BNW23 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 502

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BNW23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 502

File number: MLG 1062 of 2023
Judgment of: JUDGE LADHAMS
Date of judgment: 26 June 2023
Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant protection visa – whether Tribunal failed to consider applicant’s claims – where Tribunal found that applicant did not face real chance of serious harm or real risk of significant harm then proceeded to consider whether applicant could relocate within India – proper construction of Tribunal reasons – effect of possible error in unnecessary findings on relocation – no jurisdictional error – application dismissed
Legislation:

Constitution s 75

Migration Act 1958 (Cth) ss 5AAA, 65, 415, 476, 477
Cases cited:

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 ; [2004] FCAFC 263

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437

SZQVV v Minister for Immigration and Citizenship (2012) (2012) 262 FCR 575; [2012] FCA 871

SZRMF v Minister for Immigration and Citizenship [2013] FMCA 180

VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Division: Division 2 General Federal Law
Number of paragraphs: 69
Date of hearing: 8 June 2023
Place: Perth
Applicant: In person
Counsel for the First Respondent: Mr N Dour
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Mills Oakley Lawyers

ORDERS

MLG 1062 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BNW23

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE LADHAMS

DATE OF ORDER:

26 June 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LADHAMS:

INTRODUCTION

  1. The application before the Court is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). On 3 September 2018 the Tribunal affirmed a decision made by a delegate of the Minister not to grant the applicant a protection visa.

  2. The applicant raised a number of complaints in relation to the Tribunal decision, but these complaints largely express disagreement with the decision, address the consequences of the decision and purport to provide to the Court further information about his claims than that which was before the Tribunal.

  3. For the reasons explained below, I have found that the Tribunal decision is not affected by jurisdictional error and the application to this Court is therefore dismissed.

    BACKGROUND

  4. The applicant is a citizen of India who arrived in Australia as a dependent on a student visa in August 2009.

  5. On 31 July 2015 the applicant applied for a protection visa, claiming that he would face harm from Sikh followers if he returned to India because he had cut his hair and ceased wearing a turban since arriving in Australia.

  6. The application for a protection visa was refused by a delegate of the Minister on 17 June 2016.

  7. On 13 July 2016 the applicant applied to the Tribunal for review of the delegate’s decision. The applicant attended a hearing convened by the Tribunal on 5 February 2018 to give evidence and make arguments in relation to his claims for protection. The applicant raised further claims at that hearing to the effect that he began to cut his hair and drink alcohol in or about 2007 or 2008, and that as a result of his behaviour, community members of the Sikh Temple in his village had hit and beaten him.

  8. The Tribunal affirmed the delegate’s decision on 3 September 2018.

    TRIBUNAL DECISION

  9. The Tribunal accepted some basic facts about the applicant’s background, including that he is of the Sikh faith, but otherwise found that the applicant did not present as a credible witness and considered that his evidence was generally evasive, vague and lacking in detail. The Tribunal noted that the applicant was unable to describe in any detail the incident by which he says he was beaten and injured by the community members of a Sikh temple in 2016.

  10. The Tribunal noted that the applicant arrived in Australia in 2009 and his visa was cancelled in September 2010, but he did not make an application for a protection visa until 31 July 2015. The Tribunal did not accept the applicant’s claim that he was not aware he could apply for protection until July 2015 and took his delay in applying for protection into account in assessing the credibility of his claims.

  11. Based on the applicant’s passport photograph, the Tribunal noted that the applicant appeared to have short hair from July 2006, and gave little weight to photographs showing him wearing a turban, which appeared to have been taken on formal occasions when traditional dress would reasonably have been expected. The Tribunal accepted that the applicant suffered an abdominal injury in about 2008, and considered a photograph of scarring and a medical report in relation to this. However, the Tribunal did not accept that this injury was the result of any attack by community members of the Sikh temple as claimed by the applicant, noting the lack of relevant detail in the available evidence.

  12. The Tribunal found that the applicant appeared to have had short hair for two years without incident. Taking into account country information and its concerns about the applicant’s evidence, the Tribunal did not accept that the applicant was beaten by members of the Sikh temple or any other Sikh community members in 2008.

  13. Based on the available information, the Tribunal was not satisfied that the applicant faced a real chance of serious harm as a result of cutting his hair, drinking alcohol and not wearing a turban if he returned to India.

