Arc21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 107
•1 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISON 2)
ARC21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 107
File number(s): SYG 429 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 1 October 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal affirming decision not to grant applicant protection visa – application goes no further than seeking merits review – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), s 8
Migration Act 1958 (Cth), ss 5J(1), 36(2)(a), 36(2)(aa), 476
Division: Division 2 General Federal Law Number of paragraphs: 18 Date of last submission/s: 17 September 2021 Date of hearing: 10 September 2021 Place: Sydney The Applicant: Appeared in person, by video Solicitor for the First Respondent: Ms C Dunn of HWL Ebsworth Lawyers, by video ORDERS
SYG 429 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISON 2)
BETWEEN: ARC21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $5,600.
THE COURT NOTES THAT:
3.These are the orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA, subclass 866) visa (Protection visa).
BACKGROUND
The applicant is a national of India. He first entered Australia in 2014 holding a student visa. The applicant’s student visa was cancelled in 2016.
In 2018 the applicant was charged with criminal offences and was detained in prison for approximately 22 months until the charges were withdrawn. On his release from prison the applicant was detained in immigration detention, and he remains in detention.
On 19 November 2020 the applicant applied for a Protection visa. He claimed that, when in Australia, he was wrongfully accused of some serious crimes, and had spent 22 months in jail; but now that his “matters have been finally done and” he has been “found not guilty” of those charges “this has caused too much danger for” the applicant on social media, and the applicant received threats on Facebook now that the applicant “is sueing [sic] the person who did this to me for my cost also”.[1]
[1] CB12
It appears that at the interview with the delegate on 4 December 2020 the applicant claimed he is a singer, rapper, writer, and video producer; he posts music videos on online platforms such as YouTube; and he has followers and fans on several social media platforms. The applicant claimed that after he was charged in 2018 with various crimes his followers and fans started to send threats to the applicant’s Facebook page. The applicant claimed he has been threatened with physical harm in India, and the threats have not stopped.[2] The applicant supported these claims with screenshots from Facebook, one showing a list of videos linked to the applicant’s name, and some which appeared to the Tribunal to be private chat groups. The applicant also submitted screenshots from other social media platforms.[3]
[2] CB89
[3] CB188, [15]
Before the Tribunal the applicant claimed that in January 2021 he had livestreamed a video on Facebook that was critical of Sikhs who defiled the Indian flag during farmers’ protests in New Delhi; the video went viral, with almost one million views; the video attracted critical comments, some of which suggested the applicant is linked with right-wing Hindu extremists; and the applicant fears he could face abuse or physical harm, or be killed by individuals, including Sikh extremists angered by his conduct.[4] The applicant submitted screenshots from text exchanges, social media posts (including from Facebook, YouTube and Tiktok), and video links which ranged from videos the applicant had livestreamed to news reports.[5]
[4] CB187, [7], [8]
[5] CB188-189, [15]
TRIBUNAL’S REASONS
The Tribunal:
(a)accepted the applicant is a Hindu; he identifies strongly with the Haryanvi people and culture; the applicant speaks Hindi and the Haryanvi dialect; the applicant has nationalist leanings and favours the current Bharatiya Janata Party (BJP) government; and many people would perceive the applicant to be pro-Hindu and pro-BJP;[6]
(b)accepted the applicant has thousands of followers and fans on key social media platforms, particularly among Indians from Haryana living in India and outside India;[7] it is plausible the applicant is known to a large number of people, particularly through the distribution of his music videos;[8] the Tribunal found, however, that the applicant’s online presence before January 2021 related overwhelmingly to the applicant’s music videos and related activities, with some video commentary relating to social and lifestyle issues, and that some observers may presume or infer from these videos that the applicant favours an assertive brand of Hindu nationalism that reflects the values of the BJP and of the prime minister himself;[9]
(c)accepted that the applicant’s online presence as a video artist, model, and writer, has generated interest among young people from Haryana, and some negative feedback from time to time, and, in that context, accepted that some persons may also have brought up the applicant’s criminal charges, a car accident in which he was involved, or other rumours;[10]
(d)found it is plausible that some of the applicant’s friends in Sydney, and online, know about the criminal charges that had been laid against the applicant; but the Tribunal was not satisfied there is any published reference to the charges;[11]
