BHR16 v Minister for Immigration

[2018] FCCA 353

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 353

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

Applicant: BHR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1135 of 2016

Judgment of: Judge Hartnett

Hearing date: 5 February 2018

Delivered at: Melbourne

Delivered on: 5 February 2018

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Aleksov

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1135 of 2016

BHR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 31 May 2016 wherein the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) in which the Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection (‘the delegate’) not to grant the Applicant a protection (Class XA) visa (‘the visa’). 

2. The Applicant  advanced one ground of review in his application dated 31 May 2016, being:-

   “1.    The decision of the Administrative Appeals Tribunal is affected by jurisdictional error

   Particulars

   a. The Tribunal has miscarried in its statutory task, namely by failing to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Migration Act 1958 (Cth) (“the Act”) in respect of the Applicant’s claim that he was at real risk of serious or significant harm as a result of his past support of Akali Dal and now being forced to return to the Punjab and having to face the police & Congress party members/or in its assessment of the accumulation of his claims including that claim.”

3. The Applicant had lawyers acting for him who filed a notice of withdrawal as lawyer and notice of intention to withdraw as lawyer on 29 December 2017.  The Applicant became a litigant in person and filed a notice of address for service on 2 January 2018.

4. By orders of 7 November 2016, the Court ordered that the Applicant file and serve any amended application with proper particulars of the grounds of the application and any written submissions.  The Applicant  filed neither.

5. The First Respondent filed a response on the 16 June 2016, seeking that the application be dismissed and that costs follow that event. The First Respondent filed and served written submissions on which the First Respondent relies dated 12 January 2018, and there is before the Court the evidence as contained in the Court Book filed by the First Respondent on 23 September 2016. 

6. As can be seen from the Applicant’s ground of application set out in paragraph 2 above, the Applicant’s ground of application is unparticularised.

Background

1. The Applicant, a citizen of India, arrived in Australia on 19 April 2009 after having been granted a subclass 572 student visa. That student visa ceased on 4 April 2011. The Applicant was subsequently granted a bridging visa on 10 July 2013 upon his lodging of an application for a protection visa on 10 July 2013. The application was refused by a delegate of the Minister on 30 June 2014. 

2. The Applicant’s claims are set out accurately in the Minister’s submissions and I adopt them here:-

   “3. On 10 July 2013, the applicant applied for a protection visa claiming that:

   (i) His family, particularly his father, has been associated with Shiromani Akali Dal party, which is headed by Simranjit Singh Mann.

   (ii) He attended rallies and meetings as a member of Akali Dal because of the party’s support for Sikhs.

   (iii) The police were not interested in his complaints about violence from the opposition Congress Party towards him.

   (iv) In early 2009, he campaigned for Akali Dal, and again he was attacked on a number of occasions by opposition Congress Party members.  After this, he because fearful, and his parents arranged for him to go to Australia in 2009.

   (v) His parents informed him that it is not safe to return to India because he will face persecution by opposition supporters and Indian authorities will not protect him.

   (vi) He separated from his wife after he refused to return to India because of his fear of harm if returned to India.”

3. The Applicant appeared before the Tribunal on 11 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from a Mr Singh, a friend of the Applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Applicant was represented in relation to the review by his registered migration agent.

Tribunal Decision

1. As said by Counsel for the First Respondent, the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) was “a detailed and well-expressed statement of reasons”. 

2. The Tribunal set out the Applicant’s background and the Applicant’s various claims.  The Tribunal then proceeded to set out the procedure adopted by it at hearing, which included the various matters asked of the Applicant by the Tribunal.  The Tribunal recorded that it put matters to the Applicant which were of concern to it in respect of the Applicant’s evidence, and that it put matters to the Applicant for comment both as to the Applicant’s claims and in particular as to the country information considered by the Tribunal, which included Department of Foreign Affairs and Trade (‘DFAT’) reports about Akali Dal and its role in the Punjab government for some time.

3. In particular, the Tribunal set out at paragraph 20 and 21 of the Decision Record the following:-

   “20. The applicant was asked why he had not an application for the protection visa prior to 10 July 2013. The applicant said he thought he had a four year visa.  He spoke to his friend and checked his visa status, and went to an agent who checked and told him his visa had expired.  He then applied for the protection visa when he realised the other visa had expired. He had been working in Queensland before his application, but he did not have constant work.

   21. The applicant was asked why he had to leave India.  He said he had to leave because of politics and because of that he was unable to get work…”

4. The Tribunal asked the Applicant a range of questions about what problems were faced by him in India, what the Akali Dal’s position in politics was, what it stood for, how it differed from other parties, and its activities.  The Tribunal told the Applicant that:-

   “…it was concerned because he was not providing details about what the party is supposed to be about and why he was being particularly targeted.”

5. The Applicant was asked by the Tribunal what would happen if he returned to India.  The Applicant responded that “everything would happen such as punish him by breaking his leg or arm or kill him”.[1]  The Applicant was then asked by the Tribunal why anyone would want to kill him, and the Applicant responded “because they would think he will continue to help his party and it would rise up and they would not want that”.[2]

   [1] Decision Record dated 2 May 2016 at paragraph 41.

