CLT19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 225
•21 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLT19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 225
File number(s): SYG 1552 of 2019 Judgment of: JUDGE ZIPSER Date of judgment: 21 February 2025 Catchwords: MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) s 36(2) Cases cited: Abebe v Commonwealth (1999) 197 CLR 510
DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229; 289 FCR 346
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 10 February 2025 Place: Parramatta Applicant: In person Solicitor for the Respondents: Mr J. Hutton of Australian Government Solicitor ORDERS
SYG 1552 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLT19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
21 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $5,500.
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
On 25 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 6 June 2019. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (Class XA) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
On 25 February 2015, the applicant, a Hindu citizen of India, lodged an application for a protection visa.
On 10 June 2016, a delegate of the first respondent refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations outlined in s 36(2) of the Act.
On 30 June 2016, the applicant applied to the Tribunal for review of the delegate’s decision.
On 15 May 2019, the Tribunal invited the applicant to appear at a hearing to give evidence and present arguments on 6 June 2019.
On 6 June 2019, the applicant appeared at a hearing before the Tribunal with the assistance of a Malayalam interpreter.
On 6 June 2019, at the end of the hearing, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a protection visa. On 7 June 2019, the Tribunal posted a statement of decision and reasons to the applicant.
TRIBUNAL’S DECISION
The applicant claimed that:
(a)when he was in high school, he joined the ABVP, a right-wing student organisation;
(b)he later joined the RSS, a Hindu nationalist party; and
(c)in connection with his involvement with the ABVP and RSS, Muslim political opponents vandalised his grocery shop, he was assaulted by a Muslim gang, and he faced a real chance of serious harm from Muslim opponents if required to return to India.
The Tribunal, in discussing the applicant’s evidence, noted a number of inconsistencies and discrepancies in the evidence.
The Tribunal found the applicant “a highly unreliable witness” and was “not satisfied that any of his substantive claims are truthful”. The Tribunal, after noting that the whole of the applicant’s claims stemmed from his having joined the ABVP while a secondary school student, found that the applicant had never joined the ABVP or RSS. The Tribunal also did not accept the applicant’s claims that his shop was vandalised by political opponents, or that he was assaulted.
The Tribunal also found that, to the extent the applicant claimed to fear harm from militant Muslims and their political groups, the applicant could safely, reasonably and practicably relocate to Chennai where he would not face a real chance of being persecuted.
The Tribunal accepted the applicant was a Hindu who may support the BJP, but was not satisfied that this profile gave rise to a real chance of persecution in India.
The Tribunal ultimately was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
PROCEEDINGS IN THIS COURT
Application and steps up to 9 February 2025
On 25 June 2019, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. The application included three grounds as follows (reproduced as written):
1.The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India for being a member of ABVP.
2.The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.
3.The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in India.
On 25 June 2019, the applicant filed an affidavit in which the applicant stated in paragraph 2:
The Tribunal member has failed to investigate my claim, especially the grounds of persecution in India. Therefore, the Tribunal decision dated June 6, 2019 was affected by actual bias constituting judicial error.
On 16 August 2019, the Court made procedural orders, including that the applicant may file and serve an amended application and any affidavit containing additional evidence by 22 November 2019. The applicant did not file any documents in response to this order.
Following a period of inactivity, on 22 October 2024 a registrar made procedural orders, including that the applicant file and serve the following at least 28 days before the hearing:
(a)any amended application giving proper particulars of the grounds of the application;
(b)written submissions; and
(c)any additional evidence on which the applicant seeks to rely.
On 11 December 2024, the parties were notified by email that the matter was listed for hearing on 10 February 2025.
By the hearing date on 10 February 2025, the applicant had not filed an amended application, written submission or additional evidence.
Hearing on 10 February 2025
The applicant attended the hearing assisted by a Malayalam interpreter. The interpreter was the same person who interpreted for the applicant at the hearing before the Tribunal in June 2019. At the hearing on 10 February 2025, the first respondent tendered a bundle of documents which included the Tribunal’s decision and documents before the Tribunal (Court Book). The Court Book included a document titled “MRD Hearing Record” which contains information associated with the hearing before the Tribunal on 6 June 2019. A person has handwritten on the document “Interpreter was terrible”. The meaning of this notation is not clear. For example, it is unlikely that the person who wrote the notation spoke Malayalam and was able to comment on the accuracy of the interpreter’s interpreting.
During the hearing before the Court on 10 February 2025:
(a)The applicant did not complain about the interpreter or interpretation on 10 February 2025.
(b)When I asked the applicant questions through the interpreter, the applicant’s answers, which came through the interpreter, were usually responsive to the questions.
(c)I often had to remind the interpreter to interpret to the applicant in Malayalam the communications in English during the hearing. The interpreter then carried out this task.
The applicant brought a copy of the Court Book to the hearing. At the commencement of the hearing, I directed the applicant to the Tribunal’s reasons for decision in the Court Book. I explained that the Court’s role was limited to determining whether there was a jurisdictional or legal error, which I described as a significant mistake or error, in the Tribunal’s decision and, if the applicant wanted to win his case in the Court, he had to persuade the Court there was a jurisdictional or legal error in the Tribunal’s decision. I explained to the applicant the main categories of jurisdictional error. I then asked the applicant if he wanted a break for 15 minutes to re-read the Tribunal’s decision and consider oral submissions he wanted to make to the Court. The applicant did not take up this offer.