(e)found that the video in relation to the farmers’ protests in New Delhi the applicant livestreamed in January 2021 had generated over one million views and a significant number of comments and “likes”, and that it was shared over 11,000 times, suggesting the video appears on other Facebook accounts;[12] the content of the video struck a chord with many people from Haryana on the internet, although some individuals, such as Sikhs who resent inflammatory language that could incite communal tensions, or Hindus who do not support the BJP’s strident nationalism, could also oppose the applicant’s views as expressed in the video;[13]
(f)found that the applicant’s video in relation to the farmers’ protests in New Delhi was “wholly different, with its overtly political and sectarian content, its duration and its emotive character”; and, given the timing of the video (it was livestreamed just before the applicant was due to appear before the Tribunal), the applicant’s “lack of prior similar activity”, and his “distance from the fast-moving events in New Delhi”, the Tribunal was not satisfied the applicant made the livestream otherwise than to strengthen his claim to be a refugee;[14]
(g)accepted that the applicant’s January 2021 video sparked debate, including strong negative reactions in texts and video comments that were abusive and threatening in tone;[15] the Tribunal, however, found the applicant’s description of the threats he claimed were made against him online was “vague, unclear and sometimes lacking context”,[16] the Tribunal was unable to determine the identity or location of the persons who sent abusive texts and video comments, or determine their motivations and the seriousness of their statements, or their capacity to harm or cause harm to the applicant;[17] and the applicant’s reactions to these comments (to block users rather than report any threats to the sites’ administrators or seek police assistance) added to the impression the applicant did not sense any credible or immediate threat;[18] the Tribunal, therefore, did not accept the applicant has been subject to any credible threats of harm, or that the applicant holds a genuine fear of persecution or significant harm at the hands of the people who have made abusive comments online;[19] and
(h)found the applicant was “unforthcoming about his future activities if he returns to India”, but found that, if he returns to India, the applicant would likely return to his home village, at least in the short term.[20]
[6] CB198, [72]
[7] CB191, [29]
[8] CB191, [29]
[9] CB194, [52]
[10] CB197, [65]
[11] CB191, [34]
[12] CB195, [56]
[13] CB195, [57]
[14] CB194, [53]
[15] CB197, [66]
[16] CB196, [63]
[17] CB197, [67]
[18] CB197, [67]
[19] CB197, [68]
[20] CB198, [70]
Given these findings, the Tribunal concluded as follows:
(a)The Tribunal did not accept that any negative feedback, rumours, or abusive language to which the applicant may have been subject gives rise to any real chance of any critics inflicting serious harm on him, for any reason, if he returns to India.[21]
(b)The Tribunal was not satisfied the applicant, as a Hindu, or as a proponent of Haryana, or as a person who supports the nationalist BJP government faces a real chance of serious harm at the hands of Sikhs or others.[22] Nor was the Tribunal satisfied that the applicant’s social media presence and activities, his residence in Australia, and any personal information that may have spread about his criminal charges or car accident, whether individually or cumulatively, give rise to a real chance of Sikhs, BJP opponents, social media or business rivals, or anyone else, inflicting serious harm on the applicant.[23]
(c)Given the findings in (a) and (b), the Tribunal concluded the applicant does not have a well-founded fear of persecution, as required by s 5J(1)(b) and s 5J(1) of the Act and, for that reason, the Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.[24]
(d)The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk the applicant will suffer significant harm and, for that reason, the Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.[25]
[21] CB198, [71]
[22] CB198, [72]
[23] CB198, [72]
[24] CB198, [73]-[75]
[25] CB200, [83], [85]
GROUNDS OF APPLICATION
The application contains the following statements under the heading “Grounds of application” (errors in original):
I’ve spent 22 months in prison with false allegations.
I’ve beat my charges charges in Trial at . . . district court and the outcome is not guilty also my criminal case was dismissed on . . . .
I’ve genuine situation and cannot go back to my home country India.
I’ve threat to kill me and feared about my safety if I go back.
At the hearing before me the applicant, who is not legally represented, repeated the effect of the claims for protection he advanced before the Tribunal. After I confirmed with the applicant that the matters he was stating before me were matters he had put before the Tribunal, I informed the applicant the Tribunal did not accept the applicant was in danger; and I asked the applicant whether he agreed or disagreed with the Tribunal’s decision and, if he did, why he disagreed. The applicant said that although there are many Hindus in India there are also people who have weapons and who will be able to harm him. I then asked the applicant whether he was in a position to identify any error he believes the Tribunal made. The applicant said the Tribunal was wrong in concluding the police and government could protect the applicant. The applicant said his main concern was that people who wish to harm the applicant are “going to do what they are going to do”. The applicant referred to people who had been beaten. The applicant also referred to threats directed to him having been made on social media.
