BYM23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1363
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYM23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1363
File number(s): BRG 363 of 2023 Judgment of: JUDGE COULTHARD Date of judgment: 13 December 2024 Catchwords: MIGRATION – Protection (Class XA) (Subclass 866) visa –– judicial review of decision of the Administrative Appeals Tribunal –– failure to consider claims –– error of law – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 5J(1), 5J(4), 5J(5), 5H, 36, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2A), 476(1) Cases cited: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 3 December 2024 Date of hearing: 3 December 2024 Place: Brisbane Counsel for the Applicant: The applicant appeared in person. Solicitor for the First Respondent: Ms Helsdon appeared on behalf of the first respondent – Sparke Helmore Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs. ORDERS
BRG 363 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYM23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be changed to “Administrative Review Tribunal”.
3.The application is dismissed.
4.The applicant pay the first respondent’s costs in the amount of $6500.00.
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 COULTHARD
INTRODUCTION
Before the Court is an application for review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister for Immigration and Border Protection (as the Minister was then called) (“the delegate”) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa.
BACKGROUND
Application for protection visa and delegate’s decision
The applicant is a citizen of India. The applicant arrived in Australia on 1 March 2014 as the holder of a student visa. That visa was cancelled on 29 December 2016 (Court Book (“CB”) 148).
On 13 June 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (“the visa”) (CB 1-44).
On 17 April 2019, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Migration Act 1958 (Cth) (“the Act”) and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under 36(2)(aa) of the Act (CB 148-160).
On 15 May 2019, the applicant applied to the Tribunal for review of the delegate’s decision (CB 161-162). On 10 March 2022, the Tribunal affirmed the delegate’s decision (CB 260-272). On 16 September 2022, that decision was set aside by this Court by consent. The matter was remitted to the Tribunal for reconsideration (CB 273).
On 1 June 2023, a differently constituted Tribunal invited the applicant to a hearing on 20 June 2023 (“the hearing invitation”) to give evidence and present arguments relating to the issues arising in the case (CB 285-294).
On 20 June 2023, the applicant attended the hearing to give evidence and present arguments. He was assisted by an interpreter in the Punjabi and English languages (CB 295-297). He was also assisted by his solicitor.
On 23 June 2023, the Tribunal affirmed the delegate’s decision. The Tribunal gave written reasons for its decision (“Decision”) (CB 301-324).
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal identified that the issue on review was whether the applicant has a well-founded fear of persecution for one of the five reasons in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to India he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act (Decision [15]). The Tribunal accepted that the applicant is a national of India and that India is therefore the receiving country for the purpose of assessing the applicant’s claim for protection (Decision [61]).
The Tribunal summarised the applicant’s claims for protection by reference to the statutory declaration accompanying his visa application as follows (Decision [16]):
·His family belongs to the Sansi caste.
·In 2012 his brother became the President of the Punjab University Student Union and in about June or July 2012 his brother was attacked by 5-6 people and shot in the abdomen by a person called Balijeet because they did not believe his brother being of a lower caste should hold that position.
·That he and his brother had earlier been attacked on their way home in 2011 and his brother had been confined to bed rest for 6-8 months due to his injuries.
·His father was a police officer in Punjab and his father's colleague committed suicide and his father was then blamed for his colleague's suicide and suspended from duty during an investigation into the suicide.
·His father's colleague's wife extorted $12,000.00 from the applicant's family in order to stop the investigation into his father. This investigation was later discontinued, and the applicant's father returned to work as a police officer.
·Later in June or July 2013, the applicant's parents when returning to their home were confronted by a group of people who tried to run his father's car off the road. When his father stopped his car, he and the applicant's mother were attacked resulting in the applicant's mother suffering a broken arm and his father also being injured. The applicant believes this attack was a result of his father's role as a police officer and his father's membership of a lower caste, the Sansi caste.
·His father was in 2014 blamed for the death of a Canadian citizen, Davinder Singh who had been involved in a property dispute with his family in India resulting in his father being imprisoned for 2 ½ years before being released and the charges against him being discontinued. However, his father lost his job.
·He believes that his family has been targeted because of their lowly caste.
