Bim16 v Minister for Immigration
[2020] FCCA 3066
•13 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIM16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3066 |
| Catchwords: MIGRATION – Procedure – where hearing is scheduled to occur by video-link – whether the Administrative Appeals Tribunal erred in proceeding by telephone following technical issues with video-link – whether the Administrative Appeals Tribunal ought to have adjourned the hearing – unreasonableness – application of section 425 of the Migration Act 1958 (Cth) – whether the applicants had the opportunity to give evidence and present arguments – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.36, 422B, 425, 425A, 429A |
| Cases cited: BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZANX v Minister for Immigration and Border Protection [2017] FCA 307 SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 SZQAO v Minister for Immigration and Citizenship [2011] FCA 874 SZSUY v Minister for Immigration & Anor [2014] FCCA 1 |
| First Applicant: | BIM16 |
| Second Applicant: | BIN16 |
| Third Applicant: | BIO16 |
| Fourth Applicant: | BIP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1152 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 4 May 2020 |
| Date of Last Submission: | 15 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2020 |
REPRESENTATION
| Counsel for the applicants: | Mr McBeth |
| Solicitors for the applicants: | Clothier Anderson & Associates |
| Counsel for the respondents: | Mr Yuile |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The applicants’ application filed on 1 June 2016 and as amended on 18 October 2018 and 5 May 2020 be dismissed.
The applicants pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1152 of 2016
| BIM16 |
First Applicant
| BIN16 |
Second Applicant
| BIO16 |
Third Applicant
| BIP16 |
Fourth Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) to affirm a decision of the delegate of the Minister for Immigration and Border Protection (“the delegate”) to refuse to grant the applicants protection visas.
The further amended application filed by the applicants[1] raised four grounds of review.
[1] Applicants’ further amended application filed on 5 May 2020.
By consent of the first respondent, the applicants rely upon an affidavit of Catherine Jane Farrell[2] to which the transcript of the Tribunal hearing is annexed.
[2] Affidavit of Catherine Jane Farrell affirmed on 17 October 2020 and filed on 18 October 2020.
Background
The first and second applicants are married Indian nationals.[3] The third and fourth applicants are their children who were born in Australia.[4]
[3] Court book pages 200 and 201 at paragraphs 16, 18, 19 and 20.
[4] Court book pages 132 and 133.
The first and second applicants first arrived in Australia on student visas.[5] The applicants applied for protection visas on 5 May 2014.[6]
[5] Court book page 137.
[6] Court book pages 18 to 59.
The principal basis for the applicants’ claim for protection visas was that they feared being subjected to an ‘honour killing’ because the first and second applicants entered into a ‘love marriage’ rather than accepting an arranged marriage.[7] The applicants stated that a ‘love marriage’ would not be accepted by their community.[8]
[7] Court book page 25 at paragraphs 44 and 45; Applicants’ outline of submissions filed on 18 October 2018 at paragraph 2.
[8] Court book page 26 at paragraph 46.
On 22 January 2015, the delegate refused to grant the applicants protection visas.[9]
[9] Court book pages 128 to 148.
The applicants applied to the Refugee Review Tribunal (as it was then known) for a review of the delegate’s decision.[10] The applicants were invited to and attended a hearing on 21 April 2016 and provided material to the Tribunal on that day.[11]
[10] Court book pages 149 to 151.
[11] Court book pages 152 to 194.
On 4 May 2016, the Tribunal affirmed the delegate’s decision.[12]
[12] Court book pages 195 to 208.
The Tribunal accepted that:
Based on the evidence before the Tribunal… the applicants have a real chance of suffering serious harm, for reasons of their membership of a particular social group (breaching customary norms), in their home region in India…[13]
[13] Court book page 201 at paragraph 25.
However, the Tribunal went on to conclude that they could safely and reasonably relocate to another part of India and therefore were not entitled to protection visas.[14]
[14] Court book pages 204, 207 and 212 at paragraphs 31, 50, 53 and 59.
Grounds of review
There were four grounds of review raised in these proceedings.[15] Grounds one and two related to the Tribunal’s failure to adjourn the hearing after the video hearing system malfunctioned. Grounds three and four related to alleged errors in the Tribunal’s analysis regarding relocation.
[15] Applicants’ further amended application filed on 5 May 2020.
I will first deal with grounds one and two together and will then deal with grounds three and four together. However, before doing so, I wish to comment on the grounds and the numbering of the grounds.
Prior to the hearing, the applicants filed an amended application which specified four grounds of review.[16]
[16] Applicants’ amended application filed on 18 October 2018.
During the course of the hearing, it became apparent that the applicants’ arguments in relation to ground four raised a further aspect not particularised in the amended application.
With the consent of the first respondent, the applicants were granted leave to file a further amended application, reflecting the additional particulars argued before the court.[17] The first respondent was granted additional time to file written submission in relation to that matter and the applicants were also granted a further opportunity to file submission in reply.[18]
[17] Orders of Judge Mercuri made on 4 May 2020.
[18] Orders of Judge Mercuri made on 4 May 2020.
Pursuant to the orders made on 4 May 2020, the applicants filed a further amended application.[19] For some reason, whilst in identical terms, grounds one and two in the further amended application[20] were in the reverse order to grounds one and two in the amended application.[21]
[19] Applicants’ further amended application filed on 5 May 2020.
[20] Applicants’ further amended application filed on 5 May 2020.
[21] Applicants’ amended application filed on 18 October 2018.
In these reasons, I refer to the order of the grounds of review as set out in the further amended application.[22]
[22] Applicants’ further amended application filed on 5 May 2020.
Ground one and ground two
Grounds one and two both related to the Tribunal’s decision to proceed with the hearing after the video conference facilities failed. They were made as follows:
Ground one
The Tribunal’s failure to adjourn the hearing to enable the hearing to proceed in person or by video link was unreasonable.[23]
[23] Applicants’ further amended application filed on 5 May 2020 page 3.
