CHV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 2817

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2817

File number(s):	SYG 1221 of 2020
Judgment of:	JUDGE STREET
Date of judgment:	14 October 2020
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Subclass 866) Visa – where the applicant was in immigration detention –whether the Tribunal failed to consider the best interests of a minor relative child - whether the best interests of a minor relative child was a relevant consideration that the Tribunal had to take into account – whether the Tribunal failed to afford the applicant procedural fairness – invitation to impermissible merits review – no jurisdictional error – amended application dismissed – Ministerial intervention recommended
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476
Number of paragraphs:	36
Date of hearing:	14 October 2020
Place:	Sydney
Solicitor for the applicant:	In person
Solicitor for the first respondent:	Ms S Valliappan, Minter Ellison

ORDERS

SYG 1221 of 2020

BETWEEN:

CHV20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	14 OCTOBER 2020

THE COURT ORDERS THAT:

1.Leave is granted to the applicant to rely upon the amended application filed on 1 October 2020.

2.The amended application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $6,100.00.

THE COURT NOTES THAT:

1.The Court has recommended that this matter is one in which it is appropriate to consider Ministerial intervention

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 May 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Subclass 866) Visa (“the Protection Visa”).

   Background

2. The applicant is a citizen of India who first arrived in Australia in 2007 as the holder of a student visa. In 2009, the applicant lodged an application for a permanent skilled visa and then returned to India to visit on three occasions between 2009 and 2012. In 2016, the applicant was placed into immigration detention following the refusal of his permanent skilled visa application when he was located in the community as an unlawful non-citizen.

3. The visa application relevant to this Court is the Protection Visa application that the applicant made on 20 February 2020. In that regard, the applicant claimed to fear harm as a result of a relationship with a person in India and events in 2012. The applicant claimed to fear harm, if he returned to India, from a particular girl’s family. The applicant claimed to believe that he will face harm, mistreatment, and be arbitrarily deprived of a free life.

4. On 10 March 2020, the delegate found that the applicant failed to meet the criteria for the grant of the Protection Visa.

   Before the Tribunal

5. On 10 March 2020, the applicant applied to the Tribunal for review. 

6. On 9 April 2020, the Tribunal wrote to the applicant, explaining that it was unable to make a favourable decision on the information currently before it and inviting the applicant to attend a hearing on 30 April 2020. The applicant appeared before the Tribunal on that date to give evidence and present arguments, and was also represented by his migration agent.

7. The Tribunal identified the background to the review application and set out the relevant law, including in its reasons an attachment of applicable law, incorporated by pagination. 

8. The Tribunal referred to the applicant’s claims that, during his last visit to India, the father of a girl, with whom the applicant was in a relationship, found out about the relationship and called the applicant’s father and threatened that, if the applicant did not leave India, he would be harmed. The applicant claimed that he left India shortly afterwards and has not returned since. 

9. In its reasons, the Tribunal identified that the applicant was born in a particular village. The Tribunal identified that the applicant lived with his parents prior to his move to Australia, and that his parents remain living there. The Tribunal also identified that the applicant has one brother, who is an Australian citizen, and who has a daughter to whom the applicant is close. 

10. The Tribunal referred to the relationship with a particular girl in India. The applicant confirmed that relationship had ended in 2012. The Tribunal found that the applicant had no contact in eight years and questioned why that girl would now wish to see him. The Tribunal also explored with the applicant how the girl’s father allegedly discovered the relationship and raised the alleged threats that the applicant said had been made in respect of his safety. The Tribunal also sought to explore with the applicant why he could not seek protection from the police and referred to the applicant’s response. The Tribunal referred to the ex-girlfriend’s father achieving the outcome that he wanted, which was an end to the relationship.

11. The Tribunal also raised with the applicant the numerous contacts that he had with the Department in 2016, 2017 and 2019, where the applicant was asked if he had any fear of returning to India. On all occasions, the applicant did not mention any of the fears he is now expressing.

12. The Tribunal also pointed out, in respect of the applicant’s claim, that he left India because of this fear, and that it was some seven or eight years later before he sought to apply for protection. The Tribunal took into account the applicant’s assertion that he had returned to India previously, but not since the issue with his girlfriend in 2012. The applicant confirmed that his fears of returning to India were restricted to the problems with his girlfriend’s father, and that he had no other reason to fear returning to India.

