ARP15 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARP15 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2376

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error found – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth) ss.417, 36, 424

Federal Circuit Court Rules 2001, rr.11.08(1), 11.11(1), 11.11(2)

N/A

First Applicant:

ARP15

Second Applicant:

ARQ15

Third Applicant:

ARR15

First Respondent:

MINISTER OF IMMIGRATION & BORDER PROTECTION

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 400 of 2015

Judgment of:

Judge Vasta

Hearing date:

26 August 2015

Date of Last Submission:

26 August 2015

Delivered at:

Brisbane

Delivered on:

26 August 2015

REPRESENTATION

The Second Applicant appearing on his own behalf

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the Second Applicant be appointed the First Applicant’s Litigation Guardian, pursuant to r.11.08(1) and r.11.11(1) of the Federal Circuit Court Rules 2001.
That the requirements of r.11.11(2) be waived.
That the Application be dismissed.
That the Second and Third applicant pay the costs of the First Respondent, in the amount of $5,800.
That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 400 of 2015

ARP15

First Applicant

ARQ15

Second Applicant

ARR15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

The Applicant is a child who was born in July 2009 and therefore is now aged six years of age.
He is the child of the Second and Third named Applicants.
The Second and Third named Applicants had previously lodged an application for protection visas on 24 September 2008. Those applications were refused by the Department on 20 December 2008, and that decision was affirmed by the Refugee Review Tribunal on 9 April 2009.
It seems that after the Refugee Review Tribunal had made their decision that the Second and Third Applicants, as is their right, sought judicial review of the decision in this Court and then subsequently appealed to the Federal Court of Australia, and then finally sought special leave to appeal to the High Court.
That special leave application was refused on 20 June 2012.
It seems, then, on 6 November 2012 a request for ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth) (“the Act”) was refused, and then this application was made by the First named Applicant, the six year old child, on 6 December 2012.
The Applicant’s application for a protection visa was refused by the delegate of the Minister in 2014, and on 6 February 2015 the Applicant took that matter to review before the then Refugee Review Tribunal.
On 15 April 2015 that Tribunal affirmed the decision of the delegate.
The Applicant then filed this application on 8 May 2015. It came before me, where I gave directions.
An amended application was filed on 26 July 2015 with amended grounds to the application, but there were no further submissions filed.
In short compass, the facts relied on here are somewhat different to what the second and third applicants had relied upon in their matter that was ultimately refused special leave.
The child is represented by the Second Applicant here today, and I will, at the end of this hearing, make an order that the Second Applicant be the litigation guardian of the First Applicant and can appear for the First Applicant. The essential ground is that the First Applicant faces danger if he is removed to India. This is because the Second Applicant and the Third Applicant, the mother and father of the First Applicant, come from different castes within the Indian Hindu religion and society. Therefore, because they are of different castes they should not mix socially, let alone get married.
The father had given evidence to the Tribunal that he and the mother knew each other from school. They both finished school in 1999.
Despite the fact that they really could not talk to each other (except for some seldom made clandestine phone calls between the two) and that they did not see each other face-to-face except for some chance meetings, they maintained a romance. Their eyes would meet when the wife, who was always accompanied by someone, was allowed to travel to the village of the father, and the two applicants may see each other across the road. But they made no gestures toward each other so as to ensure that no one knew that they were looking at each other.
In effect, the only time they really had face-to-face contact after 1999 was on 1 January 2008 when they got married.
The father gave evidence that this was a matter that was arranged by a friend, so that when the family of the mother was out of town, the mother was able to escape her house and meet the father in a temple.
They then married and left the mother’s village and went to Chandigarh.
The father says because they had violated the mores of Indian society, the father of the wife – that is, his father-in-law and the first applicant’s maternal grandfather – had vowed that he would kill both the father and the mother. It is therefore extrapolated, on behalf of the first applicant, that if he were removed to India, his maternal grandfather would kill him as well because of the forbidden liaison between his parents.
It is trite to say that Australia owes protection under the convention of refugees pursuant to s.36 of the Act, and if the convention does not apply, that Australia owes complementary protection to those whom the Minister was satisfied would suffer serious harm if returned to the receiving country.
The question for the Tribunal was to look at the evidence that it had before them and to decide whether or not it was satisfied that the applicant met either the convention criteria or the complementary protection criteria.
The Tribunal decided that they did not accept the testimony of the mother or the father and were not satisfied therefore, that the first applicant fulfilled either criteria.
Ground one of this application is that:
“the Tribunal misconstrued the risk and fear of significant harm, as set out in s.36(2A)” of the Act;
“the Tribunal construed narrowly the existence of risk to life and fear of significant harm to the Applicants upon their return to India.”
