CFZ19 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1192

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CFZ19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1192

File number:

MLG 1057 of 2024

Judgment of:

JUDGE SYMONS

Date of judgment:

14 November 2024

Catchwords:

MIGRATION – protection visa – application for judicial review of decision of the Administrative Appeals Tribunal – whether Tribunal considered claims and evidence before it – where Tribunal decision rationally supported by evidence - no jurisdictional error – application dismissed with costs

Legislation:

Migration Act 1958 (Cth), ss 36, 56, s 424A

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Division:

Division 2 General Federal Law

Number of paragraphs:

54

Date of last submissions:

11 November 2024

Date of hearing:

11 November 2024

Place:

Melbourne

Solicitor for the Applicant:

The applicant represented himself

Solicitor advocate for the First Respondent:

Ms S Thompson, HWL Ebsworth

Solicitor for the Second Respondent:

The Second Respondent filed a submitting appearance, save as to costs

ORDERS

MLG 1057 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CFZ19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	14 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.The application for judicial review filed on 18 April 2024 be dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $5,600.

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 SYMONS:

INTRODUCTION

1. By way of an application filed on 18 April 2024, the applicant seeks review of a decision of the second respondent (Tribunal) made on 18 March 2024 affirming a decision of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (visa).  The Minister opposes the application on the basis that it has no merit.  I agree with this assessment for reasons that are explained in this judgment.

   BACKGROUND

2. The applicant is a citizen of India who first arrived in Australia on 24 February 2018 as the holder of a Student (subclass 500) visa (student visa).

3. On 13 October 2020, the applicant’s student visa was cancelled as he was not meeting course requirements.

4. Between February 2021 and December 2022, the applicant served a prison sentence for various offences (Court Book (CB) 15 and 27).

5. On 7 December 2022 the applicant, who by this time was being held in immigration detention, participated in a Detention Client Interview (CB 20-29).  During the interview the applicant said that he could not return to India because of his sexuality (CB 28).

6. On 30 April 2023, the applicant made a valid application for the visa (CB 1-19).

7. In his application for the visa, the applicant explained that if he was to return to India, he would be the victim of hate between Hindus and Muslims and that he feared being killed or mistreated by extremist Hindu groups and organisations (CB 14).

8. On 3 May 2023, the Department of Home Affairs sent a request in writing to the applicant made under s 56 of the Migration Act 1958 (Cth) (Act) to provide further information relating to the applicant’s visa application (CB 46-53).  The applicant was invited to provide further information regarding the delay in lodgement of his application (four years after his arrival in Australia), details concerning his claim to fear harm from extremist Hindus, including in circumstances where he had declared in his visa application that he was a Hindu, and identification of any reasons why he would not be able to seek protection from local authorities in India from the harm feared (CB 52).

9. Also on 3 May 2023, the applicant was interviewed via teleconference by a representative of the (then) Department of Immigration and Border Protection to obtain information regarding his application for a Bridging Visa E application (CB 57-63). During this interview, the applicant stated that when he came to Australia he had converted from Hindu to Muslim (CB 59).

10. On 8 May 2023, the applicant responded to the request for further information. In his response, he stated the delay in his application for the visa was due to his imprisonment and drug use, that he had not legally converted to Islam, but no longer believed in Hinduism, and that he feared harm in India due to his conversion of religion (CB 67-68).

11. On 10 May 2023, the applicant was sent an invitation to comment on information provided in in his application for the visa which a delegate of the Minister considered would be the reason, or part of the reason, for refusing to grant the visa (CB 73-76).  The invitation referred again to the applicant’s delay in applying for the visa and contradictions and lack of detail in the applicant’s responses concerning his religion and the reason that he feared harm on return to India. The applicant was provided with three working days to respond to the invitation.

12. On 15 May 2023, the applicant requested an extension of two days to respond to the invitation to comment.  On 16 May 2023, the applicant was granted a further two days to provide a response (CB 81-82).

13. On 18 May 2023, the applicant sent an email in response to the request for information (CB 83).

14. On 29 May 2023, a delegate of the Minister made a decision to refuse the application for the visa (CB 85-97).

15. On 7 June 2023, the applicant applied for review of the delegate’s decision with the (former) Administrative Appeals Tribunal (Tribunal) (CB 104-111).

16. On 10 July 2023, the Tribunal determined that it did not have jurisdiction in the applicant’s review application because the application had been made outside of the time prescribed by legislation (CB 125-127).

17. The applicant sought judicial review of the decision on jurisdiction and on 17 January 2024 Judge Blake made orders by consent remitting the application for review to the Tribunal (CB 133-134).

18. On 4 March 2024, the applicant was invited to attend a hearing on 13 March 2024 before a differently constituted Tribunal (CB 138-142).

