Bax23 v Minister for Immigration, Citizenship & Multicultural Affairs
[2024] FedCFamC2G 73
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BAX23 v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 73
File number(s): SYG 671 of 2023 Judgment of: JUDGE OBRADOVIC Date of judgment: 2 February 2024 Catchwords: MIGRATION – JUDICIAL REVIEW – Protection visa – Consideration of country information over that provided by applicant – Consideration and weight given to untranslated documents – Failure to consider that applicant has never returned to receiving country – Potential of apprehended bias – No jurisdictional error established Legislation: Migration Act 1958 (Cth) Cases cited: Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546
CNY17 v Minister for Immigration and Border protection [2019] HCA 50
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
Ebner v Official Trustee in Bankruptcy [2000] HCA 63
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 31 January 2024 Place: Parramatta Appearing for the Applicant: In person Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mills Oakley Lawyers Appearing for the Second Respondent: Submitting, save as to costs ORDERS
SYG 671 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BAX23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application for judicial review filed 24 April 2023 is dismissed.
2.The applicant pay the first respondent’s costs as agreed or assessed.
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 OBRADOVIC:
These are the Reasons for Judgment in respect of the Application filed 24 April 2023 seeking judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 4 April 2023. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“delegate”) refusing the applicant a protection visa. The applicant in this matter is currently in immigration detention, is self-represented, and required the assistance of an interpreter during these judicial review proceedings.
The matter was first listed for hearing on 2 November 2023. However, the proceedings were adjourned as the applicant was not ready to proceed and to allow the applicant the opportunity to file written submissions.
The applicant articulates the grounds of his application as follows:
1.The Tribunal mislead the information based on online reports about [Ward Q] in the year 2012.
2.The Tribunal failed to show the seriousness of the provided documents as evidence and assumed them to be bogus without confirming.
3.The Tribunal failed to understand that he had never been back to receiving country due to those threats.
BACKGROUND
The applicant is a citizen of India. He arrived in Australia in late November 2008 as a holder of a student visa.
On 8 April 2010, the applicant’s student visa was cancelled.
On 7 October 2018, the applicant applied for a protection visa.
In August 2020, the applicant plead guilty to two offences, was convicted, and given a 12-month suspended prison sentence.
On 5 November 2020, the delegate refused to grant the applicant a protection visa.
On 2 December 2020, the applicant applied to the Tribunal.
On 23 August 2022, the applicant’s bridging visa was cancelled.
On 7 February 2023, the applicant attended a hearing with the Tribunal.
On 4 April 2023, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.
THE TRIBUNAL’S DECISION
The Tribunal set out the applicant’s claims for a protection visa, as stated in his application to the Tribunal, as follows:[1]
[1] CB:200-1[7].
•His parents have been actively involved in Indian politics. Due to that, he has personal enmity with some political persons in India.
•His family have been active members and supporters of the [XYZ] party in India. His mother was a councillor for the [XYZ] party for [Ward Q] from 2000 to 2007 and then from 2012 to 2018.
•His father was a councillor with [XYZ] party for [Ward Q] from 1992 to 1997.
•His family has strong support of the [Ward Q] residents and it was obvious that after his father expired that he will take over the political affairs and fill the seat. He was the obvious choice being the eldest son in the family and an active supporter of the party.
•Due to this he was targeted and the rival groups tried to put pressure on his family not to field him as a candidate in the forthcoming elections after the demise of his father.
•They even tried to abduct him and kill him. He survived two different attacks carried out on him by the opponents. That is why his mother decided to send him to Australia on a student visa.
•He approached the police but they were under the influence of the ruling party and politicians and so no case was registered or investigated due to instructions of the high bosses in politics.
•His mother is currently a councillor for the [XYZ] party for [Ward Q] and she won the seat. She tells the applicant that the opponent parties and rival groups still look for him so that he cannot return to India and take active participation in political affairs of the party and gain the position which his father once held.
•If he returns to India, rival groups will try to harm him physically and will most likely finish him up. He cannot relocate to another part of India because he does not have the resources and his opponents can find him and harm him.
At the hearing on 7 February 2023, the applicant added the following new claims, as summarised by the Tribunal:[2]
•The applicant’s father was a supporter of the [EFG] which is a Hindu nationalist paramilitary volunteer organisation in India. His father held positions in the organisation.
•Due to his family’s affiliation with the [EFG] and [XYZ], they have political rivalry with many political opponents and other religious outfits.
