BHG15 v Minister for Immigration
[2017] FCCA 3218
•19 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHG15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3218 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal correctly applied complementary protection criteria – whether Tribunal considered all claims and material before it – whether Tribunal was biased – whether relocation issue arose – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 438 |
| Cases cited: BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 |
| Applicant: | BHG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1883 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 16 September 2016 |
| Date of Last Submission: | 16 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 December 2017 |
REPRESENTATION
| Applicant in person. |
| Solicitors for the Respondents: | Ms E Warner-Knight of Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1883 of 2015
| BHG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of India, seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Before I turn to the grounds stated in the application, I will set out the applicant’s migration history, his claims for protection, and the Tribunal’s reasons for not accepting those claims.
Applicant’s migration history
The applicant arrived in Australia on 3 August 1996 as the holder of a Tourist visa, and applied for and was granted two further Tourist visas, one on 9 September 1996, and one on 1 April 1997. On 1 August 1997 the applicant applied for a Protection visa (1997 Protection visa). That application was refused by a delegate of the Minister on 13 November 1997, and affirmed by a differently constituted Tribunal on 18 October 2000.
The applicant then became a represented person in High Court proceedings numbered S89/1999 titled Lie v Refugee Review Tribunal & Ors. Pursuant to orders made by Gaudron J, the applicant’s application was remitted to the Federal Court. The Federal Court dismissed the application on 22 December 2005. The applicant then filed an appeal to the Full Federal Court, and the appeal was dismissed on 30 October 2006 due to the applicant’s non-attendance. The applicant sought reinstatement of the appeal but failed to appear at the hearing for the reinstatement. The Full Federal Court dismissed the reinstatement application on 12 February 2007 apparently due to the applicant’s non-appearance.[1]
[1] First Respondent’s Submissions, [4]
The applicant sought, and was refused, Ministerial intervention on 18 May 2008, 27 October 2010, and 14 October 2013. The applicant became an unlawful non-citizen on 7 January 2011, and was detained by the NSW Compliance Field Team on 1 October 2013. Following his detention, the applicant again sought Ministerial intervention, and, when that proved unsuccessful, on 16 October 2013 the applicant lodged a second application for a Protection visa.
Claims for protection
In a statement that formed part of his application for a protection visa, the applicant claimed to fear harm because of his involvement in political and industrial activities in India.[2] He claimed, among other things, that he was involved with the Radical Student Union (RSU), which, he claimed, is the youth wing of the Peoples War Group (PWG).
[2] CB29-31
The applicant claimed that, while he was at the university stage of his education in Bangalore, he was an active member of the Student Union. He was popular in his college because he knew many Indian languages. While studying for his degree, the applicant read “War Group (PWG) literature (Voice of Vanguard)”. The applicant helped students from minority groups, and he became very reliable and confident because he had started reading PWG literature. The help the applicant provided consisted of assisting the students to “communicate with the Government Officers or the judicial matters in the Courts”. The applicant then joined the RSU, which (as I have already noted) the applicant claimed was the youth wing of the PWG. The PWG “was raising voice against exploitation of the poor by the higher class”, and opposed “corruption and evil practices in the society”; it “was a [sic] organisation leftists attitudes people”.
In 1986 the applicant joined WIPRO Infotech Ltd. He became popular with the workers and entered into trade union activities. Between 1992 and 1994 the applicant was also associated with activities and training with the PWG. Because the applicant had developed a wide range of contacts, the local trade union leader of the Radical Workers Union assigned the applicant to convert members of other trade unions to “join Radical Trade Union”. The applicant also engaged in activities to raise WIPRO’s worker’s awareness of their rights. He lectured and distributed literature of “CPI-ML books”. (“CPI-ML” stands for “Communist Party of India – Marxist Leninist”.[3]) Because of these political activities, the applicant became known to other local trade unions and political parties. He also became known to local government authorities because he was the “main person to Organise protest on Street in favour of people’s demands”. The applicant was the “main person behind forming an RWP branch” in WIPRO; but WIPRO told the applicant “to stop completely”.
[3] CB198, [48]
The applicant left WIPRO to start, with his sister’s assistance, a company called “Honest Communication” (HC). HC was a placement service company placing factory workers, and skilled and semi-skilled labourers with “big corporations”. One such company was “BPL”. The applicant “became enemy of Big Company’s management” because of the applicant’s “intensive activities to propagate CPM-MI ideology among the workers and organising to movements against exploitation of workers by the Big company management”.
