CGN17 v Minister for Immigration
[2019] FCCA 2931
•23 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGN17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2931 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visas – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.438 |
| Cases cited: Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 |
| Applicant: | CGN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1105 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 7 September 2018 and 17 September 2019 |
| Date of Last Submission: | 17 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 October 2019 |
REPRESENTATION
| Advocate for the applicants: | In person |
| Solicitors for the applicants: | None |
| Counsel for the respondents: | Mr McDermott |
| Solicitors for the respondents: | None |
ORDERS
The applicants’ application filed 26 May 2017 be dismissed.
The applicants pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1105 of 2017
| CGN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse the applicants protection visas.
The matter first came before me on 7 September 2018. At that time, argument was heard regarding the applicants’ grounds of review as contained in the application filed 26 May 2017.
The application was adjourned part heard on that day, pending the hearing and determination by the High Court of Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 (“SZMTA”).
The High Court handed down its decision in SZMTA on 3 February 2019 and this matter was subsequently relisted before me on 17 September 2019.
Background
There is a long history to this matter.
The first applicant and the second applicant are wife and husband respectively. The third applicant is their child.
The first applicant initially applied for a Class UX, Sublass 495 Skilled Independent Regional (Provisional) visa on 3 January 2006 which was refused on 21 December 2006. The first applicant then arrived in Australia on 20 November 2009 as a dependent spouse on her husband’s Class TU, subclass 572 Vocational Education and Training (Student) visa (“the first applicant’s visa”).[1]
[1] Court book page 152.
The second applicant applied for a Class TU, subclass 572 Vocational Educational and Training (Student) visa (“the second applicant’s visa”) on 20 September 2008 which was granted in November 2008. He arrived in Australia on 21 January 2009.
The third applicant was born on 15 February 2008[2] and arrived in Australia on 20 November 2009, also as a dependant on the first applicant’s visa.
[2] Court book page 94.
The second applicant’s visa was cancelled in December 2009 as he was found to have breached the 20 hour per week work limitation.
The applicants applied for protection visas on 31 October 2011. The first applicant's claims for protection are set out in the responses to her application.[3] The claims of the second and third applicants are dependent upon the first applicant's claims to engage Australia's protection obligations.
[3] Court book pages 85 to 88.
On 23 January 2012, a delegate of the Minister refused to grant the applicants protection visas.[4]
[4] Court book pages 149 to 151.
On 23 January 2012, pursuant to s 438(1)(b) of the Migration Act 1958 (Cth) (“the Act”), a delegate of the Minister notified the (then) Refugee Review Tribunal that certain folios on the departmental file (CLF 2011/184679) concerning the applicants[5]:
a) “should not be disclosed to the applicant or the applicant's representative because they contain information affecting the personal privacy of third parties”[6]; and
b)could have adverse consequences for another individual.[7]
[5] Specifically folios 48 to 56, and folios 63 to 64.
[6] Court book page 161.
[7] Court book page 161.
The documents at folios 48 to 56 and folios 63 to 64 are annexed to the affidavit of Lachlan John Bongers affirmed 24 August 2018 at Annexures ‘LJB-3’ and ‘LJB-4’ respectively. The Minister made no claim of public interest immunity or privilege, and does not otherwise seek orders for confidentiality, in relation to the documents comprising Annexures ‘LJB-3’ and ‘LJB-4’ respectively.[8]
[8] Affidavit of Lachlan John Bongers affirmed and filed 24 August 2018 at paragraph [13].
Also on 23 January 2012, pursuant to s 438(1)(a) of the Act, a delegate of the Minister certified that certain folios on the departmental file (CLF 2011/184679) should not be disclosed as this “would be contrary to the public interest because it contains internal working documents”.[9] The documents entitled ‘folios 57 – 62’ are annexed to the affidavit of Lachlan John Bongers affirmed 24 August 2018 at Annexure ‘LJB-6’, and again the Minister made no claim of public interest immunity, or privilege, and does not otherwise seek orders for confidentiality, in relation to the documents comprising Annexure ‘LJB-6’.[10]
[9] Court book page 162.
[10] Affidavit of Lachlan John Bongers affirmed and filed 24 August 2018 at paragraph [13].
The applicants subsequently sought a review of the delegate's decision to the (then) Refugee Review Tribunal on 9 February 2012.