  14. As the ‘real risk’ test imposes the same standard as the ‘real chance’ test, in assessing the applicant’s claims against the complementary protection criterion, the Tribunal relied on its earlier findings against the refugee criterion to conclude that the applicant does not face a real risk of significant harm if returned to India.

  15. The Tribunal also considered that the applicant would be able to relocate to another area within India. The Tribunal’s findings in this regard were the subject of an issue raised by the Court at the hearing and are set out in more detail below.

    JUDICIAL REVIEW APPLICATION

  16. The application for judicial review was filed on 3 October 2018, which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.

  17. In the written application as filed, the only relief sought by the applicant was an order that the decision of the Tribunal be quashed. This is insufficient to invoke the jurisdiction of the Court. Pursuant to s 476(1) of the Migration Act, the Court has the same jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution, which includes where an applicant seeks a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth. This issue in relation to the Court’s jurisdiction was explained to the applicant at the hearing and I allowed the applicant to orally amend his application to seek a writ of mandamus. I am satisfied that, following this amendment, the application properly invokes the jurisdiction of the Court.

  18. In the written application, the applicant set out grounds reflecting the ‘issues and errors which [he believes] to be made by Department of Home Affairs and Administrative Appeals Tribunal’. There are then five unnumbered grounds which I will hereafter refer to as grounds 1 to 5 in the same order as they here appear:

    •Department of Home Affairs decision to refuse the application while I was having genuine fear of persecution.

    •AAT, failed to address the issue that I got married in Australia to [name redacted] on [date redacted] 2016 due to only reason that my family believed that it not safe, our marriage was arranged by our families in India and my spouse entered in Australia on [date redacted] 2015 because my family believed that there is a significant threat to my life if I travel back.

    •We have a son born in Australia from our marriage and my wife is a student which raised concerns for their financial and emotional support if I am forced out from the country.

    •My father was deceased in Oct 2016, but I was not able to go back due to the excessive pressure from family that they do not want to loose their son, they have strong concerns that my life will be in danger.

    •Ignorance by Minister of Immigration and AAT to exercise their rights and did not consider any favourable options available to me.

  19. Pursuant to an Order made by a Registrar of the Court on 12 August 2020, the applicant was required to file any amended application, any supplementary court book and written submissions 28 days prior to the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed an outline of submissions on 15 May 2023.

    CONSIDERATION

    Need to establish jurisdictional error in Tribunal decision

  20. The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

  21. In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Court does not have jurisdiction to review the factual merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; [1996] HCA 6 at [31].

  22. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:

    “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (Emphasis added.)

  23. To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the possibility of a successful outcome: SZMTA at [45].

  24. The Court only has jurisdiction to review the decision of the Tribunal affirming the delegate’s decision not to grant the applicant a protection visa. The decision made by the delegate of the Minister is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act. The Court does not have jurisdiction to review any primary decision: s 476(2)(a) of the Migration Act.

    Ground 1

  25. By ground 1, the applicant appears to be expressing disagreement with the delegate’s decision because he believes he has a genuine fear of persecution.

  26. On its face, the ground does not assert any error in the Tribunal decision. At the hearing before the Court, the applicant confirmed that he was not by this ground asserting any error in the Tribunal decision.

  27. This ground cannot succeed. First, for the reasons explained above, the Court does not have any jurisdiction to review the delegate’s decision, which is a primary decision.

  28. Further, even if I were to treat the ground as asserting error in the Tribunal decision, rather than the delegate’s decision, the ground could not succeed. At best, the ground could be interpreted simply as an expression of disagreement with the decision. Disagreement, even emphatic disagreement, with the decision is not on its own sufficient to establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].

  29. Ground 1 is not established.

    Ground 2

  30. Ground 2 refers to the applicant’s marriage to his second wife in 2016 and asserts that the Tribunal failed to address that the applicant got married in Australia, upon arrangement by his and his wife’s families, because his family believed that there was a significant threat to his life if he travelled to India.

  31. The applicant’s submissions in relation to this ground at the hearing addressed the factual merit of his claims for protection. He submitted that there is a threat on his life from people who are really powerful and who have links to politicians. After some discussion, the applicant confirmed that he did not tell the Tribunal of his family’s concerns about him travelling to India for his wedding, and that this is something that he had added for the purposes of his application to the Court.