•The applicant’s younger brother is active in politics for the [XYZ] and he has been targeted by political opponents. He was falsely framed by the police in a fake currency case and on another occasion he was arrested and charged with false charges relating to a protest. His brother regularly receives threats from the opponents.
•The applicant’s family belong to a lower caste and they are targeted by the influential political party.
•The applicant’s political opponents are still active and will target him if he ever returns to India. He fears for his life due to his political affiliation with the [XYZ] and [EFG].
[2] CB:202-3[15].
The applicant also provided post-hearing submissions on 24 February 2023 where, in addition to repeating and elaborating on his claims, made the following additional claims as summarised by the Tribunal:[3]
[3] CB:205[20].
•While his parents had official positions, the applicant was an active member and supporter of the [XYZ] responsible for organising events, holding political rallies, gaining supporters and organising protests.
•The applicant was wrongly accused of being involved in an altercation at a protest. They started in [sic] inquiry into the incident and his alleged involvement deemed him ineligible for the position previously held by his father because it required a person without any brushes with the law.
•He started getting more and more threats from his political rivals and it escalated to violence multiple times. He was lynched once outside his family home with his family watching and this is when he decided it was no longer safe.
•After his mother lost in the 2007 election, the opposition grew in power and his family started receiving more threats. There were shots fired at their house and people were following them.
•The applicant was attacked and beaten severely when he was protesting the arrest of his colleagues outside the police station where they were being held. He was detained for causing public disturbance, trying to incite a riot, trying to cause social unrest and instigating violence on police officers. His family were being regularly harassed and they were concerned for his safety.
•He comes from a low caste and minority ethnic background and there is discrimination against them.
•The main reason his family has been targeted is because of his parents’ political career and popularity in spite of their background.
•His brother was targeted after their father passed away. He was falsely accused of cases.
•The applicant believes he will be harmed due to his family’s political history and the rivalry with the people who have been in power for too long and have reached beyond the grasp of the laws that are applicable to everyone else.
The Tribunal expressed concerns regarding the truthfulness of aspects of the applicant’s evidence in relation to the events he claimed occurred in India and overall, and did not find him to be a credible witness.[4] In summary, the Tribunal made findings, inter alia, as follows:
(a)The Tribunal was prepared to accept that the applicant’s parents were XYZ councillors on the [named city] Municipal Corporation for the years claimed.
(b)The Tribunal accepted that the applicant did charity work in India.
(c)The Tribunal accepted that the applicant helped his mother in connection to her role as a councillor from 2002 to 2007.
(d)The Tribunal did not accept the applicant was targeted by rival groups to stop his family fielding him as a candidate for a seat formerly held by his father, that he was wrongly accused of being involved in an altercation at a protest, or that the inquiry into this meant he was ineligible as the seat required a person without any brushes with the law. The Tribunal accepted the applicant’s earlier evidence that he was not eligible as the Ward was recategorized as a ‘ladies’ seat. Following from this, the Tribunal did not accept that rival groups were looking for him to prevent him from gaining his father’s previous position.
(e)The Tribunal did not accept that the applicant suffered harm in India as a result of his or his family’s involvement in politics, and accepted that the applicant has not received any threats since leaving India. As such, the Tribunal does not accept or give any weight to a letter provided by the applicant from a third party which attested that the reason the applicant came to Australia was because he started receiving threatening calls.
(f)Based on the lack of evidence and the Tribunal’s concerns regarding the applicant’s credibility, the Tribunal did not accept that the applicant was implicated in any false cases before or since he left India.
(g)The Tribunal was prepared to accept that the applicant’s brother was involved and acquitted in a case relating to false currency in 2016, and that his brother was named in a First Information Report in 2015. However, the Tribunal did not accept that the case relating to the First Information Report was still pending in court, it was not satisfied that the matters involving the applicant’s brother were politically motivated, and neither did the Tribunal accept that the incidents involving the applicant’s brother indicate that the applicant would be implicated in false cases if he returned to India.
(h)The Tribunal did not accept that the applicant escaped India in fear of his life, or that he fears returning there for the reasons he claims.
[4] CB:207[31].