On 1 May 2012, the (then) Refugee Review Tribunal (as initially constituted) affirmed the Minister's decision (“the first tribunal decision”).
On 23 January 2014, his Honour Judge Riethmuller of this Court set aside the first tribunal decision on the basis that his Honour was satisfied that an allegation of apprehended bias was made out.[11] The claim was remitted to the Tribunal for reconsideration according to law.
[11] MZZYF & Ors v Minister for Immigration & Anor [2014] FCCA 75 at [35].
On 11 June 2014, the (then) Refugee Review Tribunal (differently constituted) again affirmed the Minister's decision (“the second tribunal decision”).[12]
[12] Court book pages 327 to 382.
The applicant sought judicial review of the second tribunal decision and on 19 February 2016, her Honour Judge Jones of this Court set aside the second decision of the tribunal on the basis that she was satisfied that the second tribunal had unreasonably refused the applicants an adjournment of a hearing before it.[13] Her Honour again remitted the applicant’s application to the tribunal to be reconsidered according to law.[14]
[13] MZAHC & Ors v Minister for Immigration & Anor [2016] FCCA 340 at [74].
[14] Court book page 414.
The applicants were invited to attend a hearing before the tribunal, again differently constituted and did so on 8 September 2016.[15] The applicants were given additional time after this interview to provide further documents in support of their claim.
[15] Court book pages 474 to 485: It is to be noted that the first and second applicants had, by this time had another child who also attended the interview.
By letter dated 14 December 2016, the applicants were invited to a further hearing in relation to their claims to be held on 6 February 2017.[16] Both the first and second applicants appeared at that hearing to give evidence and present arguments.[17] The applicants provided further documentary information in support of their claims following this hearing.[18]
[16] Court book page 530.
[17] Court book pages 540 to 542.
[18] Court book pages 544 to 586.
On 8 May 2017, the tribunal affirmed the Minister's decision (“third tribunal decision”).[19]
[19] Court book pages 592 to 607.
This application for judicial review before me relates to the third tribunal decision.
Tribunal decisions
The tribunal set out the first applicant's claims at paragraphs [25] to [31] of its decision. In doing so, the tribunal referred to the first applicant’s claims set out in her protection visa application form. In summary, the first applicant claimed to fear persecution as a result of her mother's high profile as a prominent member and leader of the Telangana Rashtra Samithi (“TRS”), the aims of which are to secure independence and regional autonomy for the Telangana region.[20] Because of this affiliation, she claimed that her family had been subjected to harm by different political factions within Provincial and Federal Governments in Telangana. Moreover, the first applicant claimed that State Protection would be denied to them because of this association. The applicants also feared harm from a gangster, N, and his extensive criminal network.
[20] Court book page 85.
The tribunal noted that the applicants had attended a hearing to give evidence and present arguments,[21] where the first applicant:
confirmed that since her initial application, Telangana has become a new State in India, and her mother has been elected to the Telangana Legislative Assembly and continues to sever (sic) in that position. The applicant told the Tribunal that despite the success of her mother’s political party, which is now the ruling party in Telangana, her mother is still regularly threatened in her home village, and the applicant continues to fear her family will be harmed if they return to India for this reason.[22]
[21] Court book page 598 at paragraph [33].
[22] Court book page 598 at paragraph [34].
The Tribunal further noted:
a)it had been notified that the first applicant’s mother had been put in protective custody under the Criminal Procedure Code, she was part of a group of protesters who had been agitating for the division of the two States and that she, together with the other protesters, were arrested and then released some five or six hours later;[23]
b)they were subsequently advised that there were “no pending cases and after Telangana was declared a separate state there has been no unrest of any kind.”[24]
c)at the second hearing on 8 February 2017, the applicants were asked about:
i)their fears of returning to India;
ii)the information provided by them about the fact that the ‘gangster’ mentioned in the first applicant’s initial application had been killed; and
iii)the reasonableness of relocating to a place away from the first applicant’s mother’s village.[25]
[23] Court book page 599 at paragraph [39].
[24] Court book page 599 at paragraph [39].
[25] Court book page 599 at paragraph [42].
The tribunal also recorded that the applicants were given a further opportunity to submit any further country information in support of their application.
The tribunal’s findings and reasons in relation to the applicants’ refugee claims are then set out at paragraphs [46] to [103] of its decision record.