Having gone through the decision of the Tribunal, I cannot see that there has been any misconstruction of what the convention asks the Tribunal to find. The Tribunal set out as an annexure to its decision what the law was relevant to its consideration, and it cannot be said on any reading of it that the Tribunal did not understand what it was that is meant by “a risk and fear of significant harm”. What it did find is that the Applicant was not at risk of serious harm and was not at risk of losing his life. So when one is having a look technically at what the first ground is, it is clear that it fails.
Ground two was that:
“The Second Respondent failed to comply with the mandatory requirement under s.424A, read with s.424AA of the Act to give the applicants clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the Applicants to comment upon or respond to that information.”
In particular, “the Tribunal did not issue any written invitation under s.424A of the Act and, made no attempt to, and did not, comply with the requirements set out in s.424AA of the Act.”
That section of the Act does mandate upon the Refugee Review Tribunal to ask or put to the applicants any information it has that would, in its view, tend to enable it to affirm the decision of the delegate.
In this case, the Tribunal articulated three particular pieces of evidence that it felt were in that category. The Tribunal put these pieces of information to the applicants.
They were, firstly, the fact that the marriage ceremony occurred in a temple in the wife’s village. This, to the Tribunal, did not seem to be credible if what it was that the husband and wife were saying was actually the fact.
At paragraphs 16 and 17 of the reasons of the Tribunal, the detail of the answer given by the Second and Third applicants is related. In paragraph 18, the Tribunal explains why it is that they did not accept that explanation.
The second piece of information was that the marriage certificate that was relied upon in the visa application of the Second and Third Applicants clearly says that the relatives of the wife’s family were present. The explanation for this was given at paragraphs 21 and 22 of the reasons. At paragraph 23, the Tribunal explained why it did not accept that explanation.
The third piece of information was the delay in leaving the country. The Tribunal had put to the Applicant that if they were married in January 2008 and the father-in-law was of the mind that he was going to seek them out to kill them, why it was that they were, in effect, safe until August of 2008 when they left. The Tribunal was asking why the father would not have found them and harmed them in that period between January and August. The explanation given by the Applicants is found at paragraphs 25, 26 and 27. In paragraph 28 onwards the Tribunal details why it is that they did not accept that information.
Therefore, to my mind, the Tribunal has complied with s.424AA.
The Tribunal verbally told the Applicants what the adverse information was and put it to them there in the hearing. That adverse information was information that really, in truth, arose out of the answers that were given by the Applicants during the course of the Tribunal hearing. It certainly was not information that was practical to be given of a written notice, and s.424AA allows that; in fact, mandates that, that if information comes forward in that manner, that this is how the Tribunal ought deal with it.
In my looking at the record and the reasons of the Tribunal, there has been compliance with s.424AA.
The unfortunate consequence for the Applicant is that he was simply not believed. So that ground also fails.
The third ground was in finding that it was not satisfied that the Applicant was a person to whom Australia owed protection obligation:
“….the Tribunal engaged in a press of reasoning that was irrational, illogical and not based upon findings or inference of fact supported by logical ground.”
Such a ground really is, in effect, a merits review application.
As has been said many times in these Courts, the function of the Federal Circuit Court, in reviewing the decisions of the Refugee Review Tribunal, is not an appeal where the Court can simply substitute its judgment for that that it felt the Tribunal ought to have made.
What this Court must find is whether there has been a jurisdictional error. In this case, as I have said before, the Tribunal had to be satisfied that Australia did not owe protection under the Convention, and then had to be satisfied, if it had come to that, that the complementary protection criterion had also not been made out. The key word here is that the Tribunal had to be satisfied of these matters.
In my view, the authorities point out that it is the satisfaction of the decision-maker that is being reviewed, and for there to be a jurisdictional error, it must be seen that the decision was one that was simply not open upon the evidence before the decision-maker. That is, that no reasonable decision-maker could have come to the decision that was eventually made upon the evidence before it.
In this case, I can see no such error.
The Tribunal has looked at what it was that the applicant had said, and simply not accepted the truth of what was said by the applicants. It is not a question for this Court to say whether that was correct or not; it is whether such a conclusion was open or not.
In my view, such a conclusion was clearly open. Therefore, I cannot find that there is any jurisdictional error with regard to that aspect, and so ground three fails.
Therefore, in my view, there has been no jurisdictional error at all.
I have had a look very carefully at the decision of the Tribunal, and notwithstanding that the Applicant has limited himself to only three grounds, I have looked to see whether I could find any jurisdictional error not identified; I cannot find any such error.
Therefore, I dismiss the application.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 3 September 2015

[2015] FCCA 2376

26 August 2015

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Standing