AZO16 v Minister for Immigration

[2018] FCCA 1028

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1028

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant a Protection visa to the Applicant – none of the grounds asserted by the Applicant established – no jurisdictional error or procedural unfairness by Administrative Appeals Tribunal – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 424A, 424AA

Cases cited:

MZWOG v Minister for Immigration [2005] FCA 1738

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

WZAVW v Minister for Immigration [2016] FCA 760

Applicant: AZO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1030 of 2016

Judgment of: Judge Dowdy

Hearing date: 6 June 2017

Delivered at: Sydney

Delivered on: 27 April 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Ms N. Blake

Solicitors for the Respondents: Clayton Utz

THE COURT ORDERS AS FOLLOWS

1. The Court Book be marked “Exhibit A”.

2. The Application filed in this Court on 28 April 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1030 of 2016

AZO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of India aged 33 years, having been born on 23 November 1984.

2. By Application filed in this Court on 28 April 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 31 March 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 20 October 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).

Background

1. Prior to making his Protection visa application the Applicant had entered and departed Australia a number of times and applied for a number of visas, as follows:

   a)On 3 March 2008 the Applicant was issued a Subclass 572 (Vocational Educational Sector) visa (Student visa).

   b)On 13 March 2008 the Applicant arrived in Australia.

   c)On 5 May 2011 the Applicant departed Australia.

   d)On 13 July 2011 the Applicant returned to Australia.

   e)On 29 July 2011, at his own request, the Student visa was cancelled.

   f)On 23 January 2012 the Applicant was refused a Subclass 485 (Graduate Skilled) visa.

   g)On 28 November 2013 the Applicant was refused a Subclass 885 (Skilled Independent) visa.

2. The Applicant then applied for a Protection visa on 10 March 2014.

Claims for Protection

1. In his Protection visa application the Applicant claimed that he was born into a lower caste Hindu family which moved from Bihar State to the Punjab when his father was 18 years of age. He claimed that his caste made him an “untouchable” and that he was given second grade citizen treatment. He claimed that he was forced to sit on the back benches when he went to school and that lower castes continued to be discriminated against in the Punjab. He was harassed by upper caste people when he tried to enter a local temple. He stated that he could speak, read and write both the English and Hindi languages and he had graduated with the degree of Bachelor of Commerce from Guru Nanak Dev University in 2006. He claimed that he found it difficult to get a job in India because he was an untouchable and even after he arrived in Australia he was discriminated against by Punjabi people.

2. The Applicant claimed that whilst in Australia on his Student visa he started to work in a car wash at Parramatta part-time where he met a few people from the Punjab. They discriminated against him when they found out the Applicant’s “religion and caste” and he had arguments with “one guy known by his nick name Jas”, who threatened him. The Applicant left his job in the car wash because he did not want to work with Jas but when he went to India to visit his parents Jas sent “some bad guys to my home to kill me because he wanted to take revenge on me”. He was not at home on that occasion but subsequently eight men came to the home and attacked him, together with one of his friends, and both he and his friend were badly injured.

3. He claimed that he would be killed if he went back to India.

Grounds and Criteria for the Granting of a Protection Visa

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 15 October 2014.

2. The Applicant informed the Delegate that in 2010 he had completed an Advanced Diploma in Hospitality in Australia and had worked in a car wash, as a kitchen hand and as a chef in Australia. The Applicant relied primarily on his claims based on the status of lower caste persons in India and his encounter with Jas, and expanded on both claims.

3. In his Decision Record the Delegate recorded that he was not satisfied that the Applicant had a well-founded fear of harm in respect of belonging to a lower caste in India. The Delegate found that the Applicant’s claim in relation to his dispute with Jas was specifically related to a personal dispute and not related to the Refugees Convention. Further, the Delegate was not satisfied for the purposes of the complementary protection criterion that there was a real risk that the Applicant would be subject to significant harm if he returned to India and accordingly the Delegate refused to grant a Protection visa to the Applicant.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 17 November 2014 for merits review of the Delegate’s decision. On 29 March 2016 the Applicant appeared before the Tribunal to give evidence and present arguments, with the assistance of an interpreter in the Hindi and English languages.

2. At [7] and [12] of its Decision Record the Tribunal recorded that it was not satisfied that the Applicant was a generally credible witness and that it was satisfied that he had sought to embellish, if not fabricate, material claims. Then from [14] – [52] the Tribunal considered the Applicant’s claims under the following subject matters:

   a)the Applicant’s low caste;

   b)the Applicant being prevented from entering a Sikh temple in the Punjab because of his caste;

   c)the claimed forcible sale of his parent’s land to Punjabi land owners;

   d)the Applicant being subject to extortion in India;

   e)the Applicant being exposed to general violence within India;

   f)the incident with Jas and that at some stage after he had returned to India in mid-2011 he had been harmed by assailants who knew Jas;

   g)relocation in India; and

   h)the Applicant as a failed asylum seeker.

3. In the result the Tribunal was not satisfied that there was a real chance of the Applicant suffering serious harm in India or a real risk of him suffering significant harm in India and found that he had failed to satisfy the Refugee Convention criterion and the complementary protection criterion.