·He fears returning to India as his life will be under threat because of his family's caste and any retribution that may be sought against him and his family from the BJP (Bharatiya Janata Party)
The Tribunal then referred to a written submission by the applicant’s representative made to the Department after the applicant was interviewed by the Department which included a statutory declaration by the applicant repeating his claims and reasons for his application for protection; an Indian Police Complaint (First Information Report) alleging the applicant as being a suspect in an unlawful break in at a time when the applicant was in Australia; a typed statement from the applicant’s father addressing money transfers to India from the applicant in Australia; and, addressing the applicant’s delay in making his protection claims (Decision [18]-[21]).
The Tribunal then referred to written submissions the applicant had made to the Tribunal on 28 January 2022 and 21 February 2022 (Decision [23]-[24]).
The Tribunal recorded that at the hearing the applicant had given the following evidence (in summary) (Decision [31]-[50]):
(a)He had been brought up with his two brothers in the family home in Firozpur in Punjab. The family also had a home in Chandigarh, the capital of Punjab and that the family moved from time to time between their two homes for the past twenty years. His parents now spend most of their time in Chandigarh;
(b)His father was a police officer, and his mother maintained the household;
(c)But for attending one student demonstration when he was a year 11 student, he had not been involved in any anti-government or other political demonstrations and/or any political and/or societal demonstrations or activities in India;
(d)He agreed that he had not attained any form of political profile in India and had not been involved in politics in any way in India;
(e)He came to Australia in March 2014 on a student visa. His student visa was cancelled because of his failure to regularly attend classes. He was issued with a Bridging visa class E in March 2017 for two weeks to enable him to finalise his affairs and depart Australia. He informed the Department that it was his intention to apply for a sponsored Skills 457 visa and that he had not been back to India since arriving in Australia due to some personal issues. He had not raised these personal issues earlier as he had been planning on finishing his studies and obtaining a Skilled visa and then progressing to permanent residency without applying for a Protection visa;
(f)At that time, he applied for a Protection visa as he did not want to return to India as he feared being harmed because of his lowly caste and being known as ‘Dalit’;
(g)He never wanted to return to India because of personal issues that had occurred to him and his family in India which personal issues were:
(i)His brother had been shot when he was appointed the President of the University’s Student Union in 2012;
(ii)Later, when his brother was running a music studio and hosting an anti-government (BJP) YouTube site, his studio and YouTube site was closed down;
(iii)His father had been wrongfully arrested and charged in relation to the death of a Canadian citizen, a supposed member of the BJP, and subsequently imprisoned but later released after the charges were dismissed;
(iv)His father was dismissed as a result of these false allegations;
(v)When his mother visited his father in prison she was stripped searched;
(vi)His younger brother, who had not been politically active, had ceased contact with the family and had left without telling anyone in the family where he was going;
(vii)He had been identified by the police as a suspect in an offence at a time when he was resident in Australia and that this allegation may be raised again if he were to return to India and it would be a danger for him;
(viii)His girlfriend’s mother, who was a BJP politician, had threatened him over the phone ‘to cut him into small pieces’ if he returned to India.
The Tribunal accepted that the applicant and his family were known as ‘Dalits’ in the caste system and that the applicant explained to the Tribunal that, as such, he and his family were subject to societal prejudices and discrimination as to employment opportunities and his father had only been able to become a police officer due to the quota system allowing lower caste members to obtain government employment (Decision [32]).
The Tribunal recorded that the applicant’s evidence was that all these incidents had happened to his family because of their caste and that the applicant feared that if he were to return to India he would be killed or otherwise harmed because of his caste and being ‘Dalit’ (Decision [42]; [46]). The Tribunal recorded that the applicant’s evidence was that as his older brother had been vocal against the BJP government this persecution of his family because of their caste was more pronounced and would be carried out against him by powerful members of the BJP and/or their supporters and institutions (Decision [52]). As to the threats by the mother of the applicant’s girlfriend, the Tribunal recorded the applicant’s evidence that as his girlfriend’s mother was a BJP politician she could have things happen to him and he could end up being shot like his brother, vanish like his younger brother or be imprisoned like his father because of his caste (Decision [51]).
