CPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 1136
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CPK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1136
File number(s): MLG 1374 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 4 December 2023 Catchwords: MIGRATION – application for judicial review – Protection (Subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – whether Administrative Appeals Tribunal erred by taking into account a claim not made by the applicant – found error immaterial – whether Tribunal erred by not taking into account explanation for delay in applying for visa – explanation for delay not a substantial or clearly articulated one – found no jurisdictional error on behalf of the Administrative Appeals Tribunal – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(1), 5H, 5H(1)(a), 5J, 36(1A), 36(2)(a), 36(2)(aa), 65, 414, 474, 476.
Migration Regulations 1994 (Cth) sch 2.
Cases cited: 1610602 (refugee) [2018] AATA 4312 (3 September 2018)
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593
AYY17 v Minister for Immigration andBorder Protection (2018) 261 FCR 503
BAX15 v Minister for Immigration and Border Protection [2016] FCA 491
Craig v South Australia (1995) 184 CLR 163
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Border Protection v Stretton 920160 237 FCR 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nguyen v Minster for Home Affairs [2019] FCAFC 128
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
SZNZK v Minister for Immigration and Citizenship [2010] FCA 651
SZTSC v Minister for Immigration and Border Protection [2017] FCA 1032
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of hearing: 6 September 2023 Place: Melbourne Counsel for the Applicant: Mr Mutton Solicitor for the Applicant: Lander & Rogers Solicitor for the Respondents: Ms Butler of Australian Government Solicitor ORDERS
MLG 1374 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CPK18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Application filed 9 August 2023 be dismissed.
2.The Applicant pay the First Respondent’s costs in the sum of $8,371.30.
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 J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 9 August 2023, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 27 April 2018. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (Visa).
CONTEXT
The applicant is a citizen of India.
On 23 January 2006 the applicant entered into Australia on a student visa.
On 30 April 2008 the applicant applied for a skilled graduate (Subclass 485) visa which was granted on 4 May 2010.
On 23 October 2011 the applicant applied for a subclass skilled (Subclass 885) independent visa which was refused on 3 December 2013. On 6 February 2014 the Tribunal affirmed the department’s decision to refuse the applicant’s subclass 885 visa application. On 28 February 2014 the applicant then applied for Ministerial Intervention under s 351 of the Act.
On 23 September 2014 the applicant applied for a Partner (subclass 820) visa.
On 29 September 2014 the applicant’s application for Ministerial Intervention was refused.
On 27 November 2014 the applicant’s partner (subclass 820) visa was refused. On 14 May 2015 the Tribunal affirmed the department’s decision to refuse his partner visa.
On 24 August 2015 the applicant applied for a Protection (Subclass 866) visa (Visa).
The applicant’s claims were set out in a Statutory Declaration attached to his Visa application. Relevantly, the applicant claimed that:
(1)he was born into the Sikh faith but considers himself to be a non-practising Sikh, non-believer and adheres to a secular mentality;
(2)he fears being subjected to serious or significant harm by his family, relatives and the wider Sikh community who object to his religious and liberal social views and lifestyle;
(3)he comes from a conservative family that staunchly adhere to strict Sikh traditions and religious practices;
(4)his estranged spouse is Australian and his parents and relatives rejected the marriage and threatened both the applicant and his estranged spouse with physical harm;
(5)the constant threats from parents and relatives were part of the reason as to why his relationship with his estranged wife broke down;
(6)his parents have demanded he recant his views and embrace the Sikh faith and tradition, and warned if he returns to India and does not reform he will be harmed for bringing shame on the family;
(7)he wears earrings, western clothes, drinks alcohol and has girlfriends and would be targeted for this lifestyle if he were to return to India;
(8)relocation would not be viable as his family and relatives have powerful political connections and would have the means of locating him; and
(9)he would not be able to rely on the police for protection as they are corrupt and his family has financial capacity to influence the police.
On 4 July 2016 the delegate of the Minister refused to grant the applicant the Visa.
