AWX21 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 313
•11 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWX21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 313
File number(s): SYG 571 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 11 March 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – whether error in Tribunal’s finding that applicant not credible – whether open to Tribunal to rely on omission in answer given by applicant at hearing as a reason in support of adverse credibility finding – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 476 Cases cited: ASB17 v Minister for Home Affairs [2019] FCAFC 38 Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 12 February 2025 Place: Parramatta Counsel for the Applicant: Mr O. Jones Solicitor for the Applicant: Myvisa Lawyers Pty Ltd Counsel for the Respondents: Mr N. Swan Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 571 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWX21
Applicant
AND: MINISTER FOR IMMIGATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
11 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs in the sum of $6,500.
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 ZIPSER
INTRODUCTION
On 8 April 2021, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 March 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In July 2006, the applicant, a citizen of India, first arrived in Australia on a student visa. Between July 2006 and March 2016, the applicant resided in Australia on various visas. In this period, the applicant occasionally returned to India for visits.
On 21 April 2016, the applicant lodged an application for a protection (subclass 866) visa.
On 9 May 2016, the Department of Immigration and Border Protection (Department) sent the applicant a letter stating that, if the applicant wished to discuss his claims in an interview, he must contact the Department within seven days. The applicant did not take up this opportunity.
On 26 August 2016, a delegate of the first respondent refused to grant the visa.
On 16 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision.
On 20 November 2020, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 17 December 2020.
On 10 December 2020, the applicant’s representative emailed a submission to the Tribunal.
On 17 December 2020, the applicant appeared at a hearing before the Tribunal.
On 8 March 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the visa.
TRIBUNAL’S DECISION
The applicant’s principal claim was that in 2009 a dispute over land developed between the applicant’s father and uncle and, as a result of this dispute, the applicant faced a real chance of serious harm if required to return to India. Shortly before the applicant attended a hearing in the Tribunal in December 2020, the applicant’s agent informed the Tribunal that the applicant also faced a real chance of serious harm in connection with protests in India concerning farm reform (Farm Reform Claim) and a political opinion in support of the creation of a Khalistan state (Political Opinion Claim).
The Tribunal at [3]-[30] summarised the relevant law, the applicant’s claims, and the materials before it.
The Tribunal at [33]-[42] considered the applicant’s credibility. The Tribunal, after discussing several concerns it had about the applicant’s claims and evidence, found at [42] that “considered collectively, the above matters lead the Tribunal to find that the applicant is not credible”.
The Tribunal then made findings concerning the applicant’s claims. Based in part on the Tribunal’s adverse credibility finding, the Tribunal at [43]-[44] rejected the applicant’s claims relating to the family land dispute, as well as the Farm Reform Claim and the Political Opinion Claim.
The Tribunal then found, following from the above, that:
(a)for the purpose of s 36(2)(a) of the Act, there was not a real chance that the applicant would be persecuted for a Convention reason, and
(b)for the purpose of s 36(2)(aa) of the Act, there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there was a real risk the applicant will suffer significant harm.
PROCEEDINGS IN THIS COURT
Application and steps up to 11 February 2025
On 8 April 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 8 March 2021. The application included one ground as follows (reproduced as written):
1.The Tribunal made a jurisdictional error of legal unreasonableness or want of proper consideration.