The Tribunal asked the applicant about the DFAT Country Information report concerning the large numbers of Sikhs in the Punjab and that ‘Dalits’ accounted for about 12% of the Sikh population. The applicant agreed with the demographic information in the report but told the Tribunal that he is not considered a pure Sikh by other Sikhs and that ‘Dalits’ are subject to persecution (Decision [53]-[54]).
The Tribunal found that the applicant was an honest and reliable witness (Decision [67]) and made the following findings on the evidence (Decision [68]-[71]):
(a)The applicant is of Sikh religion and heritage of the lower social caste Sansi in his home of Punjab and he and his family are considered Dalit. That as outlined in the Country information, DFAT assesses ‘Dalits’ as facing a high risk of official and societal discrimination including social segregation, exclusion, compromised access to education and health care, and a higher risk of sexual assault in the case of women and girls;
(b)The applicant’s older brother was shot following his election or appointment to his University’s Student Union’s Presidency and later while operating a music studio and YouTube site that expressed anti-BJP commentary his studio and YouTube account were closed by government officials;
(c)The applicant’s father was blamed for a colleague’s suicide and was subsequently the subject of extortion by his former colleague’s wife;
(d)The applicant’s father and mother were involved in a traffic incident and attacked in 2013;
(e)The applicant’s father, in 2015 whilst a police officer, was charged and imprisoned in relation to the murder of a Canadian citizen and that after being so imprisoned for over two years the charges were discontinued or dismissed;
(f)That after the applicant’s father was released from prison his employment with the police force was terminated;
(g)That whilst the applicant’s mother was visiting the applicant’s father in prison, she was subjected to a strip search and was humiliated by the experience;
(h)The applicant’s younger brother has not been in contact with the family for many years and is viewed by his family as having vanished;
(i)The applicant had formed a relationship with his girlfriend (‘Kush’) and that they wish to marry notwithstanding that her mother, a BJP politician in India, has recently threatened the applicant with harm during a recent telephone call in her expression of her opposition to his relationship with her daughter.
The Tribunal then concluded that having regard to the above incidents it was satisfied that the applicant holds a subjective fear of harm as it is his personal view that all of these separate incidents are in fact connected and show that he is in danger of harm through the persecution of him and his family arising from their membership of the lowest caste in their society and that they are regarded as ‘Dalits’ or ‘undesirables’. The Tribunal accepted that the applicant subjectively believes that this societal persecution is magnified by his girlfriend’s mother’s political position as a government member of the ruling BJP party and that through the BJP he will be harmed in some way as a result of his caste and being a ‘Dalit’ (Decision [72]).
The Tribunal then went on to consider whether the applicant’s fears of harm were objectively well-founded. The Tribunal said that applicant’s evidence as to his fears of harm were vague in nature and his insistence and his belief that these unconnected and isolated incidents that have happened to his family are all connected and part of an apparent and perceived systematic attack upon his family because of their social standing was implausible and without any evidentiary substance and/or support (Decision [73]).