   [2] Decision Record dated 2 May 2016 at paragraph 42.

6. The Tribunal then went on to consider country information from a number of sources, all of which indicated that the political situation in Punjab appeared to “have quietened down a lot”.[3]  The Tribunal said in particular at paragraphs 44 to 46 of the Decision Record:-

   “44. The Tribunal also indicated country information which indicates that if a person was a militant separatist and aligned to a separatist group, they are likely to face adverse attention by the authorities.  In the applicant’s case he has not claimed his party to be one of the separatist groups. Overall country information indicates that generally at present in Punjab the situation is peaceful and the Sikh community retains its own unique identity and is socially assimilated in cosmopolitan areas and the human rights situation for Sikhs in Punjab and India has improved to the extent that it can no longer be said there is a general risk of ill treatment.

   45. The Tribunal also looked at country information by the Immigration of Refugee Board of Canada which states that according to a professor of political science at Guru Nanak Dev University, that Punjab has been experiencing “almost free and fair elections of both parliament and state assembly since 1997”.  Another academic, an assistant professor at Hiram College in Hiram Ohio who researches ethno-nationalist movements in Punjab has reported that Punjab has a “vibrant democratic system, with relatively open and free democratic competition within the parameters provided by the Indian constitution. This source indicates that the Akali Dal won 56 seats in the Punjab state elections while the Congress party won 46 seats and the people in opposition parties in Punjab are able to express their ideas freely and political dissent is tolerable.

   46. The Tribunal put to the applicant that all this information indicates that the political situation and climate in Punjab has changed since the applicant left India.  The applicant was asked to respond or to comment about this country information.”

   [3] Decision Record dated 2 May 2016 at paragraph 43.

7. The Tribunal asked the Applicant further if he was to return to India and live elsewhere whether he would continue to have the same problems he claimed he had in Punjab.  The Applicant responded that he would, because “everyone has links everywhere”.[4]

   [4] Decision Record dated 2 May 2016 at paragraph 50.

8. In its consideration of the claims and evidence of the Applicant, the Tribunal set out the claims as made by the Applicant in paragraph 63 of the Decision Record and in support of those claims and that evidence, the documentary evidence relied upon by the Applicant as set out in paragraphs 64 and 65 of the Decision Record.

9. The Tribunal then proceeded to consider country information before it, including the DFAT Country Information Report India of 15 July 2015 and said at paragraph 92 of the Decision Record:-

   “Based on all of the evidence, and in particular the country information as to the current situation in Punjab and elsewhere in India, the Tribunal does not accept that any opposition party to the Akali Dal or any other group or members of his community, or anyone else, holds a serious intention to seriously harm the applicant should he return to India…”

10. In this respect, the Tribunal found the Applicant’s evidence as to the harm he fears “vague and general and overall not convincing”.  The country information provided by the Applicant was some years old and referred to the 1984 Sikh riots and the aftermath, including ongoing dissatisfaction that a number of the people involved have not yet been brought to justice.  The Tribunal gave greater weight to the more recent country information regarding the situation of Sikhs in Punjab.

11. In relation to the Shiromani Akali Dal party, with which the Applicant claimed to have been involved, the Tribunal noted recent country information that the party formed coalition government in Punjab, and there were no particular issues or concerns in relation to belonging to that party. It was “an accepted and established party in Punjab and is not seen as a threat or anti-government”. The Tribunal also took into account advice from DFAT of July 2015 to the effect that while India’s Sikh community was affected by communal violence in 1984, Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community.

12. The Tribunal, on an assessment of the Applicant’s claims had, as set out in paragraph 89 of the Decision Record:-

    “…serious concerns as to the applicant’s credibility and was not satisfied with the answers to these questions…”

13. The Tribunal noted that the Applicant did not give “any meaningful details to substantiate the types of problems he had faced”.[5]  Based on the Applicant’s evidence, the Tribunal was not satisfied the Applicant  would continue to be a member and active supporter of the Akali Dal party if he were to return to India.  That conclusion was based:-

    “…on the Applicant’s own evidence that he did not wish to continue his association with the party as well as the Tribunal (sic) considerable reservations as to the extent and involvement of the applicant’s past activities within the party.”[6]

    [5] Decision Record dated 2 May 2016 at paragraph 89.

    [6] Decision Record dated 2 May 2016 at paragraph 91.

14. Based on its findings, the Tribunal found the Applicant did not meet the statutory criteria under s.36 of the Migration Act 1958 (Cth) (‘the Act’).

Conclusion

1. The Tribunal complied with its procedural fairness obligations as set out in Part 7 Division 4 of the Act. The Tribunal considered each and every of the claims made by the Applicant, and did so in some detail. The Tribunal had regard to relevant country information and put the particulars of same to the Applicant for his comment. In a very thorough Decision Record, the Tribunal gave considered reasons for its rejection of the Applicant’s claims that he was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act, or a person in respect of whom Australia had protection obligations under the Refugees Convention under s.36(2)(a) of the Act.

2. There was no meritorious basis to this application, and accordingly it is dismissed with costs following that event.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  16 February 2018