In consideration of the protection criterion, the Tribunal found that the applicant had not suffered harm in India in the past for his involvement in political activities. In light of this, and the country information before it, the Tribunal found “that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to India in the foreseeable future.”[5] The Tribunal also found that the applicant’s involvement in politics was very much connected to and in support of his parent’s positions in politics. If the applicant returned to India and became involved in politics, the Tribunal did not accept that he would involve himself in the types of activities he previously had while assisting his parents or that he would put himself forward as a political candidate. Based on this and the country information before it, the Tribunal found that the applicant would not face a real chance of harm on this basis if he returned to India in the foreseeable future.[6]
[5] CB:214[79].
[6] CB:215[81].
As such, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution, or that he meets the definition of refugee in s.5H(1) of the Migration Act 1958 (Cth). The Tribunal was not satisfied that the applicant is a person towards whom Australia has protection obligations under s.36(2)(a) of the Act.[7] In relation to the complementary protection criterion, as the ‘real risk’ imposes the same standard as ‘real chance’ test, the Tribunal found the applicant does not face a real risk of significant harm for any reason. Accordingly, the Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa).[8]
[7] CB:217[87].
[8] CB:217[89].
The Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.
DETERMINATION
A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led to the Tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.
In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.
Ground 1
Ground 1 is that “[t]he Tribunal mislead the information based on online reports about [Ward Q] in the year 2012.” The applicant clarifies the ground in his submission filed on 8 December 2023, where he says that “[t]he Tribunal mislead information based on online reports about [Ward Q] in 2012, discounting evidence and documents crucial to my protection visa application due to language barriers.”
At hearing, the applicant was provided with the opportunity of expanding on his written submissions, but despite this, the applicant provides no details about which specific evidence and documents were not properly considered or discounted by the Tribunal, or how such evidence being discounted resulted in an error on the part of the Tribunal, except in so far as he referred to two pages of the Court Book being part of country information.
The Court understands from the applicant’s oral submissions, that the central complaint by the applicant relates to his parents’ political affiliations and the documents in support of that assertion. The complaint by the applicant in respect of the Tribunal’s decision seems to be that the Tribunal did not consider his documents but rather the country information.[9]
[9] To be found at CB:70-71.
What the applicant seems to have missed is that the Tribunal did in fact accept the claims he made about his parents’ political affiliation and that his father was a councillor, and later his mother, for the years the applicant claims. The Tribunal further accepted that the applicant helped his mother in connection with her role as a councillor.
In his affidavit, filed on 24 April 2023, the applicant explains that his concern was that the Tribunal failed to give any weight to documents he provided in support of his parents’ and brother’s political roles in India, documents which were not translated into English.
The Tribunal did note in its reasons[10] that it had received a number of untranslated documents and it accordingly gave them no weight. The applicant does not explain why the documents were relevant and why the Tribunal should have considered the documents, despite them being in a language other than English. Furthermore, the applicant does not explain the importance of the documents and why the Tribunal ought to have had them translated, despite there being no obligation for the Tribunal to so do.[11]
[10] At CB:210[55].
[11] Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [25].
The applicant does not explain why the untranslated documents were relevant, what information they contained, and how such information not being given any weight in the circumstances amounted to jurisdictional error. There is nothing on the face of the Tribunal’s reasons which indicates error of the requisite kind consequent upon the Tribunal not considering certain (unspecified) documents.
No jurisdictional error is made out.
Ground 2
Ground 2 is that “[t]he Tribunal failed to show the seriousness of the provided documents as evidence and assumed them to be bogus without confirming.”
It is unclear from the applicant’s submissions, including oral submissions, which documents the applicant claims the Tribunal assumed to be bogus, or how the weight or any lack of consideration the Tribunal gave to such documents resulted in an error.
The Tribunal identified the documents it had before it[12] and then gave consideration to the weight to be attributed to the documentary evidence before it. The Court accepts the Minister’s submissions that:
(a)the Tribunal accepted as genuine the First Information Reports from 2011 to 2015 naming the applicant’s brother, but it gave those documents no weight because the substantive parts of the document were untranslated;[13]
(b)the Tribunal gave no weight to a judgment dated 12 January 2005 because the document did not appear to name the applicant’s family as accused persons;[14]
(c)the Tribunal gave no weight to the statement in a letter from Dr D about the applicant having received threats, because of its concerns about the credibility of those claims;[15] and
(d)the Tribunal gave no weight to a certificate apparently provided in support of the applicant’s claim to be of a low or scheduled caste because the certificate was untranslated.[16]
[12] At CB:203-4[16].
[13] At CB:210[55].
[14] At CB:211[56].
[15] At CB:213[71].