As to membership of a particular social status and lowly caste (‘Dalit’), the Tribunal concluded that there was no evidence before it that supported that any of the tragic and unfortunate events that have occurred to the applicant’s family have been the subject of systematic targeting of his family by others and/or the BJP. The Tribunal was not satisfied that the events were in any way connected and/or have been motivated by caste and/or have been instigated by BJP members and/or supporters (Decision [74]) and said (Decision [75]-[91]):
(a)As to the shooting of his brother, the Tribunal accepted that the incident occurred although there was no medical evidence or police reports about the incident. But there was no evidence to support or even suggest that the shooting was politically motivated and/or motivated by caste discrimination and/or resentment and it was not accepted that the shooting was so motivated. As to the closure of the brother’s music studio and YouTube site because of anti-government comments on the platform there was no evidence other than the applicant’s own statements as to this occurrence and no evidence was produced of any official notifications of the closing of the social media platform, the music studio, or evidence of court proceedings or orders in relation to this issue nor any examples or recordings of the supposed anti-government statements and/or postings it was alleged the brother had made. The applicant’s evidence was that the brother now runs a fruit vending and market business and has done so for many years without incident and since the closure of his earlier business has not been the subject of any further personal violence and/or threats of violence by either any individuals and/or purported members and supporters of the governing BJP. The Tribunal concluded that it was not satisfied that the applicant faces serious harm arising from his older brother’s past activities;
(b)As to the treatment of his father and the attack upon his parents following being run off the road, the applicant’s evidence that these events were related to their caste consisted of the applicant’s claims in this regard and some media reports none of which referred to any caste and/or political motivations for the investigation, charges, and the imprisonment and/or the dismissal of the charges against his father. The only evidence before the Tribunal of this matter being politically and/or caste motivated is the subjective suspicions of the applicant who could not point to any evidence to support his claims but for the events and having occurred and his belief that these events and the others that he has complained of were all linked and so motivated. The Tribunal was not satisfied that his father’s treatment by the authorities amount to a targeted persecution involving serious harm motivated by his family’s caste and/or being pursued for any political or caste related reasons by the BJP and/or anyone else;
(c)As to the strip search of the applicant’s mother, the only evidence offered in support of these actions being politically and caste motivated was an assertion by the applicant that his mother had been so searched while other visitors were not so searched. In the absence of any evidence from the mother, the Tribunal was not satisfied that there was not another possible explanation for the search and did not accept that the search was evidence of caste and/or political discrimination against his family;
(d)As to the disappearance of the younger brother, the applicant was not able to point to any specific threats and or reasons for, or examples of his family having been targeted but for suggesting that this issue when considered with his other claims supports his fears of harm arising from targeting of his family because of their caste. The Tribunal found that the applicant’s fears in regard to his brother’s apparent disappearance as being an example of his family being targeted for persecution and harm because of their caste are not well-founded;
(e)As to actual or imputed political opinion and inability to relocate within India, there was no evidence of any official threats having been made by representatives and/or supporters of the BJP to the applicant and/or his family. The Tribunal was satisfied on the evidence that the threats made by the mother of the applicant’s girlfriend were most likely motivated by the mother’s personal view of him and his caste, but the Tribunal was satisfied that they were not related to the mother’s membership of the BJP. The Tribunal concluded that it was not satisfied that the applicant faces a real chance of persecution involving serious harm from his girlfriend’s mother and/or the BJP and that therefore the applicant’s fears are not well-founded.
Having made those findings, the Tribunal concluded that it rejected the applicant’s claims in their entirety and having considered all of the applicant’s claims individually and cumulatively, and considering the cumulative effect of the claims and notwithstanding the subjective views held by the applicant as to his claimed fears, the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion (Decision [92]).
The Tribunal concluded that the applicant’s fears of persecution were not well-founded as required by s 5J of the Act and that the applicant is therefore not a refugee within the definition of s 5H of the Act ([93]) and is therefore not a person to whom Australia has protection obligations under s 36(2)(a) of the Act (Decision [94]).
The Tribunal then went on to consider whether the applicant is eligible for complimentary protection as outlined in s 36(2)(aa) of the Act. The Tribunal found that notwithstanding it had found the applicant to have been truthful as to his subjective fears it was, for the same reasons, not satisfied that the applicant meets the complementary protection criterion. The Tribunal said that having rejected the claims of the applicant in their entirety and given all the evidence it does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act and that accordingly the applicant is not someone to whom Australia has protection obligations under s 36(2)(aa) of the Act (Decision [95]-[97]).
The Tribunal affirmed the decision of the delegate.
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 28 July 2023. The applicant also filed an affidavit affirmed by his solicitor on 28 July 2023 annexing the Tribunal’s written reasons for its decision.
Procedural orders were made by a Registrar of this Court permitting the applicant to file an amended application with proper particulars of any ground of review and requiring the applicant to file any additional evidence on which he sought to rely and written submissions. Orders were also made requiring the first respondent to file any written submissions and any additional evidence on which it sought to rely. Orders were also made as to the filing and service of a Court Book.
The applicant appeared before the Court in person. The applicant was unrepresented. He was assisted by an interpreter in the Punjabi and English languages.
The material before the Court included the application for judicial review, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and a Court Book. Despite the procedural orders, the applicant did not file an amended application, any further affidavit material or any written submissions.
