AVS22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 132
•23 February 2023
Federal Circuit and Family Court of Australia
(DIVISION 2)
AVS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 132
File number: PEG 38 of 2022 Judgment of: JUDGE KENDALL Date of judgment: 23 February 2023 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal erred in its assessment or consideration of country information – whether the Tribunal was biased – whether the Tribunal’s decision was illogical or irrational – whether the applicants were afforded procedural fairness – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 425, 476, 486C & 479
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 9.08 & 11.10
Federal Court Rules 2011 (Cth), r 1.06
Cases cited: Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Vidiyala v Minister for Home Affairs [2018] FCA 1973
Division: Division 2 General Federal Law Number of paragraphs: 94 Date of hearing: 6 February 2023 Place: Perth Applicants: Applicants appeared in person Counsel for the First Respondent: Ms M Scott Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 38 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVS22
First Applicant
AVT22
Second Applicant
AVU22
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
23 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The application (as amended on 6 February 2023) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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
JUDGE KENDALL:
Background
The applicants in this matter are all citizens of India (Court Book (“CB”) 78-83).
The first and second applicants are husband and wife respectively (CB 17). The third applicant is their son (CB 84).
The first applicant first arrived in Australia in March 2017 as the holder of a student visa. He subsequently held further student and skilled graduate visas (CB 166).
The second applicant arrived in Australia in July 2012 (CB 167).
The third applicant was born in Western Australia in June 2015 (CB 84).
The applicants have another child who was initially the fourth applicant in this matter. That child is no longer a party to this proceeding.
On 21 March 2017, the first, second and third applicants applied for Protection (Class XA) (Subclass 866) visas (the “visas”) (CB 12-110). Attached to that visa application were passports for the first, second and third applicants and a copy of the third applicant’s Western Australian birth certificate. A bundle of educational documents for the first applicant was also provided (CB 78-110).
In the visa application, the first and second applicants raised identical protection claims. Relevantly, both the first and second applicant claimed to fear harm on the basis of their Muslim religion (CB 47-49 & 72-74). No protection claims were made on behalf of the third applicant (CB 112-136).
On 31 January 2018, the Department of Home Affairs invited the first and second applicants to attend an interview with a delegate of the first respondent (the “Minister”) on 19 February 2018 (CB 154-159).
On 19 February 2018, the first and second applicants attended that interview with a delegate of the Minister.
On 19 March 2018, the delegate refused to grant the first, second and third applicants the visas (CB 165-176). The delegate determined that the first applicant had applied for a protection visa because he was trying to extend his stay in Australia (and not due to a genuine fear of harm upon return to India) (CB 170). A similar determination was made in relation to the second applicant (CB 171). On that basis, the delegate determined that the first, second and third applicants did not meet the criteria for the grant of the visas (CB 171-172).
On 13 April 2018, the first applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 177-182).
Later that same day (also on 13 April 2018), the Tribunal wrote to the first applicant advising that he had completed the incorrect form. He was also given the correct application form and asked to complete it (CB 183).
On 16 April 2018, the first applicant provided the Tribunal with a correctly completed review application on behalf of the first, second and third applicants (via email) (CB 184-191).
On 5 September 2018, the first applicant wrote to the Tribunal and provided further “evidence in support of [his] application” (via email) (CB 195-224).
On 8 December 2021, the Tribunal invited the first, second and third applicants to appear at a hearing before it on 22 December 2021 (CB 232-236).
On 22 December 2021, the first, second and third applicants attended a hearing before the Tribunal (CB 239-242).
On 29 December 2021, the first applicant provided further information to the Tribunal in support of the review application (via email) (CB 243-248).
On 8 February 2022, the Tribunal affirmed the delegate’s decision refusing to grant the first, second and third applicants the visas (CB 253-269).
On 2 March 2022, the applicants lodged an application for judicial review in this Court (including the fourth applicant in that application) (CB 1-7). The applicants seek review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
The Tribunal’s decision
While this Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring instead to summarise the Tribunal’s core findings), at times it is necessary to recite a substantial portion of the Tribunal’s reasons in order to draw attention to the Tribunal’s reasoning process and to properly consider and address the contentions raised against the Tribunal: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32].