Ground two
The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to invite the applicants to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review within the meaning of s 425 of the Migration Act, or alternatively, failed to provide the opportunity to the applicants to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review consistent with the invitation that was given under s 425.[24]
[24] Applicants’ further amended application filed on 5 May 2020 page 3.
Section 422B(1) of the Migration Act 1958 (“the Act”) relevantly provides that Division 4 of Part 7:
…is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
In addition, section 422B(3) of the Act further provides:
In applying this Division, the Tribunal must act in a way that is fair and just.
Section 425 of the Act provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments in relation to the decision under review. This requirement arises in circumstances where, as in this case, upon reviewing the material, the Tribunal had not formed the view that the delegate’s decision ought be reversed.
It was submitted by the applicants’ representative that the intention behind section 425 of the Act is for the applicant to be given a meaningful opportunity to be heard.[25]
[25] Transcript page 5 at lines 35 to 37.
Section 429A, which appears in Division 4 of Part 7 of the Act, relevantly provides:
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant … to be by:
(a)telephone; or
(b)closed-circuit television; or
(c)any other means of communication.
It was submitted for the applicants that the very purpose of section 429A of the Act is to provide procedural fairness to an applicant.[26] It is in this context that section 429A permits the taking of evidence from an applicant in various ways other than in person.
[26] Transcript page 3 lines 40 to 42.
By letter dated 24 March 2016, the Tribunal invited the applicants to attend a hearing to give evidence and present arguments.[27] The hearing invitation notes that arrangements had been made for the hearing to be conducted by video conference with the applicants to be in Griffith and the Member and the interpreter in Sydney. The hearing invitation expressly stated:
If there is a preference to attend in person in Sydney, please contact us as soon as possible.[28]
[27] Court book page 152.
[28] Court book page 152.
It was submitted that in responding to the invitation letter, the applicants were taken to have consented to the hearing proceeding by video-link.[29] It was further submitted that the applicant did not consent to the hearing being conducted by telephone.[30]
[29] Transcript page 5 at lines 5 to 7.
[30] Transcript page 8 at lines 1 to 5.
On the question of consent, the applicant relied on the comments made by Foster J in SZQAO v Minister for Immigration and Citizenship [2011] FCA 874 (“SZQAO”), where he said:
The appellant completed and returned the Response to Hearing Invitation form. In that form, he indicated that he would take part in the Tribunal hearing scheduled for 15 February 2011 upon the basis set out in the hearing invitation letter – ie upon the basis that the Tribunal member would be in Sydney, that he would be in Griffith and that the two would be linked by way of video link. The Tribunal was entitled to proceed by way of video link in the fashion outlined in the hearing invitation letter … The hearing invitation letter generally complied with all applicable legislative requirements. It should be noted that the appellant plainly received the hearing invitation letter and responded to it in such fashion as he decided was appropriate. He specifically agreed to the video link proposal.[31]
[31] SZQAO v Minister for Immigration and Citizenship [2011] FCA 874 at [10].
In the present case, the hearing ultimately did not proceed by way of video-link as the video facilities malfunctioned. It ultimately proceeded by telephone. Essentially, the applicants’ complaint under grounds one and two is that in proceeding in this manner, the Tribunal’s actions were infected by jurisdictional error.
At the heart of grounds one and two are the submissions that:
a)there is a qualitative difference between an invitation to participate in a hearing by video-link versus by telephone;
b)the applicants were invited to and agreed to attend the hearing by video-link;
c)no agreement was sought or obtained to conduct the hearing by telephone;
d)it was important for the applicants to have a meaningful opportunity to be heard;
e)the applicants, the interpreter and the Tribunal member ought to all be able to hear and understand each other; and
f)in the circumstances, a meaningful opportunity to be heard was not provided.
It was submitted for the applicants that, when regard is had to the transcript of the Tribunal hearing, it is clear that:
a)when the Tribunal member indicated that he would proceed to hear the matter by telephone, the applicants objected on at least two occasions on the ground that they were having difficulty hearing the member;
b)notwithstanding the applicants’ objections, the Tribunal member pressed on and conducted the hearing by telephone; and
c)there is clear evidence in the transcript that there were misunderstandings in what the applicants were saying, which goes to the quality of the hearing and whether the applicants were afforded a meaningful opportunity to be heard.[32]
[32] Applicants’ outline of submissions filed 18 October 2018 at paragraph 19.
In relation to ground one, it was submitted that, having regard to the purpose of a section 425 hearing and the fact that the Tribunal had the power to adjourn the hearing under section 427, the Tribunal’s decision not to adjourn the proceedings after the video facilities failed was unreasonable. Additionally, the reasonableness or otherwise of the decision not to adjourn must be considered in the context of the purpose of the Division, which is to afford the applicants procedural fairness and also to conduct such proceedings in a manner which is fair and just.[33]
[33] Transcript page 9 at lines 7 to 13.
Moreover, it was submitted for the applicants that when regard is had to the transcript of the hearing, it is apparent that on a number of occasions the Tribunal member tried to obtain the applicants’ agreement they could understand the proceedings even though ‘they repeatedly objected that they could not’.[34]
[34] Transcript page 9 at line 31.
It was further submitted for the applicants that in circumstances such as this where there is a failure of the video-conferencing equipment, the ‘fair and reasonable exercise of the Tribunal’s powers required the Tribunal to adjourn the proceeding’.[35]
[35] Transcript page 9 at lines 22 and 23.
Counsel for the applicants referred to and relied upon Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) where French CJ relevantly said:
There was no practical countervailing consideration disclosed in the MRT’s reasons for refusing to defer its decision. The first respondent was denied procedural fairness and that denial constituted jurisdictional error.[36]
[36] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [21].
Counsel for the applicants submitted that the same logic applied in this case. The applicants objected to the matter proceeding by telephone and there was no reason in the Tribunal’s decision record which explained why it decided not to adjourn the hearing and reissue a fresh invitation or reconvene to a time where the parties could be heard appropriately.[37]
[37] Transcript page 14 at lines 13 to 19.
