BQT15 v Minister for Immigration

[2016] FCCA 3186

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQT15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3186

Catchwords:
MIGRATION – Application of judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicants Protection visas – whether Tribunal considered applicants’ claims – whether Tribunal correctly understood and applied complementary protection criteria – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.32(2)(a), 36(2)(aa), 48B, 417

Cases cited:

Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

First Applicant: BQT15

Second Applicant: SZQKP

Third Applicant: SZQKQ

Fourth Applicant: SZQKR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2253 of 2015

Judgment of: Judge Manousaridis

Hearing date: 4 November 2016

Delivered at: Sydney

Delivered on: 9 December 2016

REPRESENTATION

The second and third applicant appeared in person and on behalf of the first and fourth applicants

Solicitors for the Respondents: Mr MWiese of Clayton Utz

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2253 of 2015

BQT15

First Applicant

SZQKP

Second Applicant

SZQKQ

Third Applicant

SZQKR

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant, a citizen of India, together with his parents, the second and third applicants, and sister, the fourth applicant, seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visa).

2. Before I turn to the application before the Court, it will be necessary to set out briefly the applicants’ migration history, claims for protection, and the Tribunal’s reasons for not accepting those claims.

Applicant’s migration history

1. The second applicant arrived in Australia in January 2011 as the holder of a Subclass 457 (Long Stay Business) visa. The third and fourth applicants arrived in Australia in March 2008 as the holders of dependent Subclass 457 visas. The first applicant was born in Australia in April 2011. The applicants were granted further Subclass 457 visas in January 2009. In October 2010 the applicants applied for, but were refused, Employer Nomination visas.

2. The second, third, and fourth applicants applied for Protection visas in January 2011 (first application). A delegate of the Minister refused that application, and a differently constituted Tribunal (First Tribunal) affirmed the decision in June 2011. The applicants sought judicial review of the First Tribunal’s decision to this Court, which dismissed the application. In December 2011 the applicants appealed to the Full Federal Court, which dismissed the appeal. In April 2012 the applicants sought special leave to appeal to the High Court. That application was dismissed in August 2012. The applicants subsequently sought, but were refused, Ministerial Intervention pursuant to s.48B and s.417 of the Migration Act 1958 (Cth) (Act).

3. On 28 February 2013 the first applicant applied for a Protection visa, and the second, third, and fourth applicants applied as members of the same family unit. Because the first applicant had not previously applied for a Protection visa, the Tribunal considered the first applicant’s application against both s.36(2)(a) and s.36(2)(aa) of the Act. The Tribunal, however, considered the application for Protection visas made by the second, third, and fourth applicants only against s.36(2)(aa) of the Act. The Tribunal did so because of the Full Federal Court decision in SZGIZ v Minister for Immigration and Citizenship.[1]

   [1] [2013] FCAFC 71

Claims for protection

1. The applicants claimed to fear harm because they were members of a scheduled caste in India.

First applicant’s claims

1. The first applicant claimed to fear harm because his parents faced harm as members of the scheduled caste. The first applicant claimed that if he were to return to India, he would be denied education, social services, and employment, and he would be discriminated against in school and socially because of his membership of a scheduled caste. The first applicant also claimed his parents experienced physical violence in India, and he fears he will be killed by members of the higher caste who hate his caste.

Second, third, and fourth applicants’ claims

1. The second, third, and fourth applicants relied on a statement made by the second applicant that formed part of the first application. In that statement, the second applicant claimed he was born in a lower caste Hindi family in West Bengal and had been subjected to discrimination from the beginning of his school life. After leaving school in 1988, the second applicant worked as a kitchenhand, later graduating to the position of Tandoori chef. The second applicant worked in hotels and restaurants in India until September 2011, after which he worked in restaurants in Bahrain and Singapore.

2. The second applicant arrived in Australia after securing sponsorship from a restaurant, where he worked in excess of 80 hours per week, and did not receive any wages or entitlements. After he asked for wages, the second applicant was treated badly by his employer, who threatened to cancel his visa. He was later asked to leave the restaurant.

3. The second applicant went on to work in other restaurants who promised him sponsorship, but they were no better than his first employer. In October 2010 the second applicant applied for permanent residency through his then employer, who asked to be paid $20,000 in return. The applicant was unable to pay his employer this amount because he was not being paid his full wage. The employer withdrew the application, and the second applicant was forced to leave the restaurant.