Neither the grounds of application stated in the application nor the matters the applicant stated to me at the hearing disclose any jurisdictional error by the Tribunal; they reveal a claimed fear of harm by the applicant if the applicant returns to India, and claims that the applicant has been threatened with death or serious injury, and will face harm if he returns to India. These are matters that can only be relevant to whether Australia owes the applicant protection obligations. This Court, however, does not have jurisdiction to determine that question; the Court’s jurisdiction is limited to determining whether, on the grounds the applicant advances, or on matters that are apparent from the material that is before the Court, the Tribunal has made a jurisdictional error.
At the hearing the applicant referred to a number of social media posts that he was not able to produce. I made an order granting the applicant leave to send to the Court and to the Minister’s lawyer by 17 September 2021 an email containing the social media posts to which the applicant referred at the hearing. The applicant sent a number emails to the Court together with links to videos, and to what appear to be screenshots from social media and text exchanges. Ms Dunn, the lawyer for the Minister, identified the material the applicant sent to the Court in two emails to my associate (copied to the applicant), one sent at 2:31 pm on 14 September 2021, and the other sent at 6:44 pm on 14 September 2021.
In her email sent at 2:31 pm on 14 September 2021 (which I have caused to be identified as “MFI1”) Ms Dunn identifies six video links the applicant sent to the Court registry. Five of the six links are links to Tiktok, and one is to YouTube. I accessed the link to YouTube. The video was posted on a day in June 2021, and depicts a male speaking a language that is not English. I attempted to open the links to Tiktok but I was unable to access the links because it could only be accessed by a person holding a Tiktok account. I note, however, that in her email Ms Dunn said that three of the Tiktok videos are “not available”.
In her email sent at 6:44 pm on 14 September 2021 (which I have caused to be identified as “MFI2”) Ms Dunn said (emphasis and errors in original):
Since the time of the below email, the Applicant has sent a further seven emails to the Registry of the Court with further material. Details of these emails are below:
1. Claire this is the most important ones which targeted me
. . .
2.This the the another video from TikTok but people send this to India to create a drama
. . .
3.In this video they saying I’m abusing there Khalistan and I’m a RSS supporter which is a political branch of BJP ,
[no video or link attached]
4. This is the edited version
. . . .
5.Email subject: These are the text msgs I'm receiving [includes screenshots of messages] - attached
6.Email subject: SYG429/2021 [includes five links to TikTok videos and screenshots] - attached
7. >
The applicant also sent an email to the Court on 17 September 2021 containing a screenshot of an exchange on Facebook (which I have caused to be identified as “MFI3”).
It appears, and I find, that the applicant sent these links and screenshots as evidence of his claims that he has been threatened, and that he faces a risk of death or serious harm if he returns to India. As I have already noted, however, this Court does not have jurisdiction to determine whether Australia owes the applicant protection obligations. The material, therefore, is not relevant because it is directed, and only directed, to the merits of the claims for protection the applicant advanced before the Tribunal.
DISPOSITION
The applicant has not demonstrated the Tribunal made any jurisdictional error. I will therefore order that the application be dismissed. As for costs, Ms Dunn said that, if the Minister were to succeed, he will seek costs in the amount of $5,600. The applicant said he does not have any money with which to pay costs. That by itself is not a reason for not applying the usual order as to costs. I will also order, therefore, that the applicant pay the Minister’s costs, and that those costs be set in the amount of $5,600, which I am satisfied is a fair indemnity of the costs the Minister has incurred.
I will note in the orders I propose to make that the orders are those of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”. Section 8 of the FCFCOA Act continues the existence of two federal courts and renames them. The first federal court the FCFCOA Act continues is the Court that, before 1 September 2021, was named the “Family Court of Australia”, and s 8(1) renames that Court the “Federal Circuit and Family Court of Australia (Division 1)”. The second federal court the FCFCOA Act continues is this Court which, before 1 September 2021, was named the “Federal Circuit Court of Australia”, but which s 8(2) of the FCFCOA Act renames the “Federal Circuit and Family Court of Australia (Division 2)”.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Dated: 1 October 2021
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