BPL lodged complaints against the applicant to “suppress and stop” the applicant’s activities. BPL complained to the police that HC “is breeding ground for Naxalite”.[4] (According to country information the applicant submitted to the delegate, “Naxalites” are “a group of far-left radical communists, supportive of Maoist political sentiment and ideology”.[5]) The police arrested the applicant and tortured him for eight hours. He was detained and beaten by the police, but released after he was forced to sign a blank paper. The applicant was then forced to go underground and to cease operation of HC. The secret police and Karnataka special police started to target the applicant. The applicant decided to leave India on 3 August 1996 because he feared for his life.
[4] The applicant first uses the word “naxalite” in parentheses after the sentence “[d]ue to my serious involvement with these types of political activities”.
[5] CB33
The applicant further claimed that the “local police” labelled the applicant “as hard core Naxalite leader”, that he was arrested and detained by Karnataka police and detained at “Central gaol” for six months, and that a case was still pending against him in India. The applicant also claimed the Andhra Pradesh police threatened him when he was in the Srikakulam area.
In support of his application for a protection visa, the applicant provided a letter attaching “some evidence as proof the dangers that exists in India and the fear to life if I had to go back”.[6] The applicant also said (errors in original): [7]
My parents had Migrated from India after selling all their assets to Australia because, due to my involvement With PWG, the Police were always visiting them and forcing them to give information about me, by abusing them and taking them to Police station for questioning them this was done in front of the neighbor’s and children .
Some two years of me leaving India to Australia I Had cut all Involvement with the Group PWG that had also caused some kind of anger within the group, so they had made a number of Visits to my parents place in India and telling them that the High Command is very angry that they have lost contact with the applicant and wanted to have my contact details stating that my life is in danger from the Police and the Law and would like to render some assistance.
My parents have been visiting India and staying with relatives during their visits, they are still facing the same kind of questing from the Police, and my parents have updated me from very visit that the group had grown too big and they Recruited more young people in the community and there is Special Task Force committed to arrest all the members of the group involved from the present and past. It is understood that to get the members they are targeting their Families and anyone who Knows them.
[6] CB43
[7] CB43
Before the delegate, the applicant made the following additional claims:
a)While the applicant was in Nellore the PWG attacked the police station as a result of which two policemen died. The applicant was arrested on suspicion, and tortured. He was held in prison for six months until PWG sympathisers bailed him out.[8]
b)In July 1995 the applicant began to work as a private detective during the day, and as a patrolling officer at night, and he attempted to form a branch of the RWU among the guards.[9] Because of his activities, the applicant’s employment was terminated because he was a “hard-core Naxalite”. The applicant also claimed the secret police and the Karnataka police started targeting him because the managing director of his employer informed the police the applicant was an accomplice in some armed robberies, and the police were bribed to arrest him.[10]
c)PWG party members and sympathisers assisted him to obtain a visa and a ticket to travel overseas to save himself “from the clutches of death of the secret police, the Karnataka special police and the Sharp detectives private body guards”.[11]
[8] CB94-95
[9] CB95
[10] CB95-96
[11] CB96
The applicant provided to the Tribunal a number of documents, including an article on Naxalite-Maoist insurgency and articles relating to left-wing extremist groups, the PWG, the CPI-M (being a terrorist organisation profile for the Communist Party of India-Maoist), the killing of 15 police officers by Maoists in 2014, and India’s Maoist revolutionaries. The applicant also provided two sets of written submissions, one at the hearing, and one after the hearing.