4. The second applicant claimed that he and the third and fourth applicants have nowhere to go if they return to India, and he fears that as known members of a scheduled caste, his children will face the same discrimination and trauma that he experienced.

5. In addition to the matters the second applicant stated in his statement that formed part of the first application, both the second applicant and the third applicant claimed past harm in the course of the first and second applications for a Protection visa. I will refer to some of these claims later in these reasons.

Tribunal’s decision

1. The Tribunal was not satisfied the second and third applicants had been truthful about the past harm they claim to have suffered.[2] Although the Tribunal accepted the applicants have been discriminated against as members of a scheduled caste, the Tribunal considered “their claims have become increasingly elaborate as to the harm that they have previously suffered”.[3]

   [2] CB112, [14]

   [3] CB112, [14]

2. As for the second applicant, the Tribunal noted that before the delegate in the first application, when asked for specific details of the discrimination the second applicant claimed he suffered, the second applicant said he was not allowed in restaurants, he was mistreated in the market, he had no food or shoes, he would get “dirty looks” in the street, he went to school barefooted, sometimes he did not have books, and the teachers treated him badly. The second applicant also referred to a murder in a restaurant where he was working, and said it could have happened to him.[4] Before the First Tribunal, the applicant said the discrimination he faced was that he could not read or go to school for a long period of time, and when he did go to school he had to sit separately from others, and the teachers would discriminate against them.[5] He also said that they could not go to the “praying place”, and that he witnessed his uncle’s son being killed, and his shop burned.[6] When asked whether anyone had tried to kill or harm him, the second applicant said he was punished many times and when he worked in the hotel he was kicked and threatened many times that they would kill him.[7] Before the Tribunal the second applicant said he had seen one of his brothers burned alive and he has never forgotten this.[8] As for the third applicant, she claimed she was forced to drink “cow’s pee” when she was having her child, and that as members of a scheduled caste they could not go to school.[9] The third applicant made this claim “for the first time during the most recent Tribunal hearing”.[10]

   [4] CB113, [15]

   [5] CB113, [16]

   [6] CB113, [16]

   [7] CB113, [16]

   [8] CB113, [17]

   [9] CB114, [20]

   [10] CB114, [21]

3. The Tribunal, therefore, did not accept the second and third applicants suffered assaults or threats of harm; it concluded they attempted to misrepresent their circumstances in India to represent themselves as considerably more economically and socially disadvantaged than they in fact were.[11] The Tribunal also found the second applicant deliberately provided untruthful evidence about the whereabouts of his siblings in an attempt to respond to the Tribunal’s concerns that the second applicant’s family appeared to be residing in India without suffering any harm.[12] The Tribunal found that although the second and third applicants did not have an extensive education, the second applicant was educated until Year 10, and the third applicant until Year 8; and the second applicant was able to obtain employment as a cook in India, and was promoted and able to move and work for different employers.[13]

   [11] CB115, [22]

   [12] CB115, [22]

   [13] CB114, [22]

4. The Tribunal also did not accept the second applicant’s claims that he came to Australia in 2006 because he feared harm. The evidence indicated to the Tribunal the second applicant travelled to Australia on a subclass 457 visa, and he pursued that visa for some time; and it was when those applications were unsuccessful that he applied for protection.[14]

   [14] CB116, [23]

5. The Tribunal accepted that the evidence cited by the delegate indicates there is considerable persecution of vulnerable children in India, including child labour trafficking and commercial sexual exploitation.[15] The Tribunal also accepted that the applicants have resided in Australia for several years and are well settled in Australia, and that their return to India, therefore, will require a difficult adjustment.[16] The Tribunal, however, was not satisfied the first applicant had a well-founded fear of persecution because of his membership of a scheduled caste, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of their returning to India there is a real risk the applicants will suffer significant harm.[17] The Tribunal did not accept the second and third applicants had suffered the harm they claimed they did; they were not as socially or economically disadvantaged as they claimed to be; approximately 23% of the population of West Bengal are members of scheduled castes; considerable steps have been taken by the Indian government to redress the inequalities; approximately 94% of children in India attend primary school, although minority groups, including scheduled castes, are less likely to complete their education; and the Tribunal did not accept the second and third applicants hold a genuine fear that their children will be killed or otherwise be unable to survive.[18]

   [15] CB117, [28]

   [16] CB117, [28]

   [17] CB118 [31]; [32]

   [18] CB117, [28]

Grounds of application

1. The applicants are not legally represented. At the hearing, each of the second, third, and fourth applicants made submissions. None of the applicants addressed the grounds stated in the application.