The tribunal noted that although circumstances had changed significantly since the applicants first came to Australia, they maintained that they still had a fear of persecution.[26]
[26] Court book page 600 at paragraph [46].
The tribunal accepted that the first applicant's mother was and is a prominent member of TRS, and that she, and her family (including the applicants), had been threatened and harassed, before Telangana became a separate State in 2014.[27] The tribunal also accepted the level of prominence of the first applicant's mother within political circles.[28]
[27] Court book page 600 at paragraphs [49] to [50].
[28] Court book page 600 at paragraphs [51] to [52].
The tribunal further noted that:
a)the circumstances in relation to her mother’s activities has changed significantly since the applicants first lodged their application;[29] and
b)the applicants claimed that the first applicant’s mother continued to be threatened and harassed in her home village and that the gangster known as N (and his followers) were behind this continued harassment of the first applicant’s mother and her family.[30]
[29] Court book page 600 at paragraph [53].
[30] Court book page 601 at paragraph [54].
The tribunal concluded that given the changed circumstances in Telangana, there was less than a remote chance that the applicants would be threatened or harmed or suffer serious harm based on the political tensions arising from the Telangana Separatist Movement.[31]
[31] Court book pages 601 to 602 at paragraphs [55] and [67].
After having noted that the applicants were no longer pressing a claim to fear harm on the basis of their caste at paragraph [56] of its reasons, the tribunal concluded that it was not satisfied in any event that there was a real chance that the applicants would suffer serious harm on the basis of being from a lower/scheduled caste if they were to return to India.[32]
[32] Court book page 601 at paragraph [57].
The tribunal then went on to consider the experience of the applicants arising from their fear of the gangster, N, and his extensive criminal network. The tribunal noted that the media reports provided by the applicants indicated that N had been shot and killed by police in 2016 and that many of his associates had been arrested and his network dismantled.[33]
[33] Court book page 601 at paragraph [59].
The tribunal considered the position of the first applicant’s siblings who remain living and working in India.
The tribunal accepted that:
a)given the first applicant’s mother’s prominent role in TRS, she and her family, including the first applicant were threatened and harassed;
b)the first applicant’s mother was arrested and detained by the police before the establishment of the separate state of Telangana in 2014;
c)the second applicant's father's farm had been burnt down in 2008;
d)the applicants had experienced threats over many years based on the first applicant's mother's political profile, particularly concerning kidnap threats directed to the third applicant in 2008 and 2009;[34]
e)the first applicant’s mother continued to be threatened and harassed in her home village after being elected to office; and
f)the first applicant's siblings had experienced minor incidents when they returned to their mother's village.[35]
[34] Court book page 602 at paragraph [66].
[35] Court book page 602 at paragraph [68].
Based on information presented to it, the tribunal concluded that the gangster, N, had been killed in August 2016, and the police arrested many members of N's criminal network.[36] The tribunal relevantly found:
[70]While the Tribunal has considerable doubts that the remnants of [N's] network would be interested and able to pursue the [applicants] if they returned to India, the Tribunal also accepts the applicants’ oral evidence that the [first applicant's] mother continues to be harassed and threatened about holding meetings in her home village, and that the [first applicant's] siblings have experience (sic) minor incidents when visiting their mother's village.
[71]Therefore, and not without some doubt, the Tribunal accepts there is a real chance the applicants would be threatened and harassed and possibly suffer serious harm, if they returned to the [first applicant's] village in India, from local remnants of [N's] network, due to the [first applicant's] mother's political opinion.[37]
[36] Court book page 602 at paragraph [69].
[37] Court book page 602 at paragraphs [70] to [71], see also paragraph [95] of the decision record.
The tribunal then went on to consider whether it was possible for the applicants to relocate within India away from the first applicant’s mother’s village and whether, if they did, the applicants would face a real chance of serious harm.[38] The issue of potential relocation was raised with the applicants in the course of the hearing on 6 February 2017. It was suggested that the applicants could relocate to New Delhi, Chennai or Mumbai, all large cities outside of the State of Telangana and far from the first applicant’s mother’s village.[39]
[38] Court book pages 603 to 605 at paragraphs [72] to [103].
[39] Court book page 603 at paragraphs [75] and [82].
The tribunal considered the applicant’s response that although the gangster was now dead, his followers had relocated to other states and would continue to seek the applicants out.[40]
[40] Court book pages 603 to 604 at paragraphs [76] to [79], [90].