[16] At CB:215[82].
The weight to be attributed to documentary evidence was a matter for the Tribunal.[17]
[17] DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87].
The applicant’s complaint about the lack of consideration by the Tribunal to untranslated documents, ultimately is of no benefit to him in so far as it relates to his brother, as the Tribunal accepted that his brother had been implicated in the way the applicant claimed. What the Tribunal did not accept is that the applicant was affected by the implication of his brother or that the applicant had anything to do with this. The applicant did not point to any document (untranslated or otherwise) which was said to be of particular relevance, nor did he explain how the Tribunal’s failure to give such document any weight resulted in jurisdictional error.
No jurisdictional error is made out.
Ground 3
Ground 3 is that “[t]he Tribunal failed to understand that he had never been back to receiving country due to those threats.” The Court understands this to be a claim that the Tribunal erred in failing to take into account as a relevant factor in considering his protection claim that he had not returned to India. Importantly, the applicant has never advanced such a claim.
The applicant has not explained how the Tribunal’s claimed lack of understanding resulting in an error. Furthermore, the Tribunal was well aware that the applicant had not been back to India and that he has remained in Australia, so much may be said to be obvious from its reasons.[18]
[18] At CB:200[5]-[6].
The applicant raises in his affidavit that he was “clearly not at his full potential”, and that he had “no recollection of the events” because he was “traumatized due to his situation”, and that according to the delegate’s decision there was a “language barrier” and the applicant could not explain his situation “word by word”. If by this the applicant is attempting to raise a new ground, potentially that he was denied a meaningful hearing, then such submission is rejected.
The applicant was represented at the time of the Tribunal hearing, although his representative did not attend the hearing. He was assisted by an interpreter. He participated in the hearing, and he provided submissions after the hearing. There is no evidence that he was suffering from any condition or disability which might have impaired his capacity to participate fully in the hearing before the Tribunal, nor was such a suggestion ever made, whether by the applicant himself (to the Tribunal) or by his representatives.
No jurisdictional error is made out.
Potential Ground 4
This potential ground of judicial review (“Ground 4”) was first raised by the first respondent in its submissions and considers an issue which the applicant has made no complaint of.
Ground 4 considers whether the Tribunal’s decision was affected by apprehended bias in circumstances where a document before it had the potential to subconsciously influence the Tribunal in a manner adverse to the applicant’s claims.
In this case, as part of the applicant’s migration history before the Tribunal, it was recorded that the applicant had previously held a bridging visa, but that it had been cancelled in 2022 following the applicant’s guilty pleas to two offences of sexual assault. Such information was provided to the Tribunal by the Department of Home Affairs and once it had been received by the Tribunal, the Tribunal notified the applicant and sent him the documents. The submissions which were then made on behalf of the applicant by his representative, expressly acknowledged that his bridging visa had been cancelled due to his criminal history, but did not otherwise address the matter or raise any concerns about the Tribunal being provided with such information by the Department.
The law on apprehended bias is well-settled. A decision is infected by apprehended bias if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[19]
[19] Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6].
As the High Court has held:[20]
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[20] Ebner at [7]-[8].
The rule against bias is a principle of procedural fairness, it is designed to ensure that the process is, and appears to a fair-minded lay observer to be, a fair process.[21] A reasonable apprehension of bias may arise from the possibility that “irrelevant and prejudicial material” has had a conscious or subconscious effect on the decision maker.[22]
[21] CNY17 v Minister for Immigration and Border protection [2019] HCA 50 at [68] (“CNY17”).
[22] CNY17 at [92].
The applicant has not addressed Ground 4 at all.
The fact of the applicant’s conviction was part of the historical mosaic. It was only relevant in so far as it was addressed by the applicant through his representatives, that is, that it resulted in the cancellation of his bridging visa, and the only reference to it in the Tribunal’s decision was to identify it as such.
While the fact of the applicant’s criminal conviction and the material provided to the Tribunal by the Department may have been prejudicial to the applicant, any such prejudice was cured by the Tribunal sending the information to the applicant and giving him an opportunity of addressing the matter.[23]
[23] See CNY17 at [102].
In all of the circumstances, a fair-minded lay observer would not apprehend a lack of impartiality by the Tribunal in the circumstances of this case.
No jurisdictional error is made out.
CONCLUSION
The applicant has not established any jurisdictional error by the Tribunal. The application for judicial review is therefore not made out.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 2 February 2024
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