Tribunal’s decision
The Tribunal first noted that the applicant had applied for and had been refused the 1997 Protection visa.[12] The Tribunal referred to the decision of SZGIZ v Minister for Immigration and Citizenship[13] and, applying the Full Federal Court’s reasoning in that decision, found it did not have the power to consider the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Act).[14] The Tribunal, therefore, only considered the application for review against the complementary protection criterion specified in s.36(2)(aa) of the Act.[15]
[12] CB186, [2]
[13] [2013] FCAFC 71
[14] That approach is correct – see Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
[15] CB186, [4]
The Tribunal found the applicant “has constructed his claims around the information in the independent information he provided to support his claims”, and that his “claims for protection are not credible”.[16] The Tribunal relied on a number of matters. First, the Tribunal found the applicant’s claims about his involvement with the PWG in Karnataka and the principles of that organisation to be inconsistent with the independent information provided by the applicant about PWG.[17] The Tribunal therefore did not accept the PWG was active in Bangalore, Karnataka state, where the applicant lived and worked from 1991 to 1996.[18]
[16] CB198, [52]
[17] CB195, [34]
[18] CB196, [37]
The Tribunal relied on the South Asia Terrorism Portal document (SATP article) the applicant provided to the Tribunal. That document stated that PWG was formed in Andhra Pradesh in 1980; it traced its ideology to Mao Tse Tung’s theory of organised peasant insurrection which entails building up bases in rural and remote areas and transforming them first into guerrilla zones and then as liberated zones; the PWG maintains a string of bases in remote and inaccessible areas where it operates virtual government in some liberated zones; the PWG draws a clear distinction between the military and political wings of the outfit; the PWG has a string of front organisations of students, youth, industrial workers, miners, farm hands, women, poets, writers, and cultural artists; and in Andhra Pradesh it has the Revolutionary Workers Federation and the Radical Students Union.[19] The Tribunal found the SATP article was at least up to date as of 2004, yet it did not list any front organisations in Karnataka, or any major incidents or activities carried out by PWG in that state.[20] The Tribunal accepted that, as of 2004, the PWG was making efforts to establish and expand in states including Karnataka, but that is eight years after the applicant had left India.[21]
[19] CB195, [34]
[20] CB196, [35]
[21] CB196, [37]
The Tribunal did not accept the other documents the applicant provided to the Tribunal supported his claims. On the contrary, it found the information reinforced the Tribunal’s finding that “PWG was not active in Bangalore in the early 1990s as the applicant claimed, and that its activities in Karnataka state increased from 1998 onwards and by 2010 had 25 front organisations in that state”.[22]
[22] CB197, [44]
The Tribunal relied on the following additional matters for finding the applicant’s claims were not credible:
a)The Tribunal was not satisfied the applicant’s knowledge of the principles of PWG was consistent with someone who had been reading PWG literature around the time the applicant was studying in the early 1980s, and who had been actively working for the PWG for about four or five years in the early 1990’s.[23] PWG rejected parliamentary democracy,[24] yet the applicant said PWG wanted to become a legal party in the political mainstream.[25]
b)The Tribunal did not accept the RSU’s being the “youth wing” of PWG was an adequate description of the RSU’s relationship to PWG. The activities the applicant claimed he carried out for PWG could be considered to be activities that a front organisation such as RWF carried out. Front organisations such as RWF, however, seek to conceal their links with the organisations behind them.[26]
c)In his visa application the applicant claimed that because of his activities and training with PWG he became known to leaders of other trade unions and local parties and local trade union leaders of the RWU assigned the applicant to convert members of other trade unions to join the Radical Trade Union. The applicant also claimed he formed a branch of “RWP” in WIPRO. The applicant did not, however, claim that any of these organisations were PWG fronts or were associated with PWG.[27]
d)Although the applicant claimed to have lectured and distributed literature of the “CPI-ML” to the 5,000 workers of WIPRO, he did not mention the CPI-ML or that activity at the hearing, although he did mention CPI-M (Communist Party of India – Maoist) at the hearing when talking about the first PWG gathering he attended in Bangalore in around 1991. Further, the applicant was initially unable to say what the “M” stood for, saying it is the Communist Party from China.[28] Later, however, he remembered that “M” stood for “Maoist”.