During the hearing, I directed the applicant’s attention to the grounds in his application filed on 25 June 2019. The interpreter interpreted the grounds to the applicant. I invited the applicant to make oral submissions on the grounds, or any other matters. The applicant did not want to make a submission. Although not relevant to whether or not there is a jurisdictional error in the Tribunal’s decision, the applicant made no effort during the hearing to persuade the Court that there was an error in the Tribunal’s decision.
At one point during the hearing, the applicant asked if he could give documents to the Court later. I asked the applicant to specify the documents he wished to provide. He was unable to specify any documents.
Jonathan Hutton from Australian Government Solicitor appeared at the hearing on 10 February 2025 for the first respondent. Mr Hutton made oral submissions which supplemented a written submission filed on 28 January 2025.
CONSIDERATION
Ground 1 in application
Ground 1 states:
The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India for being a member of ABVP.
First, this ground lacks particulars. It is unclear from the drafting of ground 1 whether the applicant contends that the Tribunal misconstrued the term “significant harm” in s 36(2A) of the Act, which the Tribunal considered at [54] – [56], or misconstrued the term “real risk” in s 36(2)(aa) of the Act, which the Tribunal considered at [53]. Whichever contention the applicant intended, the applicant does not particularise the ground. 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]. Second, to the extent that this ground complains that the Tribunal erred in assessing the risk of significant harm to the applicant “upon his return to India for being a member of ABVP”, the Tribunal at [42] rejected the applicant’s claim that he “ever joined the ABVP”. The applicant does not challenge this finding. Since the Tribunal did not accept that the applicant was ever a member of the ABVP, it was neither necessary nor appropriate for the Tribunal to consider the risk of harm to the applicant based on an assumption that he was a member of the ABVP. Third, in any event, I cannot identify an error in the Tribunal’s consideration of the terms “real risk” and “significant harm” at [53] - [56].
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2 in application
Ground 2 states:
The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.
This ground lacks particulars. The “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ at [37].
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 3 in application
Ground 3 states:
The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in India.
First, this ground lacks particulars. The “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ at [37]. Second, it is clear from the Tribunal’s statement of reasons that it considered the applicant’s claims. Third, if the applicant’s complaint is that the Tribunal should have carried out further investigations of the applicant’s claims, it is the visa applicant’s responsibility to supply the relevant facts and evidence in support of their case to meet the relevant visa criteria: Abebe v Commonwealth (1999) 197 CLR 510 at [187]; DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 229; 289 FCR 346 at [80]. It is not the Tribunal’s responsibility to investigate and collect evidence to support the applicant’s claims. The very limited circumstances in which the Tribunal’s failure to undertake a specific investigation might be legally unreasonable (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]) do not arise in the present case.
Ground 3 does not identify a jurisdictional error in the Tribunal’s decision.
Contention in paragraph 2 of affidavit filed 25 June 2019
The applicant stated in paragraph 2 of his affidavit:
The Tribunal member has failed to investigate my claim, especially the grounds of persecution in India. Therefore, the Tribunal decision dated June 6, 2019 was affected by actual bias constituting judicial error.
First, this ground lacks particulars. The “failure to particularise a ground of review is itself a sufficient basis to dismiss it”: NWWJ at [37]. Second, it is clear from the Tribunal’s statement of reasons that it considered the applicant’s claims. Third, if the applicant’s complaint is that the Tribunal should have carried out further investigations of the applicant’s claims, see paragraph 34 above. Fourth, even if the Tribunal failed to undertake a specific investigation, this would not establish actual bias by the Tribunal member.
This contention does not identify a jurisdictional error in the Tribunal’s decision.
Notation in Court Book concerning interpreter
As stated in paragraph 21 above, a person associated with conducting the hearing in the Tribunal on 6 June 2019 wrote on a document titled “MRD Hearing Record” “Interpreter was terrible”. The first respondent, consistent with its conduct as a model litigant, brought this notation to the Court’s attention during the hearing on 10 February 2025. As stated in paragraph 21 above, the meaning of the notation is unclear. If the applicant was concerned about the accuracy or conduct of the interpreter at the hearing before the Tribunal in June 2019, he has had over five years to prepare and file evidence concerning the issue. He has not filed any evidence. There is no evidence before the Court to establish that the interpretation by the interpreter at the hearing on 6 June 2019 was inadequate, or contained errors, let alone errors which resulted in the hearing not being fair (see SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; 219 FCR 212 (SZRMQ) at [3]-[10] per Allsop CJ and [65]-[74] per Robertson J) or the applicant not having a meaningful opportunity to be heard (SZRMQ at [44] per Flick J).
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Hutton sought an order that the applicant pay the first respondent’s costs in the sum of $5,500. Mr Hutton stated that the first respondent’s solicitor client costs were between $6,000 and $7,000. The amount sought by the first respondent is below the scale amount of $8,371.30. I consider the amount sought is reasonable. The applicant stated that he did not have funds to pay this amount. The applicant did not otherwise contend that the amount sought by the first respondent was excessive. I consider it appropriate to make an order for costs in the amount sought by Mr Hutton.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 21 February 2025
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