Particulars
a. The Tribunal was required under the law of legal unreasonableness not to make a material finding of fact for which there was no evident and intelligible justification: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29] per Allsop CJ, Collier and Colvin JJ;
b. The Tribunal was required to give proper consideration to the Applicant's case, in the sense of active intellectual engagement with the same. The Applicant's case for this purpose extended to matters arising from the Tribunal's own findings of fact: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinksy JJ; AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ;
c. The Tribunal noted at paragraph 41 of its decision that the Applicant at the hearing before the Tribunal "when asked why he believed he was a refugee or owed complementary protection the applicant made no mention of the proposed farming reforms";
d. The Tribunal found at paragraph 41 of its decision that if the Applicant "genuinely feared he would be persecuted for those reasons the Tribunal expects he would have mentioned those matters when asked why he thought he was a refugee or owed complementary protection";
e. There was no relevant justification for the Tribunal making this finding or proper consideration leading to the finding as the Tribunal had asked the Applicant why he feared harm and, upon the Applicant referring to the land dispute, the Tribunal asked the Applicant a number of questions about the land dispute. The Tribunal then later mentioned the proposed farming reforms itself without giving the Applicant the opportunity to volunteer those reforms as an additional reason why he feared harm;
f. The Tribunal noted at paragraph 41 of its decision that the Applicant had not mentioned his attendance at a protest in Sydney until the Tribunal had mentioned the protest;
g. The Tribunal found at paragraph 41 of its decision that the Applicant had attempted to explain not mentioning the Sydney protest earlier by stating that he had not heard the Tribunal properly and the Tribunal rejected this explanation, finding that if the Applicant "had recently attended a protest about the reforms then the Tribunal expects he would have mentioned it before the Tribunal expressly drew his attention to the protest";
h. There was no relevant justification for the Tribunal making this finding or proper consideration leading to this finding as the Tribunal had earlier asked the Applicant "would you participate in the protest if you went back" and, when later questioned by the Tribunal for not mentioning the Sydney protest, the Applicant said "Oh I thought you asked when I go back and whether I would protest. If I'm going to involve in that. Sorry I didn't hear properly";
i. The Tribunal found at paragraph 42 of its decision that matters including the above led it to conclude that the Applicant was not credible;
j. In light of the Applicant's lack of credibility, the Tribunal found at paragraph 44 of its decision that there was not a real chance of harm to the Applicant in connection with the proposed farming reforms.
k. The Tribunal's error was, therefore, material to its ultimate decision.
Following a period of inactivity, on 11 December 2024 the parties were informed that the matter was listed for hearing on 12 February 2025.
On 13 January 2025, a written submission for the applicant was accepted for filing (AS). On 4 February 2025 the first respondent filed a written submission.
Hearing on 12 February 2025
At the hearing in this Court on 12 February 2025, Oliver Jones of counsel appeared for the applicant and made oral submissions which supplemented the applicant’s written submission. The submissions are addressed below. Nicholas Swan of counsel appeared for the first respondent and made oral submissions which supplemented the first respondent’s written submission.
CONSIDERATION
The Tribunal, after discussing at [34]-[41] several aspects of the applicant’s evidence which raised concerns about the applicant’s credibility, found at [42] that “considered collectively, the above matters lead the Tribunal to find that the applicant is not credible”. Aspects of the applicant’s evidence which concerned the Tribunal included the following:
(a)The applicant’s principal claim for protection arose from an alleged dispute between the applicant’s father and uncle concerning some land. The Tribunal at [34] found that the applicant gave an account of the land dispute “in a stumbling manner”. The Tribunal added that “it took considerable questioning and clarification for the applicant to incrementally provide further details about the dispute”. The Tribunal added at [34] that, if the details the Tribunal extracted from the applicant about the land dispute “were true then the Tribunal expects that the applicant would have provided them in a far more forthcoming manner”.
(b)The Tribunal at [35] found that the applicant’s account concerning the land dispute given at the Tribunal hearing “is not consistent in significant respects with the applicant’s written statement”. The Tribunal explained the significant inconsistencies.
(c)The Tribunal at [36] described one aspect of the applicant’s evidence concerning the land dispute as “seem[ing] intentionally vague and evasive”. The Tribunal at [36] also recorded its “impression that the applicant was inventing his evidence as he spoke and was attempting to avoid providing specific details”.
(d)The applicant claimed to have become aware of the land dispute between his father and uncle on a visit to India in February 2015. But, following his return to Australia in March 2015, he did not apply for a protection visa until April 2016. The Tribunal at [40] recorded its expectation “that if the applicant’s claims about the land dispute were true and he felt unsafe in India, he would have applied for a protection visa sooner”.