Here, the Tribunal’s decision is lengthy and detailed. It is 17 pages long and spans 81 paragraphs. Three pages comprise of extracts of relevant legislative provisions from the Act.
The Tribunal began by identifying the type of visa under review, noting that a delegate of the Minister had refused to grant the applicants the visas on 19 March 2018. The Tribunal then identified the three applicants and acknowledged that they had applied for the visas on 21 March 2017 (at [1]-[4]).
The Tribunal identified that the first applicant claimed to fear harm in India “on account of his identity as a Muslim” and the actions of the government in relation to Muslims. The Tribunal noted that the delegate had refused to grant the applicants the visas (on 19 March 2018) because the delegate did not accept that the applicants were refugees (as defined by the Act) or that there was a real risk that they would suffer significant harm. The Tribunal confirmed that the applicants had sought review of the delegate’s decision and that the applicants appeared before the Tribunal on 22 December 2021 to give evidence in relation to their application (noting that they were not represented in relation to their Tribunal review) (at [5]-[9]).
The Tribunal then summarised the criteria relevant to the visas and noted that, in accordance with Ministerial Direction No. 84, it had taken account of the Refugee Law Guidelines, the Complementary Protection Guidelines and country information assessments. The Tribunal also identified that the issue in this case was whether the applicants met the refugee criterion or were entitled to complementary protection (at [10]-[17]).
The Tribunal then outlined the first applicant’s protection claims as follows:
18.On his protection visa application forms the applicant made the following claims:
a.He states that he is a Muslim and that the Central Government in India “completely” supports Hindus.
b.He states that in 2002 Narendra Modi was the Chief Minister of Gujarat State and that he commanded riots and “killed thousands of Muslims”.
c.He states that now that Modi is the Prime Minister of India, he is a “big threat” for Muslims in India, especially in the applicant’s state of Gujarat.
d.As a Muslim he can be killed in “communal riots” in India. He states that he and a friend were returning home and “Hindus” stopped them; he states that the Hindus killed his friend and that he ran away and was saved. He states his fear that this could happen again.
e.In 2002 he was “just saved” in the communal riots.
f.He cannot move anywhere in India as Modi is now the Prime Minister and it is “very harmful for Muslims”.
The Tribunal then outlined the documentary evidence before it, including:
(a)the information provided by the applicants in their visa application and the application for review (which included a copy of the delegate’s decision) (at [19]);
(b)a statement made by the first applicant (via email) on 5 September 2018 (prior to the Tribunal hearing) (at [20]);
(c)various media articles and YouTube videos provided by the applicants (also prior to the Tribunal hearing) (at [21]-[22]); and
(d)an email from the first applicant to the Tribunal on 29 December 2021 with answers to questions raised at the Tribunal hearing (at [23]) and attachments to that email (comprising letters from the first applicant to the Police Commissioner of [Omitted] dated 24 February 2021, a letter from a “Priest at [Omitted] Mosque” dated 23 December 2021 and a letter from a “Municipal Councillor” dated 24 December 2021” (at [24]).
The Tribunal confirmed that it had read and had regard to the Department of Foreign Affairs and Trade’s Country Information Report India, published on 10 December 2020 (the “DFAT Report”) as well as other relevant country information. The Tribunal further confirmed that it was satisfied that the applicants were Indian nationals and that their receiving country is India (at [25]-[26]).
The Tribunal also outlined the law relevant to credibility assessments (at [27]-[29]).
