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 |
| 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…
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- Case
- [2019] FCCA 2931
- Decision Date
CaseChat Overview and Summary
The applicant's second ground of review alleged that the AAT had misconstrued and misapplied section 91R(1) of the Migration Act 1958 (Cth). This ground asserted that the Tribunal, despite accepting the genuineness of police documents, the existence of a gangster named 'Nayeem' and his criminal networks targeting the applicant and her family, and that the applicant's mother had been taken into protective custody, had made findings about the likelihood of harm that were not supported by evidence. Specifically, the applicant contended that the Tribunal's conclusions that there was "less than a remote chance" of harm from local government and that there was no one in India looking for the applicants, and any real chance of serious harm was only localised, were made without adequate evidentiary basis and contradicted earlier findings of potential serious harm.
The Court found that a fair reading of the AAT's reasons supported the conclusions reached. While the Tribunal accepted that the applicant's mother's political activities had led to harm and that there was a real chance of threats and harassment if the applicant returned to her mother's village, it also expressed doubt and ultimately concluded that the risks were localised to that village. Furthermore, the Tribunal did not accept that the risk from the gangster 'Nayeem' continued after his death and the subsequent police action against his network. The Court held that the Tribunal's findings, including its assessment of the limited scope of the risk, were reasonably open to it on the material before it.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.Particularsa.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.