The applicant, in this Court proceeding, did not seek to establish jurisdictional error in any of the above findings concerning the applicant’s credibility, or any other finding concerning the applicant’s credibility at [34]-[40]. The applicant sought to establish jurisdictional error in two findings at [41] which were part, although a small part, of the Tribunal’s collective concerns which led the Tribunal to find at [42] that the applicant was not credible.
To understand the Tribunal’s findings at [41] and the applicant’s attack on those findings in this Court proceeding, it is necessary to understand the Farm Reform Claim and Political Opinion Claim made by the applicant.
Until November 2020, the applicant’s sole claim for protection arose from an alleged land dispute between his father and uncle. On 10 December 2020, one week before the applicant attended a hearing in the Tribunal and four years after the applicant lodged his protection visa application, the applicant’s representative emailed a submission to the Tribunal which contained two new claims on behalf of the applicant, defined in paragraph 12 above as the Farm Reform Claim and the Political Opinion Claim. The representative wrote:
10.We are instructed that in addition to the existing family dispute related fear, the Applicant also has a well founded fear of persecution in relation to the current protests concerning the Farmers legislation in India.
11.We are instructed that the Applicant is a Sikh and the bulk of the Farmers belong to the Sikh religion. These farmers are opposing the current government’s policies and legislative changes pronounced in September 2020. Please see attached “C” evidence of the current protests relating to the Farmer’s legislation.
12.We are instructed that the Applicant being a Sikh and sharing the same sentiments as most in his community has a well founded fear of persecution due to his religion and political opinion. Please see attached “C1” Article on Farmers protest and creation of Khalistan.
The Tribunal at [41] discussed concerns it had about the applicant’s credibility associated with these claims first made one week before the hearing before the Tribunal on 17 December 2020. The Tribunal stated at [41]:
41.As indicated above when asked why he believed he was a refugee or owed complementary protection the applicant made no mention of the proposed farming reforms, Khalistan, his religion or (actual or imputed) political opinion. If the applicant genuinely feared he would be persecuted for those reasons the Tribunal expects he would have mentioned those matters when asked why he thought he was a refugee or owed complementary protection. Further, it took some questioning to elicit from the applicant exactly why he believed he would be harmed due to the proposed farming reforms. Ultimately, he claimed that he would participate in protests against the proposed farming reforms and, because he is a Sikh, Hindus would view that as him asking for his rights and calling for a Khalistan state. Hindus would thus take the opportunity to kill him during such a protest. When the Tribunal sought to confirm that he would participate in such protests, the applicant replied that he would and added that his father had done so. Asked whether he could point to any of his own conduct which would indicate that he would engage in such protests if he returned to India, the applicant gave a brief description of the proposed reforms, and alluded to evidence he had given early in the hearing that his brother and sister derived a small income from farming. The Tribunal noted that he had not pointed to any specific conduct he had engaged in that would indicate he would protest about the proposed farming reforms such as posting about it on social media or attending a protest in Australia. The Tribunal noted that it had information that such a protest had been held recently in Martin Place in Sydney. The applicant responded the Martin Place protest was peaceful and he had attended it. Asked why then he had not mentioned it when asked about relevant activity he had engaged in, the applicant replied that he had not heard properly. It did not appear to the Tribunal that he had not heard properly. If he had recently attended a protest about the reforms then the Tribunal expects he would have mentioned it before the Tribunal expressly drew his attention to the protest.
In this Court proceeding, the applicant made two complaints about this reasoning process.
The first complaint concerns the second sentence in [41]. The nub of the complaint is that “there was no relevant justification for the Tribunal making this finding”: particular (e) in ground 1.
To assess this complaint, it is necessary to consider the transcript of the hearing before the Tribunal. The following questions and answers between the member (M) and applicant (A) are recorded on page 9 of the transcript:
M: Why do you feel that you’re a refugee?
A: Basically on my last visit to India, My parents said okay you don't have to go my uncle's house anymore because we are having a big fight against land because they sell our land without asking us. They basically said to me stay at home or go back to Australia, even my brother went abroad as well. I think a year or year and a half maybe in Cyprus.
M: When was that?
A: in 2015, because of this reason.