On 5 July 2016, the applicant applied to the Tribunal for review of the delegate’s decision. In the application for review, the applicant authorised a registered migration agent as their representative and nominated the email address <[email protected]> for correspondence and provided the phone number “xxxxx xxx67”.
On 6 July 2016, the Tribunal sent the applicant’s representative confirmation of receipt of his application. The applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 22 December 2017, the Tribunal emailed the applicant’s representative enclosing an invitation for the applicant to attend a hearing on 22 January 2018 at 10.00am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On the same day, the applicant’s representative requested an adjournment of the hearing for reason of “a clash with another AAT hearing”. The adjournment request was refused due to the request failing to provide reasons as to why the applicant would not be able to attend the hearing.
On 7 January 2018 the applicant’s representative emailed the Tribunal and attached a further Statutory Declaration (executed by the applicant), various articles and reports concerning honour killings and religious violence in India and a completed “Response to hearing invitation”.
On 15 January 2018 the applicant’s representative emailed the Tribunal and attached a supporting statement from the applicant’s friend dated 13 January 2018.
On 22 January 2018 the applicant appeared before the Tribunal and gave evidence and presented arguments.
On 27 April 2018 the Tribunal affirmed the decision of the delegate not to grant the applicant the Visa. On 30 April 2018, the Tribunal emailed a copy of their decision and reasons to the applicant’s representative.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 27 April 2018 (Tribunal Decision).
At the hearing, the applicant provided the following documents in support of his claims:
(a)Statutory declaration dated 17 August 2015;
(b)Statutory declaration dated 4 January 2018;
(c)Marriage Certificate dated 3 May 2014;
(d)various photos of the applicant’s claimed liberal lifestyle including eating meat, drinking alcohol and socialising;
(e)statement from the applicant’s friend dated 13 January 2018; and
(f)various articles concerning honour killings in India.
At paragraph [12] of the Tribunal Decision, the Tribunal summarised the applicant’s migration history and at paragraphs [19]-[20] the Tribunal summarised the applicant’s claims for protection. At paragraphs [21]-[27] the Tribunal set out the applicant’s evidence in support of his claims and at paragraphs [28]-[60] the Tribunal set out country information regarding orthodox Sikh practices, abandoning the external signs of Sikhism, treatment, internal relocation and its limitations, honour killings and Police in Punjab.
The Tribunal made a number of findings at [65] accepting the applicant’s evidence, relevantly, that the applicant is Indian, of the Sikh faith, was married on 3 May 2014, and is now estranged from his wife.
In making its decision, the Tribunal took into account the applicant’s delay in applying for a protection visa, noting he arrived in Australia on 23 January 2006 but made no attempt to apply for a protection visa until 24 August 2015.
The Tribunal was prepared to accept that the applicant prefers to lead a liberal lifestyle and that his family objected to his marriage. However, as a result of the applicant’s failure to provide any independent evidence as to his alleged liberal lifestyle or any evidence that his parents were receiving information from relatives or member of the Sikh community in Melbourne or were sending messages to members of the Sikh community, it found he had not rejected his faith and had not been threatened or harassed because of his marriage. The Tribunal did not accept that the applicant was at risk of being killed by his family. Accordingly, the Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (Act).
As to the complimentary protection grounds in s 36(2)(aa) of the Act, the Tribunal found that if there was a real chance the applicant would suffer serious harm, the harm did not relate to all areas of India and that it would be reasonable for him to relocate to a city such as Delhi to avoid the risk of harm.
For completeness, the Tribunal noted that there was no suggestion that the applicant satisfied s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfied ss 36(2)(a) or (aa) of the Act and who holds a protection visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 18 May 2018. The applicant filed an Amended Application on 9 August 2023.
The Amended Application contains the following grounds for judicial review (without amendment):
1.The Second Respondent (the Tribunal) erred by considering a claim not made by the Applicant.