4. In particular, the Tribunal:

   a)accepted country information that the caste system was an important factor in Indian society and that untouchables form approximately 17% of India’s total population, with their highest percentage being in the Punjab. On the other hand the country information indicated that the Indian Constitution had abolished the practice of untouchability and otherwise sought to mitigate the entrenched disadvantage of low caste groups. The Tribunal accepted that the Applicant was a university graduate and that his elder brother was a trained teacher and that his younger brother was presently studying in the Punjab, with his parents now being retired and living on rental income from property owned by them. In the circumstances the Tribunal was not satisfied that the Applicant faced a real risk of suffering serious or significant harm in India because of his low caste;

   b)relied on country information in not being satisfied that the Applicant faced a real chance of suffering serious or significant harm in India due to extortion or general terrorist violence;

   c)was not satisfied that the Applicant still faced a real chance of suffering any harm from Jas or anyone associated with him in India;

   d)was not satisfied that the Applicant faced a real chance of suffering any serious harm in the Punjab or throughout India but if the Tribunal was wrong about harm in the Punjab, the Applicant could relocate within India; and

   e)was not satisfied the Applicant faced a real chance of suffering any harm in India for reason of returning there as a failed asylum seeker.

5. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant a Protection visa to the Applicant. 

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds of the Application are as follows:

   1.The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act( which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

   
   
   

   2.The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant under stood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   3.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   [Particular:]

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India.

Consideration

Ground 1

1. Insofar as this Ground is to be taken as suggesting that the Tribunal failed to properly consider the Applicant’s claimed threats to his life or liberty for the purposes of s.91R(2)(a) of the Act as an instance of “serious harm” it must fail. The Decision Record of the Tribunal constitutes a full consideration of the claims made by the Applicant relating to threats to his person as made by him both prior to the Tribunal hearing and at the Tribunal hearing.

2. Insofar as this Ground suggests that the Tribunal wrongly considered and applied the principles with respect to relocation it also fails.

3. The Tribunal relevantly stated at [13], [19], [23], [26], [29], [38] and [51] of its Decision Record that it did not accept that the Applicant faced a chance of suffering serious harm in India with respect to any of the claims summarised in [13(a)] – [13(f)] and [13(h)] above.

4. Then in relation to the issue of relocation the Tribunal found as follows:

   a)it was not satisfied that the Applicant faced a real chance of suffering any serious harm in his home region in India (i.e. the Punjab): see [40] of its Decision Record;

   b)it was not satisfied that there was a real chance that anyone would even attempt to seek to locate the Applicant in India: see [40] of its Decision Record;

   c)it was satisfied that the Applicant could safely reside outside his home state in India: see [41] of its Decision Record;

   d)it was not satisfied that the Applicant faced a real chance of suffering serious harm throughout India: see [42] of its Decision Record;

   e)that it was reasonable to expect the Applicant to relocate within India: see [46] of its Decision Record;

   f)that it was not satisfied that the Applicant faced a real chance of suffering serious harm or a real risk of suffering significant harm in his home region (i.e. the Punjab) in India: see [56] of its Decision Record; and

   g)was not satisfied that the Applicant faced a real chance of suffering serious harm or significant harm should he relocate within India and that he might reasonably relocate within India: see [57] and [59] of its Decision Record.  

5. In light of these findings the Tribunal’s discussion of relocation was, as it recognised at [39] of its Decision Record, redundant. The Tribunal’s conclusion that the Applicant did not have a well-founded fear of persecution throughout the whole of India, including his home region of the Punjab, meant that it did not need to consider the issue of relocation but in doing so and finding that it was reasonable and safe for him to relocate within the whole of India it did not make any jurisdictional error: see MZWOG v Minister for Immigration [2005] FCA 1738 at [12] – [13] per Sundberg J.

6. Accordingly, Ground 1 fails to establish jurisdictional error.

Ground 2

1. This ground is completely unparticularized and fails to identify in any meaningful way the “information” of which it is said that no clear particulars were given by the Tribunal to the Applicant under s.424A (or s.424AA) of the Act. At the hearing the Applicant was unable to identify the “information” to which Ground 2 is meant to refer. Failure to particularize a ground of review is sufficient basis for it to be dismissed: WZAVW v Minister for Immigration [2016] FCA 760 per Gilmour J at [35]. Ms Blake, who appeared for the Minister at the hearing, informed me that in acting for a model litigant the lawyers for the Minister have looked for and been unable to identify any information of which clear particulars were not given and which could be the subject of legitimate complaint by the Applicant in this proceeding. I for myself have also been unable to identify any such “information” and this Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 3

1. This Ground also lacks any meaningful particularisation or identification of how and why it is said that the Tribunal misconstrued s.36(2A) of the Act. It appears on its face to invoke merits review of the decision of the Tribunal which is unavailable in this Court and this Ground also fails to establish that the decision of the Tribunal was affected by jurisdictional error.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and his Application filed in this Court is to be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 27 April 2018