Baw18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1473

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAW18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1473

File number:	ADG 77 of 2018
Judgment of:	JUDGE CAMERON
Date of judgment:	24 May 2021
Catchwords:	MIGRATION – persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle
Legislation:	Migration Act 1958 (Cth), ss 5J, 36, 474
Cases cited:	Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Number of paragraphs:	21
Date of hearing:	24 May 2021
Place:	Adelaide
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondents:	Ms Calabrese (Australian Government Solicitor)

ORDERS

ADG 77 of 2018

IN THE MATTER OF BAW18 V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

BETWEEN:

BAW18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	24 MAY 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $4,500.

3.The name of the first respondent be amended in the Court record to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

REASONS FOR JUDGMENT

Judge Cameron

INTRODUCTION

1. The applicant is a citizen of India who arrived in Australia most recently on 19 August 2014.  On 15 June 2016 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”) alleging that he feared persecution in India because of his Sikh religion and his imputed political opinion as a supporter of a Sikh religious leader.  On 2 September 2016 the applicant's application was refused by a delegate (“Delegate”) of the first respondent (“Minister”).  The applicant then applied for a review of that departmental decision.  He was unsuccessful in his review before the second respondent (“Tribunal”) and has applied to this Court for judicial review of the Tribunal's decision.

2. In this judicial review proceeding the Court cannot rehear the applicant's application for a visa. Its task is to determine whether the Tribunal's decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

   BACKGROUND FACTS

   Protection visa claims

4. In its decision, the Tribunal summarised the facts alleged in support of the applicant's claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   (a)he belonged to a Sikh religious group and his family are strong followers of a particular religious leader; 

   (b)the then-Indian government is Hindu and supports the Shiv Sena political party.  A Shiv Sena leader was killed by a mob and the Sikh religious leader was blamed.  His followers have subsequently been attacked by Shiv Sena activists and the applicant fears harm because his family are prominent followers of that leader although he, the applicant, has not experienced harm in India; 

   (c)on 17 May 2016 a different Sikh religious leader was attacked and one of his supporters killed;

   (d)the Sikh population comprise two per cent of the Indian population and life for Sikhs is dangerous there; 

   (e)Shiv Sena threatened Sikhs and were very powerful, with allies in the then-government. The authorities would therefore not protect him and he could not relocate to another part of India;

   (f)he feared harm from his ex-wife's brothers who lived close to his family in India because when she asked him for a divorce he would not sign the divorce papers and she threatened that if he did not sign them her brothers and father would "cause him trouble and he would be killed".  He also did not want to relocate to another part of India; and

   (g)he travelled to India in March 2014 and July 2014 for treatment of his eyesight.

   The Tribunal’s decision and reasons

5. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The Tribunal's decision was based on the following findings and reasons.

6. The Tribunal accepted that the applicant was of the Sikh religion and that his family were followers of the Sikh religious leader he identified.  The Tribunal also accepted that there was an assassination attempt on that leader in May 2016 and that one of his fellow preachers was killed in the attack, but it did not accept, having regard to country information, that ordinary Sikhs who followed that leader were targeted and faced persecution.

7. The Tribunal noted that the applicant had not previously experienced any harm in India due to his Sikh religion or imputed political opinion and he was not a Sikh political activist.  The Tribunal also noted he had returned to India on two occasions in 2014 and did not report any persecution based on his religion or imputed political opinion and his family continued to live in India without any reported persecution. The Tribunal was therefore not satisfied that there was a real chance the applicant would suffer serious harm because of his religion and found that he would be able to practise his Sikh religion and to follow the leader he identified, who continued to have a large following amongst the Sikh community.

8. The Tribunal accepted that the applicant's ex-wife may have pressured him to sign the legal documents for divorce by threatening to have him deported and that her family would harm him if he returned to India but it found that the threats were made in the context of bitter divorce negotiations and the persecution feared was not for any of the reasons in section 5J(1)(a) of the Act.

9. The Tribunal found that since the separation in June 2011 there had been no contact between the applicant and his ex-wife and no evidence that threats continued after the applicant's ex-wife was granted the divorce.