Particulars
a.At [69], The Tribunal took into account a claim that it said the Applicant made in his oral evidence about being attacked in a temple in Punjab.
b.The Tribunal found that the claimed attacked did not occur.
c.The Applicant did not give any such evidence and did not make any claim about being attacked.
2.The Tribunal erred by failing to consider (or properly consider) the Applicant’s explanation for delay in making a protection visa application.
Particulars
a.At [66]-[67], the Tribunal took into account the Applicant’s delay in making a protection visa application.
b.During the Tribunal hearing, the Applicant explained the reasons for his delay in making a protection visa application.
c.The Tribunal did not refer to or consider the Applicant’s reasons for the delay.
3.The Tribunal erred by failing to consider (or properly consider) country information about internal relocation.
Particulars
a.The Applicant’s claims included that he would be harmed by his parents and relatives if he returned to India, that they would carry out an honour killing, and that he could not relocate within India to avoid harm.
b.The Tribunal found, inter alia, that the Applicant could relocate to another part of India to avoid serious or significant harm.
c.In so finding, the Tribunal failed to consider (or alternatively, did not properly consider) country information that was relevant to assessing whether the Applicant could relocate within India to avoid harm and which the Tribunal was required to take into account – namely, the DFAT Thematic Report – Indian State of Punjab.
The applicant filed the following further relevant material:
(1)affidavit of applicant filed 18 May 2018, annexing the Tribunal’s decision;
(2)written submissions filed 9 August 2023;
(3)affidavit of applicant’s legal representative filed 9 August 2023, annexing a transcription of the AAT hearing; and
(4)a supplementary Court Book filed 9 August 2023.
The affidavit of the applicant’s legal representative filed 9 August 2023 states that a lawyer listened to the audio of the AAT hearing and prepared a transcript of the hearing based on the audio recording. The transcription of the hearing annexed to the affidavit is not an official transcript and is not otherwise verified. However, no objection to it was raised by the Minister.
The Minister filed a Response on 17 July 2018. The Response contained the following sole ground:
1.The decision under review is not affected by jurisdictional error.
The Minister also filed written submissions on 21 August 2023.
THE HEARING
The hearing took place on 6 September 2023. The applicant was represented.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task of judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Relevant statutory framework
The criteria for a protection visa are set out in s 36 of the Act and schedule 2 of the Migration Regulations 1994 (Cth). In summary, and as presently relevant, the applicant must be a person in respect of whom Australia has protection obligations as a refugee or on other “complementary protection” grounds.
The presently relevant provisions of the Act are set out below.
Section 36(1A) of the Act provides as follows:
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2)
Section 36(2), relevantly, provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mention in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
Torture, cruel or inhumane treatment or punishment, and degrading treatment or punishment are defined in s 5(1) of the Act.
The meaning of refugee is set out in s 5H of the Act. Relevantly, s 5H(1)(a) provides that a person is a refugee if:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
The meaning of well-founded fear of prosecution is set out in s 5J of the Act, relevantly, as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Ground 1
At paragraph [69] of the Tribunal’s decision, the Tribunal said:
In his oral evidence to the Tribunal, the applicant said that prior to coming to Australia he had been kicked and punched in a Sikh Temple in Punjab because of his liberal views. The applicant was not able to say when the attack occurred. Although he said that it was sometime in 2008. If the attack happened prior to coming to Australia he was clearly mistaken as he arrived in Australia in 2006. The applicant was not able to provide any independent evidence of the attack, including any witness statement, police report, or medical certificate of any injuries suffered at the time. Therefore, as a result of the vague nature of the applicant’s evidence, the Tribunal finds that the attack on the applicant in a Sikh Temple prior to coming to Australia did not occur.
(Attack Claim)
By ground 1, the applicant contends that the Tribunal erred by taking into account a claim that was not made by the applicant, specifically the Attack Claim.
The Minister concedes that the Attack Claim was not made by the applicant and that the Tribunal considered a claim which formed no part of the applicant’s case, either before the delegate or the Tribunal.
The Minister concedes this was an error.
