COT16 v Minister for Immigration

[2017] FCCA 989

FEDERAL CIRCUIT COURT OF AUSTRALIA

COT16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 989

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the Tribunal complied with its statutory obligations – the adverse findings made by the Tribunal were open – the findings relating to the applicant’s ability to relocate cannot be said to be unreasonable, irrational or illogical – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Applicant: COT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2471 of 2016

Judgment of: Judge Street

Hearing date: 15 May 2017

Date of Last Submission: 15 May 2017

Delivered at: Sydney

Delivered on: 15 May 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms J Strugnell
Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2471 of 2016

COT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 August 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of India. The applicant lodged a subclass TU 572 (Vocational Education and Training Sector) Student visa application on 28 March 2009 as the dependant of his spouse which was granted 25 May 2009.

3. On 28 June 2009 the applicant arrived in Australia as the holder of a subclass TU 572 (Vocational Education and Training Sector) Student visa valid until 12 August 2011. The applicant has remained here in Australia since then and was an unlawful non-citizen for almost three years in Australia. It was not until 30 May 2014 that the applicant lodged a valid application for a protection visa.

The delegate

1. On 17 February 2015 the delegate rejected the applicant’s application and found that the applicant did not meet the criteria under s. 36(2)(a) or s.36(2)(aa) of the Act.

2. The applicant claimed to fear harm from members of his ex-wife’s family who were angry with him about the breakup of their marriage.  The applicant is a Sikh from a particular area and the marriage breakdown is viewed as an insult by his ex-wife’s family who are conscious of the family honour and pride. The applicant alleges they threatened to kill him and threatened his family in India.

3. The applicant alleges he cannot get state protection because the police do not take these incidents seriously. The applicant claimed there is no safety in India and anarchy and restlessness are on the rise. The applicant fears that a false case may be brought against him by his ex-wife’s uncle who has police and political connections. The applicant claimed that relocation could not reasonably be an option as his ex-wife’s family could find him anywhere in India.

The Tribunal

1. On 27 February 2015 the applicant applied for review to the Tribunal. On 17 May 2016 the Tribunal invited the applicant to attend a hearing on 8 July 2016. The applicant attended on that date to give evidence and present arguments and was assisted by his migration representative. A post-hearing submission was also received from the applicant’s migration representative. 

2. The Tribunal identified the relevant law and set out the applicant’s claims and evidence. The Tribunal noted that the applicant alleged that he could not avail himself of state protection and that relocation was not a safe and reasonable option as his former spouse’s family could find him anywhere in India. The Tribunal found that the applicant and his spouse lived together until late 2013 and that he only found out about the divorce in 2014. 

3. The Tribunal found certain aspects of the applicant’s case to be the subject of inconsistencies and certain aspects to be vague and lacking in detail. Nevertheless, the Tribunal was prepared to extend the applicant the benefit of the doubt and accept that his previous statements about the timing and separate and commencement of threats were incorrect as claimed.

4. The Tribunal accepted that there was no doubt that the applicant and his wife were now divorced and the Tribunal accepted that the divorce is deemed traditionally unacceptable in parts of India and can lead to family violence. The Tribunal was prepared to accept that the applicant and his family have been harassed and threatened in the past and that the applicant has received death threats from his ex-wife’s family because of this. The Tribunal noted that the last threat was reportedly made in 2013. 

5. The Tribunal was prepared to accept there is a real chance or risk that the applicant could face serious or significant physical harm or even death at the hands of the ex-wife’s family on return to this area in Punjab for the reasons claimed. The Tribunal was not persuaded on the information before it that the applicant’s in-laws have the claimed connections such that they are in a position to make and uphold false allegations against him. The Tribunal did not accept that the applicant may be unwilling or unable to avail himself of protection locally from harm from his ex-wife’s family.

6. The Tribunal acknowledged that unrest is reported for various reasons at times in different parts of the country but pointed out that any risk of harm he might face in that aspect to be the same as it is for the general population of India and therefore does not amount to persecution or significant harm as defined. The Tribunal noted that the DFAT advice of 15 July 2015 identified the sheer size and diversity of India as meaning that most Indians lived their lives with relatively low risk of violence. The Tribunal was not therefore persuaded that the applicant faces a real chance or risk of serious or significant harm for this reason. 

7. The Tribunal accepted that the applicant is at harm by reason of his in-laws if he returns to his local area and that he may be unable or unwilling to avail himself of protection from the Indian authorities. The Tribunal found the applicant is easily capable of relocating to another area of India where his in-laws would be unable to locate him and his safety would be assured. The Tribunal did not accept that the applicant’s in-laws were influential people with connections such that they could locate him in another part of India. The Tribunal did not accept that the applicant would encounter problems relocating because he is a Sikh.