The facts in this case are distinguishable from the facts in Li.[38] In Li,[39] the applicant had sought an adjournment to allow them to obtain a review of the skills assessment required to support their application. It was in that context that the comments made by French CJ were made, namely that there were no countervailing consideration for the refusal to allow the applicant additional time in the circumstances.
[38] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[39] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
In this case, a fair reading of the transcript of the Tribunal hearing discloses that:
a)at no point did the applicants object to the matter proceeding by way of telephone;
b)the applicants did not seek an adjournment to allow for the hearing to be conducted by video-link, or if that was not possible, in person; and
c)the applicants did not seek additional time to provide more material in support of their claim, as was the case in Li.[40]
[40] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
As evidenced by the transcript, after the video-conferencing facilities failed and the Tribunal member indicated that he intended to proceed by telephone, the applicants experienced some initial difficulties in hearing the Tribunal member. However, those difficulties appear to resolve.
Moreover, the Tribunal member made it clear to the applicants that if they experienced any difficulty in hearing or understanding what was being said, that they should let the tribunal member know. The Tribunal member stated:
I do not understand that we should have problems with the telephone connection that we had with the videoconferencing connection. However I do want to say that if you do not understand what the [interpreter] says, you must tell me about that as soon as it happens so that we can repeat the question. Okay?[41]
[41] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 9 at lines 24 to 28.
The first applicant then replied, through the interpreter: ‘Okay’.[42]
[42] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 9 at line 30.
Later, after explaining the role of the interpreter and clarifying some preliminary matters, the Tribunal member further stated:
… If you have a problem during the hearing or if anybody has a problem during the hearing, please let me know about that problem, and we’ll see if we can fix it as it arises.[43]
[43] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 10 at lines 21 to 23.
Again, the first applicant replied: ‘Okay’.[44]
[44] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 10 at line 25.
At no stage did the applicants object to the matter proceeding by way of telephone. To the extent that grounds one or two rely upon a finding that such an objection had been made and was unreasonably refused, they fail.
In any event, when the transcript of the Tribunal hearing is reviewed in its entirety, it is clear that the applicants were provided with a meaningful opportunity to make submissions and lead evidence in relation to the matters which were the subject of review.
There were a couple of other occasions where the applicants were unable to clearly hear and or understand the Tribunal member. However, it appears from the transcript that the applicants asked for clarification, clarification was provided and the hearing proceeded appropriately.[45]
[45] For example, see Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 10 at line 45 to page 11 at lines 1 to 7.
The applicants conceded that the Tribunal dealt with its decision to continue the hearing in the circumstances at paragraph [10] of its decision record.[46] Here, the Tribunal referred to the factors set out in SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 in determining whether it was appropriate to conduct hearings by telephone.[47]
[46] Transcript page 9 at lines 38 to 44.
[47] Court book page 199.
The applicants took issue with this analysis on the basis that:
a)there was no evidence from the transcript of the hearing that the Tribunal member gave any consideration to these factors at the time the decision to conduct the hearing by telephone was made;[48] and
b)it was clear that the applicants spoke some English and were partly relying on hearing what the Tribunal member was saying as well as what the interpreter was translating.[49]
[48] Applicants’ outline of submissions filed 18 October 2018 at paragraph 30.
[49] Transcript page 10 at lines 2 to 4.
I do not accept these submissions. The transcript does not form part of the Tribunal’s reasons. There is no obligation on the Tribunal to advise the applicants in real time of the reasons for its actions or decisions. To the extent it was required to provide reasons for its decision to allow the hearing to proceed by telephone, these matters were addressed in the Tribunal’s decision record and appropriately so.
Additionally, it is clear from the Tribunal’s analysis at paragraphs [10] to [13] of its reasons that the Tribunal member was aware of the need to ensure the applicants were afforded a real opportunity to lead evidence and make submissions in support of their case at the hearing.[50] As noted at paragraph [13], ‘after having discussed the claims at a hearing, [the Tribunal was] satisfied both applicants were given this opportunity.’ [51]
[50] Court book at page 199.
[51] Court book at page 199.
It was further submitted in support of ground two that the Tribunal did not have the statutory power to change the method of the hearing part way through the hearing.[52] That is, having invited the applicants to attend a hearing by video-link, the only way the hearing could proceed was by video-link, unless and until a further invitation was issued specifying an alternative method of conducting the hearing.
[52] Transcript page 8 at lines 35 to 39.
As stated, section 425 of the Act provides that the Tribunal must invite an applicant to appear and give evidence and present arguments in certain circumstances. This was done in this instance. Section 425 does not require that such a hearing be conducted in any particular mode.
Similarly, to the extent that section 429A of the Act is relevant, it provides some flexibility for the Tribunal as to how it may receive evidence and argument from an applicant.
There is nothing in the statutory scheme which supports the applicants’ argument that once notice has been given that a hearing will be conducted in a particular way; that notice limits the manner in which the hearing might otherwise be conducted. The ultimate question is whether the manner in which the Tribunal conducted the hearing provided the applicants a fair opportunity to present their arguments and evidence on the matters before the Tribunal.
The applicants relied upon SZQAO[53] in support of this ground. In that case, the Tribunal invited the applicant to attend a hearing and specified, as in this case, that the hearing would take place with the Tribunal member in Sydney and the applicant in Griffith, and the parties would be connected via video-link. The invitation letter made it clear that if the applicant wished to attend in person, he ought to contact the Tribunal. The applicant completed the response to hearing form. It was against this background that Foster J noted:
The appellant completed and returned the Response to Hearing Invitation form. In that form, he indicated that he would take part in the Tribunal hearing … upon the basis that the Tribunal member would be in Sydney, that he would be in Griffith and that the two would be linked by way of video link. … [T]he appellant plainly received the hearing invitation letter and responded to it in such fashion as he decided was appropriate. He specifically agreed to the video link proposal. (emphasis added)[54]
[53] SZQAO v Minister for Immigration and Citizenship [2011] FCA 874.
