BYT19 v Minister for Immigration
[2020] FCCA 1168
•15 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYT19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1168 |
| Catchwords: MIGRATION – Visas – judicial review of application for protection visa – Administrative Appeals Tribunal considered country information regarding Indian caste system – Tribunal applied correct relocation practicality test – no error for proceeding with proceeding via video-link – Tribunal has statutory discretion to proceed via video-link. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 425, 429A |
| Cases cited: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 |
| Applicant: | BYT19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1473 of 2019 |
| Judgment of: | Judge McNab |
| Hearing date: | 30 March 2020 |
| Date of Last Submission: | 30 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 15 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Aleksov |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the Respondents: | Ms Mills |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 15 May 2019 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,000.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1473 of 2019
| BYT19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE – REVISED FROM TRANSCRIPT)
Introduction
By application filed 15 May 2019 and amended 3 March 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 12 April 2019. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) refusing to grant the applicant a subclass 866 protection visa (‘the protection visa’).
The matter was heard on 30 March 2020.
For the reasons which follow I have concluded that the application should be dismissed.
Background
The background to this matter is as follows:
a)The applicant is a citizen of India.
b)On 14 December 2006, the applicant entered Australia as the holder of a TU-572 Student visa.
c)In July 2010, he departed Australia once and returned to India after his father had a heart attack.
d)The applicant subsequently held a VC-485 student visa and before applying for a VC-487 Skilled Regional Sponsored visa on 30 October 2011.
e)On 17 December 2011, the applicant was convicted of one count of intentionally causing serious injury to Mr A and one count of intentionally causing injury to Mr B. He was sentenced to seven years imprisonment with a non-parole period of five years.[1] The applicant had previously been having an affair with Mr B’s wife.[2]
[1] Court Book 221.
[2] Ibid.
f)On 26 April 2017, the applicant applied for the protection visa.
g)On 9 June 2017,the delegate refused the protection visa. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to India, there was a real risk that the applicant would suffer significant harm, and that the applicant was not a person in respect of whom Australia had protection obligations, as outlined in subsections 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (‘the Act’).
h)On 26 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
i)On 16 December 2018, the applicant was transferred from Corrections Victoria to the Melbourne Immigration Transit Accommodation in Broadmeadows.
j)On 13 March 2019, the applicant was invited to attend a hearing with the Tribunal by video conference from the Melbourne Immigration Transit Accommodation in Broadmeadows.
k)By email correspondence and a handwritten letter, both dated 15 March 2019, the applicant requested to attend the hearing before the Tribunal in person.
l)On 20 March 2019, the Tribunal sent a further invitation to attend the hearing in person.
m)On 28 March 2019 the applicant was transferred to the Yongah Hill Immigration Detention Centre in Western Australia.
n)By email correspondence dated 29 March 2020, the applicant requested that he be transferred back to Melbourne for the Tribunal hearing.
o)On 3 April 2019, the applicant attended a hearing before the Tribunal via video conference;
p)At [18] of the Tribunal’s decision, regarding the applicant’s request to attend the hearing in person made whilst he was in detention at the Yongah Hill Immigration Detention Centre, it was stated that the applicant:
[…] expressed concern that he would not get a fair hearing if it was conducted by video link. He also indicated that he was exhausted from the travel to Western Australia. The Tribunal advised [BYT19] that it was not practical for him to be brought back to Melbourne for the hearing, many hearing (sic) are conducted by video link and the Tribunal will ensure he has an opportunity to put his case forward.
q)The Tribunal hearing was scheduled for 3 April 2019, and the Tribunal considered five days to be sufficient time for the applicant to recover from the travel to Western Australia from Victoria.
r)The applicant did not pursue his request that witnesses attend the hearing in Melbourne but submitted statutory declarations from four persons attesting to his character.
Tribunal decision
The Tribunal did not accept that the applicant faces a real chance of harm if he returned to India by:
a)the persons or families, associates or agents affected by the criminal case;
b)his family;
c)members of the Jatt caste;
d)the Sikh community;
e)the Indian authorities due to his nationality, race or religion or because he is a member of a particular social group comprising his lower-caste; or
f)group members or people convicted of having committed a crime because he had an affair with Ms B.[3]
[3] Tribunal decision [59].