The tribunal also had regard to the following:
a)the first applicant’s mother continued living in her village;
b)that her brother continued living in Hyderabad and her sister resided some 60 to 70 kilometres away from her mother’s village; and
c)that the first applicant’s siblings had not been targeted since being away from their mother’s village.[41]
[41] Court book page 603 at paragraph [80].
In response to the questions about possible relocation within India, the first applicant said that following the attack soon after her son was born, it took the applicants a lot of courage to move to Australia and they did not wish to return[42] and that she fears harm to her son if she returns.[43]
[42] Court book pages 603 to 604 at paragraphs [83] to [84].
[43] Court book page 604 at paragraphs [87] and [92].
The tribunal also considered the first and second applicant’s evidence as to their respective educational qualifications and work experience.[44]
[44] Court book page 604 at paragraphs [88] and [94].
After considering this evidence, the tribunal:
a)ultimately accepted that “there continues to be a real chance the applicants would be threatened and harassed and possibly suffer serious harm, if they returned to the applicant’s mother’s village in India, due to the applicant’s mother’s political opinion and activity in her village”;[45]
b)did not accept that the remnants of N's network and associates were everywhere throughout India, or would continue to operate in a coordinated manner to find and harm the applicants;[46]
c)concluded that no one was looking for the applicants in India outside of the first applicant's mother's village in any event so any risk to the applicants was localised to the first applicant’s mother’s village; moreover, any such risk was opportunistic not “co-ordinated, …planned and far reaching”;[47]
d)was satisfied that, having regard to the first and second applicant's qualifications, work experience and language skills, the first and second applicant could return to India and reasonably relocate away from the first applicant’s mother’s village to somewhere such as New Delhi or Chennai or Mumbai.[48]
[45] Court book page 604 at paragraph [95].
[46] Court book page 604 at paragraphs [96] to [97].
[47] Court book page 605 at paragraph [98].
[48] Court book page 605 at paragraphs [99] to [101].
The tribunal therefore concluded that the applicants did not satisfy the criteria in section 36(2)(a) of the Act.[49]
[49] Court book page 605 at paragraphs [102] to [103].
The tribunal then considered whether the applicants were eligible for protection visas under the complementary protection criteria in section 36(2)(aa) of the Act.
For the same reasons as those set out above, the tribunal concluded that the applicants would face a real risk of being threatened and harassed and might possibly suffer significant harm if they returned to the first applicant's mother's village in India from the local remnants of N's network due to the first applicant's mother's political opinion.[50] However, the tribunal similarly concluded that the applicants would not face a real risk of significant harm if they were to relocate away from the identified risk of harm in the first applicant's mother's village.[51] The tribunal concluded that the significant risk was deemed not to be a real risk in accordance with section 36(2B)(a) of the Act.[52]
[50] Court book page 605 at paragraphs [105] to [110].
[51] Court book page 606 at paragraph [113].
[52] Court book page 606 at paragraph [114].
The tribunal concluded that the applicants did not satisfy the criterion in section 36(2)(aa)[53], and therefore affirmed the Minister's decision.[54]
[53] Court book pages 606 to 607 at paragraphs [115] to [118].
[54] Court book page 607 at paragraph [119].
Ground one
The first ground of the applicant’s application filed 26 May 2017 is as follows:
The decision of the Tribunal is affected by jurisdictional error, as it failed to comply with section 414 of the Migration Act 1958.
Particulars
a.The Tribunal failed to assess the applicant's claims for protection on the basis of membership of Telangana Rashtra Samithi and/or political opinion.
b.Although accepting the applicant and her family members in Andhra Pradesh, India are being threatened, harassed, kidnap threats, applicant’s father’s farm was burnt, applicant’s mother was arrested and detained, harm to the applicant’s child in 2008 and 2009 the Tribunal refused to grant the applicant’s Protection visa.
When the matter initially came on for hearing before this court, the applicants were invited to make further submissions in support of their application. As the applicants were representing themselves, not surprisingly, and without in any way being disrespectful to them, their submissions did not significantly expand upon the grounds and particulars set out in their application.
When asked whether there was anything the first applicant wished to say in relation to ground one, the first applicant responded:
…the Tribunal member has mentioned that, your Honour, ‘If you have problems or issues at your location then you can relocate in India and live somewhere else’. …But if I want to relocate the mafia would attack me, and the security. There is no security even for the Prime Minister and for normal people like us, well, how can we have the security?[55]
[55] Transcript page 3 at lines 39 to 43.
