CGO19 (by her litigation guardian SZTHY) v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 605

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CGO19 (by her litigation guardian SZTHY) v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 605

File number(s):	SYG 1400 of 2019
Judgment of:	JUDGE ZIPSER
Date of judgment:	1 May 2025
Catchwords:	MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no point of principle – application dismissed
Cases cited:	NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Division:	Division 2 General Federal Law
Number of paragraphs:	38
Date of hearing:	9 April 2025
Applicant:	Litigation guardian in person
Solicitor for the Respondents:	Mr B Wilson (Australian Government Solicitor)

ORDERS

SYG 1400 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CGO19 BY HER LITIGATION GUARDIAN SZTHY

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	1 MAY 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant’s litigation guardian, SZTHY, pay the first respondent’s costs in the sum of $5,400.

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 ZIPSER

INTRODUCTION

1. On 7 June 2019, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 15 May 2019. The Tribunal affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Protection (Class XA) (subclass 866) visa under s 65 of the Act.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. In October 2014, the applicant was born in Australia. Before the applicant was born:

   (a)In 2007, the applicant’s father (Father) and mother, citizens of India, first arrived in Australia on student visas.

   (b)In 2012, the applicant’s parents and an older sibling born in 2010 applied for protection visas.

   (c)The protection visa applications were refused by the Department. The refusal decision was affirmed by the Refugee Review Tribunal in August 2013.

   (d)In September 2013, the parents applied for judicial review of the decision of the Refugee Review Tribunal.

   (e)In March 2014, the parents withdrew the judicial review application. In April 2014, the parents applied for ministerial intervention under s 417 of the Act. In July 2014, the ministerial intervention request was recorded as Not Considered.

4. On 26 May 2015, a protection visa application was lodged on behalf of the applicant.

5. On 18 March 2016, the applicant and her parents attended an interview with a delegate of the first respondent.

6. On 30 May 2016, the delegate refused to grant the applicant a protection visa.

7. On 30 June 2016, the applicant applied to the Tribunal for review of the delegate’s decision.

8. On 2 April 2019, the Tribunal invited the applicant to attend a hearing on 29 April 2019. The applicant, her parents and grandmother attended the hearing. The Father gave evidence on behalf of the applicant at the hearing, assisted by a Punjabi interpreter.

9. On 15 May 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa.

   TRIBUNAL’S DECISION

10. The Tribunal at [4]-[53] summarised the evidence before it, including evidence provided by the Father at an interview with the first respondent’s delegate on 18 March 2016 and at the hearing before the Tribunal on 29 April 2019.

11. The Father claimed that the applicant will be harmed in India because she will be pursued by the police or others who wish to pursue the Father’s brother S because of S’s past business problems. The Tribunal at [63] found that the Father “has manufactured” aspects of his evidence or claims concerning S. The Tribunal at [66] was “not satisfied [S’s] other family members have been targeted or harmed as a means of putting pressure on [S]”. The Tribunal at [68] was “not satisfied that [the applicant] would suffer any harm because she, or her father, was being pursued by [S’s] creditors or the authorities in India”.

12. The Father claimed that he will not be able to secure employment in India, and therefore provide accommodation and education for the applicant. The Tribunal at [64] was not satisfied that the Father will not be able to arrange for the applicant to be educated in India. The Tribunal at [69] was “not satisfied that the applicant’s father will not be able to secure accommodation in India” for him and his family. The Tribunal at [70] was “not satisfied [the applicant] will be harmed because her father is unable to secure employment in India”.

13. The Father claimed that complaints were made about his brother G and his nephew M. The Tribunal at [65] was not satisfied that the complaints were genuine and doubted the Father’s “assertions that the authorities are interested in pursuing [G] and [M]”.

14. The Father claimed that the applicant will be kidnapped if she goes to India on the basis that she and her family are returning from overseas and will be perceived to be wealthy. The Tribunal at [71] found that “the risk of [the applicant] being kidnapped is remote” and it was “not satisfied that there is a real chance that [the applicant] will be kidnapped … if she goes to India”.