The Tribunal found that the applicant does not require the Indian authorities’ protection and was not satisfied the applicant is a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Act. Regarding complementary protection, the Tribunal found at [65]:
The applicant has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to India other than for the reasons discussed above relating to his claims under the refugee criterion. Given the Tribunal does not accept that the applicant faces a real chance of suffering persecution involving serious harm if he returns to India, the Tribunal, having regard to the findings of fact set out above, also finds that there are not 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 that he would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by Mr A , Mr B or Ms B, their families, associates and agents, his family, the Jatt Sikh caste community or the Indian authorities, or anyone else, as a necessary and foreseeable consequence of his being removed from Australia to India.
At [67], the Tribunal considered the applicant’s individual circumstances and whether it was reasonable for him to relocate to a place in India away from the Punjab state, where he would not face a real risk of significant harm from the victim of his assaults, his family, associates and agents. The Tribunal considered the applicant’s individual circumstances at [67], including that:
a)he was tertiary educated in India and has acquired further qualifications in commercial baking and cookery in Australia;
b)in the past, he secured employment in India in the finance sector and in medical equipment sales, where his English-language skills were of particular assistance to him because doctors speak English;
c)he had undertaken a variety of work in Australia, including in a bakery, a chocolate factory and a carwash and driving taxis;
d)he had shown a degree of adaptability in travelling to Australia to undertake study and finding accommodation, including living with other Indian nationals;
e)he had indicated that, in the first 20 years of his life, he had lived in four other states of India and that he did not particularly like living in the Punjab;
f)he indicated a desire to live his life independently of his family; and
g)his level of education, past work experience and English and Hindi-language skills suggested that he would be able to find employment quickly on his return to India and relocation to an area outside of Punjab.
Grounds of review
The applicant’s amended application provides the following grounds of review:
1. The Tribunal failed to consider an objection to relocation, based on the Indian caste system.
2. The Tribunal did not have the power to “allow” a hearing by video-link, absent the applicant’s consent.
The applicant’s submissions
Ground 1
The applicant submits that the Tribunal has failed in its decision to consider objections to relocation arising from the caste system in India. The applicant notes that the Tribunal mentioned the caste system in India in assessing the claimed persecution at [43] – [44], however it did not consider those matters in relation to complementary protection and as they related to the reasonableness of relocation
Ground 2
The applicant does not submit that the section 425 hearing must be in person: applicant’s submissions in reply, [6]. However, he does submit that the Tribunal’s power to allow a hearing by videoconferencing depends on the applicant’s consent.
In discussion before the Court, Counsel for the applicant submitted:
a)that the Tribunal could notify the applicant that a section 425 hearing was to proceed by video link; and
b)if the applicant did not consent to that course, that:
i)the matter could proceed in the absence of the applicant; or
ii)the Tribunal might be in a position where it wished to receive evidence from the applicant, but the applicant refused to give the evidence.
Consideration
Ground 1
No point was specifically made by the applicant directing the caste system issue as one particular to relocation.
The Tribunal considered and addressed matters of the caste system in India regarding its complementary protection criteria decision. The Tribunal summarised the applicant’s claim in respect of his caste at [15], [16], [17] and [23] of the Tribunal decision and directed questions to the applicant about his caste at the hearing, at [26].
At [40] of its decision the Tribunal made reference to country information regarding the significance of caste in parts of India and indicated that honour crimes do continue to occur, particularly in northern India.
The Tribunal addressed the applicant’s claims concerning his caste regarding whether he faces a real chance of suffering persecution involving serious harm, including from the Jatt caste Sikh community or the Indian authorities, including by reason that he is a member of a particular social group, comprising his lower-caste group: [27], [43], [44] and [59] of the decision.
