

   c) how remote the chance was of a face to face encounter between the Applicants and a person who would recognize them and then inform their family of the applicant’s presence in India; and

   d) how remote the chance was of someone in Australia realising they were no longer in the country and then informing their family of the Applicants’ likely presence in India.

   26.  In light of the above, the Tribunal failed to perform the first limb of its task by limiting its consideration to physical factors and failing to consider that India is a modern country with extensive, widely used, modern communication methods which include social media and the internet (such factors necessarily affect the impact of geographical distance and population size on risk; as well as providing a free-standing method by which the applicant could be identified).  In doing so its decision is affected by jurisdictional error because it failed to take into account an integer of the Applicants’ claim.  In the alternative, it failed to complete its statutory task.

9. The First Respondent submitted that, because ‘the applicants made no claim, either substantively or in connection with their ability to relocate, to fear harm on the basis that they would be located by their families through the use of the internet and social media’ (see First Respondent’s Written Submissions dated 28 November 2016 at [10]), there was no error in the Tribunal failing to consider any claim in relation to the applicants’ use of the internet or social media as no such claim was before the Tribunal.  At paragraph 14 of written submissions dated 28 November 2016, the first respondent went on to submit:

   14. The First Respondent respectfully submits that it is not the role of the Court on judicial review to construct a case for the Applicant that was simply not made nor arose on the materials before the Tribunal.  To do so strays into impermissible merits review.

10. The reasoning of the Tribunal would be entirely appropriate in a pre-internet and social media society.  What is conspicuously absent from the reasoning process is any consideration of the impact of the internet and more particularly that of social media.  We live in an age where most people under 40 have a presence on social media, sharing information about their lives and making connections with others through the use of technology.  The internet makes people from all over the world accessible and more easily traceable.  The Tribunal has not considered the impact of this seismic cultural shift as a result of the new internet technologies upon the question of whether or not the parties were likely to be located by family members.  Similarly the Tribunal has not considered whether or not it was reasonable to expect the parties to curtail their use of internet technology.  Of course, in the modern age of computing simply changing one’s name is insufficient if there are photographs on the internet, as a result of modern facial recognition searching being undertaken by the major search engines and social media providers.  To ignore the impact of social media in today’s world would be equivalent to ignoring the existence of the telephone or postal services. 

1. As electronic communication and social media have become ubiquitous it is an affront to common sense to conclude that they need specific references in submissions any more than references to telephones or postal services.

2. This consideration may not be relevant in cases where perpetrators of harm are unlikely to travel to other parts of the country, as may well be the situation with harm perpetrated simply on racial or political grounds.  This case, however, is unusual in that involves harm perpetrated on an individual level by perpetrators that would remain highly motivated to pursue the applicants and perpetrate the harm involved. 

3. The question that remains is whether or not the consideration of the impact of internet and social media is so central to the determinations in a case such as this, which involves a threat of honour killing by wealthy and highly motivated parents, such that a failure to have regard to it is a failure to have regard to a relevant matter that results in jurisdictional error.

4. Ultimately the determinations in a case such as this must be based upon practical, real-world considerations.  It is unfortunate that the submissions to the Tribunal member did not alert the member to this issue in a clear statement.  However, the failure to consider modern communication and the effects of information sharing through social media is of such significance, at least in the peculiar circumstances of this case, as to result in an error on the part to the Tribunal in failing to take it into account.

5. In the unusual circumstances of this case I am, therefore, persuaded that the Tribunal member has erred and that it is appropriate to set aside the decision and have the matter re-determined. 

Grounds 2 & 3

1. The second and third grounds of the applicants’ application can be briefly dealt with. Firstly, the applicants were not able to identify information that ought to have been the subject of a notice under ss.424A and 424AA of the Act as claimed in ground 2. In their submissions the applicants frankly admitted that the grounds were drawn by a friend and were unable to advance them.

2. Ground 3 is in similar terms.  The applicants were not able to identify any particular piece of evidence that this ground was said to relate to.

Costs

1. Given the way the case was conducted before the Tribunal, I am not persuaded that the applicants should have their costs of this proceeding

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 17 February 2017