Noting that the first applicant “appeared to the Tribunal [to give his oral evidence] honestly and truthfully” (at [31]), the Tribunal summarised that oral evidence, as follows:
(a)the first applicant was 37 years old and his father, brother and sister all still reside in India. The first applicant’s mother died in May 2019 and his father is retired. The first applicant and his family are “of the Sunni Islamic faith” (at [32]-[34]);
(b)after completing secondary schooling and a Diploma of Engineering in India, the first applicant came to Australia in 2007 as the holder of a student visa, completing a “series of qualifications culminating in a Diploma of Automotive Technology” (at [35]);
(c)the first applicant told the Tribunal that his intention, when he left India, was to “explore lawful pathways to migrate to Australia”. Further, when pressed, the first applicant explained that he feared both the Prime Minister and Minister for Home Affairs in India, noting that the Prime Minister had “pursued anti-Muslim policies” (at [36]);
(d)the first applicant claimed that there was “always prejudice” against Muslims and that there had been sporadic sectarian riots “throughout his life”. Further, the first applicant claimed that he had joined a group of Muslim students at his college, whose objective was to “raise [their] hands and put [their] opinion” forward. The first applicant said that the group was an informal association of Muslim students and that, within that context, the first applicant was a “Muslim activist” (at [37]-[39]);
(e)the first applicant claimed that he was “physically assaulted on two occasions by non-Muslim students” whilst giving a speech and that, on those occasions, he was punched in the face and head and that the altercations lasted approximately 10 minutes. However, the first applicant avoided arrest because the applicant’s father was (at that time) a government officer (at [40]);
(f)the first applicant claimed that he feared returning to India because he was a “Muslim activist”, who “always raised [his] hand”, they “never liked [him]” and will “track [him] down”. The first applicant explained that you “[e]ither put [your] head down and do what [they] say; or if you put your hand up [you will be targeted]” (at [41]-[43]);
(g)the first applicant also stated that every minority in India faced the same situation and that the ruling Bharatiya Janata Party (“BJP”) was pursuing a policy of “inflaming Hindu nationalism” and that “if you hate Muslims” in the BJP, you progressed within the party” (at [45]); and
(h)the first applicant stressed that because he had “been an activist” and was known, “they’ve been waiting for [him]”. When asked how the first applicant was able to return to India multiple times since arriving in Australia in 2007, the first applicant said that his father’s government position gave him “a degree of protection” but that because his father has now retired, the protection no longer exists (at [46]-[47]).
The Tribunal confirmed that the second applicant was also invited to give oral evidence at the Tribunal hearing but declined to do so (despite being in attendance at that hearing) (at [48]).
The Tribunal then set out the relevant country information as follows:
49.Official statistics record that India’s Hindus comprise 79.8 per cent of the population, and Muslims comprise 14.2 per cent. The Muslim minority is dispersed throughout India, with the majority living in Uttar Pradesh, Bihar, West Bengal and Kerala, as well as Jammu and Kashmir.
50.Despite the Constitution of India providing for freedom of conscience and the right freely to profess, practise and propagate religion, religious minorities have experienced heightened discrimination and violence. Since the 2014 election victory of the BJP under the leadership of Prime Minister Modi, there have been rising Hindu nationalism and communal polarisation. In a climate of relative impunity, right-wing groups have been emboldened to attack religious minorities. There have been discriminatory policies and laws, toleration of attacks on and discrimination against minorities, and incitement of hate speech and violence.
51.In its World Report 2021: India (13 January 2021), Human Rights Watch reported on the treatment of the Muslim minority population of India, stating:
At least 53 people were killed in communal violence that broke out in Delhi in February. Over 200 were injured, properties destroyed, and communities displaced in targeted attacks by Hindu mobs. While a policeman and some Hindus were also killed, the majority of victims were Muslim. The attacks came after weeks of peaceful protests against the Indian government’s discriminatory citizenship policies.
Violence broke out soon after a local BJP politician, Kapil Mishra, demanded that the police clear the roads of protesters. Tensions had been building for weeks, with BJP leaders openly advocating violence against the protesters, whom some called ‘traitors’ to be shot. Witness accounts and video evidence showed police complicity in the violence. A July report by the Delhi Minorities Commission said the violence in Delhi was ‘planned and targeted,’ and found that the police were filing cases against Muslim victims for the violence, but not taking action against the BJP leaders who incited it.
52.L Maizland, in an article entitled “India’s Muslims: An Increasingly Marginalized Population” reported:
•For decades, Muslim communities have faced discrimination in employment and education and encountered barriers to achieving wealth and political power. They are disproportionately the victims of communal violence.