The first applicant also said that by the tribunal accepting that there is harm to the applicants, the applicants cannot return to India. Moreover, the first applicant went on to say, “there is no safety for me, genuinely. There is an underground network of mafia, so they can chase me easily, even if I do relocate.”[56]
[56] Transcript page 5 at lines 1 to 2.
When invited to make any submissions he wished to make, the second applicant repeated some of the claims made in his protection visa application. In particular, he made reference to the fact that his father’s land was burnt, that although the gangster himself has been killed, he has a diary which contains the names of the applicant’s family and therefore they continue to be at risk.
After I explained to the second applicant the role of this court with respect to a judicial review application and the fact that it is not the court’s role to re-determine the merits of the applicants’ application but rather to determine whether there has been a jurisdictional error in the tribunal’s decision making, the second applicant referred to paragraph [71] of the tribunal’s decision record and said:
I am not agreeing with this one, your Honour, which is they’re accepting at the same time – they’re accepting and saying again, that if they go back there won’t be any harm for them.[57]
[57] Transcript page 6 at lines 35 to 37.
In response, it was submitted on behalf of the Minister that ground one, like the other grounds of review in this application, does little more than seek impermissible merits review.
Specifically, it was submitted on behalf of the Minister that the applicant’s claims in relation to ground one were comprehensively considered and dismissed. It was submitted that in doing so, the tribunal performed its statutory task lawfully.
Allsop CJ addressed the relevant principles which are required by the Tribunal to ‘consider’ an applicant’s claims at [9] – [12] of BOZ16 v Minister for Immigration and Border Protection & Anor [2018] FCA 418. I do not intend to repeat those comments but have had regard to them in dealing with this application.
It is clear from a fair reading of the tribunal’s decision that:
a)the tribunal understood the applicant’s claims, considered them in detail, and found that the circumstances in Telangana had significantly changed since the applicants had initially left India; and
b)in light of those changed circumstances, and in particular, the acceptance and establishment of the State of Telangana, it concluded that there was:
less than a remote chance that the applicants will be threatened or harmed or suffer serious harm from local government, local administration, intelligence people, State police and local police, members of the Congress Party and State and Federal Governments, in an attempt to supress political agitation for a separate State of Telegana, if they return to India.[58]
[58] Court book page 601 at paragraph [55].
The findings made by the tribunal as outlined above were reasonably open to it on the basis of the evidence and therefore does not disclose any jurisdictional error. In effect, this ground does little more than seek to take issue with the conclusion reached by the tribunal and amounts to impermissible merits review.
For each of these reasons, ground one is not made out.
Ground two
Ground two of the applicant’s application filed 26 May 2017 is as follows:
In the alternative to ground 1 above, if the Tribunal considered the applicant’s claim for protection based on membership of TRS or political opinion (for a separate Telangana State) the Tribunal misconstrued and misapplied s 91R(1) of the Act.
Particulars
a.Although accepting the applicant’s mother was put to protective custody in India (paragraph 38 to 40 of the AAT decision), that the police documents submitted by the applicants are genuine and that the gangster by the name of ‘Nayeem’ and his criminal networks are after the applicant and her family, the Tribunal then went on to decide at paragraph 55 of the decision that ‘… there is less than a remote chance that the applicants will be threatened or harmed or suffer serious harm from local government …’ without referring to any evidence and the basis on which the findings of fact are based. Applying Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, the Tribunal is required in a written statement to set out (inter alia) the reasons for the decision, the findings on any material questions of fact, and to refer to the evidence or any other material on which the findings of fact are based.
b.The Tribunal although accepting the applicants will suffer serious harm (paragraph 71) if they returned to the Telangana State, at paragraph 98 in contradiction of the findings at paragraph 71 decided that the Tribunal does not accept there is anyone in India looking for the applicants and any real chance of serious harm is only localised again without any findings or evidence on which the findings are based. (emphasis in original)
Without in any way being critical of them, I note that at the hearing, when invited to do so, the applicants did not expand upon this ground beyond what was said above.
On the basis of the application and particulars attached to this ground however, it would seem that the applicants take issue with the conclusions reached by the tribunal again at paragraph [55] of its reasons.
