CNJ15 v Minister for Immigration

[2017] FCCA 504

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNJ15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 504

Catchwords:
MIGRATION – Review of decision of the Administrative Appeals Tribunal – refusal of protection (class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

First Applicant: CNJ15

Second Applicant: CNK15

Third Applicant: CNL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2646 of 2015

Judgment of: Judge Hartnett

Hearing date: 9 February 2017

Delivered at: Melbourne

Delivered on: 9 February 2017

REPRESENTATION

The Applicants:	In Person
Counsel for the First Respondent:	Mr Rogers

Solicitors for the First  Respondent: The Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $4750.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2646 of 2015

CNJ15

First Applicant

CNK15

Second Applicant

CNL15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 6 November 2015 wherein the Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicants protection (class XA) visas.

2. The grounds of application are as follows:-

   “(1) That the member failed to assess my appeal according to the applicable law as well as failed to consider my circumstances as well as risks in returning to India.

   (2) That the member failed to consider that the law and order situation in India as well as the adverse impact influential people can have on common people through their links.  The member also did not consider that with the implementation of technology with minimum control, it is easy to track a person all over India as I would need to have PAN card (similar to TFN) to get a job, find accommodation and open a bank account.”

3. The First Respondent seeks that the application is dismissed and in the event of dismissal, that costs be paid by the First and Second named Applicants, to the First Respondent.

4. On 27 April 2016, Registrar Buljan made orders in the matter, by consent, which included that the Applicants file and serve an amended application, if any, with proper particulars of the grounds of application and written submissions no later than 28 days before today’s date.  The Applicants have filed no written submissions but were given an opportunity this day to make oral submissions.  The First Respondent filed written submissions on 25 January 2017 and they are relied upon in the proceedings by the First Respondent.

5. There is also before the Court the evidence as contained in the court book filed 3 May 2016.

Background

1. The primary Applicant (‘the Applicant’) is a 36 year old Sikh of Indian nationality who first arrived in Australia on 20 November 2008 as the holder of a student (subclass 572) visa.

2. The primary Applicant’s wife (the Second Applicant) studied commercial catering from April 2009 until April 2011 on a (subclass 572) visa.  The couple were thereafter unsuccessful with further applications for substantive visas and remained in Australia unlawfully until granted bridging visas in mid-2013 as a result of the application for Protection (class XA) visas (‘the visa application’). 

3. The Second Applicant was born on 12 February 1983 and is a citizen of India.  She is aged 37.  The parties have a son who was born on 24 May 2009 in Australia.  He is a citizen of India.  He returned to India to live with his father’s family when he was seven months so that the Second Applicant could attend to her studies.  The Applicant returned to India on 1 March 2011, re-entering Australia on 15 March 2011.  The purpose of his trip to India was to collect the Applicant’s son and bring him back to Australia to reside with his parents.

4. A delegate of the Minister interviewed the Applicant on 14 July 2014 and refused the visa application on 19 August 2014, finding that the Applicant was not owed protection obligations under s.36 of the Migration Act 1958 (‘the Act’).  As a consequence, the members of his family unit included in the visa application were also not eligible for the grant of protection visas.

5. The Applicants lodged an application for review of the delegate’s decision with the then Refugee Review Tribunal, now known as the Migration and Refugee Division of the Tribunal on 3 September 2014.

6. The Applicant and his wife appeared before the Tribunal on 29 October 2015 to give evidence and present arguments. They were assisted by an interpreter in the Punjabi language. The Tribunal published its decision on 6 November 2015, which was notified to the Applicants on 9 November 2015.

7. In respect of the application for judicial review before the Court, the Applicant and the Second Applicant appeared this day and made limited submissions.  They were assisted by an interpreter in the Punjabi language.  Their submissions went to merits review.  They disagreed with the findings of the Tribunal.  They also claimed that newspaper articles provided by the Applicants to the Tribunal were overlooked by the Tribunal. 

The claims of the Applicants

1. The Tribunal in its Statement of Decision and Reasons (‘the Decision Record’) accurately set out the claims of the Applicants in paragraphs 12 to 16 of the Decision Record.  The Tribunal said therein:

   “12. In the Protection Visa Application Applicant 1 indicated that he left Australia due to ‘study’ and at question 44 indicated that he had not experienced harm in India.  He indicated, however, that he fears retaliatory attacks from family members of Mr Avtar Singh and local Congress Party supporters due to a group fight which occurred after he departed for Australia.  He was a young Akali supporter and there was a clash between Akali and congress supporters which resulted in the death of Avtar Singh, a Congress supporter.