Applicant’s submissions
The applicant submits that it appears the Tribunal mistakenly thought the applicant gave evidence of the Attack Claim when that claim was made during a different Tribunal case heard by the same member at around the same time, namely 1610602 (refugee) [2018] AATA 4312 (3 September 2018) (Second Case). The applicant submits that there are significant similarities between the applicant’s case and the Second Case; including that both concerned reviews of decisions to refuse to grant protection visas, both applicants were male Sikhs from Punjab who claimed to fear harm in India because they had abandoned Sikh traditions in similar ways, and both applicants claimed they could not relocate within India as they said they would be found and physically harmed.
The applicant submits that:
(a)in considering the applicant’s case based on information that was not before it and an incorrect understanding of the basis upon which the applicant said he feared persecution, the Tribunal has failed to lawfully undertake the task required of it by s 414 of the Act and has taken into account an irrelevant consideration;
(b)the error was material; and
(c)the Tribunals’ consideration of the Attack Claim was legally unreasonable.
The applicant submits that the error was material for the following reasons. Firstly, the Tribunal’s consideration of the Attack Claim meant that it had a fundamental misunderstanding of the person and claims it was considering and so did not truly consider the applicant’s case. In oral submissions the applicant submitted that this misunderstanding “infected” the Tribunal’s reasoning, shows that the Tribunal was confused and cannot be isolated. The applicant submits that the Attack Claim (if true) was plainly relevant to the applicant’s claim for protection yet had not previously been raised. The applicant submits that the Attack Claim was therefore a significant matter and the Tribunal’s consideration and rejection of it must therefore have altered the Tribunal’s view of the applicant and his claims as a whole, leaving it with an entirely different (and wrong) impression of the applicant and the case before it. Secondly, consideration of the Attack Claim must have affected the Tribunal’s assessment of the applicant’s credibility. The applicant submits that it is inconceivable that the Tribunal’s wrong conclusion that the applicant has falsely claimed he was a victim of religious violence did not affect its view of the applicant’s credibility generally and make it less inclined to believe other claims and evidence. The applicant submits that had the Tribunal not erroneously considered the Attack Claim, there is a possibility it would have been more likely to accept other aspects of the applicant’s evidence, including his evidence as to whether he could relocate within India.
As to unreasonableness, the applicant submits that there was no evident or intelligible justification for the Tribunal’s consideration of the Attack Claim. It submits that it is arbitrary, perverse and plainly unjust to decide the applicant’s protection claims by reference to a claim that he did not make and where there is a possibility that, had it not been considered, it could have changed the course of the review.
Minister’s submissions
The Minister concedes that the Attack Claim was not made by the applicant and that the Tribunal considered a claim which formed no part of the applicant’s case, either before the delegate or the Tribunal.
The Minister concedes this was an error. However, the Minister submits that the error was not material for the following reasons:
(a)all the error did was result in the Tribunal rejecting a claim not made by the applicant. The rejection of the claim was not given any weight by the Tribunal and there is no other reference in the decision to the Attack Claim. The errant references at paragraph [69] did not impugn the applicant’s overall credibility; and
(b)the Tribunal gave a separate and independent basis for its decision, being that the applicant could relocate to Delhi.
As to unreasonableness, the Minister submits that the characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made. The Minister submits that the Tribunal’s mistake of fact in paragraph [69] does not result in a conclusion that the Tribunal’s decision was legally unreasonable. The Tribunal’s separate and independent basis for its state of satisfaction means that the Tribunals’ decision cannot be characterised as “so lacking a rational or logical foundation”.
Consideration
It is uncontested that the Attack Claim formed no part of the applicant’s case and that the Tribunal considered a claim which formed no part of the applicant’s case, either before the delegate or the Tribunal. It is also uncontested that this was an error.
At issue is whether the error constitutes jurisdictional error.
