ATR16 v Minister for Immigration

[2016] FCCA 1584

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATR16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1584

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants & Refugees Division) – Subclass 573 Visa – whether the Tribunal properly considered the potential harm faced by the applicant – honour killings – provocation – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.2, 5, 5J, 5H, 36, 476.

Applicant: ATR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 795 of 2016

Judgment of: Judge Street

Hearing date: 27 June 2016

Date of Last Submission: 27 June 2016

Delivered at: Sydney

Delivered on: 27 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms L Buchanan
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 795 of 2016

ATR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of .a decision made by the Tribunal made on 17 March 2016, affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of India and his claims were assessed against that country.

2. The applicant arrived in Australia on 2 May 2009 on a subclass 573 visa. One of the criteria of the grant of a subclass 573 visa and which the applicant certifies in the application for such a visa is that the applicant intends genuinely to stay in Australia temporarily. If the applicant did not genuinely intend to stay in Australia temporarily he would not have met an essential criterion for the grant of a visa. The applicant married his deceased wife in 2008. From the material before this Court, it appears that the marriage was arranged as a result of payments made by the applicant and his family to the deceased family in order to obtain the benefit of a spouse visa so that the applicant could come to Australia and stay in Australia.

3. The applicant contends that his family paid $10,000 to his deceased wife’s family and that there was a further $10,000 payment, which, in  the hearing before the Court, the applicant alleges was, in fact, made by his family.  On the material before the Court, it is not apparent that that further $10,000 was paid to the deceased’s family.  Relevantly on a date in 2009, the applicant committed a violent crime, killing his wife.  The applicant slit his wife’s throat. The applicant first strangled his wife and then cut her a number of times.

4. The applicant was convicted of manslaughter and has served his six year non-parole period of an eight year sentence.  The applicant is currently in detention.  The applicant claims to fear being returned to India because of fears of retribution by his deceased wife’s family. 

5. The delegate found that the applicant could relocate in India and refused his application on that ground.  The applicant applied for review on 10 February 2016.  By letter, dated 29 February 2016, the applicant was invited to attend a hearing on 9 March 2016. The applicant attended that hearing to give evidence and present arguments. 

6. The Tribunal was also provided with character evidence concerning the applicant.  None of that character evidence identified any attention to the nature of the crime that had been committed by the applicant. None of the character evidence took into account any sentencing remarks, history of domestic violence by the applicant to his wife, the circumstances of the offence, the violent nature of the crime, the circumstances in relation to the applicant’s migration status at the time of the offence, the reason the applicant told this Court that he killed his wife so as to prevent her divorcing him so that he could remain in Australia, or the background circumstances in which he had paid the wife’s family for the marriage and for the purpose of obtaining the benefit of her visa to come to Australia and that he had made a false statement in his visa application as to his intention to stay in Australia temporarily.

7. The Tribunal identified the applicant’s claims and evidence, and, in particular, that if the applicant returned to India, the applicant alleged that he would be definitely killed by his father-in-law or his brother-in-law. The Tribunal identified the applicant’s fears in relation to publicity that his killing of his wife had in India. The Tribunal referred to the country information in relation to the circumstances in which the applicant allegedly lost self-control and killed his wife. Those circumstances in India are characterised as an honour killing and the applicant so described the killing of his wife to this Court. 

8. The applicant was convicted of manslaughter on grounds of the defence of provocation.  The circumstances in which the jury found the applicant guilty of manslaughter are ones in which the applicant alleged that his former wife had an extra-marital affair.

9. Because of the reference to honour killings in India it is necessary for this Court to say something about honour killings albeit it is not a matter that is relevant to the determination of the issue of jurisdictional error. An honour killing under Australian law is murder. The defence of provocation is not under Australian law based on any notion of honour killings.

10. It is important to understand that the defence of provocation does no more than reduce the crime of murder to manslaughter. It is for the jury to determine whether the deceased committed an act of provocation, whether that act of provocation caused a loss of self-control by the accused, and whether the act causing death was done whilst the subject of a loss of self-control. A pre-mediated intent to kill cannot establish a defence of provocation. The ordinary person test as to loss of self-control due to the conduct of the deceased is also for the jury to determine.

11. That ordinary person test for the defence of provocation is not met by a male, who is not in immediate physical fear of a female partner, killing a female partner by reason of conduct of the female partner creating a fear of divorce or a fear of losing immigration status in Australia. Nor is the ordinary person test met by a male, who is not in immediate physical fear of a female partner, killing a female partner by reason of conduct of the female partner disclosing that she is having or has had affairs or that she has lied about affairs, or by reason of conduct disclosing that she no longer loves the accused or by conduct disclosing an intention to end the relationship with the accused or by conduct disclosing an intention to pursue other relationships. None of these circumstances are conduct by a female that would meet the ordinary person test in relation to the loss of self-control by a male, who is not in immediate physical fear of a female partner, so as to form an intention to kill or to inflict grievous bodily harm.