15. The Father claimed that the applicant will be sexually assaulted or killed for her organs if she goes to India. The Tribunal at [72] found that “the chance of [the applicant] being sexually assaulted or killed for her organs in the reasonably foreseeable future if she goes to India is remote”.

16. The Tribunal concluded at [73] that “considered overall the Tribunal is not satisfied that there is a real chance [the applicant] will suffer serious harm for any reason set out in s 5J(1)(a) if she goes to India” and is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act”.

17. The Tribunal at [74]-[79] considered the complementary protection criteria and found that it could not be satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

18. Accordingly, the Tribunal at [80]-[82] found the applicant did not satisfy s 36(2) of the Act and affirmed the delegate’s decision.

    PROCEEDINGS IN THIS COURT

    Judicial review application and steps up to hearing on 9 April 2025

19. On 7 June 2019, the applicant filed in this Court an application for judicial review of the Tribunal’s decision (Application). The Application contained a single ground (reproduced as written):

    1.The Tribunal denied procedural fairness and did not consider the evidence provided and/or breached Section 425 of the Migration Act.

    Particulars

    i)The Tribunal did not consider the whole of the information applicant provided to the Tribunal regarding the torture at the hands of State Police and creditors with political connections.

    ii)The Tribunal erred in making assessment by raising lack of credibility issues without any basis or evidence.

    iii)The Tribunal, having made adverse findings about applicant’s credibility in relation to his admissions of incorrect information provided earlier but gave no evidentiary weight to the new information and evidence applicant provided.

    iv)The Tribunal erred in assessing the criteria of Section 36(2)(aa) of the Act that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequences of a real risk that the applicant will suffer.

    v)The Tribunal thereby committed jurisdictional error.

20. On 18 July 2019, a registrar made procedural orders, including that the applicant file and serve any amended application and affidavit evidence by 24 October 2019. The applicant did not file any materials in response to this procedural order.

21. On 18 July 2019, the Father was appointed as the litigation guardian of the applicant. The Father had been given the pseudonym SZTHY in 2013 in the judicial review application referred to in paragraph 3(d) above.

22. Following a period of inactivity, on 22 January 2025 a registrar made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing any amended application, written submissions and further evidence.

23. On 17 February 2025, the parties were notified by the registry of the Court that the matter was listed for hearing on 9 April 2025.

24. On 26 March 2025, the first respondent filed a written submission. The applicant did not file any further materials before the hearing.

    Hearing on 9 April 2025

25. At the hearing in this Court on 9 April 2025, the Father appeared for the applicant, assisted by a Punjabi interpreter. Ben Wilson from the Australian Government Solicitor appeared for the first respondent.

26. Although the first respondent filed and served in October 2019 a Court Book containing the Tribunal’s decision and documents before the Tribunal, the Father brought to the hearing on 9 April 2025 no documents associated with the Court proceeding.

27. At the commencement of the hearing, I caused to be given to the Father a copy of the Tribunal’s decision dated 15 May 2019. I directed the Father’s attention to the Tribunal’s decision. I explained that the Court’s role was limited to considering whether or not there was a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. I explained the main categories of jurisdictional error. I explained that, for the applicant to win the Court proceeding, the Father must persuade the Court there is a jurisdictional error in the Tribunal’s decision. I offered the Father a break of 15 minutes to consider oral submissions he wanted to make to the Court. The Father took up this opportunity.

28. Mr Wilson tendered the Court Book. The Father did not seek to rely on any additional evidence.

29. After the 15 minute break, I invited the Father to make oral submissions. The Father made three submissions associated with the Tribunal’s decision as follows:

    (a)As stated in the Tribunal’s decision at [20], the Father’s brother’s mother-in-law died in 2013. The Father’s siblings, although they wanted to attend the funeral, could not attend because the police planned to catch them. This indicated the risk the siblings faced.

    (b)The applicant’s parents have not returned to India for the last 10 years. This indicates they fear returning to India.

    (c)The Father told the Tribunal all his claims. The Tribunal did not believe the Father.