M: Okay so tell me about the land dispute?
There was then a discussion over about seven pages of transcript about the land dispute. The member then asked the applicant some questions about the Farm Reform Claim. The following question and answer are recorded on page 17 of the transcript:
M: What is the relevance of what's been happening with the land reform. Why is that relevant to you and any future harm to you?
A: At the moment there is a protest going on in farming. There is a storm going on, all the people there are Hinduism and I am Sikh. They are calling us (??) which is totally separated from India. They think we are that one. In that protest they think they can find my family name there and take advantage to kill someone. You can’t explain why you kill that one. In a protest there are thousands of people you don’t know who they going to kill. They are going to say that particular group killed someone.
During the hearing in this Court, I drew Mr Jones’ attention to the applicant’s answer “In 2015, because of this reason” on page 9 of the transcript. Mr Jones accepted that it was open to the Tribunal to understand from these words that the applicant was stating that the land dispute issue the subject of his answer to the member’s previous question was the single reason he felt he was a refugee.
The second sentence in [41] records the Tribunal’s concern that the applicant did not, in response to the question “Why do you feel that you’re a refugee?”, mention in his answer to that question the Farm Reform Claim or the Political Opinion Claim. Only one week earlier, the applicant’s representative had communicated to the Tribunal the applicant’s instructions that he “has a well founded fear of persecution in relation to the current protests concerning farmer’s legislation in India” and he “has a well founded fear of persecution due to his religion and political opinion”. I consider that it was open to the Tribunal to have an expectation that, in response to the question “Why do you feel that you’re a refugee?”, the applicant would have given an answer which included these reasons if they were genuine.
During the hearing in this Court, Mr Jones appeared to accept that it was open to the Tribunal to have this expectation, but contended that the Tribunal did not have regard, or had insufficient regard, to the context of the applicant’s answers. The meaning of this contention is not entirely clear. Mr Jones relied on ASB17 v Minister for Home Affairs [2019] FCAFC 38 (ASB17) at [44] where the Full Court stated that “simply attaching the label ‘inconsistency’ and moving immediately from the label to an adverse finding of credibility or reliability may not be a rational or legally reasonable approach”. If the Tribunal had found that the applicant was not a credible witness, or rejected the Farm Reform Claim or Political Opinion Claim solely because the applicant did not refer to these matters in his answer to the question “Why do you feel that you’re a refugee?”, this might offend the principle in ASB17 at [44]. I understood Mr Jones’ complaint about context to relate to his reliance on ASB17 at [44]. I accept that the Tribunal must assess the significance of, and weight to be given to, omissions just as it must assess the significance of, and weight to be given to, inconsistencies. However, the Tribunal did not find that the applicant was not a credible witness solely because of an omission in an answer recorded on page 9 of the transcript. The Tribunal merely recorded an expectation that, if the applicant genuinely feared he would be persecuted for reason of the proposed farming reforms, Khalistan or his political opinions, the Tribunal would have expected the applicant to mention those matters in response to the question “Why do you feel you’re a refugee?”. I consider, and Mr Jones appeared to accept during the hearing, that it was open to the Tribunal to have this expectation.
For the above reasons, this first complaint does not identify a jurisdictional error in the Tribunal’s reasons at [41].
The second complaint concerns the last sentence in [41]. The nub of the complaint is that “there was no relevant justification for the Tribunal making this finding”: particular (h) in ground 1.
To assess this complaint, it is necessary to consider the transcript of the hearing before the Tribunal. The following questions and answers are recorded on page 17 of the transcript:
M: Would you participate in the protest if you went back?
A: Of course I will. For my land I will. For sure. Even my dad was there and got back home the last couple of days.
M: If you really cared about the land and selling the land, what about your conduct would suggest that you would participate in the protest given that you have no real interest in returning to India. You returned and there was this issue with the family land, you haven't returned there to try to work on the family land or any other land, farmland. You don't seem interested in farming, you aren't farming in Australia, you haven't studied farming in Australia. I mean what is there about your conduct that would suggest that you would seek to return and seek to participate in protest about land reform? Is there anything you can point to?