e)The applicant provided the Tribunal with a document from the START – National Consortium for the Study of Terrorism that states the PWG ceased to exist with the formation of the Communist Party of India-Maoist in September 2004 when PWG merged with the Maoist Communist Centre. The Tribunal found this to be inconsistent with the applicant’s claim that he attended a gathering in Bangalore in around 1991 when CPI-M signs were displayed.[29]
f)On one version of his evidence, the applicant claimed he did not leave India until three years after he had been tortured by the police. The Tribunal found this was inconsistent with his claims of torture. [30]
g)The applicant made inconsistent claims about when he broke with PWG. On one version, the applicant said he broke with PWG about two years before he left India. On another version, the applicant said it was two years after he left India.[31]
h)The applicant claimed that PWG paid for his passport and ticket to come to Australia. When confronted with his earlier claim that he had washed his hands of PWG, the applicant changed his evidence, and said it was a friend within PWG who helped him by using his influence in PWG to get the passport.[32]
i)The applicant’s delay in leaving India and applying for protection in Australia were not satisfactorily explained.[33]
[23] CB197, [45]
[24] CB197, [45]
[25] CB195, [33]
[26] CB197, [46]
[27] CB198, [47]
[28] CB198, [48]
[29] CB198, [49]
[30] CB198, [50]
[31] CB198, [50]
[32] CB198, [51]
[33] CB198, [53]
The Tribunal, therefore, did not accept the applicant engaged in any political or industrial activity in India, and did not accept the applicant had been harmed or detained or gaoled or complained against by police or any other authority in Karnataka or Andhra Pradesh or anywhere else, or that any Indian authority will harm him in the future.[34] The Tribunal also was not satisfied that any one or more of PWG or the CPI-M or the CPI-ML have ever been interested in the applicant or will have any interest in him if he returns to India.[35] The Tribunal also did not accept the applicant’s parents have been harassed, or that his father paid money to authorities or the PWG or that people in the PWG today know the applicant as someone who walked away from PWG.[36] The Tribunal, therefore, was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to India, there is a real risk the applicant will suffer significant harm.[37]
[34] CB198-199, [54]
[35] CB199, [54]
[36] CB199, [54]
[37] CB199, [55]
Grounds of application
The applicant’s application for review raises three grounds. The applicant, who is not legally represented, did not make any oral submissions in relation to any of the grounds.
The first ground is (errors in original):
The applicant claims that the RRT made a jurisdictional error when it did not Apply the real test for significant harm defined in s36(2)(aa) of the Act.
Particulars:
The applicant claims that the Tribunal formed the opinion based on the limited information about the possible harm to the applicant. The applicant lodged the Protection visa application under the New Regime of Migartion Act s36(2)(aa) “the Compementary Protection cretaria.” The applicant claims the hearing was conducted by the Tribunal did not elaborate the fundemtal principles of the complementary protection.
The Tribunal conducted the hearing in the same manners of his previous application lodged in August 1997. The applicant was asked questioned in the same way and the same issues. The Tribunal used limited information for assessing the possible harm if he is compelled to back to India.
In the last 20 Years time thousands of people have been killed by the Indian Authority in the name of Naxilite. The applicant’s claim is based on the reality of the current situations which has been published in the media. The applicant is a truthful witness. The Tribunal fond some evidence as inconsistent. However the applicant said that in 20 years time he has forgotten may things. The Tribunal used the applicant ignorance as inconsistent. The applicant claims he was denied procedural fairness when the hearing was not conducted freely and fairly.
During the hearing, the Tribunal raised several irrelevant issues related with genuine fear of persecution to discredit the applicant’s oral and written evidence.
The particulars appear to make a number of claims. The first is that the Tribunal based its decision on “limited material” and “limited information”. I take this to be a claim that the Tribunal did not consider all of the material that was before it. If that is the claim the applicant intends to make, it cannot be made out. There is nothing to suggest the Tribunal did not consider all of the material that was before it.
The second claim is that the Tribunal did not elaborate on the complementary criterion specified in s.36(2)(aa) of the Act. It is true the Tribunal did not explicate the language of s.36(2)(aa). The Tribunal, however, was aware that the relevant criterion the applicant had to satisfy was that specified in s.36(2)(aa) of the Act; and the Tribunal applied the language of that criterion. There is nothing to suggest the Tribunal misunderstood or misapplied that criterion.
The third claim is that the applicant’s claims were based “on the reality of the current situations which has been published in the media”. I take this to be a claim that the country information raised an independent ground of protection of harm which the Tribunal did not consider. The difficulty with this, however, is that the applicant does not identify what that claim might be. The particulars do not identify what the applicant means by “current situations”, or how that might expose the applicant to harm if he were to be returned to India.