12. The Tribunal took into account the publicity relating to that allegation of an extra-marital affair in determining the significance of the media publicity. It was in those circumstances that the Tribunal made reference to the potential beliefs of the deceased wife’s family and said whilst the wife’s family may not believe such an accusation about her, that accusation had been aired in the Indian media. It was in those circumstances, the Tribunal found that, given this information, it was not satisfied that the late wife’s family would be motivated to harm the applicant by any traditional obligations stemming from considerations of family honour.

13. The Tribunal did not accept that the applicant was a person who, having served his prison sentence in Australia, was one that the local police would regard as a person unworthy of a level of protection that they had previously extended to his parents and his brother.

14. The Tribunal accepted that the applicant’s deceased wife’s family were devastated by her death and enraged with the applicant for having killed her. They also have viewed his term of imprisonment in Australia as inadequate.  The Tribunal found that the deceased wife’s family expressed their anger to the applicant’s parents and brother and, following this, the applicant’s family complained about the incident to the police and the police subsequently issued a warning to the applicant’s late wife’s family, which has been effective in deterring them from any further incidents and also allowed the applicant’s family to return to their home.

15. The Tribunal was not satisfied that the late wife’s family had paid other people to make harassing calls to the applicant’s family since then or that they had in any way commissioned or arranged further media reporting about their daughter’s murder. The Tribunal found that it was not satisfied that the local police, who had previously demonstrated their willingness to protect the applicant’s family against harm from his late wife’s family, would decline to extend effective protection to the applicant should he request it.

16. The Tribunal referred to a suggestion that the applicant still owed the late wife’s family money. The Tribunal said that it accepted, after the applicant arrived in Australia, he may well have been pressured by them for more money over and above the amounts that had been originally agreed under threat of cancellation of his visa if he didn’t pay. The Tribunal found that there was no evidence to suggest that they had demanded money from his family since the applicant’s wife’s death.

17. The Tribunal was not satisfied that the applicant, or his family, owed any further money to the late wife’s family or that there were any continuing demands for payment over a debt which would provide a motive for them to wish to harm him. 

18. The Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for any of the reasons in s.5J(1) of the Migration Act 1958 should he return to India now, or in the reasonably foreseeable future. Also, accordingly, the Tribunal was not satisfied that the applicant met the definition of a refugee under s.5H and that the applicant did not satisfy the criteria under s.2A.

19. The Tribunal went on to consider the complementary protection issues individually and cumulatively and found that it was not satisfied that there are substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm, specifically arbitrary deprivation of life, a death penalty, torture, cruel and inhumane treatment or punishment or degrading treatment or punishment, as defined in ss.36(2A) and s.5(1) of the Migration Act 1958, at the hands of his late wife’s family in his home area. It is in those circumstances that the Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate. 

20. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant that the Court was deciding whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

21. The Court explained to the applicant that it proposed to identify the evidence and hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood what had been said by the Court.

22. The Court notes that on 21 April 2016 a Registrar of the Court fixed the matter for hearing on 20 May 2016 and provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No further documents were provided by the applicant.  On 20 May 2016 a Judge of this Court provided the applicant with a further opportunity to file an amended application and stood the matter over for hearing today. No amended application was filed. The applicant identified to this Court that he was unable to obtain any representation, and no adjournment application was made by the applicant. 

23. The applicant in his application identified the following grounds.

    I am the applicant in this proceeding.

    My name is [X].

    My D.O.B is [DATE]

    On 11th of May 2009. I arrived in Australia by My Self on Student Dependant visa.

    My wife [Z] was the Main applicant and my visa was dependant  on her.

    She came to Australia in January 2009 and I came after her in May 2009.

    After my wife death in 2009 [MONTH]. My visa was got cancelled by Immigration officers in August 2010 while I was in custody.

    I had got 6 years in prison for my Crime. Which was finished on [DATE].

    In October 2015 - I applied for Protection visa. But it was refused by deligate of the Minister for Immigration Border Protection.

    On 23rd of March 2016 Administrative Appeal Tribunal affirmed the decision of the delegate of the Minister.

    Given the refusal of my visa. I became very depressed especially given the fact that I have fear of my life. My life is on risk of I return back to India I most likely will get killed.

    The decision of the Administrative Appeal Tribunal affirming the decision of the Minister delegate is un-Constitutional. Its hurt me and my feelings so much .

    Given the fact that I have got fear of my life if I return back to India. I most likely will get killed. The decision to refusal of my visa and affirmed by the Tribunal is a denial of procedural fairness and natural justice and was not done in Just terms.

    I did not Commit any Crime in India

    I have only Commited one Crime in Australia. I too full responsibility and very remoursful for what I had done. I served my time. I have learnt from My Mistake.

    My record in Jail term was very clean. I never got charged for anything. Always obeyed the Jail rules and I had very good reports from Industries officers and Custodial officers. I also achieved Certificates from different Courses. I kept my education and skills up in last 6 years.

    I can provide lot of positive things to the Community. I will always obey the Community and Society rules.

    I love the environment in Australia. People are so friendly and helpful. I am learning lot of things from them.

    I like the streets over here and the Culture over here is So nice I really admire it.

    If I return back to India. I will not get all of this. I would always live in stress. My life would be on risk because the victim family wanna seek revenge for death of their daughter.