    CONSIDERATION

    Ground 1 in Application

    Failure to consider evidence

30. It is contended in particular (i) that the Tribunal “failed to consider … oral submissions [and] evidence of risk involved in home country”. The applicant does not identify the evidence or submissions which the Tribunal allegedly failed to consider. A review of the Tribunal’s decision indicates that the Tribunal considered in detail evidence and submissions given at the hearing on 29 April 2019 (see [25]-[53]) and other evidence before it regarding the risk of harm to the applicant in India (see for example [15], [20]-[24], [42]-[43], [59] and [71]-[72]). This particular does not identify a jurisdictional error in the Tribunal’s decision.

31. It is contended in particular (ii) that the Tribunal did not consider “the whole of the information applicant provided to the Tribunal regarding the torture at the hands of State Police and creditors with political connections”. Again, the applicant does not identify the particular evidence which the Tribunal allegedly did not consider. Based on a review of the Court Book, I have not identified evidence “regarding the torture at the hands of State Police and creditors with political connections” which the Tribunal failed to consider. Further, in circumstances where the Tribunal rejected the Father’s claims that the authorities continued to be interested in his brother S (see at [66]-[68]) or his brother G and his nephew M (see at [65]), it is unclear how the evidence asserted to not have been considered was relevant or material to the Tribunal’s decision.

    Errors associated with credibility findings

32. It is contended in particular (iii) that the Tribunal “erred in making assessment by raising lack of credibility issues without any basis or evidence”. The applicant does not identify the particular adverse credibility finding allegedly made without any basis or evidence. The Tribunal, in the last sentence of [63], found that the Father “has manufactured his evidence to bolster his claim that if he returned to India the authorities would pursue him in order to locate [S]”. The Tribunal, in earlier sentences of [63], provided reasons in support of this finding which provide a probative basis for the Tribunal’s finding in the last sentence of [63]. The Tribunal at [65] was “not satisfied that the complaints [concerning G and M] are genuine” and found that a “lack of consistent persuasive evidence casts doubt on the applicant’s father’s assertion that the authorities are interested in pursuing” G and M. The Tribunal, in the balance of [65], provided reasons in support of these findings which provide a probative basis for the findings. This particular does not identify a jurisdictional error in the Tribunal’s decision.

33. It is contended in particular (iv) that the Tribunal, “having made adverse credibility findings about applicant’s credibility in relation to his admissions of incorrect information provided earlier but gave no evidentiary weight to the new information and evidence applicant provided”. This particular does not explain the alleged “new information and evidence” to which the Tribunal” gave no evidentiary weight”. The “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 (NWWJ) at [37]; citing with approval WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. This particular does not identify a jurisdictional error in the Tribunal’s decision.

    Error in complementary protection finding

34. It is contended in particular (v) that the Tribunal “erred in assessing the criteria of section 36(2)(aa) of the Act that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of a real risk that the applicant will suffer”. The Tribunal at [79] found that it “is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa)”. The Tribunal at [74]-[78] set out reasonably detailed reasons in support of the finding at [79]. Particular (v) does not identify the manner in which the Tribunal allegedly erred in its assessment under s 36(2)(aa). I cannot identify an obvious error in the Tribunal’s reasoning process. This particular does not identify a jurisdictional error in the Tribunal’s decision.

35. Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.

    Oral submissions at hearing on 9 April 2025

36. A summary of the Father’s oral submissions made at the hearing on 9 April 2025 are set out in paragraph 29 above. The submissions appear to be a re-agitation by the Father of evidence and submissions considered by the Tribunal. None of the oral submissions identify an error, let alone a jurisdictional error, in the Tribunal’s decision.

    Conclusion

37. It follows from the above that the Application must be dismissed.

    COSTS

38. Mr Wilson sought an order that the Father, as the applicant’s litigation guardian, pay the first respondent’s costs in the amount of $5,400. The Father did not oppose the amount sought, or that the costs order be against the Father. I consider the amount of $5,400 is reasonable. I agree with the parties that the costs order should be against the litigation guardian and not the applicant. I will make the order sought.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       1 May 2025