BYQ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1009
•9 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1009
File number: MLG 1023 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 9 November 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant protection visa – whether Tribunal took into account irrelevant considerations or failed to take into account relevant considerations – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 424A, 476, 477 Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZJYM v Minister for Immigration and Citizenship [2008] FMCA 652
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 2 November 2023 Place: Perth Applicant: In person Counsel for the First Respondent: Mr C Orchard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1023 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYQ18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
9 NOVEMBER 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
The applicant is a citizen of India who applied for a protection visa. A delegate of the Minister decided not to grant the applicant a protection visa and that decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 20 March 2018. The applicant now seeks judicial review of the Tribunal decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises one ground of review which broadly alleges that the Tribunal failed to take into account relevant considerations and took into account irrelevant considerations.
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.
VISA APPLICATION AND DECISIONS
The applicant first arrived in Australia on a student visa in July 2007 and has held a number of visas since then.
On 30 September 2015 the applicant applied for a protection visa. In his visa application, the applicant claimed to fear harm because he married against the wishes of his family and feared that his parents would seek revenge and kill him when they found out about his marriage.
On 15 June 2016 the delegate refused to grant the applicant a protection visa. The applicant applied to the Tribunal for review of the delegate’s decision on 6 July 2016.
The applicant attended a hearing before the Tribunal on 19 March 2018. Prior to the hearing the applicant provided written submissions and supporting documents to the Tribunal. The applicant claimed in his submissions that he suffers from depression and lower back pain for which he would be unable to receive the same care should he return to India.
On 20 March 2018 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF TRIBUNAL DECISION
The Tribunal expressed reservations about the plausibility and credibility of the applicant’s claims. The Tribunal suspected that the applicant applied for a protection visa because he had no other visa options, and that his claims had been fabricated to satisfy the protection visa criteria.
The Tribunal accepted that the applicant and his wife are of different castes and that their marriage may be against the wishes of his family. The Tribunal accepted that the applicant had not told his parents of his marriage and that his parents did not know he was married, albeit the Tribunal had considerable doubts about the applicant’s evidence in relation to this.
The Tribunal did not accept that the applicant’s family would seek revenge and kill the applicant upon finding out about his marriage. The Tribunal was satisfied that the applicant did not genuinely hold the belief that his family would harm or kill him. The Tribunal found that the applicant would not face a real chance of harm from his family if he returned to India.
The Tribunal was satisfied that the risk or chance of harm to the applicant in India by virtue of his medical conditions, now or in the reasonably foreseeable future, was remote. The Tribunal consequently found that the risk or chance of the applicant being threatened, assaulted or killed in India in the reasonably foreseeable future was remote.
The Tribunal did not accept the applicant’s claim that he could not relocate within India. Rather, the Tribunal found that it would be reasonable for the applicant to relocate to an area of India where there would not be a real chance he would suffer serious harm.
Taking into account its factual findings, the Tribunal was not satisfied that the applicant met the criteria for a protection visa in s 36(2)(a) and 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 18 April 2018, which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains one ground of review:
The Tribunal took account of irrelevant considerations and failed to take account of relevant considerations.
Particulars
I.Tribunal failed to have regard to relevant factors and took account of irrelevant factors when assessing whether the visa applicant faced a real chance of suffering persecution involving serious hard should he return to India.
II.The Tribunal took account of irrelevant consideration in determining that there were doubts about the genuineness of the applicant’s claims by virtual of the fact that it took him nearly one year from the date of his marriage to lodge his protection claims.
III.The Tribunal failed to give proper wait to the evidence of the visa applicant and failed to properly consider the circumstances that prevail in India and the relevance of these circumstances to the visa applicant. In particular, the tribunal failed to give sufficient weight to the following evidence:
•That honour killings do occur in India where shame or embarrassment is brought on families and that the applicant feared harm would be done to him because he had married against his parents’ wishes and outside his cast.