    People over there are not happy from Crime.

    I would get killed by victims family if I go back.

    They had already Create lot of problem to my family when I Commited the Crime. The Smashed my house My parents had to leave the house for 2 Months.

    They are still getting threatening phone Calls about me

    My life is realy in great risk if I return back to INDIA.

    I Cannot go back.

24. In addition to the grounds of the application the applicant also filed at the same time the applicant’s submissions, which are as follows.

    The questions and issues that arise in this proceeding are that whether are that the Administrative Appeals Tribunal decision is vitiated by Jurisdictional error? and whether the decision to refuse to grant me a protection visa.

    The Answer to the above question are emfactic yes. Australian law does not tolerate the Injustice revealed in the refusal decisions of both the first and second respondant. The law Provide relief.

    The parole Board is the only Administrative body with the power the determine whether I pose any threats of re-offending with the regards to the protection of Australian Community and public.

    The parole board trust on my character and found that I did not pose any risk to the Community and re-offending and they approved my parole to re-enter in the Community and Society for the positive Contribution.

    The parole board put me through every security and test Come to the conclussion  that I did not pose any risk to the Community of which I have being a good member of the Community.

    The refusal of my protection visa it is Submitted that I have been punished again.

    The progress I had made to Address my rehabilitation

    My life is on great risk if I get sent back to India. I most likely would get killed.

    My family back in India is already facing threats about my life.

    The Tribunal failed to take in to account the positive progress that I have made to address the qualification that I have achieved in last 6 years, and my rehabilitation and the risk I will face if I return back to India.

    That failer it is submitted a Jurisdictional error.

    The Tribunal it is submitted failed to ask a relevant question and failed to take into account relevant material and Consideraton about my life and my character and my fear to returning back to India.

    I have improve myself since I was in Custody. I kept my education level up by doing my study and courses.

    The Tribunal failed to understand the risk I would have to face if I send back to India.

    By knowing that India is a Country of seeking revenge and known killing and they still refuse to grant me protection visa.

25. The applicant also provided in support of his application a letter seeking to identify his responsibility as the eldest son of his family since his father has passed away and to explain why he could not go back to India. The applicant also provided character evidence, none of which identified having taken into account considerations of the kind referred to above at [6]. This material that was not before the Tribunal cannot establish a jurisdictional error.

26. From the bar table the applicant maintained that the wife’s family would pursue him and that his life would be in danger if he went back to India.  The applicant maintained that the killing of his wife had been the subject of publicity in India. The applicant was concerned that the police would not protect him.  Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal. 

27. The grounds of the application are in substance a repetition of the applicant’s claims and do not identify any arguable jurisdictional error by the Tribunal.  It is apparent from the Tribunal’s reasons that the applicant had a genuine hearing.  On the face of the material before the Court the Tribunal complied with its statutory obligations. There is no material before this Court to establish the Tribunal failed to provide the applicant procedural fairness. The reference in the grounds to the decision of the Tribunal being unconstitutional is of no substance. The Tribunal was exercising lawful powers conferred by the Migration Act 1958.  There was no basis for any such contention and no real or arguable issue was raised under the Constitution.

28. The applicant’s submissions assert a generalised proposition of jurisdictional error without articulating any basis upon which any such error could be found. Those submissions fail to make out any jurisdictional error. 

29. The applicant made reference to the parole board, which is a state body concerned with administering state legislation.  The extent to which the state body, the sentencing judge or the jury were aware of the circumstances in relation to the applicant’s real intention at the time he obtained the 537 visa, the false information provided by the applicant in the visa application as to his intention, the payments that were made to the wife’s family to obtain the marriage and benefit of the wife’s visa or the disclosed reason for killing his wife given to this Court being the a fear in relation to loss of his entitlement to stay in Australia if divorced, are not matters upon which it is necessary for this Court to deliberate. The views of the state body are irrelevant to the issues before this Court. Nor is it necessary for this Court to consider the obvious character issue to which the delegate referred, if in fact the Tribunal had been satisfied that the applicant met the criteria for a visa. 

1. The applicant’s assertion as to his character-supporting material is one which it was a matter for the Tribunal to take into account in relation to the applicant’s claims and credibility and it is apparent the Tribunal took that material into account. As explained above the fresh alleged character evidence is irrelevant even if it did not suffer the deficiencies identified above. It was a matter for the Tribunal to determine the applicant’s claims, and the adverse findings cannot be said to lack an evident and intelligible justification. The adverse findings by the Tribunal were open on the material before the Tribunal. There is a reference to the decision of the Tribunal being unconstitutional, however there is no substance in that assertion and no basis for any such contention. 

2. It is apparent that the Tribunal took into account the material provided by the applicant in relation to his alleged rehabilitation and character, but they are not matters which establish any jurisdictional error by the Tribunal.  The applicant’s general assertion of the Tribunal failing to understand the risks that he would have to face back in India is not consistent with the content of the reasons of the Tribunal that correctly identify and evaluate the applicant’s claims. There is nothing to support the proposition that the Tribunal failed to understand the nature of the risks alleged by the applicant.

3. No jurisdictional error has been made out in support of the application. The application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 June 2016