  32. To the extent that the applicant’s ground and submissions address facts relating to his claims for protection, the applicant is inviting the Court to engage in impermissible merits review. As explained above, the Court does not have jurisdiction to review the factual merits of the Tribunal decision and, as I explained to the applicant at the hearing, the Court cannot decide whether or not he meets the criteria for a protection visa.

  33. I have reviewed the way in which the applicant’s claims were advanced to the Department and to the Tribunal, as set out in the documents contained in the court book. The applicant has not filed any transcript of the hearing before the Tribunal, so the only record available to the Court of the evidence given at the Tribunal hearing is that summarised in the Tribunal decision. Having reviewed the available evidence, and taking into account the applicant’s concession that he did not tell the Tribunal of his family’s fear about him returning to India for his wedding, there is no basis for finding that the applicant told the Tribunal or the Department that the reason he got married in Australia was because his family believed there was a threat to his life if he travelled to India. While there is some reference to the applicant’s second marriage in a statement he provided to the Tribunal, there was no assertion by the applicant of any link between his marriage and his fear of harm if he returns to India, prior to his application to this Court.

  34. I accept the Minister’s submission that the Tribunal was not required to consider a claim that was not expressly made by the applicant or which did not clearly emerge on the material before the Tribunal: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [61]. The applicant did not expressly claim when his application was before the delegate or the Tribunal that he married in Australia because of his family’s fears for his safety if he returned to India, and such a claim did not emerge clearly on the material before the Tribunal. The Tribunal was therefore not required to consider it.

  35. Ground 2 is not established.

    Ground 3

  36. By ground 3, the applicant notes that his wife is a student and they have a son born in Australia and expresses concern about the financial and emotional support for his wife and son if he is forced to leave Australia.

  37. This ground does not assert any error in the Tribunal decision and, as submitted by the Minister, it is an expression of the consequence of the Tribunal’s decision. The applicant confirmed at the hearing that he does not, by this ground, assert any error in the Tribunal decision. The ground must therefore fail.

  38. In any event, for completeness, I note that the applicant provided a submission to the Tribunal on 17 February 2018 in which he referred to his marriage and the birth of his son and then continued:

    As a responsible husband and father, I want to give all happiness to my family. My wife and my child need my support and I also want to live with my family. I request to you please consider my current family status while making decision of my application.

  39. The Tribunal accepted that the applicant has a wife and child, but did not otherwise consider this submission. This does not amount to any error on the part of the Tribunal. The focus of the Tribunal’s decision was on the applicant’s claims for protection and the applicant’s desire to live with and support his family does not in any way relate to his claims for protection.

  40. Ground 3 is not established.

    Ground 4

  41. By ground 4, the applicant asserts that his father died in October 2016, but he was unable to return to India because of pressure from his family who fear that his life will be in danger if he returns to India.

  42. As with ground 3, this ground does not assert any error in the Tribunal decision. Further, as with ground 2, there is no evidence before the Court to the effect that the applicant represented to the Department or the Tribunal that his family pressured him not to return to India after the death of his father because of concerns for his safety. The applicant confirmed at the hearing before the Court that he did not raise this before the Tribunal, and it is something that he has added for the purposes of his application to the Court. Again, the Tribunal was not required to consider this claim because it was not expressly raised by the applicant before the Tribunal and it did not clearly emerge on the materials before the Tribunal.

  43. Ground 4 therefore cannot succeed.

    Ground 5

  1. By ground 5, the applicant complains that the Minister and the Tribunal did not exercise their rights and did not consider favourable options that might be available to him.

  2. I asked the applicant to explain at the hearing what he means by this ground. He submitted that when he was hit, he had a serious injury and was hospitalised, and that he told the Tribunal about this. This submission does not establish jurisdictional error. The Tribunal considered the applicant’s claim to have been beaten and injured, and the evidence that he provided to support this claim, at [61] and [62] of its reasons and it rejected the claim. While the applicant may not agree with the Tribunal’s finding, he has not identified any reason why this finding was not open to the Tribunal. The Tribunal’s reasons on this part of the applicant’s claim note the lack of meaningful detail in the relevant evidence, and I am satisfied that its finding was one that  was open on the evidence before it. It is not a finding that is illogical or irrational in the manner described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] and [135].