13. The Tribunal referred to the post hearing submissions and referred to the applicant’s claims concerning the impact upon him of detention. The Tribunal also referred to the applicant’s brother’s statement, being the father of the applicant’s niece, which implored the Tribunal to make a favourable decision on family grounds.

14. The Tribunal identified having serious concerns about the veracity of key aspects of the applicant’s claims. The Tribunal did not accept that the applicant’s prior relationship ended for the reason of the applicant being discovered by her disapproving father, or that the applicant was threatened by the father by way of a phone call made to his own father. In that regard, the Tribunal referred to the applicant’s claims about the relationship, and the Tribunal found the applicant’s testimony as to how the relationship was discovered to be unconvincing.

15. The Tribunal also referred to there being little chance that the ex-girlfriend’s father would pursue the applicant, given that it had been some eight years after the end of the relationship. The Tribunal referred to the applicant’s explanations and was unpersuaded that the applicant’s ex-girlfriend’s father would pursue him, or harm him, on return to India. The Tribunal also took into account the absence of any contact between the applicant and the ex-girlfriend since 2012. 

16. The Tribunal also took into account the applicant’s failure to mention any fears of return to India during the numerous interactions he had with the Department spanning several years. The Tribunal referred to the applicant becoming an unlawful non-citizen in 2016 and being detained after his application for the Protection Visa was refused. The Tribunal referred to the applicant continuing to state that he had no fears of returning to India, which raised serious concerns for the Tribunal about the credibility of the applicant’s claims. 

17. The Tribunal also included the fact that the applicant claimed that he fled India in fear of his life in 2012, but that he only applied for the Protection Visa eight years later in 2020. The Tribunal took into account that the applicant, in 2016, did not seek protection at that time, which gave the Tribunal a further basis to doubt the veracity of the applicant’s claims.

18. The Tribunal referred to the applicant’s submission that his failure to return to India since 2012 is proof that he has a fear of doing so. The Tribunal considered that this could have more to do with the uncertainty of his visa status and his ability to return to Australia than the fear that he claims in respect of harm. 

19. The Tribunal was prepared to accept that the applicant had a relationship with an Indian girl which ended in 2012. However, the Tribunal did not accept that the relationship was forbidden, or that it had ended for the reason the applicant claimed. The Tribunal did not accept that the applicant was threatened with serious harm in 2012 by the father of the girl or that, for those reasons, the applicant would face such threats of harm if he returns to India, now or in the reasonably foreseeable future.

20. The Tribunal found that the applicant does not have a well-founded fear of persecution and does not meet the criteria in s 36(2)(a) of the Act. The Tribunal found there are not substantial grounds for believing that, as foreseeable consequence of the applicant being returned to India, there is a real risk that he will suffer significant harm. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision of the delegate under review.

    Before the Court

21. These proceedings were commenced on 22 May 2020.

22. On 13 July 2020, this Court made orders, giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant has filed an amended application. The Grounds in that application are as follows:

    GROUND 1: The Tribunal failed to complete the exercise of its jurisdiction. (Best Interest of Minor Child in Australia)

    Particulars

    1.Clause 13.2 of Direction no.79 mandates that a decision-maker must decide whether granting a visa is in the best interest of the child.

    2.The Tribunal has an obligation to say what are the best interest of the children of a person facing deportation from Australia.

    3.There was significant evidence before the Tribunal that demonstrated the following matters(Niece claim)

    •The applicant has a great relationship with his niece [Child X].

    •Child X is the older daughter of the applicant’s brother.

    •The applicant has a very strong bond with Child X and Visits her 3-4 times a year.

    •The applicant played a big role in Child X’s upbringing.

    •The applicant loves to spoil his nieces every time he visits them.

    •The applicant being family of Child X has previously engaged in sporting activities with Child X and [Child Y](other niece).

    •Child X Loves the applicant and speaks to the applicant 3-4 times a week and is eager to meet the applicant(see evidence letter from Child X).

    •Child X and Child Y would be devastated if the applicant was deported from Australia.

    4.When addressing the mandatory primary consideration of the best interest of the minor children in Australia, the Tribunal failed to make any determination about whether granting a visa is in the best interest of the applicant’s nieces Child X and Child Y.

    Ground 2: The Tribunal failed to afford the applicant procedural fairness.