IV.The Tribunal erred in determining that the applicant was not a person in respect of whom Australia has protection obligations under s.36(2)(a) and that the applicant did not have a well-founded fair of persecution for any reason.
Despite having an opportunity to do so, the applicant did not file any amended application or written submissions. The Minister filed written submissions on 19 October 2023.
THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS
The role of the Court in this judicial review proceeding is to ‘rule upon the lawfulness or legality of the [Tribunal’s] decision’ by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if the applicant establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 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; [2001] HCA 30 at [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.”
CONSIDERATION OF APPLICATION
I first consider the ground raised in the application. This ground asserts that the Tribunal made a jurisdictional error by taking into account irrelevant considerations and failing to take into account relevant considerations. It is convenient to address this ground by first making some general observations about the approach taken by the Tribunal and then addressing the particulars raised by the applicant.
The applicant’s claims for protection were set out in Part C of his application for a protection visa, a short submission that the applicant provided to the Tribunal on 18 March 2018 and in his oral evidence to the Tribunal.
The Tribunal identified the claims raised by the applicant at [30] to [36] of its reasons and I am satisfied that this summary of the applicant’s claims reflects the claims advanced in the materials that the applicant provided. The Tribunal identified the evidence before it at [37] of its reasons. The only item of evidence that I have located in the court book that is not included in the summary at [37] is a report of an MRI of the applicant’s back, but the Tribunal clearly referred to this at [111] of its reasons and did not overlook it. The Tribunal set out a detailed summary of the evidence given at the hearing and the country information that the Tribunal invited the applicant to comment on at [39] to [92] of its reasons.
The Tribunal assessed each of the applicant’s claims and made relevant findings of fact at [93] to [126] of its reasons before expressing its conclusions and decision at [127] to [132] of its reasons.
In reaching its decision, the Tribunal had regard to the oral and written information provided by the applicant and country information from a range of sources. The Tribunal identified that the applicant provided to it a range of newspaper articles, including two full newspapers, and it considered the articles to which the applicant expressly referred, although it found one of the articles bore no relevance to the issue of inter-caste marriages in India and several of the articles reported individual instances of honour killings or attempted honour killings which were isolated events and added to the country information that there were reported incidents of honour killings in India.
The applicant’s first particular simply asserts that the Tribunal failed to have regard to relevant factors and took into account irrelevant factors in assessing whether the applicant faced a real chance of suffering persecution if returned to India. I accept the Minister’s submission that the approach taken by the Tribunal shows that the Tribunal undertook a comprehensive analysis of the applicant’s claims. I have considered the approach taken by the Tribunal and I am unable to identify any relevant consideration to which the Tribunal failed to have regard or any irrelevant consideration which the Tribunal relied upon. In particular, I note that the Tribunal considered all of the applicant’s claims and all of the evidence provided by the applicant. Other than the matter raised in the second particular, the material to which the Tribunal had regard which was not provided by the applicant was country information from a range of sources. It was open to the Tribunal to have regard to country information in reaching its decision.
The applicant’s second particular contends that it was irrelevant for the Tribunal to take into account the delay of nearly one year from the date of his marriage to the date he lodged his protection visa application in forming doubts about the genuineness of his claims.
The Tribunal expressed its concerns based on the delay in the applicant making an application for a protection visa at [98] to [100] of its reasons, where it said:
98.The Tribunal further doubts the genuineness of his claims by virtue of the fact that it took the applicant nearly one year from the date of his actual marriage to his wife in which to make his protection claims.
99.The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
100.A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant’s fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant’s case that the claimed fear of harm in this regard is not genuine.
It is clear from these paragraphs that the Tribunal took into account the applicant’s delay in making a protection visa application, without treating this, by itself, as conclusive.