  3. I accept the Minister’s submission that the applicant was required to advance whatever arguments and evidence he wished to advance to establish his claims for protection, and the Tribunal was then required to consider whether his claims were made out.

  4. Section 5AAA of the Migration Act clearly provides that it is the responsibility of an applicant for a protection visa to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.

  5. The Tribunal was not required to uncritically accept the applicant’s claims: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. This was acknowledged by the Tribunal at [52] of its reasons.

  6. The Tribunal, in conducting the review, was able to exercise the powers and discretions conferred by the Migration Act on the original-decision maker: SZQVV v Minister for Immigration and Citizenship (2012) (2012) 262 FCR 575; [2012] FCA 871 at [37]. The duty of the Tribunal in conducting the review was to arrive at the correct or preferable decision according to the material before it: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [93] (per Gageler J). In circumstances where, as in the present case, the Tribunal found that the applicant did not meet the criteria for a protection visa, it was appropriate for the Tribunal to affirm the delegate’s decision not to grant the applicant a protection visa: see ss 65 and 415 of the Migration Act. Having found that the applicant did not meet the criteria for a protection visa, it did not have any discretion to make a decision that would have the effect of granting the applicant a visa.

  7. Ground 5 is not established.

    Additional issue raised by applicant

  8. At the hearing, before asking the applicant specific questions in relation to his grounds, I invited the applicant more generally to tell the Court what he believes the Tribunal did wrong. The applicant submitted that he went to the police station to lodge a complaint, but the other parties put pressure on the police to stop him from filing a complaint. I infer that this relates to the applicant’s claim that he was beaten and injured in or around 2008 before he left India. The applicant confirmed that he did not tell the Tribunal about his attempt to lodge a complaint with the police.

  9. The applicant’s submission to the Court goes to the merits of his claims for protection, which is beyond the jurisdiction of the Court to consider, and does not establish jurisdictional error in the Tribunal decision. As discussed in relation to grounds 2 and 4 above, the Tribunal did not have any obligation to consider any claim that was not expressly made by the applicant or which did not clearly emerge on the material before the Tribunal. The Tribunal therefore was not required to consider the applicant’s suggestion, raised for the first time before the Court, that he attempted to make a complaint at the police station but was somehow prevented from doing so.

    Additional issue raised by the Court

  10. At the hearing, I raised an additional issue with Counsel for the Minister in relation to the Tribunal’s reasons and findings regarding the applicant’s complementary protection claims.

  11. The Tribunal first addressed complementary protection at [69] to [72] of its reasons, where it said (footnotes omitted):

    69.The applicant states that as a necessary and foreseeable consequence of him returning to India there is a real risk that he will suffer significant harm from community members of the Sikh Temple. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A) of the Act. Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

    70.The test under s.36(2)(aa) is a forward-looking one of reasonable foreseeability. The ‘necessary and foreseeable consequence’ element in s.36(2)(aa) attaches to the risk of harm, rather than the actual occurrence of harm. That is, the exposure to the risk (and not the harm itself) must be a necessary and foreseeable consequence of return. In this case, based on the country information it is not reasonably foreseeable that the applicant will be beaten and killed by community members of the Sikh temple and be significantly harmed in the event he is returned to India.

    71.Section.36(2)(aa) requires that there be both ‘substantial grounds’ and ‘a real risk.’ This suggests that ‘substantial grounds’ imposes an evidentiary standard and ‘real risk’ an assessment of the probability of the applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. As a result based on the country information, the applicants delay in making his protection application, the lack of any independent evidence to verify that the applicant was injured as a result of him cutting his hair, failing to wear the turban or drinking the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including the torture, being subjected to cruel or inhuman treatment or punishment or being subjected to degrading, for reasons based on the applicant’s economic circumstances.

    72.The applicant’s credibility is relevant to the question of substantial grounds for believing there is a real risk. In this case, the Tribunal has found that the applicant was not attacked in India by community members of the Sikh temple or any member of the Sikh community as a result of having rejected or refusing to follow the Sikh traditions as claimed. It is therefore not satisfied that the applicant will suffer significant harm in the event he is returned to India. Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal is satisfied that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk of significant harm, including that the applicant will suffer harm by arbitrarily being deprived of his life; suffering from the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).