A: There are some (??) against the farmer because they want to give everything to corporate people. (??) they are going to give you that much money but they don’t want to admit that particular way that at the moment the government give us a fixed price for everything. For example we farm for rice (??) at the moment the government is giving us $10 per kilo but they are saying in the future we give you no insurance. We going to take rice at $10 or $5 per kilo. We are fighting for that one. We want to keep the insurance, what insurance you government is going to give us. We are protesting that one and government keep saying good for farmers, good for farmers. We keep saying its not good for farmers. Basically think I am a big fish.
Shortly afterwards, the hearing was adjourned for about 15 minutes. After the break, the following questions and answers are recorded on page 19 of the transcript:
M: I asked you if there is anything about your conduct that would indicate that you would become involved in the protest or in the proposed land reforms. It didn't seem to me that you pointed to anything particular you just indicated that you would because it's a very important source of income for your family but that is an assertion you made. You didn't point to for example pointing on social media or participating in any protest in Australia because according to my research there has been protests in Australia.
A: Yes, there are protests in Australia.
M: There was even a protest in Martin Place.
…
M: So I am wondering if you really are or really would be interested in protesting if you returned or why you didn't engage in any such activity in Australia or done anything in Australia to indicate you would protest in the future.
A: We basically doing a peaceful protest, its a two party space. I came to protest in Martin Place as well.
M: You went?
A: Yes I went.
M: You didn’t mention that when I asked you if you’ve done anything.
A: I thought you asked when I go back and whether I would protest. If I am going to involve in that. Sorry I didn’t hear properly.
The last sentence in [41] records the Tribunal’s expectation concerning the question at the bottom of page 17 of the transcript (Past Conduct Question):
What is there about your conduct that would suggest that you would seek to return and seek to participate in protest about land reform? Is there anything you can point to?
The Tribunal recorded its expectation that, if the applicant had recently attended a protest about land reform in Martin Place in Sydney, the applicant would have mentioned it in response to the Past Conduct Question, rather than only after the Tribunal expressly drew the applicant’s attention to the protest, recorded on page 19 of the transcript.
During the hearing in this Court, there was discussion about the Past Conduct Question. Mr Jones contended that the applicant had understood the question as referring to his past conduct in India only, it was reasonable for the applicant to have understood the question in this way, and the Tribunal erred in interpreting the question as including the applicant’s past conduct in Australia. I do not accept Mr Jones’ contentions. First, on a reasonable interpretation of the Past Conduct Question, the question is not limited to the applicant’s past conduct in India, and it extends to the applicant’s past conduct in Australia. Second, as recorded on page 19 of the transcript, when the applicant attempted to explain to the Tribunal member why he did not mention attending the Martin Place protest until the member referred to that protest, the applicant explained in relation to his understanding of the Past Conduct Question:
I thought you asked when I go back and whether I would protest. If I am going to involve in that. Sorry I didn’t hear properly.
This explanation by the applicant, which the Tribunal at [41] rejected, is inconsistent with Mr Jones’ contention during the hearing in this Court that the applicant had understood the Past Conduct Question as referring to past conduct in India.
I consider that it was open to the Tribunal to have the expectation recorded in the last sentence of [41].
Mr Jones also briefly contended that, even if there was no error in the Tribunal having the expectation recorded in the last sentence of [41], this expectation was not a sufficient basis for the adverse credibility finding at [42]. If the expectation recorded in the last sentence of [41] was the only basis on which the Tribunal made the adverse credibility finding at [42], on application of the principle in ASB17 at [44], there might be force in Mr Jones’ contention. But, as explained above, the Tribunal’s adverse credibility finding at [42] was based on a number of concerns explained by the Tribunal at [34]-[41]. I consider that it was open to the Tribunal to have regard to its expectation recorded in the last sentence of [41] in reaching its conclusion at [42] that the applicant was not credible.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. The first respondent sought costs in the amount of $6,500. The applicant did not oppose this amount. I will make an order in this amount.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 11 March 2025
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