A fair reading of the tribunal’s reasons support a finding that its conclusions were reasonably open to it. The tribunal accepted that the applicants suffered some harm in 2008 and 2009 by virtue of the first applicant’s mother’s political activities in pursuing recognition for the Telangana State. It also accepted that notwithstanding the establishment of a separate state, there was a real chance that the applicants would be threatened and harassed and possibly suffer serious harm if they were to return to the first applicant’s mother’s village. In reaching this conclusion however, the tribunal did express some doubt, but proceeded to make this finding in any event.
However, the tribunal also concluded that the risks arising from the first applicant’s mother’s political activity was localised to the mother’s village. Moreover, to the extent that the applicants claimed to fear harm from the gangster, the tribunal did not accept that this risk continued once the gangster was killed by police and his network became the subject of police action.
The tribunal also had regard to the applicant’s qualifications and work history.
On the basis of all of this evidence, the tribunal concluded that the applicants could relocate away from the locations in which they might face any risk of harm, to New Delhi, Chennai or Mumbai, for example.
These conclusions were reasonably open to the tribunal and do not disclose any jurisdictional error.
The tribunal’s reasons clearly set out the basis upon which the conclusions reached were made. They do not demonstrate any inconsistency.
For each of these reasons, ground two is not made out.
Ground three
Ground three of the applicant’s application filed 26 May 2017 is as follows:
The decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal misconstrued or misapplied ss5 and 36(2)(aa).
Particulars
a.At paragraph 68 (AAT decision) the Tribunal accepts the applicant’s mother continued to be threated and harassed.
b.At paragraph 71 the Tribunal accepts there is a real chance the applicants would be threatened and harassed and possibly suffer serious harm if they returned to the applicant’s mother’s village in India from the local remnants of Nayeem’s network due to the applicant’s mother’s political opinion.
c.The Tribunal although accepts there are some grounds which meets the criteria in s36(2)(aa) as necessary and foreseeable consequence of being removed from Australia to India failed to consider there is a real risk that the applicants will suffer significant harm.
Having regard to the oral submissions made, it appears that this ground also asserts that having concluded that:
a)the first applicant’s mother continued to be harassed and threatened;
b)that there is a real chance that the applicants would continue to be threatened and harassed by the gangster’s network if they were to return to the first applicant’s mother’s village;
it was then inconsistent for the tribunal to have found that the criteria in section 36(2)(aa) of the Act were not met.
Whilst the tribunal at paragraphs [68] and [71] did reach the conclusions referred to above, these conclusions related to the risk of harm faced by the applicants if they were to return to the first applicant’s mother’s village. As noted above, the tribunal went on to consider the possibility of relocation. The question of relocation was put to the applicants and their responses were subsequently considered.
Section 36(2)(aa) of the Act relevantly provides:
A criterion for a protection visa is that the applicant for the visa is:
(a)…
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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;
In this case, the tribunal relied upon its factual findings in respect of section 36(2)(a). This was open to the tribunal on the basis of its factual findings, which are summarised at paragraphs [105] to [110] of its decision.
The tribunal went on to consider section 36(2B) of the Act which provides:
… there is taken not to be a real risk that a non-citizen will suffer harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm …
In this case, it was open on the evidence for the Tribunal to conclude, as it did, that the risk to the applicants was localised to the first applicant’s mother’s village and, in all of the circumstances, it would be reasonable for the applicants to relocate to another part of the country where there would not be such a real risk of significant harm. Moreover, although the applicants argued that there was a risk to them across the entirety of India due to the network of the gangster, it was open to the tribunal to conclude that this was not the case.
In these circumstances, ground three does little more than seek impermissible merits review and is otherwise not made out.
Section 438 and SZMTA
The Minister’s written submissions also raised the fact that there were certain documents which had been the subject of a certificate incorrectly issued pursuant to section 438(1) of the Act.[59]
[59] Minister’s written submissions filed 24 August 2018 at paragraph [34].
Following an adjournment to await the High Court’s decision in SZMTA, the matter was relisted to hear arguments from the parties on this remaining issue.