•Prime Minister Narendra Modi and the ruling party have moved to limit Muslims’ rights, particularly through the Citizenship Amendment Act, which allows fast-tracked citizenship for non-Muslim migrants from nearby countries.
53.The Department of Foreign Affairs and Trade (DFAT) reports that the Citizenship (Amendment) Act, 2019 (CAA) came into force on 10 January 2020. The CAA makes religion a criterion for citizenship for the first time. It provides a shorter residence period of five years for a citizenship application (instead of the normal 12 years) for persons who belong to the Hindu, Buddhist, Christian, Sikh, Jain or Parsi communities from Pakistan, Bangladesh and Afghanistan, and who had entered India illegally before 31 December 2014. Muslim communities are not included.
The Tribunal continued:
54.The National Register of Citizens (NRC) is a register of all Indian citizens mandated by the 2003 amendment of the Indian Citizenship Act, 1955. Its purpose is to document all the legal citizens of India so that the illegal immigrants can be identified and deported. It has been implemented for the state of Assam, starting in 2013–2014, and the Government of India plans to implement it for the rest of the country in 2021. There are concerns that the upcoming compilation of the NRC might be used to deprive Muslims of Indian citizenship.
55.However, DFAT also reports that Muslims in India face a low risk of official discrimination and that incidents of violence have not affected the day-to-day lives of most Muslims:
DFAT assesses many Muslims live day-to-day with low levels of societal discrimination and violence. Communal violence has occurred in India for many decades. The Muslim community has often been disproportionately affected and the February 2020 Delhi riots marked the latest episode. Hindu nationalist politics has heightened communal tensions in parts of India in recent years. In this climate, there are higher levels of fear in the Muslim community. The risk of societal discrimination and violence is higher for Muslims who are involved in cow slaughter; however, these incidents, while widely reported, have not affected the day-to-day lives of most Muslims.
56.Consistent with this assessment, the United Kingdom Home Office (UKHO) states:
Religious minorities and members of Scheduled Castes may experience some local state discrimination, including police hostility and harassment. However, it is unlikely that this would, in general, be sufficiently serious by nature and repetition that would cause them to face a real risk of persecution or serious harm.
57. The UKHO also notes that:
Religious minorities live throughout India and information on the scale of the problem is vague, but Hindu nationalists are a small sub-set of the population and many issues in themselves would not give rise to a well founded fear of persecution. Whilst outbreaks of communal violence do occur, in general, religious minorities, those in interfaith marriages, and members of Scheduled Castes, although sometimes subject to discrimination and localised harassment, are in general not subject to treatment which is sufficiently serious by nature and repetition to be persecutory or cause serious harm.
The Tribunal then analysed the applicants’ protection claims.
The Tribunal accepted that the applicants were of the Muslim faith but considered the first applicant’s evidence in relation to holding a well-founded fear of persecution on that basis to be “vague and unpersuasive” (at [58]-[59]).
The Tribunal explained:
60.Although the applicant’s written claims for protection included his experience during “communal riots” in 2002, when he was around 17 years of age, the only oral evidence he provided of personally experiencing religiously motivated harassment and violence were the incidents he described while a member of a Muslim student group while studying at college. The Tribunal considers that, as described by the applicant, these incidents are broadly consistent with DFAT’s and the UKHO’s assessment of the nature of anti-Muslim sentiment in India, being relatively low-level in nature and it is prepared to accept the applicant’s evidence in this regard.
61.However, when pressed as to his specific fears of being personally targeted on account of his religion, the Tribunal found the applicant’s evidence to be vague and lacking in detail. For example, although the applicant claimed repeatedly in evidence to be a “Muslim activist”, he provided no persuasive corroboration of this claim. The letters submitted by the applicant purportedly to corroborate the claim do not do so. Rather they state merely that the applicant was religiously observant and of good character, that he helped the poor, and that he was a “companion” on a councillor’s political rallies and social works. These activities are relatively low-level in nature and do not, to the Tribunal’s mind, mark the applicant apart from the broader Muslim community in India as being a “Muslim activist”.