[54] SZQAO v Minister for Immigration and Citizenship [2011] FCA 874 at [10].
This decision is of limited assistance to the applicants’ case. Ultimately, in SZQAO, the appellant did not appear at all at the hearing before the Tribunal. The Tribunal proceeded to determine the matter without the applicant. On review, the court found the appellant’s evidence as to why he failed to appear at the hearing was ‘somewhat vague, to say the least.’[55] Foster J concluded:
In the course of that cross-examination, it became perfectly clear that the appellant had understood that the hearing was to take place in the manner specified in the hearing invitation … He also suggested that he had not understood the letter completely but nonetheless had appreciated that he was to attend at Griffith.[56]
[55] SZQAO v Minister for Immigration and Citizenship [2011] FCA 874 at [16].
[56] SZQAO v Minister for Immigration and Citizenship [2011] FCA 874 at [17].
In my view, SZQAO does not stand for the broader proposition advanced by the applicants in this case that once notice has been given that a hearing will be conducted in a particular manner and the applicant agrees to that course, the manner in which the hearing may be conducted is restricted to that course.
Section 425 requires the Tribunal to provide the applicants with an invitation to ‘appear before the Tribunal to give evidence and present arguments’. Section 425A of the Act then specifies the information which must be included in the notice, namely the day, time and place at which the hearing will be conducted. The notice given to the applicants contained that information. Namely, it specified the time, the date, and the location of each of the parties, noting that the Tribunal member would be in Sydney and the applicants would be in Griffith.
Section 429A of the Act also provides that the Tribunal may allow an applicant to appear by various means including by telephone, closed-circuit television or other means of communication.
When one has regard to these provisions, it is clear the Tribunal is given a discretion as to how a hearing is to be conducted. Whilst that discretion needs to be exercised reasonably, the statutory scheme does not limit that discretion by requiring the consent of an applicant to the proposed method of a meeting.
Ultimately, in this case, faced with a faulty video-conferencing system, it was reasonably open to the Tribunal to conduct the hearing by telephone.
Having regard to the transcript of the Tribunal hearing, whilst there were some points at which it was difficult for the applicant to hear what was being said, this difficulty was raised and corrected. It is clear that the applicants were given an opportunity to be heard in accordance with the requirements of section 425 of the Act.
There is also no proper basis to find that in adopting the approach that it did, the Tribunal acted unreasonably in the sense contemplated by Li.[57] To establish legal unreasonableness, it is not sufficient that another decision maker in the same circumstances would have taken a different approach. Rather, to succeed on this argument, the applicants must establish there was no evident and intelligible justification for the decision to proceed by telephone and not adjourn or demonstrate that no reasonable person would have adopted that course.[58]
[57] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[58] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [10].
In Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 (“SZVFW”), Kiefel CJ said:
Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.[59]
[59] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [11].
Kiefel CJ went on to say:
The crux of the primary judge’s reasoning concerning the exercise of the power given by s 426A appears to be that the Tribunal should have exercised it in the respondents’ favour because, in a practical sense, it could have done so. This analysis fails to identify an unreasonable decision in the sense explained above. The requirement to be implied in a provision such as s 426A, that a decision-maker act reasonably, does not require the decision to be one which is advantageous to the person who is the subject of it.[60]
[60] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [15].
SZVFW concerned a case where the Tribunal proceeded to deal with a claim where the applicant did not attend the hearing. It was argued that the Tribunal acted unreasonably in not adjourning the hearing. For the reasons outlined above, the High Court concluded that the Tribunal did not act unreasonably.
In this case, the Tribunal was faced with a choice when the video-conferencing equipment failed:
a)it could have adjourned the hearing to allow the applicants to appear in person;
b)it could have adjourned the hearing to reconvene once the video-conferencing facilities were working; or
c)it could, as it chose to do, conduct the hearing by telephone.
It was not unreasonable in the Li sense for it to elect to proceed by telephone. This is particularly so in circumstances where the Tribunal member was able to satisfy themselves that the applicants were able to participate in the hearing and provide such information and evidence as they wished, with the benefit of an interpreter. Section 429A of the Act recognises that the Tribunal has sufficient flexibility to allow it to discharge its statutory duty in the most effective manner.[61]
[61] Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 at [96].
In circumstances where the applicants lived some distance from Sydney and therefore the prospect of an in person hearing was remote, it was not unreasonable for the Tribunal to attempt to conduct the hearing by telephone. This is particularly so where the parties required an interpreter, an interpreter had been arranged, and the method of communication allowed the applicants to make submissions in response to the Tribunal member’s questions.
In some cases, the method of a hearing may impact whether the applicant has been provided with a fair hearing. For example, where issues of credit arise, the manner of the hearing would need to allow credit to be appropriately assessed. In this case, it was submitted that issues of credit did arise and added to the unreasonableness of the decision to proceed by telephone.[62]
[62] Transcript page 15 at lines 5 to 7.
Whilst it was conceded that issues of credit did arise, it was submitted for the first respondent that there was no basis to allege the Tribunal did not consider its ability to assess credit in conducting a hearing by telephone.[63] Moreover, the Tribunal expressly referred to this issue at paragraph [10] of its reasons,[64] which clearly demonstrates consideration of the issue.
[63] Transcript page 29 at lines 33 to 36.
[64] Court book page 99.
I agree with this submission. The Tribunal expressly referred to the factors to which it had regard in determining that it was appropriate to proceed by telephone, including whether credit could be adequately assessed. [65]
[65] Court book page 99 at paragraph 10.
Finally, for completeness, the first respondent highlighted that at the end of the hearing, the Tribunal member asked the applicants if they required any additional time to ‘collect [their] thoughts to put anything further to [the Tribunal member]’, [66] which they declined. I accept the applicants’ submission that this does not amount to an offer by the Tribunal to allow the applicants a further opportunity to attend the hearing in person or by video-link.