An error will constitute jurisdictional error if, and only if, it is material: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (MZAPC) at [2]-[3]. An error will be material if there is a realistic possibility that the decision made could have been different had the error not occurred. SZMTA at [45], [49]; MZAPC at [2]-[3]. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact in respect of which the applicant in an Application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof: MZAPC at [2]-[3]. The question is to be determined by inferences drawn from evidence adduced on the Application for judicial review: MZAPC at [46]. In assessing materiality, much will turn on the facts of the case, the decision-making process and the kind of error alleged: Nguyen v Minster for Home Affairs [2019] FCAFC 128 at [54].
For the following reasons, I do not consider that there is a realistic possibility that the decision made could have been different had the error not occurred. Accordingly, I do not consider that the error was material and constitutes a jurisdictional error.
Firstly, I reject the submission that the Tribunal fundamentally misunderstood the applicant’s case, was confused and that the erroneous inclusion of the Attack Claim “infected” the entirety of the Tribunal’s reasoning. At paragraphs [19] and [20] of its decision the Tribunal sets out the applicant’s claims as set out in his statutory declarations dated 17 August 2015 and 4 January 2018. Those paragraphs are comprehensive and set out the applicant’s claims clearly and in detail. It is not contended that those claims are not those of the applicant or that the Tribunal has in any way misunderstood them. The Tribunal then goes on to consider each of the applicant’s claims. At paragraphs [70]-[78] of the Tribunal’s decision the claims advanced by the applicant are each considered, findings made in relation to each claim and the reason for those findings given. Consequently, I am unable to conclude, as contended by the applicant, that the erroneous inclusion of the Attack Claim demonstrates that Tribunal has fundamentally misunderstood his case, is generally confused as to the applicant’s case or claims.
Secondly, I accept the submission that in paragraph [69] the Tribunal did no more than reject the Attack Claim. The Attack Claim is not relied upon nor given any other weight or significance in the balance of the Tribunal’s decision. It is not referenced elsewhere in the decision. In those circumstances, I am unable to see how the error “infects” the entirety of the Tribunal’s reasoning.
Thirdly, whilst I accept the findings in relation to the Attack Claim followed directly on from a paragraph which commenced “There were a number of inconsistencies and implausibility’s in the applicant’s claims that have caused the Tribunal not to accept parts of the applicant’s evidence…” that paragraph continues as follows:
…The applicant failed to provide any compelling evidence in support of his claim that he had rejected his Sikh faith and that he now lived a liberal lifestyle in which he rejected the traditional values and practices of the Sikh faith. In addition the applicant failed to provide any credible or compelling evidence in relation to the alleged threats he said he received from his parents, relatives and members of the Sikh community.
The Tribunal’s findings are therefore based on the failure of the applicant to provide compelling evidence of the rejection of his faith and the alleged threats he has received from his parents, relatives and members of the Sikh community. Further, the Tribunal does not rely upon its finding in relation to the Attack Claim to support its conclusion at paragraph [78] that the applicant was not a person in respect of whom Australia owes protection obligations.
Fourthly, I do not consider that the Tribunal’s error in paragraph [69] impugned the applicant’s credibility or that a conclusion that this must have been so can be sustained. The applicant concedes that the Tribunal did not make an explicit general credibility finding. There is nothing in the Tribunal’s reasons to suggest that the Tribunal made a credibility finding in relation to the Attack Claim or applied any credibility finding made in relation to the Attack Claim in the rejection of any of the applicant’s other claims. At paragraphs [70]-[78] of its decision the Tribunal gave consideration to each of the claims made by the applicant and rejected them for the reasons given in those paragraphs, none of which are based or turn upon the applicant’s credibility. Rather, those findings are based upon the Tribunal’s analysis of the evidence before it. The Tribunal’s reasons give no cause to conclude that the Tribunal somehow made an implied adverse credibility finding on the basis of paragraph [69] of its decision.
The applicant relied upon the decision of Perram J in SZNZK v Minister for Immigration and Citizenship [2010] FCA 651 (SZNZK) and the decision of Greenwood J in SZTSC v Minister for Immigration and Border Protection [2017] FCA 1032 (SZTSC). I do not consider either decision to assist the applicant.