At the commencement of the hearing, the first applicant, who was again assisted by an interpreter, sought and was granted leave to file a document which contained some written submissions in relation to the issue dealt with by the High Court in SZMTA.[60] In those submissions, the applicant acknowledged that as a result of SZMTA, the question ultimately is whether any error made, was material. The applicant went on to assert that in this case, it was material on the basis that:
a)if it were not material, it would not have been disclosed to the tribunal in the first instance;
b)it impacted the tribunal’s decision; and
c)the applicants did not have an opportunity to comment on these documents.[61]
[60] Exhibit A.
[61] Exhibit A.
In particular, the applicants pointed to the following comment in the Community Status Resolution Part 1 – Client Case Plan in which the delegate said:
Client stated that if he and his wife and son needed to purchase an air ticket to depart Australia, his parents could buy the tickets for them.[62]
[62] Exhibit A.
The applicants submitted that on the basis of this comment, the tribunal formed the view that the applicants did not face any threat if they were required to return to India but failed to give the applicants an opportunity to comment on that statement.[63]
[63] Exhibit A.
As stated, by letter dated 23 January 2011, a delegate of the Minister notified the Refugee Review Tribunal, as it then was, that section 438(1)(b) of the Act applied to information contained at folios 48 to 56 and 63 to 64 of file number CLF 2011/184679, being the department’s file relating to the applicants’ protection visa application.[64] The certificate indicated that these documents were not to be disclosed to the applicants on the basis that it contained information affecting the personal privacy of third parties.
[64] Affidavit of Lachlan John Bongers affirmed and filed 24 August 2018.
As stated, the documents at folio 48-56 are contained in Exhibit LJB-3 to Mr Bonger’s affidavit filed in these proceedings. The documents at folio 63-64 are contained in Exhibit LJB-4 to Mr Bonger’s affidavit filed in these proceedings.
The Minister conceded that the certificate in relation to each of these documents was invalid, and the documents at LJB-3 and LJB-4 ought not to have been subject to a certificate.
Also by letter dated 23 January 2011, a delegate of the Minister wrote to the Refugee Review Tribunal, as it then was and advised that section 438(1)(a) applied to information contained at folios 57 to 62 of file number CLF 2011/184679. The correspondence stated that disclosure of those documents was contrary to the public interest on the grounds that the folios contain internal working documents. As stated, the documents at folio 57- 63 are contained in Exhibit LJB-6 to Mr Bonger’s affidavit filed in these proceedings.
In his affidavit, Mr Bongers deposed that the department’s file, including the documents at ‘LJB-3’, ‘LJB-4’ and ‘LJB-6’ were provided to the tribunal for the purpose of assisting the tribunal in its review of the Minister’s decision in this matter.
In SZMTA, the High Court dealt with three appeals concerning the effect on a review by the tribunal of an invalid notification to the tribunal under section 438.
Section 438 relevantly provides:
1)This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
The statutory context and effect of section 438 was summarised by Bell, Gageler and Keane JJ in SZMTA at [15]–[26]. I will not repeat that analysis here but have had regard to that summary in considering the matter presently before me.
The High Court confirmed that the issuing of a notice under section 438 triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. The reason for this is that:
procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker.[65]
[65] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [29].
However, Bell, Gageler and Keane JJ went on to say:
The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explaining in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.[66]
[66] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [39].
Moreover:
where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof.[67]
[67] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [46].
The majority went on to say that the provision of a certificate without notifying the applicant is itself a breach of the procedural fairness rules which would otherwise apply, because it deprives the applicant of the right to make submissions in respect of the tribunal’s discretion to release the documents to the applicant.[68]
[68] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [31], [38].
As noted above, in the case before this court, it is accepted that the certificates which were issued pursuant to section 438 were invalid.
Bell, Gageler and Keane JJ further said that a breach of procedural fairness by virtue of the issuing of an invalid certificate is material “only if compliance could have realistically resulted in a different decision”.[69] The onus of establishing this is on the applicant.
[69] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45].
Bell, Gageler and Keane JJ went on to say:
… the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account.[70]
[70] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [48].
Therefore, the question for this court is whether any of the documents at ‘LJB-3’, ‘LJB-4’ and ‘LJB-6’ could have resulted in a different outcome if the applicant was given the opportunity to make submissions on them.
As stated in their written submissions, the applicants pointed to one statement in one document at ‘LJB-6’ and indicate that this was relied upon as a basis for concluding that the applicants did not face risk of harm if they were to return. Moreover, the applicants submitted that they were not given the opportunity to comment on this document and I have implied from this submission that had they been given that opportunity, it may have impacted upon the outcome.