[66] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 26 at line 30.
However, for each of the above reasons, grounds one and two are not made out.
Ground three and ground four
Grounds three and four both related to the Tribunal’s conclusion that the applicants could relocate elsewhere within India. I will therefore deal with these two grounds together.
Ground three
The Tribunal failed to give proper and adequate consideration to whether it was reasonable in the circumstances of the applicants to relocate to another place within India.[67]
Ground four
[67] Applicants’ further amended application filed on 5 May 2020 page 3.
The Tribunal failed to give proper and adequate consideration to whether it was reasonable in the circumstances of the applicants to relocate in that the Tribunal failed to consider reasons that were given by the applicants and/or reasons arising from the material before the Tribunal that affected the reasonableness of relocation.
Particulars
a.The Tribunal failed to consider the issue of [the second applicant’s] health, which was raised in the context of relocation.
b.The Tribunal failed to consider whether it would be reasonable for the family to relocate in light of their actual circumstances, including that the applicants were a family with very young children.
c.The Tribunal failed to consider the applicants’ claim that their inability to obtain passports because they had claimed asylum in Australia made it unreasonable for the applicants to relocate within India.[68]
[68] Applicants’ further amended application filed on 5 May 2020 page 4.
Section 36(2B) of the Act relevantly provides:
However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
In determining whether this provision is satisfied, the decision maker is required to consider:
a)whether there is another place within the person’s home country where they would not face a real risk of significant harm; and
b)if so, whether it is reasonable, having regard to all of the personal circumstances of the individual concerned, for the person to relocate to that area.
As noted by Mortimer J in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 (“MZANX”):
[49] … The assessment of whether a person who has been found to have a well-founded fear of persecution in one part of her or his country of nationality, can relocate to another region or part of that country of nationality is not to be approached only by reference to the risk of harm, whether assessed under the Refugees Convention or in accordance with complementary protection obligations.
[50] It is also to be assessed by reference to the individual circumstances of the person concerned, and what is practicable and reasonable for that person, taking into account what it is really like to live in that place said to be safe. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; … at [24] the plurality said:
What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
[51] In any context, whether refugee law or otherwise, what is ‘practicable’ and ‘reasonable’ for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.[69]
[69] MZANX v Minister for Immigration and Border Protection [2017] FCA 307.
It was submitted for the applicants that the second stage of the assessment of the reasonableness of any proposed relocation requires reference to the nominated safe place and the circumstances of the individual applicants. It was submitted that an assessment which falls short of that standard is not an assessment according to the requirements of the statute and therefore involves a jurisdictional error.[70]
[70] Applicants’ outline of submissions filed 18 October 2018 at paragraphs 40 and 41.
The applicants also relied upon the comments of Mortimer J in MZANX, which, it was submitted, equally apply here:
As I have noted above, the factual context which arose for the reviewer’s consideration was the reasonableness and practicability of the applicant, his wife and, at the time, almost two year old child relocating to Kabul. Issues concerning the availability of health care, the general situation of security, what kinds of housing might be available all fell to be considered by the reviewer in the context of the appellant and his wife having a young child. What might be ‘reasonable’ or ‘practicable’ for a resourceful young man with no family is not the same, at a factual level, as what might be reasonable and practicable for a young man, his wife and young child. To take two obvious examples: the kind of housing or accommodation required would be quite different; the need to have access to health care would be quite different.[71]
[71] MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [62].
The Tribunal accepted the applicants faced ‘a real chance of serious harm, for reasons of their membership of a particular social group (breaching customary norms)’ if they returned to their home region in India.[72]
[72] Court book page 201 at paragraph 25.
In it reasons, the Tribunal sets out its consideration of the applicants’ ability to relocate to another part of India and sets out in some detail the relevant country information to which it had regard.[73]
[73] Court book pages 201 to 203 at paragraphs 26 to 28.
It went on to note the applicants’ concerns that they would continue to face harm irrespective of where they travelled to in India.[74] The Tribunal noted the first and second applicant’s concerns about the connections and wealth of their family and the fact they did not approve of the marriage. It then considered country information relevant to these claims.
[74] Court book page 203 at paragraph 29.
The Tribunal concluded:
Based on the country information considered, and given both sets of parents approved the marriage, I am not satisfied there is more than a remote chance that any attempt would be made to even trace the applicants, if they relocated within India.[75]
[75] Court book page 204 at paragraph 30.
The Tribunal also referred to the information provided by the applicants in respect of honour killings and determined:
… the evidence seen by the Tribunal indicates that such killings were commonly undertaken in and around the area where the alleged ‘breach’ took place; or that person who may be traced in India, appeared to have substantially greater profiles than I am satisfied either applicant held.[76]
[76] Court book page 204 at paragraph 30.
In terms of considering the location to which the applicants might relocate, the Tribunal stated:
… after having considered the evidence and for the reasons set out herein, the Tribunal is satisfied the applicants can safely relocate within India (away from their home village in Punjab state).[77]
[77] Court book page 204 at paragraph 32.
It was submitted for the applicants that this insufficiently identified the location to which the applicants might reasonably relocate.[78]
[78] Applicants’ outline of submissions filed on 18 October 2018 at paragraphs 49 to 53.
In response, the first respondent submitted this misstates the obligation on the Tribunal in considering whether an applicant can safely relocate. Rather, the first respondent submitted that all that is required at law is that another place is identified and this may be as broad as ‘not the Punjab’.[79]
[79] Transcript page 30 at line 26; see SZSUY v Minister for Immigration & Anor [2014] FCCA 1 at [41]; SZTGP v Minister for Immigration & Anor [2018] FCCA 2281 at [37] and [44]; and Minister for Immigration and Border Protection v MZAIV [2016] FCA 251.