19. On 12 March 2024, the applicant sent the Tribunal an email with links to four newspaper articles (CB 159).

20. On 13 March 2024, the applicant attended the Tribunal hearing and gave evidence with the assistance of an interpreter in the English and Hindi languages (CB 163-165).

    DECISION OF THE TRIBUNAL

21. On 18 March 2024, the Tribunal affirmed the decision of the delegate to refuse the applicant the visa and produced a written statement of decision and reasons (Reasons) (CB 169-191).

22. After identifying the relevant protection visa criteria as set out in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) and its obligations under Ministerial Direction No.84, the Tribunal determined that it was satisfied that it had jurisdiction to review the decision of the delegate.

23. The Tribunal identified the claims and evidence that was before the delegate (Reasons, [16]-[21]), and the further information it had obtained through the review process (Reasons, [22]-[34]). In this last category, the Tribunal recorded the applicant’s evidence and responses given at hearing which included:

    (a)When asked by the Tribunal what fears he had of returning to India, the applicant gave evidence the only harm he fears is that related to his religious beliefs. The applicant confirmed that he identified as a heterosexual person of male gender and does not have any fears of harm in India for reason of his sexual orientation (Reasons, [29]).

    (b)The applicant gave evidence that he had attended a mosque in Australia, that he owns a copy of the Quran in the English language, but that he has not formally converted to Islam. The applicant said that while he was in prison he attended Muslim prayers with other prisoners, but since he had been in immigration detention he had not done so or sought to practice Islam in other ways (Reasons, [31]).

    (c)When asked if anything had happened in India to cause him to fear harm the applicant stated that in December 2022, a day or so after he was released from prison and transferred to immigration detention, a group of people carrying sticks attended his family home in India looking for him.  The applicant stated that he believed these people were from one of the extremist Hindu organisations and were looking for him because they wanted to harm him as they had heard that he had converted to Islam.  He stated that his brother reported this to police and a First Information Report (FIR) was prepared (Reasons, [33]).

24. The Tribunal set out in some detail country information taken from the Department of Foreign Affairs and Trade Country Information Report for India published on 29 September 2023 on the topics of religion, conversion and anti-conversion laws, Islam and atheism (Reasons, [35]-[56]).

25. The Tribunal then turned to a consideration of the applicant’s claims and evidence.

26. The Tribunal found the applicant’s claim to fear harm in India for reason of his actual or imputed Muslim religion was not credible.  The Tribunal had various concerns with the applicant’s evidence and characterised it overall as “unconvincing and lacking in meaningful detail and not otherwise consistent with what would reasonably be expected from a person in his claimed circumstances” (Reasons, [63]). The Tribunal identified the following specific concerns:

    (a)The Tribunal gave adverse weight to the fact that during an interview on 7 December 2022, the applicant had stated he could not return to India because of his sexuality and did not mention anything about his religion or perceived religion. This was despite the fact that this interview had occurred shortly after the applicant claimed he was informed by his brother in India that a group of people of Hindu appearance had come to their house looking for him, and that this related to his religion (Reasons, [65]). The Tribunal did not consider it reasonably plausible that the applicant would have withheld information about this event from the Departmental officer if that event had occurred as claimed. The Tribunal also had concerns about the inherent implausibility of the claim which the applicant was not able to address to the satisfaction of the Tribunal (Reasons, [72]).

    (b)At the Tribunal hearing the applicant gave clear evidence that he only ever attended one mosque in Melbourne and it was the one opposite the Thomastown Train Station near Lalor. The applicant confirmed this evidence later in the hearing. When it was put to the applicant that before the Department he had claimed to have attended a mosque in Deer Park on a few occasions, the applicant responded that he had gone to this mosque but that was when he was on drugs (Reasons, [66]).

    (c)The applicant provided no explanation for inconsistencies and discrepancies in his evidence about his communications with his brother, including around the claim that his brother had reported that people with sticks were looking for him at around the time of the applicant’s release from prison (Reasons, [67]).

    (d)The applicant gave inconsistent evidence about the extent of his family’s knowledge about his interest in and involvement with Islam (Reasons, [69]).

27. The Tribunal noted that it had sought evidence from the applicant regarding his knowledge of Islam and practice and had given this evidence some weight. However, the Tribunal considered that some of the applicant’s evidence was not reasonably consistent with someone who had a genuine commitment or interest in Islam. The Tribunal came to this conclusion despite being cognisant of limits in the applicant’s personal life that might have inhibited his ability to understand or practice Islam (Reasons, [70]).