2. The second applicant submitted the Tribunal’s decision was not a fair decision. He said he did not have a lawyer, and he told the truth to the Tribunal. When I asked the applicant why he said the Tribunal’s decision was unfair, he said he was not a lawyer, but it was his belief the Tribunal’s decision was unfair. The third applicant said she and her husband came from the lower caste, and that is why she was unable to get educated; that she wanted her children to have an education; they have been in Australia for nine years and, for that reason, have been unable to obtain supporting documents for this case; it is the applicants’ weakness that they do not have a lawyer to support them; and that she wants the Australian Government to help her family. The fourth applicant, the second and third applicants’ daughter, said she would like to stay in Australia, and did not want to go back to India, because she will not be able to study in her country because she has been studying in Australia.

3. Nothing the second, third, or fourth applicants said to me suggests the Tribunal made any jurisdictional error. The Tribunal understood the claims the applicants made, and it addressed the evidence the second and third applicants gave about past harm but, for the reasons the Tribunal gave, which were reasons on which it was reasonably open to the Tribunal to rely, the Tribunal did not accept that evidence. Also for reasons on which it was reasonably open for it to rely, the Tribunal was not satisfied the first applicant had a well-founded fear of persecution, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of their returning to India there is a real risk the applicants will suffer significant harm.

4. The submissions the second, third, and fourth applicants made constituted an expression of a desire that the applicants remain in Australia. However understandable that desire may be, as I explained to the second applicant at the hearing, this Court’s jurisdiction is limited to determining whether the Tribunal made any jurisdictional error. The Court does not have jurisdiction to order the Minister grant the applicants a visa that will entitle them to remain in Australia.

5. I then turn to the grounds stated in the application. There are four grounds, the first of which is as follows:

   The Tribunal member failed to consider an integer of the Applicant’s claim, in failing to consider whether or not a lower caste (regardless of their past persecution) in India was at risk of harm from higher caste, and not able to access effective protection.

6. This ground is not made out. As my summary of the Tribunal’s reasons for decision show, the Tribunal considered whether the first applicant had a well-founded fear of persecution because he was a member of a scheduled caste; and it also considered whether, because the applicants are members of a scheduled caste, there are substantial grounds for believing that as a necessary and foreseeable consequence of their returning to India there is a real risk the applicants will suffer significant harm.

7. The second ground stated in the application is:

   The Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon their return to India.

8. This ground also is not made out. The Tribunal asked and answered the correct question. It asked and answered in the negative whether there are substantial grounds for believing that as a necessary and foreseeable consequence of their returning to India, there is a real risk the applicants will suffer significant harm.

9. The third ground stated in the application is:

   The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

10. This ground, being unparticularised, cannot be made out. To the extent the ground claims the Tribunal’s not being satisfied the applicants met the criteria for the granting of a Protection visa did not have any rational support, that claim cannot be made out. As I have already found, the Tribunal understood the claims the applicants made, it addressed the evidence the second and third applicants gave about past harm; but for reasons on which it was reasonably open to the Tribunal to rely, the Tribunal did not accept that evidence. Also for reasons on which it was reasonably open for it to rely, the Tribunal concluded it was not satisfied the first applicant has have a well-founded fear of persecution, or there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants returning to India, there is a real risk they will suffer significant harm.

11. The fourth ground is:

    The applicants satisfy the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

12. To the extent this ground contends the Tribunal was obliged to assess the claims made by the second, third, and fourth applicants against the criteria specified in s.36(2)(a) of the Act, such contention would be wrong. The Tribunal was correct to assess the second, third, and fourth applicants’ claims only against the complementary criterion provided for in s.36(2)(aa) of the Act.[19] To the extent the ground claims the Tribunal failed properly to identify the elements of the criterion specified by s.36(2)(a) of the Act and apply those elements to the claims made by the first applicant, such claim cannot succeed. The only claim under s.36(2)(a) of the Act that could reasonably have been interpreted the first applicant made is that he has a well-founded fear of persecution because he is a member of a scheduled caste. That is the claim the Tribunal considered. The manner in which the Tribunal dealt with that claim disclosed no misunderstanding by it of the principles it had to apply in assessing that claim.

    [19] Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127

Conclusion and disposition

1. The applicants have not succeeded on any of the grounds on which they rely. I propose, therefore, to dismiss the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 December 2016