Similarly, in BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 (“BDA17”), Justice Jackson considered the relevant authorities that apply to an internal relocation case such as this.[80] After referring to the decision of Mortimer J in MZANX, Jackson J went on to say:
[15] I respectfully agree with each of the passages relied upon. But in my view it is important not to take the emphasis they place on the level of detail required out of the context of Mortimer J’s careful consideration of the principles, so as to conclude that jurisdictional error will result unless there is a minute examination of every circumstance of the proposed relocation. There are no mandatory relevant considerations applicable to the question, and to require a decision-maker to elaborate on every aspect of the practical application of the so-called ‘relocation test’ would be to descend to a greater level of particularity than the Act requires …
[16] … As is recognised in the first passage from MZANX quoted above (from [58]), ultimately the task of the reviewer is to form a state of satisfaction on the basis of all the material before her or him. …[81]
[80] BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 at paragraphs [6] to [8].
[81] BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131 at paragraphs [15] and [16].
It was submitted by the first respondent that the effect of Jackson J’s decision in BDA17 is that, whilst consideration must be given to the particular considerations of the applicants, a detailed review of all the circumstances is not required before a decision can be said to have been lawfully made.[82]
[82] Transcript page 33 at lines 8 to 11.
It was also submitted that in the present case, the Tribunal concluded the applicants only faced a risk of harm within their home villages. In those circumstances, it was therefore not necessary to identify with any precision another place within India to which the applicants could relocate.[83] It was sufficient that the Tribunal found that the applicants would not be exposed to the same risk of harm if they were to relocate to any other part of India outside of the Punjab.
[83] Respondents’ outline of submissions filed 1 November 2018 at paragraph 39.
The High Court addressed this issue more recently in CRI026 v Republic of Nauru [2018] HCA 19 (“CRI026”), in which the applicant was a Pakistani citizen who unsuccessfully claimed to be a refugee and a person to whom Nauru owed complementary protection obligations. On appeal to the High Court, the applicant argued that the Tribunal had erred in determining his complementary protection claim by finding that he could relocate within Pakistan.
In considering the grounds of appeal, the High Court observed:
[39] … Accordingly… the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant’s personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis.
[40] Of course, that does not mean that it will be necessary in every case for a decision maker to identify with precision the proposed place of relocation and undertake the analysis of reasonableness in relation to that precise place. In some cases it may be that the reliable information available to the decision maker demonstrates that the risk of harm of the kind described in Arts 6 and 7 of the ICCPR exists only in one place or area, or a couple or few places or areas, within the applicant’s country of nationality, and that elsewhere the country is relevantly risk free. In such cases, it is accurate to say that the burden would be upon the applicant for complementary protection, once sufficiently alerted to the significance of the information available to the decision maker, to present reasons why it would nonetheless be unreasonable to expect the applicant to relocate to any place beyond the affected places or areas. Each case is fact specific and must be dealt with accordingly. …[84]
[84] CRI026 v Republic of Nauru [2018] HCA 19 at [39] and [40].
The applicants acknowledged the comments made by the High Court in CRI026. However, the applicants submitted that the effect of these comments was that once the Tribunal found the risk of harm existed in only one place, the applicants were required to provide evidence as to why it would be unreasonable for them to relocate elsewhere.[85]
[85] Transcript page 18 at lines 14 to 17.
It was submitted that the applicants did provide the required evidence in this case, including by expressing concerns about the risk to the safety of their children, concerns about the second applicant’s health and their difficulties in obtaining passports and the like.[86] It was further submitted that the Tribunal’s failure to engage with these arguments, and simply conclude that it was reasonable for the applicants to relocate somewhere other than their home villages in the Punjab, did not satisfy the need for a detailed and fact specific assessment of the reasonableness of any such relocation.[87] This was the basis of the applicant’s arguments in relation to ground three.
[86] Transcript page 18 at lines 17 to 20.
[87] Transcript page 18 at lines 22 to 29.
However, the Tribunal considered the applicants’ claim that they feared for the safety of their children ‘if they (the parents) were harmed’.[88] It concluded on the basis of the country information referred to earlier in its reasons that the children could also safely relocate within India.
[88] Court book page 204 at paragraph 31.
The first respondent submitted the comments in CRI026 are particularly apt. The findings by the Tribunal were that:
a)the risk of harm was localised;
b)the risk did not exist outside their respective home villages; and
c)therefore, it was open to the applicants to effectively move anywhere else in India.[89]
[89] Transcript page 33 at lines 33 to 45 and page 34 at lines 1 to 26; court book page 204 at paragraph 32.
As to ground four, it was submitted by the applicants that the Tribunal’s reasons do not actually reflect what occurred in the hearing.[90] For example, at paragraph [33] of its decision record, the Tribunal stated:
The applicant expressly agreed that nothing other than his fear of harm would prevent them from relocating within India.[91]
[90] Transcript page 18 at line 44.
[91] Court book page 204.
However, the applicants submitted that when one has regard to the transcript of the hearing, this statement is an inaccurate record of what the first applicant actually said.
Whilst the first applicant did answer a question from the Tribunal member to the effect recorded at [33] of the decision record,[92] the transcript records that after this, the first applicant went on to discuss the health concerns that his wife had experienced. It was submitted that in circumstances where the applicants were representing themselves before the Tribunal, the Tribunal ought to have understood that these further submissions in relation to health issues were being put forward as factors against the reasonableness of any relocation within India.[93]
[92] Court book page 208.
[93] Transcript page 21 at lines 8 to 16.
I do not accept this submission. The question put to the first applicant[94] was asked after the following exchange with the Tribunal member and the second applicant:
Tribunal member: Why can’t you reasonably – if it wasn’t for this danger, is there any other reason you could not reasonably relocate within India?
Second applicant: If my parents had accepted our marriage at that time, then we wouldn’t have come to Australia, and my son is four years old now, but my parents, they haven’t seen my son.[95]
[94] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 19 at lines 1 to 5.
[95] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 18 at lines 39 to 45.