62.When further pressed by the Tribunal as to his specific fears of being personally targeted if he is returned to India, the applicant provided no further or other basis for his fears that did not amount to vague, subjective feelings of apprehension on account of his perceptions of the policies of the central government of India under Prime Minister Modi. Although the applicant claimed that “they” will track him down because he is a Muslim, he provided no persuasive evidence to support this claim. His contention that he would be specifically targeted for having been a member of a Muslim student group while at college, and having twice spoken at group meetings, did not persuade the Tribunal that the applicant had a sufficiently high profile to be so targeted.
63.In his email to the Tribunal of 29 December 2021, the applicant claimed that “they” have come to his home (in India), looking for him. He states that he has also received death threats over the phone while resident in Australia. These claims are, however, uncorroborated. The Tribunal has read and had regard to the letter sent by the applicant to the Police Commissioner of Ahmedabad City. The Tribunal is prepared to accept the letter as evidence that the applicant has made a complaint to the police in Ahmedabad City of oral threats to his life and the lives of his family. The Tribunal notes from the terms of the complaint itself, however, that the threats were by an expressly “unknown person” for an expressly “unknown reason”. Given the vague nature of these threats and the identity of the alleged perpetrator the Tribunal places minimal weight on the letter as evidencing a well-founded fear of persecution for the reasons claimed or for any reason, or of the applicant being at risk of suffering significant harm if he returns to India.
The Tribunal was not persuaded that the first applicant was a “Muslim activist” or that his profile was such that it would set him apart from the broader Muslim community in India (at [64]) and described the first applicant’s “more general fears” as being “vague generalisations based upon his perception of societal attitudes” towards Muslims in India.
The Tribunal continued:
66.In this regard, the Tribunal has read and had regard to the DFAT Report and notes in particular DFAT’s assessment that:
a.many Muslims in India live day-to-day with low levels of societal discrimination and violence;
b.communal violence has occurred in India for many decades, often disproportionately affecting the Muslim community;
c.Hindu nationalist politics has heightened communal tensions in parts of India in recent years; and
d.in this climate, there are higher levels of fear in the Muslim community.
67.The Tribunal therefore accepts that, as a member of the Muslim community, the applicant subjectively fears returning to India. However, the Tribunal is required to be satisfied that the applicant has a well-founded fear of persecution.
68.The Tribunal infers from the country information set out above that while there have been attacks against the Muslim community in India, when considered in the context of the size of the Muslim population in India, these attacks do not occur on a scale on which the Tribunal could find that there is a real chance that the applicant will suffer serious harm on this ground. The Tribunal also infers that while Muslims may encounter both official and societal discrimination, this is low level and not to a degree that equates with a real chance of the applicant suffering serious harm on that basis. Overall, the Tribunal infers that the risk of the applicant suffering serious harm in India on the ground of his religion is remote.
The Tribunal ultimately found that the first applicant would not face a real chance or a real risk of significant harm if returned to India (at [69]).
Noting that the second applicant “expressly declined to give evidence at hearing” and that the third applicant was born in, and never travelled outside of, Australia, and having confirmed that the second and third applicants raised similar claims to the first applicant in their visa applications, the Tribunal similarly found that the second and third applicants would not face a real chance or a real risk of significant harm if returned to India (at [70]-[72]).
Having considered the applicants’ claims cumulatively, the Tribunal found there was no real chance that the applicants would suffer persecution (at [73] & [77]).
The Tribunal was, for the reasons provided in relation to the refugee criterion, not satisfied that the applicants faced a real risk significant harm (at [74]-[76] & [78]).
The Tribunal affirmed the decision refusing to grant the applicants the visas (at [79]-[81]).
Application to this Court
The application for judicial review filed by the applicants on 2 March 2022 contained one “ground of review” as follows (without alteration):
1.The Tribunal says attacks on muslim community do not occur on a scale that is threatened, which is wrong. Muslims are always under fear of death under BJP Party and Harendra Modi.
In support of the applicants’ judicial review application, the first applicant also swore an affidavit (on 1 March 2022). In that affidavit, the first applicant also stated (without alteration):
1.I am not satisfied with the outcome of AAT. India is not safe for muslims. No minority can survive in India under BJP Government.