The approach of the Tribunal is also consistent with that explained by Judge Barnes in SZJYM v Minister for Immigration and Citizenship [2008] FMCA 652, which is a case referred to in the Minister’s written submissions, where her Honour said at [82]:
It would have been open to the Tribunal to have regard to the delay (for which it did not accept explanations) as a factor relevant to the assessment of the applicant’s credibility. However it erred in treating it as concluding the question of whether the applicant fabricated her claims as to what occurred in China, just as it would have erred had it treated such delay as concluding the question of whether she genuinely had a fear of persecution based on past events in China. Hence the Tribunal made an error of law constituting jurisdictional error. The application should be remitted to the Tribunal for reconsideration according to law.
I accept the Minister’s submission that the Tribunal in the present case did not rely solely on the applicant’s delay in making his protection visa application in making adverse credibility findings against the applicant. I accept that the Tribunal also:
(a)considered the applicant’s evidence in relation to his parents’ knowledge of his marriage to be evasive;
(b)was troubled by the applicant’s claim to have told his parents of his intention to marry but that he had not told them he was actually married and considered it more plausible that the applicant’s parents ceased contact with him because they knew of his marriage;
(c)noted the applicant’s evidence that he had not once been threatened with harm by any family member in the event he proceeded with the marriage;
(d)was satisfied that the applicant’s parents responded to his intention to marry by determining to cut off contact with him; and
(e)found the applicant continued to have contact with his brothers every two to three days and his brothers had not made any threats of harm in over three years of the applicant’s actual marriage.
It was open to the Tribunal to have regard to the applicant’s delay in making his protection visa application in the way that it did.
In the third particular, the applicant contends that the Tribunal failed to give appropriate weight to evidence that honour killings do occur in India where shame or embarrassment is brought on families and to the applicant’s fear of harm because of his marriage against his parents’ wishes and outside his caste.
The Tribunal quite clearly had regard to country information about honour killings and the applicant’s response to that country information at [78] to [82] of its reasons. The Tribunal carefully considered the applicant’s claimed fear that he would face harm from honour killing as a result of his marriage to someone from a different caste against his parents’ wishes and rejected the applicant’s claim that he would face a real chance of harm on this basis. The Tribunal did not fail to take into account evidence in relation to honour killings or the applicant’s own claims. The weight that the Tribunal gave to the evidence before it was a matter for the Tribunal as part of its fact-finding function. There is nothing before the Court to suggest that the Tribunal’s findings were not open to it.
The fourth particular simply asserts that the Tribunal erred in determining that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act.
I accept the Minister’s submission that the Tribunal correctly identified the statutory framework and considered the applicant’s claims against the relevant criteria. The fourth particular really amounts to an expression of disagreement with the outcome of the Tribunal review. This is insufficient to establish jurisdictional error.
At the hearing before the Court, the applicant was invited not only to address the ground in his application, but also more generally what he believes the Tribunal did wrong. The applicant submitted that the real problem is that the Tribunal relied on information available online, country information, statistics, data and books which are not always correct and which need to be verified. The applicant submitted that the books are written by human beings who want to make everything simple and easy, but things that happen are not always reported in the newspapers or in the news.
These submissions do not give rise to jurisdictional error. It was open to the Tribunal to take into account country information, including information available online, country information reports and information about statistics and data, in reaching its decision. The Tribunal did not have any procedural fairness obligation under s 424A of the Migration Act to invite the applicant to comment on country information: see s 424A(3)(a). However, notwithstanding this lack of obligation, it is clear from the Tribunal reasons that the Tribunal invited the applicant to comment on the country information during the course of the hearing. The Tribunal acknowledged and had regard to the applicant’s responses. It was ultimately a matter for the Tribunal, as part of its fact-finding function, to determine the weight that it gave to the country information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
The ground raised in the applicant’s application and the matters raised in the applicant’s oral submissions at the hearing do not establish jurisdictional error in the Tribunal decision.
CONCLUSION
In circumstances where the applicant has not established that the Tribunal decision is affected by jurisdictional error, the application for judicial review must be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 9 November 2023
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