This exchange occurred after a series of questions put to the first applicant regarding what he feared if he were to return to India, and why he feared relocating to another area of India.
In response to a series of questions about why the applicants could not relocate within India, the applicants raised the following concerns:
a)‘in India, people… can reach you via political connections’;[96]
b)the community wants to harm the applicants to discourage others from entering into a ‘love marriage’;[97]
c)there is a risk of honour killings, and as indicated in the ‘numerous cuttings and media reports’ provided by the applicants, the police are not able to protect couples at risk; [98]
d)the applicants could be traced with the help of police;[99]
e)the applicants have many family members who are employed by or connected to the police;[100]
f)the risk now is not just to the first and second applicants but also to their children.[101]
[96] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 15 at lines 34 and 35.
[97] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 15 at lines 44 and 45 and page 16 at line 1.
[98] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 16.
[99] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 16 at lines 38 and 39.
[100] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 17 at lines 19 to 37.
[101] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 17 at lines 38 to 40.
It was further submitted that the Tribunal did not accurately record the applicants’ submissions and evidence at [36] of the decision record.[102] It was submitted for the applicants that they did raise concerns about the second applicant’s health and that, properly understood, this was a complaint about a difficulty that she would have as a result of her poor health if forced to relocate.[103]
[102] Court book page 206.
[103] Transcript page 21 at lines 3 to 16.
In the transcript of the Tribunal hearing, there was an exchange between the Tribunal member and the first applicant about any health conditions from which the applicants might suffer.[104] The second applicant then explained the nature of her health complaints and the treatment she had been receiving.[105]
[104] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 19 at line 26 to 45.
[105] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 20 at lines 4 to 17.
Neither the first applicant nor the second applicant expressly raised any concern about being able to access medical attention if they were to have to relocate within India to a place outside of the Punjab area.
In the oral submissions for the applicants, it was said:
… Now it may well have been open to the tribunal to find that the applicant wife’s health issues would not make it unreasonable for the family to relocate to another part of India for some rational reason that would then be explained in the tribunal’s decision record, but that’s not what the tribunal did. The tribunal not only failed to deal with the issue at all in its decision record but it wrongly states in the decision record that the issue was never raised. It was raised. … And so that, in and of itself, in my submission, is a clear jurisdictional error.[106]
[106] Transcript page 21 at lines 8 to 15.
I do not agree with this submission. Yes, it was the case that the applicants were representing themselves before the Tribunal. However, they were asked on a number of occasions to identify the reasons why they ought not or could not relocate within India. They specifically raised a number of concerns about their fear of harm if traced by their community. At no stage did they expressly raise the issue of the wife’s ability to access health facilities in a location other than the Punjab.
Moreover, contrary to the submission made for the applicants, a fair reading of the Tribunal record indicates that, although it was not expressly raised, the Tribunal member did consider whether the wife’s health would be a reason against being able to relocate. It is clear that the Tribunal was aware of the wife’s health conditions. So much is evident from the reference at [9] of the Tribunal decision record.[107]
[107] Court book page 199.
It is also clear that, although the applicants did not expressly raise the wife’s health condition as a reason which would make it unreasonable to expect them to relocate within India, the Tribunal member considered it in any event. The Tribunal member stated that based on the country information, he was not satisfied that it ‘would make it unreasonable for the applicants to relocate.’[108] Some of that country information is extracted in its reasons.[109]
[108] Court book page 206 at paragraph 36.
[109] Court book pages 202 and 203 at paragraph 37.
At [29] of the Tribunal’s decision record, the Tribunal considered the applicants’ claim that they would be harmed no matter where they travelled to in India, in particular having regard to the senior positions held by family members.[110] The Tribunal then concluded, having regard to country information and the fact that ultimately both parents approved the marriage:
… I am not satisfied there is more than a remote chance that any attempt would be made to even trace the applicants if they relocated within India.[111]
[110] Court book pages 203 and 204.
[111] Court book page 204 at paragraph 30.
The Tribunal went on to consider the applicant’s claims that they faced a real risk of harm because the villagers would want to make an example of them and would trace them anywhere in India. The Tribunal also had regard to the information provided about honour killings but concluded that on the basis of the country information:
… such killings were commonly undertaken in and around the area where the alleged ‘breach’ took place; or that persons who may be traced in India, appeared to have substantially greater profiles than I am satisfied either applicant held.[112]
[112] Court book page 204 at paragraph 30.
In addition, the Tribunal went on to say:
Further, and some 8 years after their marriage and their first departure from India, neither am I satisfied there is more than a remote chance that their return will motivate any person to trace them should they relocate within India...[113]
[113] Court book page 205 at paragraph 43.
In considering the reasonableness of any relocation within India, having regard to the particular circumstances of the applicants, the Tribunal considered:
a)the applicants’ expressed fear of harm;
b)the fact that the first applicant had obtained various professional qualifications in both India and Australia;
c)that the first applicant was able to speak, read and write Punjabi and English and a little Hindi; and
d)that the first applicant would be able to find work in India commensurate with his skills.[114]
[114] Court book page 204 at paragraph 33.
The Tribunal also considered that the first and second applicants had lived in Australia for 8 years and that their children were born here. However, on balance, the Tribunal was not satisfied that the length of their stay in Australia would make it unreasonable for them to relocate in India.[115]
[115] Court book page 204 at paragraph 35.
It was submitted by the applicants that in its consideration of the reasonableness or otherwise of the applicants relocating within India, the Tribunal failed to consider that the applicants did not have current passports.[116] It was submitted that this issue was squarely raised in the context of relocation.[117]
[116] Transcript page 21 at lines 21 to 36.
[117] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 26.
The second applicant said:
As we have explained that we don’t have any rights to get a passport, we don’t have any rights to renew our passports, although we have tried to apply for the renewal. So what is the guarantee that if we will go back in that country and relocate somewhere else, then we will be safe?[118]
[118] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 26 at lines 16 to 20.