  12. While it is clear from these paragraphs that the Tribunal purported to find that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act, the paragraphs are silent as to whether the Tribunal’s findings related to the whole of India or the applicant’s home area or both.

  13. The Tribunal then considered complementary protection again under a heading which reads ‘Reallocation’ and which I infer is meant to read ‘Relocation’. The discussion under this heading included [78] and [79] where the Tribunal said (footnote omitted):

    78.For relocation to be effective it is necessary that the real risk of harm be localised rather than nation-wide. For the reasons given above the Tribunal finds that there is no real risk that the applicants will suffer significant harm in other areas of the country of India. Accordingly the Tribunal finds that the real risk of significant harm the applicant will suffer is localised to area of [redacted], Punjab in India.

    79.Therefore, for the reasons provided above the Tribunal finds that the applicant could relocate to another area within India such that there would not be a real risk that the applicants will suffer significant harm. Accordingly, pursuant to s.36(2B)(a), there is taken not to be a real risk that the applicant will suffer significant harm in India and as such he does not satisfy s.36(2)(aa) in this regard.

  14. The Tribunal’s reasoning at [78] might be read as conveying that the findings it made earlier in its decision were related to areas of India other than the applicant’s home area. On its face, [78] of the Tribunal reasons appears to express a clear finding that the applicant would face a real risk of significant harm in his home area.

  15. I therefore invited the Minister to make submissions on whether, properly construed, the Tribunal reasons reflect a finding that the applicant faced a real risk of significant harm in his home area. This issue is particularly significant because the Tribunal reasoning at [79] may suggest that, in considering relocation, the Tribunal limited its consideration to whether the applicant could relocate to another part of India where he would not face a real risk of significant harm and did not address whether such relocation would be reasonable, having regard to the particular circumstances of the applicant.

  16. In response, Counsel for the Minister acknowledged that the Tribunal decision was not well-worded and submitted that its critical findings for the purposes of the refugee criterion in s 36(2)(a) of the Migration Act were at [66] and [67]. In these paragraphs, the Tribunal said:

    66.By his written claims the applicant states that he cannot go back to India because the followers of the Sikhism and in particular the community members of the Sikh temple will find him and put him to death due to the fact that he drinks, has cut his hair and that he no longer wears a Turban. As a result, the Tribunal finds that the applicant’s fear of persecution does arise by reason of his religion and membership of a particular social group being a Sikh who has abandoned the Sikh traditions, in particular wearing a Turban, not cutting hair and drinking alcohol.

    67.However, the Tribunal has found that the applicant was not attacked by any community member of the Sikh temple or any other member of the Sikh community for any of the reasons claimed by the applicant. In addition based on the available country information, the applicant’s delay in making his application and the lack of creditable evidence in relation to his alleged attack in June 2008, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm as a result of him having cut his hair, drinking and not wearing a turban in the vent he returns to India. Accordingly the Tribunal finds that the applicant is not a person to which Australia has protection obligations as a refugee pursuant to s.36(2)(a).

  17. Counsel for the Minister submitted that the critical findings for the purposes of the complementary protection criterion in s 36(2)(aa) of the Migration Act were those expressed at [72], which is extracted above.

  18. Counsel for the Minister submitted that given the Tribunal found that the applicant did not meet the criteria in s 36(2)(a) or (aa), it was unnecessary for it to proceed to consider whether any risk extended to all areas of India. Nevertheless, it proceeded to consider relocation and addressed whether the applicant would face a risk of harm in other parts of India and whether the applicant could reasonably relocate. The paragraphs addressing reasonableness of relocation are superfluous.

  19. In advancing this submission, the Minister cited VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 (VBAP) at [33]. In that case, the Tribunal rejected the applicant’s claims on four separate and independent bases, namely, that the harm the applicant suffered was not properly characterised as persecution (at [12]), that fears of harm in the context of generalised violence do not amount to persecution for a Convention reason (at [13] and [15]), that the applicant could access effective state protection (at [16]) and that the applicant could reasonably relocate to another part of his home country (at [17]). The Court found that a potential error in relation to one of these bases did not result in the decision failing in circumstances where the other three bases upon which the decision was supported were free from error.

  20. Counsel for the Minister alternatively submitted that, in the light of the Tribunal’s comprehensive rejection of the applicant’s claims, any potential error in relation to the reasonableness of relocation at [79] would not be material, relying on Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (Hossain).