The fourth claim relates to the Tribunal’s relying on inconsistent statements. The complaint appears to be that the Tribunal did not take into account that 20 years had elapsed between the time the events the applicant recounted before the Tribunal in support of his application occurred, and the applicant’s recounting of those events. The Tribunal, however, was aware of this difficulty. It said it had taken account of it, but the Tribunal did not accept the inconsistencies were the result of his poor memory.[38]
[38] CB194, [27], [28]
The fifth claim is the Tribunal did not conduct the hearing freely and fairly, and the applicant, therefore, was denied procedural fairness. That claim, however, is not supported by any particulars and, for that reason, cannot establish any unfairness by the Tribunal, or any failure by the Tribunal to accord the applicant procedural fairness. There is nothing in the material before me that could indicate any unfairness by the Tribunal.
Finally, the particulars claim the Tribunal raised and, presumably, relied on irrelevant issues to discredit the applicant’s evidence. The particulars do not identify the irrelevant issues. There is nothing in the material that suggests the Tribunal relied on irrelevant issues or matters in concluding the applicant’s claims were not creditworthy. It was reasonably open to the Tribunal, for the reasons it gave, to conclude the applicant’s claims were not credible.
Ground 1, therefore, fails.
The second ground of application is as follows (errors in original):
The applicant claims that the Tribunal made a jurisdictional error when it made decision with closed mind based on assumption and possibilities.
Particulars:
The applicant claims that the Tribunal made his mind before hearing when it did not accounted the applicant’s previous background of active political activities and his association and work with Redical Trade Union andh the CPI-ML (Communist Party of India – Marxist-Leninist). The Tribunal discarded all the orla and written evidences of his grounds for possible significant harm in the foreseeable future. The [T]ribunal only used the Information supplied by the Department of Foreign Affairs which is old and not uptodated.
This ground claims the Tribunal was biased, and it relies on the assertion that the Tribunal relied only on information provided by the Department of Foreign Affairs. The premise of the claim is incorrect. The Tribunal relied to a very large extent on information the applicant provided. The Tribunal found that that information showed the PWG did not have any presence in the area the applicant lived and studied at the time the applicant claimed he was involved with the PWG. In any event, there is no basis for the claim the Tribunal was biased or otherwise predetermined the applicant’s claims.
Ground 2, therefore, also fails.
The third ground of application is as follows (errors in original):
The Tribunal made a jurisdictional error when it did not properly consider the Issue of relocation.
Particulars:
The applicant claims that the Tribunal failed to consider the issue of relocation. The Tribunal’s finding was unreasonable and uninformed. The Tribunal is unaware with the current political situation of India. The applicant claims that he has no reasonable protection from the Indian authority. The degrading treatment, way of punishment done by the Indian Police and army in Naxalite effected area is horrible. The applicant can not trust on the Indian police for his life. If he is compelled to go India he will face a significant harm.
The issue of relocation did not arise, because the Tribunal found the applicant’s claims lacked credibility and, therefore, was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to India, there is a real risk the applicant will suffer significant harm. The particulars also claim the Tribunal’s decision was unreasonable and uninformed. That is not made out. The Tribunal’s conclusions were reasonably open to it on the material that was before it, and for the reasons it gave. Finally, the particulars claim the applicant has no reasonable protection from Indian authorities. The Court has no jurisdiction to determine that question, and that part of the ground, therefore, seeks the Court to engage in impermissible merits review.
Ground 3, therefore, fails.
Other matters
I had originally listed this matter for judgment on 21 October 2016. On 19 October 2016 my chambers received an email from the solicitors for the Minister in which it was said that a certificate purportedly under s.438 of the Act had been issued and that this might give rise to a potential issue in light of the judgment of Beach J in MZAFZ v Minister for Immigration and Border Protection.[39] In response to that email my chambers on 20 October 2016 sent an email to the parties in which the parties were informed that I proposed not to deliver judgment until an appeal from the decision of Judge Jarrett in Singh v Minister for Immigration and Border Protection was heard.[40] After I sent that email the appeal in Singh was heard,[41] as were appeals in other matters in which invalid s.438 certificates had been issued.[42]
[39] [2016] FCA 1081
[40] [2016] FCCA 2464
[41] Minister for Immigration and Border Protection v Singh [2016] FCAFC 183
[42] Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198
The Minister has not indicated he wishes to make any submissions in relation to any s.438 certificate that may have been issued in relation to the applicant’s application for review by the Tribunal; and the applicant has made no application or submission about any such certificate having been issued or having purportedly been issued. In those circumstances, I decided to deliver the judgment I had originally intended to deliver on 21 October 2016.
Disposition
I propose to dismiss the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 19 December 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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