On 4 May 2022, procedural orders were made by Registrar Carney of this Court giving the applicants an opportunity to file an amended application, any additional evidence and written submissions.
Unfortunately, no further materials were filed by or on behalf of the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 2 March 2022, a Court Book numbering 272 pages (marked as Exhibit 1), written submissions filed by the Minister on 23 January 2023 and an affidavit of service of Madisen Anne Scott which was affirmed and filed on 30 January 2023.
Amendments to application for judicial review
In written submissions filed in this Court on 23 February 2023, the Minister highlighted “inadequacies” with the application for judicial review filed by the applicants. Those issues were addressed by the Court at the hearing of this matter (on 6 February 2023) and are summarised below.
Removal of fourth applicant
Section 486C of the Act outlines who may “commence or continue” proceedings in this Court and relevantly provides:
486CPersons who may commence or continue proceedings in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court
(1)Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit and Family Court of Australia (Division 2) or the Federal Court that raises an issue:
(a)in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non‑citizens; and
(b)that relates to the validity, interpretation or effect of a provision of this Act or the regulations;
(whether or not the proceeding raises any other issue).
(2) Those persons are:
(a) a party to a review mentioned in section 479; or
…
Section 479 of the Act provides that the following individuals are “parties to a review”:
479 Parties to review
The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and:
(a)if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or
…
As the Minister correctly submitted, the fourth applicant was not a party to the Tribunal’s decisions made in this matter (on 8 February 2022). In those circumstances, the fourth applicant could not be considered a party to the proceeding before the Court and was required to be removed.
The Court agrees.
In the circumstances, the Court made an order (relying on r 9.08 of the Federal Court Rules2011 (Cth) and r 1.06(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”) to remove the fourth applicant from the proceeding.
Accordingly, for the remainder of this judgment, any reference to “the applicants” refers only to the first, second and third applicants.
Appointment of litigation guardian for third applicant
The Court also noted that the third applicant in the proceeding was still a minor (being born in June 2015). On that basis, the Court explained to the first applicant that, because the third applicant is still a minor, it is appropriate for a litigation guardian to be appointed on his behalf. The first applicant agreed to being appointed the litigation guardian for his son and the Court made orders (pursuant to r 11.10(1) of the Rules) accordingly – including dispensing with the requirement to file any affidavit in that regard (pursuant to r 11.10(2) of the Rules).
Failure to seek writ of mandamus
Finally, the Court noted that the application for judicial review filed by the applicants only seeks relief by way of an order quashing the Tribunal’s decision. It does not seek a writ of mandamus that the matter be remitted. As such, this Court’s jurisdiction under s 476 of the Act is not properly invoked. The Minister was agreeable to the first applicant orally amending the application to rectify the oversight. The Court explained this issue to the first applicant and made an order amending the application for judicial review to include seeking a writ of mandamus. This is now the preferred approach in this Court: Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 per Judge Given at [25]-[35].
Hearing before this Court
The applicants appeared without legal representation. The first applicant spoke on behalf of the family. The Court confirmed with the first applicant that he had received copies of the Court Book and the Minister’s written submissions.
Noting that the applicants were not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the first applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visas that the applicants now seek (even if the Court disagrees with the Tribunal’s ultimate findings). Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the first applicant explained that he “felt as though the Tribunal was biased” because the Tribunal member “had already made up his mind” and would “cut him off” when he attempted to answer questions put to him.
This issue will be addressed below.
Consideration
Ground of review and issue raised in accompanying affidavit
As out lined above, the applicants’ sole “ground of review” states:
1.The Tribunal says attacks on muslim community do not occur on a scale that is threatened, which is wrong. Muslims are always under fear of death under BJP Party and Harendra Modi.
Further, the affidavit filed in support of the applicants’ judicial review application provides:
1.I am not satisfied with the outcome of AAT. India is not safe for muslims. No minority can survive in India under BJP Government.