The applicants further submitted that the passport claim was clearly made in the context of the relocation issue and was not addressed by the Tribunal.[119] Counsel for the applicants argued that it was open to the Tribunal to dismiss the claim as not making it unreasonable to relocate, but the Tribunal simply did not address it. It was submitted that the failure to address this claim was a clear jurisdictional error.[120]
[119] Transcript page 22 at lines 6 to 12.
[120] Transcript page 22 at lines 11 and 12.
In response, the first respondent submitted that the Tribunal did not discuss the passport claim in the context of the reasonableness of any possible relocation, on the basis that it was not relevant to that issue.[121]
[121] Respondents’ supplementary outline of submissions filed 11 May 2020 at paragraph 3.
It was submitted that the proper context of the applicants’ claim in relation to the passport issue is evident from the transcript of the Tribunal hearing.[122] Moreover, the first respondent submitted that when the nature of the applicants’ concern in relation to not having a valid passport is understood, it is clear from a fair reading of the Tribunal’s decision record that the issue was appropriately dealt with.
[122] Respondents’ supplementary outline of submissions filed 11 May 2020 at paragraph 14.
In the course of the hearing before the Tribunal member, the issue of the applicants’ passports was raised in the following way:
a)the Tribunal member raised the issue of whether the applicants might fear harm by reason of being failed asylum seekers;[123]
[123] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 21.
b)The Tribunal member then said:
… another matter that I need to consider is whether I think you could safely return to and reside in Nepal. In Australia, the Migration Act provides that persons who can seek protection in a country where they can both enter and reside in that country and not have a well-founded fear may not be owed protection in Australia. I presume you’ve all had passports. Is that correct? (emphasis added)[124]
[124] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 22 at lines 5 to 10.
c)The first applicant then replied that:
i)none of the applicants had a valid passport;
ii)he had a passport but it expired the previous year;
iii)he tried to renew it but it was refused because he had applied for a protection visa; and
iv)now the applicants can’t ‘even renew the passport’;[125]
d)the Tribunal member then explored the issue of how the first applicant had sought to renew his expired passport;[126] and
e)after this exchange, the Tribunal member said he had no further questions and asked the applicants if there was anything that they wished to say before the proceedings closed – in this context:
i)the first applicant asked if he could provide further documents as evidence of when he tried to renew his passport; and
ii)the second applicant said:
As we have explained that we don’t have any rights to get a passport, we don’t have any rights to renew our passports, although we have tried to apply for the renewal. So what is the guarantee that if we go back in that country and relocate somewhere else, then we will be safe?[127]
[125] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 22 at lines 14 and 15.
[126] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 pages 22 to 25.
[127] Affidavit of Catherine Jane Farrell affirmed on 17 October 2018 and filed on 18 October 2018 at annexure CJF-1 page 26 at lines 16 to 20.
The Tribunal set out the applicant’s claims for protection.[128] It then stated:
… the Tribunal accepts the applicants married against the wishes of their community. However, I accept the applicants obtained the approval of their own parents prior to marriage.[129]
[128] Court book pages 200 and 201 at paragraphs 17 to 20.
[129] Court book page 201 at paragraph 21.
The Tribunal went on to summarise the first and second applicants’ travel to Australia and subsequent travel back to India.[130] The Tribunal member accepted that the applicants:
returned to the place the feared harm in India (their home villages) … and that on one occasion, they were harassed by local persons. … they then returned to Australia.[131]
[130] Court book page 201 at paragraphs 22 and 23.
[131] Court book page 201 at paragraph 24.
The Tribunal member then stated it accepted that:
the applicants have a real chance of suffering serious harm, for reasons of their membership of a particular social group (breaching customary norms), in their home region in India (being villages in Punjab state).[132]
[132] Court book page 201 at paragraph 25.
The Tribunal member went on to consider the issue of relocation.[133] In that context, the Tribunal made reference to the concerns expressed by the second applicant set out at paragraph 121(e)(ii) above when he said:
The applicants were concerned (words to the effect), that their safety could not be guaranteed. However the High Court … explained that ‘[n]o country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence.’ … At any rate, after having considered the evidence and for the reasons set out herein, the Tribunal is satisfied the applicants can safely relocate within India (away from their home village in Punjab state).[134]
[133] Court book pages 201 to 206 at paragraphs 26 to 37.
[134] Court book page 204 at paragraph 32.
A fair reading of the Tribunal’s reasons in this regard is that it had regard to the second applicant’s claims to fear harm on return. The applicants’ claim was that their safety could not be guaranteed on their return to some other place in India in circumstances where they did not have passports. This claim was considered by the Tribunal, as evidenced by the extract above.
The Tribunal member addressed the applicants’ evidence regarding the impact of their application for protection visas on their ability to obtain or renew their passports.[135] It also expressly addressed the risk to the applicants if they involuntarily returned to India without current documents.[136] The Tribunal concluded that, having regard to country information, there was no real risk of significant harm arising from any questioning of them on their return to confirm their identity.
[135] Court book page 206 at paragraphs 38 to 40.
[136] Court book page 208 at paragraph 56.
Each of these findings, was open to the Tribunal and does not in my view demonstrate jurisdictional error. For these reasons, I find that the Tribunal did consider the applicants’ claims relating to the passport issue in the manner in which they were raised.
The Tribunal member then expressly dealt with the question of relocation under section 36(2B)(a) of the Act.[137] On a fair reading of the Tribunal’s reasons in the sense contemplated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, it is clear that in coming to the view that the applicants could reasonably relocate, the Tribunal had regard to and considered each of the matters raised by the applicants, including the fact that they did not hold current Indian passports India.
[137] Court book pages 207 and 208 at paragraphs 49 to 53.
For each of these reasons, grounds three and four are not made out.
Conclusion
As none of the grounds of review have been made out, I find that:
a)the applicants’ application is dismissed; and
b)the applicants are to pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 13 November 2020
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