At Tribunal decision [44], the Tribunal noted:
The Tribunal put to [the applicant] that his evidence did not indicate that his caste had proved a barrier to him in the past as it was clear that his caste had not stopped him from achieving in his education, work or in having friendships with people from a wide range of backgrounds. The Tribunal commented that despite his caste he had lived with Mr A , Mr B and Ms B in Australia.
The Tribunal addressed the applicant’s claims regarding his caste and the caste system in India in relation to the refugee criteria, but those findings of fact are equally apposite to his complementary protection and relocation claims.
The issue of relocation as well as the relevance of the evidence and the Tribunal’s findings at [44] are apposite to the Tribunal’s findings about the capacity and practicability for the applicant to relocate to a location in his receiving country away from his home area.
At [66] of its decision, the Tribunal applied the correct test in considering the practicality of the applicant relocating to a location in his receiving country away from his home area.
The Tribunal has already made findings in relation to the applicant’s claim regarding his caste and the caste system in India, and in circumstances where the applicant did not raise any particular claim or objection to the reasonableness of relocation in India in relation to his caste, those findings are relevant to considerations regarding the practicability of relocation. There is no error in the way that the Tribunal considered the complementary protection claims and the reasonableness of relocation, as it dealt with any claims made regarding the caste system.
Ground 2
There is no basis for finding that a review hearing under section 425 of the Act may only be conducted by video conference if the applicant consents to that occurring, or that the Tribunal was in error in proceeding with the video hearing when the applicant did not consent to this course. The applicant has pointed to no material prejudice arising from the fact that the hearing proceeded by video.
In SZJTK v Minister for Immigration and Citizenship [2008] FCA 1712 (‘SZJTK’), Reeves J held that section 429A of the Act clearly gives the Tribunal a discretion to allow an applicant’s appearance for the purposes of a review hearing under section 425 of the Act to be undertaken by a video conference facility.
In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 (‘Dhillon’), the Full Court held that the Tribunal is permitted to conduct a hearing by video conference and that even if the conduct of a hearing is not ideal, it may depend on a matter permitted by the discretion given to the Tribunal.
In Dhillon, the Full Court made extensive reference to the decision of the primary judge in the decision subject to appeal, wherein reference was made at [53] of the primary decision (as extracted in [28] of the Full Court decision):
53. As Reeves J observed in SZJTK v Minister for Immigration and Citizenship (2008) FCA 1712 at [24-25]:
“[24] Indeed, s 429A of the Act expressly allows for appearances before the Tribunal to be conducted using such technology. It provides:
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or by any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
[25] As the Federal Magistrate observed, this is an enabling provision. It clearly gives the Tribunal a discretion to allow an applicant’s appearance (for the purposes of a review hearing under s 425 of the Act) to be undertaken by telephone, closed-circuit television (which is probably not the same as a video conference facility), or any other means of communication (which clearly would include a video conference facility).”
The circumstances in Dhillon’s case were that the applicant did not consent to the hearing being conducted by video link. At no point in Dhillon is it suggested that the Tribunal could not proceed to hear the matter by video link in the absence of the applicant’s consent. The Full Court made clear that the Tribunal had a statutory discretion to proceed by way of video link.
There is a body of authority which was referred to by Reeves J in SZJTK for the proposition that the Court had discretion as to how the hearing would be conducted, including whether it be conducted by video.
I also refer decision of Murphy J in SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 (‘SZQCZ’) at [26] to [28] which was an application for an extension of time. One of the issues before the Federal Magistrates Court was a contention by the applicant that the Tribunal hearing was conducted by video link rather than face to face and that, by conducting the hearing by video link, she was denied the opportunity to provide supporting documents in person. At [28] of SZQCZ, Murphy J noted:
[28] The court also noted that the applicant was assisted by an interpreter and was represented in the review by a registered migration agent. In my view, more importantly, it is clear from the decision of the Tribunal that the applicant was able to put forward her case and it is hard to discern any procedural unfairness in the use of a video-conference facility. The Tribunal was entitled to conduct the hearing by video-link pursuant to s 429A(b) of the Migration Act 1958 (Cth) …
Conclusion
For these reasons, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 15 May 2020
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