In SZNZK his Honour found that a delegate of the Minister had erred in determining a visa application by considering a statement made by the wrong visa applicant. At paragraph [43] his Honour said:
The function conferred on the delegate was that set out in s 65, that is, the function of determining the appellant’s visa application. Substantially determining someone else’s visa application does not involve a discharge of that function at all. It follows that the delegate failed to carry out the duty imposed upon him by s 65. The consequence is that the decision he arrived at is no decision at all, afflicted as it is by jurisdictional error.
(emphasis added)
SZNZK is not analogous to the case before this Court. Here, all of the applicant’s claims were considered; there was no substantial determination of someone else’s visa application.
In SZTSC his Honour found that the Tribunal had failed to discharge its statutory function and fell into jurisdictional error in circumstances where the Tribunal had taken account of incorrect facts unrelated to the individual circumstances. At paragraph [68]-[69] his Honour said:
…the Tribunal then considers the “individual circumstances” of the appellant consistent with its observation at para 67 of an obligation to do so. In this paragraph, the Tribunal makes the factual observations quoted at [24] and [26] of these reasons, which do not relate to the individual circumstances of the appellant. Further incorrect factual observations are made at para 68, quoted at [28] of these reasons, and, importantly, the Tribunal observes that those matters “support” the findings of the Tribunal. In other words, the errors were material to the decision.
I am satisfied that the Tribunal has reached a conclusion that it cannot be satisfied that the appellant has a well‑founded fear of persecution as a Hazara Shia should he return to Afghanistan, on the basis of incorrect facts entirely unrelated to the “individual circumstances” of the appellant in circumstances where those incorrect facts were material to the decision reached by the Tribunal (because it says those facts support its findings)…
(emphasis added)
Accordingly, his Honour found that the incorrect facts were material to the decision reached by the Tribunal because the Tribunal had relied upon those facts to support its findings. That is not analogous to the matter currently before this Court. In the present matter, the Tribunal did no more than consider and reject the Attack Claim. There is nothing in the Tribunal’s decision to suggest that the Tribunal relied upon its rejection of the Attack Claim to support its findings that the applicant was not a person in respect of whom Australia has protection obligations.
Further, I accept the Minister’s submission that the error was immaterial because the Tribunal gave a separate and independent basis for its decision; being that the applicant could relocate to Delhi. At paragraph [79] of its decision, the Tribunal said:
In the alternative, if there was a real chance the applicant would suffer serious harm from his parents, relatives or members of the Sikh community as a result of him leading a liberal lifestyle and his rejection of Sikh values and traditions (which the Tribunal has specifically found there is not) then it finds that there is no real chance the applicant will suffer serious harm as claimed by reason that the harm claimed does not relate to all areas of India. As such, the Tribunal finds that it would be reasonable for the applicant to relocate to a city such as Delhi to avoid the risk of such harm.
(emphasis added)
The finding contained in paragraph [79] regarding relocation to a city such as Delhi is expressly stated to be “in the alternative” Accordingly, I consider it clear that the relocation finding was an independent basis for the Tribunal’s decision. I reject the submission that the erroneous inclusion and consideration of the Attack Claim at paragraph [69] “infected” the Tribunal’s reasons for finding that the applicant could relocate to Delhi under either s 36(2)(a) or (aa) of the Act.
The Tribunal’s reasons for finding that the applicant could relocate to a city such as Delhi are clearly set out in paragraph [80] of the Tribunals’ decision as follows:
The harm the applicant claims he will suffer is based on the fact that he has chosen to live a liberal lifestyle and that he has rejected the traditions and customs of the Sikh faith. The applicant did not provide any evidence as to why he could not lead such a lifestyle in a large city such as Delhi. Delhi has a population of approximately 11 million people all for a diverse range of religions and cultural backgrounds. The applicant is single, resourceful and educated having lived away from home for more than 10 years. The Tribunal is confident that he would be able to find opportunities and be able to support himself in a large city such as Delhi. Despite the applicant’s claim that he came from a wealthy family, he did not provide any evidence of his family’s ability or desire to pursue him in the event that he returns to India. Therefore as a result of the applicant’s failure to provide any evidence as to his family’s ability or desire to locate him upon his return to India, the Tribunal finds that was not a real chance that the applicant would suffer serious harm in the event he relocated to a large urban area such as Delhi.