    5.A failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it, which, if resolved one way, would or could be dispositive of the review, can constitute a failure of procedural fairness.

    6.The Tribunal failed to deal with Child X’s claim extracted above at paragraph.

    Consideration

23. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant confirmed that he understood the explanation as given by the Court. 

24. The applicant, who is currently in detention, identified a sad migration history in terms of being placed into detention, and the impact on him and his life, and on his extended family, which includes his brother and his niece. The applicant referred to taking genuine steps to improve his wellbeing and address his problems. The applicant is to be commended for those steps, which the Court accepts that the applicant has actually taken. 

25. The Court sympathises with the applicant’s predicament in which he finds himself. However, he did not come to Australia in circumstances other than on a student visa, which was for limited purposes. The applicant does not have citizenship in Australia. The applicant is a citizen of India.

26. The applicant raised the argument that he raised before the Tribunal as to why he would not return to India, but for his alleged fear. The Tribunal gave logical and rational reasons in support of its adverse credibility findings including, in that regard, the consequences of the uncertainty of the applicant’s visa status. In respect of its adverse findings, the Tribunal cannot be said to have acted legally unreasonably given the evident and intelligible justification set out in the Tribunal’s reasons as summarised above. Those adverse findings were logical, and rational, and open in the reasons given by the Tribunal. 

27. As sad as the applicant’s circumstances are, it was the applicant’s decision to remain in Australia, where he does not have citizenship or a visa entitlement to remain in Australia. The releasing of the applicant from detention, and then being placed into detention is, however, an obvious hardship. The Court will make some further comments about that at the end of these reasons. But those matters that the applicant raised do no more than invite this Court to determine the matter on compassionate and discretionary grounds. This Court has no power to do so, nor can this Court make fresh findings in relation to the merits of the applicant’s claims. 

28. The applicant referred to his relationship with his niece and the impact upon her if he is required to return to India. Whilst the Court accepts the applicant’s assertions in respect of a relationship, it was not a relevant criteria for the evaluation of whether the applicant has a well-founded fear of persecution in India, or whether the applicant meets the criteria in respect of complimentary protection.

29. This is not a visa application in respect of which compassionate and compelling circumstances are a relevant consideration. The applicant’s reference to his niece and his relationship with her is not a basis upon which there can be found to be any jurisdictional error by the Tribunal.  Nothing said by the applicant identified any jurisdictional error.

    Ground 1

30. In relation to Ground 1 of the amended application, this refers to a proposition that the Tribunal should have taken into account the best interests of the child. That proposition is not correct for the reasons identified above. The Tribunal is not required to take into account the best interests of the child as a matter of statutory construction. The Tribunal was determining a review application in respect of criteria under the Refugees Convention, and criteria in relation to complimentary protection.

31. It is apparent that the Tribunal did refer to the evidence submitted by the applicant, including the statement from his brother identifying his niece. However, that does not give rise to there being any obligation upon the Tribunal to determine the matter in accordance with the best interests of the applicant’s niece. It is in reality an impermissible invitation to merits review. No jurisdictional error, as alleged by Ground 1, is made out.

    Ground 2 

32. In relation to Ground 2, the applicant claims that there was denial of procedural fairness because of a failure to consider the applicant’s claims in relation to the impact on his niece. Again, for the reasons already given, the Tribunal was not required to do so.

33. It is apparent that the applicant was invited to and attended the hearing in accordance with the statutory regime. On the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing before the Tribunal. The Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence.

34. There is no basis to find that the Tribunal failed to afford procedural fairness in the conduct of the review. The Tribunal was not required to make express findings in relation to the applicant’s claims concerning his niece. No denial of procedural fairness, as alleged in Ground 2, is made out. 

35. Accordingly, the Court finds that the amended application fails to make out any jurisdictional error, and orders that the amended application be dismissed.

36. However, the Court has been moved by the candour of the applicant’s submissions and the efforts that he says he has taken to try and turn his life around. Whilst this Court rarely does so, the Court is willing, on this occasion, to observe that this does appear to be a matter in respect of which it would be appropriate to give consideration to Ministerial intervention. This Court has no power in respect of any such process but it is, no doubt, a matter that, having been observed by the Court, will be taken into account by the first respondent as a model litigant.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 October 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 15 February 2022