   13.  Two of the group of Akali supporters have been convicted and are in jail.  Other members of the group have been targeted and punished in various ways.  Even though he was in Australia at the time, his family has been contacted to get his whereabouts.

   14.  When he visited India to bring his son to Australia, his family had to bring his son to Delhi airport and he had to keep changing his location in Delhi over the course of the two week stay.

   15.  Applicant 1 does not consider that the Indian authorities can and will protect him as the Congress group are the stronger group with good connections to the top.

   16. Applicant 2 and Applicant 3 did not make further written claims in addition to those put forward by Applicant 1.”

Findings of the Tribunal

1. The Tribunal accepted the Applicants were citizens of India and that India is the Applicants’ receiving country for complementary protection purposes.  The Tribunal accepted that the Applicant had been involved in one or two clashes with rival Congress supporters in the past.  The Tribunal also accepted that Avtar Singh had been killed in an incident in 2009, and that the primary Applicant had been a friend of some of the BJP-Akali Dal supporters who were implicated in the killing.

2. The Tribunal accepted, further, that:

   “(33) The Applicant’s account of the incident that resulted in the death of Mr Singh was broadly consistent with press reports, which the Tribunal was able to source from the internet (including one press report which the Applicant included an excerpt from in his protection visa application).”

3. The Tribunal noted in its Decision Record the sources of such press reports.

4. However, having considered all of the evidence available to it, the Tribunal did not accept that relatives and/or associates of Avtar Singh suspected that the Applicant was involved in the incident that resulted in the death of Avtar Singh.  The Tribunal did not accept that relatives and/or associates of Avtar Singh had approached the Applicant’s family regarding his whereabouts.  The Tribunal did not accept that the Applicant had to keep changing his location in New Delhi when he visited India in 2011 to pick up his son, and the Tribunal did not accept that the Applicant was at risk of a retaliatory attack by relatives and/or associates of Avtar Singh in the future, should he return to India.

5. The Tribunal identified a number of matters that undermined the Applicant’s claims, commencing in paragraph 35 of its Decision Record and through to 39 therein:-

   a)firstly, the Tribunal noted that the Applicant departed India for Australia in November 2008, four months before the incidents on and around 25 March 2009, which included the stabbing of Sonu and subsequent revenge attack that led up to the killing of Avtar Singh.  The Tribunal said:

   “(35) A number of arrests have been made in relation to the killing of Avtar Singh, with two of the accused being denied bail and others released on bail.  Press reports indicate that the killing occurred in a hospital with a large number of people present (one report indicates that Satnam Singh was accompanied by 25 to 30 persons armed with guns and other lethal weapons).  There is no suggestion that the police suspect that Applicant 1 was involved or wish to question him.  The Tribunal therefore considers that it is implausible that Avtar Singh‘s relatives and/or associates would consider that Applicant 1 was involved in the incident.”

   b)none of the men charged and released on bail in relation to the killing had been harmed during the six and a half years since it occurred;

   c)when asked when the Applicant’s family had last received calls asking where he was, the Applicant said they did not remember and could not say anything about this. The Applicants failure to provide any detail at the hearing in relation to any call seeking information regarding the whereabouts of the Applicant led the Tribunal to conclude that there had been no such calls;

   d)in his written claims lodged as part of the visa application, the Applicant stated that when he had visited India for two weeks in 2011, two years after the killing, he had had to keep changing location during his visit, but, at the Tribunal hearing, the Applicant gave evidence that he kept changing location in order to catch up with different relatives – a number of different relatives who lived in New Delhi;

   e)the Applicants have been in Australia since late 2008 but had delayed making a protection visa application until March 2014, five years after the killing.  The Tribunal considered that, had the Applicants feared for their safety in India from March 2009 in the way they claimed they did, and noting the Departmental decision which indicated that the Applicant was on a bridging visa E from May 2013, and was refused Ministerial intervention in January 2014, the Applicants would have applied for protection sooner than March 2014.

6. The Tribunal concluded that the Applicants did not face a real chance of harm on their return to their home region in India and that the Applicants were not owed protection obligations under the Refugees Convention or in relation to the complementary protection provisions of s.36(2)(aa) of the Act.

Consideration

1. There is no jurisdictional error attending the decision of the Tribunal.  The Tribunal made findings open to it on the evidence placed before it.  It considered carefully each of the claims made by the Applicants and all of the relevant evidence put before it by the Applicants and found that the Applicant’s claims could not be believed. The Tribunal’s findings were supported by probative evidence. There was no illogicality or unreasonableness attending the decision.  The Tribunal rejected the claimed underlying reason for the feared persecution and consequently affirmed the decision not to grant the Applicants protection visas.

2. The application for judicial review is without merit and shall be dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 March 2017