In addition at paragraph [75] the Tribunal says:
…The country information indicates that while family elders are said to be dismayed, ‘at the rapidity with which young men are trimming their hair and abandoning the turban’, there is no suggestion that the young men who not followed the Sikh customs and traditions have caused dishonour to their family or have fallen victims of honour killings.
At paragraph [51]-[56] of its decision the Tribunal considers internal relocation and the DFAT Report, at paragraphs [57]-[60] the Tribunal considers material regarding honour killings and at paragraphs [84]-[85] the Tribunal considers whether it is reasonable for the applicant to relocate to Delhi. Accordingly, the Tribunal provides separate and clear reasons for its conclusion that the applicant could relocate to Delhi and that such relocation was reasonable. There is simply no indication that the erroneous inclusion and consideration of the Attack Claim at paragraph [69] “infected” the Tribunal’s reasons for finding that the applicant could relocate to Delhi under either s 36(2)(a) or (aa) of the Act.
Finally, I also reject the applicant’s contention that consideration of the Attack Claim was legally unreasonable. Legal unreasonableness arises where a decision is “sufficiently lacking rational foundation, or an evident or intelligible justification” or is “plainly unjust, arbitrary, capricious or lacking common sense… such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.”: Minister for Immigration and Border Protection v Stretton 920160 237 FCR 1, 5-6 [11-12] (Allsop J). Recently, in Minister for Immigration, Citizenship and Multicultural Affairs v Lieu, by her Litigation Representative Nguyen [2023] FCAFC 57 CJ Mortimer said at [82]:
Legal unreasonableness involves a “necessarily stringent” test: SZVFW at [11] (Kiefel CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [108] (Gageler J). It involves a conclusion by the Court on review that “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” the decision that was made, or exercised the power in the way it was exercised: SZVFW at [69] (Gageler J), citing Li at [71] (Hayne, Kiefel and Bell JJ), quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064.
I do not consider that the decision of the Tribunal is legally unreasonable. For the reasons set out above, notwithstanding the error in relation to the Attack Claim, I consider there is a rational foundation and an evident and intelligible justification for the decision. Further, the Tribunal’s separate and independent basis for its decision means that the decision falls within a range of possible, lawful outcomes.
It follows from the above that ground 1 discloses no jurisdictional error on behalf of the Tribunal.
Ground 2
By ground 2, the applicant contends that the Tribunal erred by not taking into account the applicant’s explanation for his delay in making the visa application.
Applicant’s submissions
Firstly, the applicant submits that “while the Tribunal did not expressly state how it took the delay into account, it is clear from paragraph 67, read in the context of paragraph 66, that it was considered adversely to the applicant’s credibility.”
Secondly, the applicant submits that the Tribunal failed entirely to consider and engage with the applicant’s reasons for the delay which, it is submitted, were part of the claims made by the applicant. Accordingly, it is submitted, the Tribunal has failed to properly perform it statutory task by not considering all the applicant’s claims.
Thirdly, the applicant submits that the Tribunal acted unreasonably as it is “plainly unjust, arbitrary, capricious, or lacking in common sense” to reach a decision about the applicant’s claims by adversely taking into account the delay without giving any consideration to the reasons provided.
Finally, the Tribunal’s “error” in relation to the delay was material. It is submitted that the Tribunal’s reference to delay in its reasons clearly shows it considered the matter material, as it confirmed that it took the delay into account. Further, it is submitted, that if the error had not been made, the applicant’s delay in making a protection visa application might not have been considered to be adverse to his credibility and the Tribunal may have been more likely to accept his evidence on other matters.