Noting that the applicants are unrepresented, the Court has interpreted the applicants’ ground of review (and the statement set out in the accompanying affidavit) as broadly as possible to ensure that, to the extent that legal error of any sort is identified, it can be scrutinised: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
The Court considers that the applicants here are taking issue with the Tribunal’s assessment of the relevant country information and will consider that concern below.
It is a matter for the Tribunal as to which country information it looks at and the weight placed on that information. In this regard, the Court notes the decision in Nahi v Minister for Immigration & Multicultural & Indigenous Affairs [2014] FCAFC 10 (“Nahi”) wherein the Full Court states (at [11]):
…There can be no objection in principle to the tribunal, in that context, relying on country information. The weight that it gives to such information is a matter for the tribunal itself, as part of its fact-finding function. Such information as the tribunal obtains for itself is not restricted to guidance. It may be used to assess the credibility of a claim of a well-founded fear of persecution. The question of the accuracy of the information is one for the tribunal, not for the court. If the court were to make its own assessment of the truth of country information, it would be engaging in merits review, and the court does not have the power to do that.
In this matter, the Tribunal considered country information from a variety of sources, including the “World Report 2021: India”, the DFAT country information report and “United Kingdom Home Office, Country Policy and Information Note India: Religious Minorities” (at [49]-[57]).
The Tribunal considered the first applicant’s evidence and claims and, ultimately, relying on country information referenced above, determined as follows:
66.In this regard, the Tribunal has read and had regard to the DFAT Report and notes in particular DFAT’s assessment that:
a.many Muslims in India live day-to-day with low levels of societal discrimination and violence;
b.communal violence has occurred in India for many decades, often disproportionately affecting the Muslim community;
c.Hindu nationalist politics has heightened communal tensions in parts of India in recent years; and
d.in this climate, there are higher levels of fear in the Muslim community.
67.The Tribunal therefore accepts that, as a member of the Muslim community, the applicant subjectively fears returning to India. However, the Tribunal is required to be satisfied that the applicant has a well-founded fear of persecution.
68.The Tribunal infers from the country information set out above that while there have been attacks against the Muslim community in India, when considered in the context of the size of the Muslim population in India, these attacks do not occur on a scale on which the Tribunal could find that there is a real chance that the applicant will suffer serious harm on this ground. The Tribunal also infers that while Muslims may encounter both official and societal discrimination, this is low level and not to a degree that equates with a real chance of the applicant suffering serious harm on that basis. Overall, the Tribunal infers that the risk of the applicant suffering serious harm in India on the ground of his religion is remote.
To the extent that the applicants simply disagree with the findings of the Tribunal, disagreement, however strongly felt, does not amount to jurisdictional error on the part of the Tribunal: Vidiyala v Minister for Home Affairs [2018] FCA 1973 at [36].
There is no evidence before the Court to suggest that the applicants provided any alternate country information for the Tribunal to consider. In any event, even if the applicants had done so, as outlined above, the country information relied upon and the weight the Tribunal places on that information is a matter for the Tribunal: Nahi at [11].
The Court is satisfied that the Tribunal’s findings were open to it on the country information before it. There is no evidence that relevant information was overlooked or that the assessment made of (and conclusions drawn on the basis of) the information that was before the Tribunal is illogical, irrational or legally unreasonable. While this Court may have come to a different conclusion, that is not the test on review: SZMDS at [131].
No error arises in this regard.
First applicant’s oral submissions - Whether the Tribunal was biased
Before this Court, the first applicant seemed to suggest that the Tribunal was “biased” because the Tribunal member “appeared to have already made up his mind” and “cut him off” when he was attempting to answer the Tribunal’s questions.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicants to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 (“Jia Legeng”) at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicants’ case: SZRUI at [2].
The applicants have not advanced any evidence in support of the first applicant’s assertion that the Tribunal “had already made up its mind”. Without a transcript of the hearing the Court is confined to determining from the face of the Tribunal’s written reasons for its decision if bias arises in relation to this matter.