28. As examples of its concerns, the Tribunal noted that the applicant had been unable to tell it when Ramadan was that year, despite it having started two days before the Tribunal hearing. The applicant was also unable to describe the differences between the Sunni and Shia doctrines, or if he associated with one of them (Reasons, [71]). The Tribunal did not consider it reasonably plausible that a person in the applicant’s circumstances would choose not to practice or at least observe some aspects of the religion, including in private, if they were committed to the religion in any way (Reasons, [75]). Furthermore, the Tribunal was concerned that it had taken the applicant more than two years to lodge a protection visa application after his last substantive visa ceased (Reasons, [75]).

29. The Tribunal’s concerns coalesced in the following findings at Reasons, [76]:

    (a)The applicant has previously held an interest in Islam and while serving his term of imprisonment between 2021 and 2022, on some occasions he participated in Muslim prayers with other prisoners.  The applicant has not otherwise practiced Islam or engaged in any other conduct relevant to that religion since that time.

    (b)The applicant’s interest in Islam ceased on or around the time that he was released from prison and transferred to immigration detention.  The applicant does not presently have an interest in Islam and would not reacquire an interest now or in the reasonably foreseeable future irrespective of whether he is residing in Australia or India.

    (c)The applicant has never been perceived by any people or groups in India to be a Muslim, a person who practices Islam or a person who is in any way affiliated with Islam, and that would continue for the reasonably foreseeable future.

    (d)On return to India, the applicant would not modify his behaviour in any way in respect of Islam, now or in the reasonably foreseeable future.

30. The Tribunal found that there was not a real chance, or alternatively a real risk, that the applicant would suffer any harm on return to India for reason of his actual or imputed Muslim religion, nor or in the reasonably foreseeable future, or as a necessary and foreseeable consequence of his removal to India (Reasons, [77]).

31. The Tribunal also recorded that it had sought evidence from the applicant at hearing as to whether he had any fears of harm in India for reason of him not being a practicing Hindu. The applicant told the Tribunal that while his family was aware that he had ceased performing any Hindu rituals or worshipping in Australia, his fears were directed at his Muslim religion (Reasons, [78]).

32. The Tribunal accepted that the applicant did not currently practice Hinduism and that he and his family were of Brahmin caste, the highest caste.  The Tribunal also accepted that the applicant would not practice Hinduism on return to India and that his family might not be pleased with this.  The Tribunal accepted that the applicant would be generally expected by members of his community to observe the Hindu religion on return.

33. However, on the material before it, which included the applicant’s evidence and country information, the Tribunal was not satisfied there was a real chance, or alternatively a real risk, that the applicant would suffer harm on return to India for any reason relating to his non-practice of Hinduism, now or in the reasonably foreseeable future, or as a necessary and foreseeable consequence of his removal to India (Reasons, [81]).

34. In the absence of any other claims to fear harm on return to India, the Tribunal found that the applicant did not satisfy the criterion in s 36(2) of the Act and affirmed the decision of the delegate not to grant the applicant the visa (Reasons, [82]-[87]).

    APPLICATION FOR JUDICIAL REVIEW

    Grounds of application

35. On 18 April 2024, the applicant filed his application seeking judicial review of the decision of the Tribunal.   Under the heading “Grounds of application”, the application states:

    1.   Page 2 - Points 8, 9, 10

    2.   Page 3 – Point 13

36. Under the heading “Expedited hearing” the application records:

    The decision made by AAT member was not fair and AAT member has ignored few facts, I believe the Federal Court will make fair decision.

    Hearing on 11 November 2024

37. On 11 November 2024 the application was listed before me for final hearing.  On this date, the applicant appeared and represented himself.  He received assistance from an interpreter in the Hindu and English languages.  The applicant confirmed that he had with him a copy of the court book (including the decision of the Tribunal), his application seeking judicial review, and the Minister’s written submissions that had been filed on 28 October 2024.  The applicant did not file any material ahead of the hearing, despite orders requiring this to occur having been made on 9 July 2024.

38. I explained to the applicant that my role on judicial review was limited to a consideration of the decision and process undertaken by the Tribunal and that this involved an inquiry into whether the decision or process was affected by one or more category of jurisdictional error.  I noted that jurisdictional error can include the denial to an applicant of an opportunity to present their case or material, a failure to consider relevant material, taking into account irrelevant material or a misunderstanding or misapplication of relevant law.  I suggested to the applicant that his attention should be directed to the decision of the Tribunal rather than repeating his claims for protection.

    Consideration of matters raised by the applicant

39. After taking the applicant to his application document, I asked the applicant to tell the Court why he had identified points (or paragraphs) 8, 9, 10 and 13 of the Tribunal decision as significant and/or revealing error in the Tribunal decision.  The applicant was given the opportunity to read these paragraphs before providing his response.