10. The Tribunal found that it was mere speculation that the applicant would face significant harm from his ex-wife's family in India because they lived in the same village as the applicant's family and noted that there was no evidence that the ex-wife's brothers or father personally threatened the applicant or had had any contact with him.  The Tribunal also noted that the applicant had returned on two occasions after he separated from his wife and he had not claimed he was threatened by the ex-wife's family despite their close proximity to his.

    THE PROCEEDING IN THIS COURT

11. In the application commencing this proceeding the applicant alleged:

    1.I would like to apply for appeal of my case to be heard in court so that I get a chance to say my side of points, which went unheard with DIBP, MRT and then FCC. All institutions have refused my visa application.

    2.I hearby request court to accept my appeal application against court decision because the major factors were not considered in my case and there is an error in dismissing my previous application. Because the court has not given due consideration to the jurisdictional error in AAT decision where the decision was made by taking into account irrelevant consideration about the nominated position which could be filled locally by Australian citizen or permanent resident. AAT itself asked wrong question and the court does not considered [sic] the factor in detail. The nominated position was still available for me to join after the grant of visa however my whereabouts at the time of hearing with AAT were taken and considered wrong which in turn affected the outcome of my case. Going to India during that time was under unforeseen circumstances. My health was deteriorating alarmingly and I need immediate treatment. I could not afford treatment here, as it was very costly and beyond my reach. So I went to India but different city of Punjab so that no body recognizes me. I also disguised myself to protect me from any harm. I request the court to consider those factors as well which were beyond my control and totally the call of time and life factors.

    3.Moreover, it was state in the court’s decision that I don’t have significant risk of harm due to my religion as most of the Sikhs reside safely in Punjab. This is ironically true but the court missed to consider the factor that one person killed or dead in the 1.9% Sikh population will go unnoticed and will not make news with and Indian Media United Nations because Shiv Sena people against Sikhism work as Mafias. They either kidnap people never to be found again or create an accidental scene to pose natural death or any other scenario to keep themselves safe. In addition, if you are on their target list, they will hunt you from anywhere in India to be killed. It is then their prestige issue. All these factors have never been highlighted in any reports or articles written in regards to the matter.

    4.Therefore, to save my life, this is my humble request to the court to accept my appeal application against the decision made in AAT on 07/02/2018

    CONSIDERATION

    Ground 2

12. The first substantive allegation made by the applicant in this proceeding is found in the second ground of the application. 

13. It is important at the outset to note that the application states that it seeks review of a decision of the Tribunal made on 7 February 2018.  The Tribunal decision relating to the applicant bearing that date is found at pg.118 of the Court Book which was Ex.A in this proceeding.  That Tribunal decision concerns the Delegate's decision to refuse the applicant a protection visa, the relevant details of which were summarised earlier in these reasons. 

14. The second ground of the application relates, however, to a different sort of visa application and not the decision which is the subject of the Tribunal decision of 7 February 2018.  It appears to relate to a work visa.

15. Because the matter under review in this proceeding concerns the applicant's unsuccessful application for a protection visa, issues concerning whatever other visa he may have sought are not relevant to this proceeding.  To put it another way, the matters alleged in the second ground of the application do not identify any errors in the Tribunal decision of 7 February 2018 concerning the protection visa application.

    Ground 3

16. The essence of the third ground of the application appears to be an allegation that if the applicant were to be killed upon return to India no one would notice or care.  When considering that argument it is important to keep in mind that the issue before the Court is whether the Tribunal’s affirmation of the Delegate's decision is affected by jurisdictional error. 

17. The implication of the third ground of the application is that the applicant did face a real risk of harm in India. However, such an issue is one of fact not law.  As explained to the applicant during the course of the hearing of this matter, the Court has no power to reconsider the Tribunal's fact finding or to weigh for itself the risks posed to his safety by the conduct of the people he says he fears.

18. In the third ground of the application, the applicant invites the Court to make a finding on the risks he may face in India different from the Tribunal's decision on that question.   It cannot do that.

    Grounds 1 and 4

19. Neither the first nor the fourth of the grounds set out in the applicant's application to this Court identify a basis upon which the Tribunal's decision might be set aside.  With all respect to the applicant, they do not identify any potential error on the Tribunal's part. 

    CONCLUSION

20. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

21. Consequently, the application will be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       30 June 2021