CONSIDERATION
For the applicant to be successful, he must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error.
As the applicant was unrepresented at the hearing, the Court explained to the applicant that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly, the Court cannot make a decision on the merits of the applicant’s visa application. It was explained that the Court’s task is instead to determine whether the Tribunal made a legal or procedural error. In the event of such an error, it was explained that the Court would set aside the decision of the Tribunal and send the matter back to the Tribunal for a decision to be made according to law.
The grounds of review set out in the application are (without alteration):
Ground One
The Second Respondent made an error of law as they did not fully consider the claims made by the applicant.
Ground Two
The Second Respondent made an error of law as they found that the Applicant held a subjective fear of harm instead of a well-founded fear of persecution.
The applicant was given the opportunity to make oral submissions in support of his application for review and in reply to the first respondent’s oral submissions.
Criteria for a protection visa
The criteria for a protection visa are set out in, inter alia, s 36 of the Act. An applicant must meet one of the alternative criteria in ss 36(2)(a), (aa), (b) or (c). The criteria relevant to these proceedings are ss 36(2)(a) and 36(2)(aa).
Refugee
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
“Refugee” is defined in s 5H as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non‑political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
“Well-founded fear of persecution” is defined in s 5J(1) as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Section 5J(4) provides that if a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
As to the meaning of “serious harm”, s 5J(5) provides:
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
Complimentary protection obligations
If a person does not meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of a visa if they meet the criterion in s 36(2)(a) by reason of their being a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
As to significant harm, section 36(2A) provides:
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
Ground one: Failure to fully consider claims
Ground one is an unparticularised claim that the Tribunal did not fully consider the applicant’s claims. The applicant has not particularised what claims he says that he made expressly or that arose squarely on or were apparent on the face of the material before the Tribunal and which he says the Tribunal failed to consider. The applicant did not file any written submissions in which particulars of this ground might have been provided.
The first respondent submits that the failure to particularise the claims the applicant says were not considered by the Tribunal is a basis for dismissal of this ground of review (first respondent’s written submissions (“FRS”) [34]; WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969).
The Court is of the view that it should be reluctant to dismiss a ground of review in circumstances where an applicant is unrepresented (DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784, [8]-[10] per Colvin J). The Court considers that this is so even though the application was certified by the applicant’s lawyer. The applicant’s solicitor filed a notice of withdrawal on 18 October 2024, and the applicant was unrepresented at the hearing.
The Court afforded the applicant the opportunity at the hearing to make submissions as to what claims he made which he says the Tribunal failed to consider. The applicant identified the following claims which he said the Tribunal did not consider:
(a)A claim that was lodged against him in India;
(b)All of the things that happened to his father;
(c)All of his family members were harmed;
(d)He had lost all of his family members;
(e)His mother was stripped searched when he visited his father in jail.
As to the claim that was lodged against the applicant in India, the Court understood the applicant to be referring to a police accusation against him as outlined in a police report referred to as a First Incident Report. The applicant provided a translated copy of this report to the Department (CB 73-91). The Tribunal considered this report in its reasons for decision and the evidence the applicant gave at the hearing about that report (Decision [18]; [48]).
As to the applicant’s claim about “all of the things that happened to his father”, the Tribunal considered the applicant’s claims as to the events the applicant gave evidence about, concerning his father (Decision [16]; [45]; [46]; [81]).
As to the applicant’s claim that all his family members were harmed, the Tribunal considered:
(a)As noted above, the events concerning the applicant’s father;
(b)The applicant’s older brother being shot when he was appointed as President of the University’s student union in 2012 and later having his music studio and anti-government YouTube site being closed down by the BJP government (Decision [43]);
(c)The applicant’s mother being stripped searched when she visited the applicant’s father in jail (Decision [45]).
As to the claim the applicant had lost all his family members, the Court is not satisfied that the applicant put to the Tribunal a claim that he had ‘lost’ all his family members. The applicant did make a claim that his younger brother, after completing his law degree, had ceased contact with his family without telling anyone where he was going, and that the family did not know where he was. The Tribunal considered this claim (Decision [47]).