It was submitted on behalf of the Minister that even if the applicants had been given the documents at ‘LJB-3’, ‘LJB-4’ or ‘LJB-6’ and the opportunity to comment on them, a different outcome would not have arisen.
In order to determine this matter, regard must be had to the documents which are contained within ‘LJB-3’, ‘LJB-4’ and ‘LJB-6’.
‘LJB-3’ contains the following
a)a letter from Anthony L Clarke Migration Services dated 3 December 2009 in respect of the second applicant’s student visa and the amount of work he had been undertaking at the time;
b)correspondence from the Migration Review Tribunal to the Department of Immigration and Citizenship dated 31 May 2010 attaching a decision of the tribunal cancelling the second applicant’s section 572 Vocational Education and Training Sector visa; and
c)a handwritten document which appears to provide some information about one of the applicant’s parents.
The applicant has not established that any of these documents could have resulted in a different outcome had he been notified of the certificate issued and/or provided with access to these documents. They do not relate to the applicants’ protection visa application.
‘LJB-4’ contains the following documents:
a)a screenshot containing some personal information about the second applicant including his name, date of birth, gender, country of origin, marital status and the like; and
b)a screenshot setting out the second applicant’s visa history.
Similarly, in relation to ‘LJB-4’, the applicant has not established that either of these documents could have resulted in a different outcome had he been notified of the certificate issued and/or provided with access to the documents. Other than identifying that in 2011, the second applicant applied for a protection visa as a dependant applicant, these documents do not relate to the applicants’ protection visa application.
‘LJB-6’ contains the following documents:
a)‘Community Status Resolution Part 1 – Client Case Plan’ which contains some personal information about the applicants, their immigration history and the like. This document also contains notes about the progress of the second applicant’s application for ministerial intervention. In response to a question as to whether financial assistance is available from family/friends, the following statement is recorded:
Yes from family and possibly friends. Client, wife & son are completely reliant upon financial support from their parents. Client stated that his and wife’s fathers both have good jobs in India and can continue to support them whilst they are in Australia. Client stated that if he & wife & son needed to purchase an air ticket to depart AU, his parents could buy this for them (emphasis added).
b)submission dated 23 September 2011 for possible ministerial intervention into the second applicant’s application for a reversal of the decision to cancel his student visa due to him breaching the work limitation.
Having considered the documents which were the subject of the invalid section 438 certificate, I am satisfied that the applicant did not lose the opportunity of a successful outcome by virtue of an invalid certificate having been issued in respect of these documents.
The relevant documents did not relate in any way to the applicants’ application for a protection visa. Indeed, they predated the applicants’ applications for protection visas.
The applicants’ submission that the tribunal relied upon the reference in ‘LJB-6’ to the applicants’ parents being able to afford to pay for return airfares for the applicants if they were unsuccessful as evidence that they would not be at risk of harm is to misconstrue both LBJ-6 and the tribunal’s reasons for decision. The excerpt upon which the applicants submissions rest (in bold at paragraph 107(a) above) must be read in context. It was a statement recorded in response to a question about whether there was financial assistance available to the applicants from family and friends. It related only to whether the costs of air travel could be met if the second applicant’s application for ministerial intervention was unsuccessful. At this stage, none of the applicants had made an application for a protection visa.
In any event, it is evident from a fair reading of the tribunal’s reasons which have been summarised above, that the tribunal’s conclusion that the applicants did not face a real risk of harm on return to India was based on the fact that any risk, such as it was at the time of the tribunal’s decision in May 2017, was confined to the first applicant’s mother’s village and the applicants could reasonably relocate to another part of India, specifically New Delhi, Chennai or Mumbai.
There is no proper basis on which to infer that the tribunal’s reasons were in any way based on the statement made in 2011 that if the applicants were required to leave Australia, their parents could meet the travel costs.
For each of these reasons, the invalidity of the section 438 notice, whilst a breach of procedural fairness, does not rise to jurisdictional error as compliance would not have resulted in a different decision.
Summary and conclusion
As none any of the grounds raised by the applicants or the section 438 point give rise to a jurisdictional error, I make the following orders:
a)the applicants’ application be dismissed; and
b)the applicants pay the first respondent’s costs in a sum to be fixed.
I certify that the preceding one-hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 23 October 2019
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