Nothing on the face of the Tribunal’s reasons suggests that the Tribunal displayed actual or apprehended bias. The Tribunal hearing lasted for just over an hour. The Tribunal explored with the first applicant the claims made in the visa application and sought to obtain further information from him at the hearing. In particular, the Court notes that at [31]-[47] the Tribunal details attempts it made to explore the first applicant’s claims and to obtain more information from him. This was done comprehensively. The Tribunal also noted that the second applicant was “invited to provide oral evidence” but “declined to do so” (at [48]). This too indicates that the Tribunal was open to obtaining additional information from the applicants and considering any oral evidence within the context of the relevant visa criterion.
No error arises in this regard.
Otherwise
In its duty to assist self-represented litigants, the Court has considered for itself whether any error arises in the Tribunal’s decision (as per the decision in MZAIB).
In this regard, the Court will also consider the following issues:
(a)whether the Tribunal’s decision, more broadly, was illogical or irrational; and
(b)whether the applicants were afforded procedural fairness.
These issues will be considered in turn below.
Whether the Tribunal’s decision was illogical or irrational
To the extent that there is any suggestion that the Tribunal’s decision (as a whole) is illogical or irrational, the Court disagrees.
The test for irrationality or illogicality was summarised in SZMDS (per Crennan and Bell JJ), is as follows:
131.…..[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135 …Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
It cannot be said here that the Tribunal’s ultimate findings (that the applicants would not suffer serious harm on the basis of their religion) were not open to it on the evidence and country information before the Tribunal.
A close reading of the Tribunal’s decision shows that the Tribunal did look at and analyse the evidence provided by the applicants and that it did so forensically. This evidence included the evidence before the Department, the documentary evidence provided to the Tribunal (both before and after the Tribunal hearing) and the first applicant’s oral evidence given at the Tribunal hearing (at [19]-[24] & [31]-[47]) (noting that the second applicant declined to give oral evidence herself (at [48])). The Tribunal also considered, in some detail, country information before it from various sources (at [25] & [49]-[57]).
The Tribunal analysed that evidence and country information and ultimately determined as follows:
68.The Tribunal infers from the country information set out above that while there have been attacks against the Muslim community in India, when considered in the context of the size of the Muslim population in India, these attacks do not occur on a scale on which the Tribunal could find that there is a real chance that the applicant will suffer serious harm on this ground. The Tribunal also infers that while Muslims may encounter both official and societal discrimination, this is low level and not to a degree that equates with a real chance of the applicant suffering serious harm on that basis. Overall, the Tribunal infers that the risk of the applicant suffering serious harm in India on the ground of his religion is remote.
On the basis of the evidence before it the Tribunal found that the applicants would not face harm on return to India (at [69] & [72]).
It cannot be said here that the Tribunal’s findings in this regard were irrational or illogical. Rather, the conclusions drawn, based on the evidence and country information before it, were entirely sound. Here, there is a logical connection between that evidence and the Tribunal’s core findings.
No error arises in this regard.
Whether the applicants were afforded procedural fairness
In relation to any concerns which may be raised in relation to whether the Tribunal complied with its procedural fairness obligations, the Court notes as follows:
(a)the applicants provided additional materials to the Tribunal prior to their hearing in support of their review application (via email) (CB 195-224);
(b)the applicants were invited to attend a hearing before the Tribunal to give evidence and present arguments: s 425 of the Act. The applicants appeared at that hearing before the Tribunal and, while only the first applicant gave evidence at that hearing, the second applicant was given the opportunity to do so (but chose not to) (CB 239-242);
(c)as outlined above, there is nothing on the face of the Tribunal’s decision to suggest that the Tribunal displayed any bias or prejudgment (as per the principles in SZRUI and Jia Legeng at [71]-[72]);
(d)the applicants were given an opportunity to provide further evidence to the Tribunal following the hearing and did so (CB 243-248); and
(e)as outlined above, the findings made by the Tribunal were open to it on the evidence before it and those findings cannot be seen to be illogical or irrational (as per the principles in SZMDS).
Any allegation of “unfairness” in relation to the Tribunal’s conduct cannot be made out.
Conclusion
The application for judicial review filed by the applicants on 2 March 2022 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error in the Tribunal’s decision.
The application (as amended on 6 February 2023) is, accordingly, dismissed.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 23 February 2023
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