Accordingly, the Court rejects the applicant’s submission that the Tribunal did not consider the claims to which he referred the Court in oral submissions. The Tribunal considered those claims.
The Court is otherwise satisfied that the Tribunal’s reasons for decision show that it summarised the applicant’s claims made in writing and orally and considered each of those claims. It is apparent from the Tribunal’s reasons that it accepted that the events the applicant claimed happened to his family members and the threats made to him by his girlfriend’s mother did in fact happen (Decision [67]-[71]).
No jurisdictional error is established on this ground.
Ground two: Error of law in finding the applicant held a subjective fear of harm instead of a well-founded fear of persecution
The Court had some difficulty in understanding what was intended by ground two. As the first respondent’s solicitor observed, this is disappointing given that the application was apparently drafted by a legal practitioner.
In his oral submissions, the applicant told the Court that the Tribunal’s decision “did not make sense”. The Court has understood that this is what is perhaps intended by ground two and so understands the applicant’s real criticism of the Tribunal’s decision centred on its findings regarding his credibility as a witness on the one hand – upon which the Tribunal based its findings that the applicant was truthful as to his subjective fear of harm and his belief that the events he gave evidence were because of his family’s caste – and the Tribunal’s findings that the applicant’s fear of harm was objectively not well-founded.
The applicant’s submission was that if the Tribunal believed his evidence as to the harm his family had suffered and his belief that it was because of their caste and/or was politically motivated, how could the Tribunal then conclude that he was not in danger of harm if he were to return to India. The applicant’s submission was that these conclusions were inconsistent.
The test for determining whether an applicant has a well-founded fear of persecution involves both a subjective and objective assessment of the evidence (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at [413]). The Court agrees with the first respondent’s submission that the Tribunal was required to consider both (FRS [35]). That is what the Tribunal did.
The Tribunal found that the applicant was “an honest and reliable witness who gave evidence in accordance with his earlier statements and declarations and was a reliable historian as to his earlier life and upbringing in India and his subsequent life and experiences in Australia” (Decision [67]). As set out above in the Court’s summary of the Tribunal’s reasons, the Tribunal accepted the applicant’s evidence as to the incidents that had happened to his family and was satisfied that the applicant holds a subjective fear of harm because he believes that these incidents are connected and show that he is in danger of harm through the persecution of him and his family because of their caste as ‘Dalits’ or ‘undesirables’ and that the applicant subjectively believes that this persecution is magnified by his girlfriend’s mother’s political position as a government member of the BJP party (Decision [72]).
The Tribunal then went on to consider whether this subjectively held fear was objectively well-founded. For the reasons addressed in its reasons which are summarised above (Decision [74]-[91]), the Tribunal was not satisfied, because a lack of corroborative evidence, that the applicant’s fears were objectively well-founded. There is nothing in the Tribunal’s reasoning in that regard that discloses error.
For completeness, the Court addresses two other matters that the applicant raised in his oral submissions.
The first is that the applicant also made a submission to the Court that the Tribunal member said to him at the hearing that the applicant’s father was corrupt and that this is why his father was harmed. The applicant further said that the Tribunal member referred to having watched videos and then saying to the applicant that his father was corrupt. It is not clear what videos the applicant was referring to. There is no reference to videos in the Court Book or in the Tribunal’s decision. The applicant did not put into evidence the transcript of the Tribunal hearing. Accordingly, it is not possible for the Court to make any finding based on this submission. The Court does observe, however, that there is nothing in the Tribunal’s reasons for decision that suggests the Tribunal considered the applicant’s father to be corrupt.
The second matter concerned the applicant’s passport. The applicant told the Court that he told the Tribunal that his passport had expired but the Tribunal did not pay attention to his explanation as to why his passport had expired. It was unclear how this was relevant to the application for judicial review. Later in his submissions, the applicant clarified that he had not told the Tribunal that his passport had expired. To put the matter beyond doubt, the first respondent’s solicitor took the Court to a copy of the applicant’s passport in the Court Book (CB 42). This showed the applicant’s passport expired on 11 July 2023 which was after the Tribunal’s decision was handed down.
CONCLUSION
For the reasons given above, no jurisdictional error is established. The application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 13 December 2024
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