40. As far as paragraphs 8, 9 and 10 are concerned, they read:

    8.   A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

    9.   Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

    10. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

1. The applicant did not wish to say anything about paragraphs 8 or 9.  As far as paragraph 10 was concerned, he told the Court that the Minister will use his discretion if a person is at real risk of significant harm.  The applicant did not elaborate further.

2. The applicant told the Court that his reference to point (paragraph) 13 in the application document was a “mistake” and as a result, he did not make any submissions concerning its application to his case.

3. I invited the applicant to tell the Court if there was anything else he wished to say about how the Tribunal had made an error in his case.  The applicant did not provide a response initially.  When I extended the applicant the same opportunity after hearing from the Minister’s lawyer, Ms Thompson, the applicant raised matters going to the merits of his protection claim but made the comment also that he had provided articles to the Tribunal in support of his claims.

4. Ms Thompson submitted that the matters raised by the applicant did not expose jurisdictional error in the decision of the Tribunal.  As far as the applicant’s reference to paragraph 10 of the Reasons was concerned, the Minister submitted that the Tribunal had made findings based on the evidence before it and there was no error in its conclusion that the applicant would not face a risk of relevant harm if removed from Australia to India.  Ms Thompson submitted that to the extent that the applicant should be understood as inviting the Court to make its own assessment of risk, this would involve an invitation to undertake impermissible merits review, contrary to established principle.

5. The Minister submitted that the Tribunal had referred in two places in the Reasons to the articles provided by the applicant in his email sent on the eve of the hearing (refer CB 159).  The first reference was at Reasons, [24], where the Tribunal said:

   In the morning of 13 March 2024, prior to the hearing, the Tribunal received email correspondence from the applicant requesting the Tribunal have regard to three online media publications and one publication by the Council on Foreign Relations (CFR), each concerning the targeting of people of Muslim religion in India.

6. The second reference occurred at Reasons, [57], where the Tribunal noted that in the consideration of the applicant’s claims, it had regard to all material before it, including country information provided by the applicant.

7. The Minister submitted that there was otherwise nothing in the approach adopted by the Tribunal that demonstrated error. The applicant had not explained – apart from the mention of the articles – what facts had been ignored by the Tribunal or how the Tribunal decision was unfair. The Minister submitted that the Tribunal had complied with each of its procedural fairness obligations under Division 4, Part 7 of the Act when it invited the applicant to attend a hearing and, in that forum, identified the issues arising in relation to the decision under review. The Minister submitted that in circumstances where the dispositive information relied upon by the Tribunal consisted of the applicant’s own evidence and responses and country information, the Tribunal was relieved of the obligation under s 424A(1) of the Act to give the applicant particulars of this information and to provide him with an opportunity to respond.

8. I agree with this analysis.  Mindful of the applicant’s self-represented status I have closely reviewed the decision of the Tribunal but am unable to identify jurisdictional error.

9. The decision of the Tribunal involved a careful evaluation of the claims made by the applicant, including as they evolved over the course of the application and subsequent review. 

10. The Tribunal dismissed the applicant’s principal claim to fear harm based on his interest in and practice of Islam for reasons that were rationally based and supported by the evidence, much of which had been supplied by the applicant.  Although the Tribunal did include an extensive account of country information in the Reasons, the applicant’s claim was rejected because the Tribunal simply did not accept that his level of interest in Islam would translate to harm of the kind that would engage Australia’s protection obligations.  In this respect, although the Tribunal can be understood to have considered the country information provided by the applicant on the topic of the targeting of people of Muslim religion in India, the country information did not assume dispositive significance.

11. While I do not have before me a transcript of the Tribunal hearing, I am reassured by the fact that the hearing went for a period of approximately three hours and because the Reasons record multiple instances where the Tribunal “put” adverse matters to the applicant for comment, that the applicant was on notice as to the issues that troubled the Tribunal and had an adequate opportunity to address them.

12. For completeness I note that while the applicant did not press his reliance on paragraph 13 of the Reasons, this paragraph was one of a number appearing under the heading “Jurisdiction” and set out part of the reasoning adopted by the Tribunal for its determination that the application for review lodged by the applicant was valid and the Tribunal had jurisdiction to conduct a review of the delegate’s decision.  This finding was of course favourable to the applicant.

    ORDERS

13. In circumstances where the applicant has failed to demonstrate jurisdictional error in the decision of the Tribunal, I will order that the application for judicial review filed on 18 April 2024 be dismissed.

14. I will further order, the applicant pay the Minister’s costs in the fixed amount of $5,600, which amount is less than the amount currently prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration proceeding concluded at a final hearing.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

Associate:

Dated:       14 November 2024