8. The Tribunal noted that it had raised at the hearing that it did not appear unreasonable for the applicant to relocate to another part of India given his past work experience in agriculture and as a taxi driver, his language skills and demonstrated ability to re-establish himself outside his local area. The applicant did not take issue with these observations of the Tribunal but responded that his problem is that his in-laws are targeting him because he has divorced their daughter. The Tribunal did not accept that the applicant’s in-laws will be able to locate him in another part of India.

9. The Tribunal was of the view that the general security situation does not prevent the applicant from relocating in India. The Tribunal found that it was not unreasonable or unsafe for the applicant to relocate to another part of India to avoid any harm he may encounter from his ex-wife’s family in his local area.

10. The Tribunal noted that it had considered the applicant’s claims individually and cumulatively but based on the evidence before it, the Tribunal found there was not a real chance the applicant will suffer serious harm for a Convention reason if he returns to India now or in the reasonably foreseeable future. Accordingly the Tribunal found the applicant did not have a well-founded fear of persecution and did not meet the criteria under s.36(2)(a) of the Act.

11. The Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk he will suffer significant harm and found that the applicant did not satisfy the criteria under s.36(2)(aa) of the Act.

Before this Court

1. On 18 January 2017 this Court made orders fixing the matter for hearing at today’s date. On 8 December 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The grounds in the application are as follows:-

   1. The Tribunal did not correctly interpret law relating to the applicant's protection claims, namely s. 36(2)(a) and s.36(2)(aa) of the Migration Act 1958;

   Particulars

   The applicant submits that the Tribunal did not appropriately consider whether there is a real chance that he will be persecuted if he returns to India. He submits that the Tribunal took the decision that he will not be persecuted in India by suggesting that he is able to relocate within India and thereby not actually addressing evidence he presented. In doing so, the Tribunal failed to take into account evidence that were related significantly to establishing elements of sections 36(2)(a) and 36(2)(aa).

   2. The applicant pleads that the Tribunal took into account irrelevant considerations and disregarded relevant considerations. Therefore, the applicant submits that there was procedural unfairness during the decision making process of the Tribunal which resulted in the breach of rules of natural justice;

   3. In considering Ground number 2 above, the applicant pleads that the Tribunal did not exercise jurisdiction vested in it appropriately and misconceived its authority incurring a jurisdictional error.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained in summary this meant the Court was considering whether the tribunal’s decision was unlawful or unfair. The Court explained if the Court was satisfied that the Tribunal’s decision was unlawful or unfair the decision would be set aside and sent back for further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was unlawful or unfair the application would be dismissed. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table the applicant explained that he had told the Tribunal and provided all the information that he wanted to say and that the decision had gone against him. The applicant maintained that he had told the Tribunal the truth and that his concerns in returning to India still exist. Whilst the tribunal made certain adverse credibility findings in respect of which it identified reasons for those adverse findings, the Tribunal in general gave the applicant the benefit of the doubt in respect of his assertions concerning threats from his ex-wife’s family. The adverse findings in respect of other parts of the applicant’s claims were open and cannot be said to lack an evident and intelligible justification. It was a matter for the Tribunal to determine the credibility of the applicant in relation to his claims. 

2. On the material before the Court, it was open to the Tribunal to find that it was reasonable for the applicant to relocate. On the face of the material before the Court, the Tribunal properly considered whether it was reasonably practical for the applicant to relocate in his personal circumstances. The Tribunal expressly addressed the applicant’s capacity to sustain himself in light of his education and experience and job history. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration

Ground 1

1. In relation to ground 1, the Tribunal correctly identified the relevant law. On the material before the Court, it was open to the Tribunal to find that the applicant could reasonably relocate in his circumstances within in India. Accordingly, it was open to the Tribunal to make the adverse findings in respect of the requirements of s.36(2)(a) and s.36(2)(aa) of the Act. There is no substance in the contention that the Tribunal failed to take into account the requirements of those provisions.

2. For the reasons already given it was open to the Tribunal to find that the applicant could reasonably relocate and that it was practical to do so in the applicant’s circumstances. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, no irrelevant considerations were identified and no relevant considerations were identified. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 2. 

Ground 3

1. In relation to ground 3, for the reasons already given it was open to the Tribunal to make the adverse findings in respect of the applicant’s ability to relocate and that finding cannot be said to be unreasonable, irrational or illogical. There is no substance in the contention that the      Tribunal did not exercise its jurisdiction appropriately or that the Tribunal misconceived its authority. No jurisdictional error is made out by ground 3.

Conclusion

1. The application fails to make out any jurisdictional error. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 May 2017