  21. Finally, Counsel for the Minister submitted that after the Tribunal rejected the applicant’s claims for protection in their entirety under s 36(2)(a) of the Migration Act, based on its findings in relation to the applicant’s credibility and on country information, there was nothing further that needed to be considered for the purpose of complementary protection. In advancing this submission, Counsel for the Minister cited SZRMF v Minister for Immigration and Citizenship [2013] FMCA 180 at [12]-[14], where the Federal Magistrates Court said:

    12.There have been several decisions of this court to the effect that consideration of the complementary protection provisions is a mandatory matter and that a failure to do so would constitute a jurisdictional error on the part of the Tribunal. However, in this case I am of the view that the matter was considered. There is specific reference to it at [81] already extracted and whilst the reference is short, that does not in itself indicate that the matter was ignored. Complementary protection is protection given to persons who are likely to suffer persecution should they be returned to their country of origin for reasons which do not fall within the Convention definitions.

    13.It is possible, when considering a claim made by an applicant, for a Tribunal to come to the conclusion that whilst the persecution they fear is not Convention related, it is persecution nonetheless that will continue should they be returned. It is that type of persecution that s.36(2)(a) and the other sections relating to complementary protection seek to prevent. But this is not one of those cases. The claims made by the applicant were found by the Tribunal to be claims which did arise under the Convention. No other claims were made by the applicant.

    14.Having considered the claims under the Convention and come to the conclusion that the applicant did not have a well founded fear of persecution should she be returned to China in the reasonably foreseeable future, there really was nothing that the Tribunal would have to consider in relation to complementary protection and that, in effect, is what it said. For this reason I am satisfied that the second ground of application cannot succeed. The brevity with which the opinion was expressed is not an indicator of jurisdictional error; SZRNX v Minister for Immigration & Anor [2012] FMCA 1242 at [15].

  22. I accept the submissions of the Minister in relation to the issue raised by the Court. In particular, I accept that the critical finding for the purpose of complementary protection is that expressed at [72]. Having made this finding, it was unnecessary for the Tribunal to proceed to consider whether the applicant could reasonably relocate to another part of India and its discussion at [73] to [80] is superfluous. While there may potentially be an error at [79] (even if one also reads that paragraph with earlier reasoning at [74] and [75] regarding country information on internal mobility within India and the lack of risk of harm to the applicant in large city centres), because it is at least arguable that the Tribunal did not consider whether it was reasonable for the applicant to relocate, as opposed to simply assessing the risk of harm in other parts of India, any such error would not amount to jurisdictional error, taking into account the judgments in VBAP and Hossain.

  23. I have independently considered whether the Tribunal’s reasons at [78] impact the proper interpretation of the finding at [72]. In particular, I have considered whether in the light of the reasoning at [78], the finding at [72] should be read as amounting to a finding about the risk of harm to the applicant only in areas other than his home area. However, when the reasons of the Tribunal are read as a whole (as they must be), I am satisfied that the finding at [72] should be read as a finding for the purposes of complementary protection in relation to the whole of India, including the applicant’s home area. The reasoning at [78] is confusing and the final sentence of that paragraph, to the extent that it suggests that the applicant will face a real risk of significant harm in his home area, is entirely inconsistent with the findings of fact made by the Tribunal earlier in its reasons. The Tribunal rejected the applicant’s claims for protection in their entirety, based on is concerns about his credibility, inconsistency and implausibility in his claims, and its assessment of the available country information. Having rejected the factual basis of the applicant’s claim, there were no findings that could support the conclusion that appears in the final sentence of [78]. I therefore find that the operative finding for the purposes of complementary protection is that at [72], and the reasoning at [78] has no bearing on the proper interpretation of the finding at [72].

  24. I note for completeness that in response to the raising of the issue by the Court and the Minister’s submissions on the issue, the applicant submitted that if he relocated, the people who are seeking to harm him would be able to locate him as they have links to the police. This issue again goes to the merits of his claims for protection and is not an assertion of jurisdictional error in the Tribunal decision.

  25. I am satisfied that the issue raised by the Court does not give rise to jurisdictional error in the Tribunal decision.

    CONCLUSION

  26. I have found that the Tribunal decision is not affected by jurisdictional error. The application to the Court must therefore be dismissed.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       26 June 2023

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