Minister’s submissions
The Minister submits that ground 2 must be rejected for three alternative reasons.
Firstly, the Minister submits the Tribunal was not required to consider the applicant’s explanation for delay because it was not a substantial, clearly articulated claim, nor was it substantial, consequential or cogent evidence.
Secondly, the Minister submits the applicant cannot show that the Tribunal failed to consider the explanation.
Thirdly, the Minister submits that even if the Tribunal was required, and failed, to consider the applicant’s explanation for the delay, the error was immaterial.
Consideration
A delay in making a protection visa application may be relevant to the Tribunal’s assessment of an applicant’s credibility or their fear of persecution: BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 at [41].
At paragraphs [66]-[67] of the Tribunal’s decision, the Tribunal said:
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm. Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.
In this case the [applicant] arrived in Australia on 23 January 2006. Despite the applicant’s applications for a Skilled Graduate visa and Partner visa and for Ministerial Intervention in 2014, the applicant made no attempt to apply for a protection visa until 24 August 2015. In making its decision the Tribunal has taken into account the applicant’s delay in making their application for a protection visa.
Accordingly, I accept the applicant’s submission that the Tribunal took the applicant’s delay in applying for a protection visa into account. The Tribunal expressly says it has done so. However, the Tribunal does not state how it took the delay into account. Contrary to the applicant’s submission, I do not consider it is “clear from paragraph 67, read in the context of paragraph 66” that the delay was considered adversely to the applicant’s credibility. Firstly, there is nothing in the express language used by the Tribunal to suggest that the delay was relied upon to support an adverse credibility finding, nor do I consider that such a conclusion may properly be inferred. Secondly, as set out above, the Tribunal made no general credibility finding. Thirdly, at paragraphs [70]-[78] of its decision the Tribunal considers each of the applicant’s claims and provides reasons for its findings in relation to each claim. The Tribunal’s findings that the applicant was not a person to whom Australia owes protection obligations are based on an analysis of the evidence, or lack thereof, before the Tribunal. It is not based on the credibility of the applicant. Finally, in light of all of those matters and in particular, the absence of any mention of the applicant’s credibility in the Tribunal’s decision and the language of the final sentence of paragraph [66], I consider the better inference to be that the Tribunal took the delay into account in relation to whether the applicant had a genuine fear of persecution.
As to the asserted failure by the Tribunal to engage with or consider the applicant’s reasons for the delay, the transcript of the Tribunal hearing discloses that the following exchanges occurred between the applicant and the Tribunal:
AAT Member: If um, why did it take you so long um to make the application for protection? I noticed that, I mean you’ve made lots of applications before –
Applicant: Yeah
AAT Member: Ah, you arrived in 2006 and it must’ve been that you got a taste for um non-Sikh life pretty quickly ah, um, in Australia after you arrived, why didn’t you make the application sooner?
Applicant:Because I didn’t wanna tell anyone what my like ah, this problem, so, I was going through normal process but ah so after that so because over in a friends and in a society if I tell anyone over here these things, so they always told people over here. So, because of that I didn’t want to go through like [indecipherable] detentions or trauma but I’m going through these things now. That’s why I didn’t to tell anyone what these things, so what’s happening in my life, what happening in my family, so, what how they are treating me. But that was in the [indecipherable]
AAT Member: How does it matter, if you tell us – I mean the Tribunal’s not, ah, we’re not the general
Applicant:Yeah you are – you’re not from a Indian society
AAT Member: No
Applicant:Yeah, that ah –
AAT Member: So why wouldn’t you tell us straight away
Applicant:Because I didn’t tell them straight away so because sometime when you are in a like a deep sorrow you tell someone. So because you gonna lose your burden on your head. So if you are keeping things in your mind so you are gonna become mad. So that’s happened with me. So I just tell one person and they spread it out
AAT Member: So it’s pretty – if – if you come here and as you’re a student and you know for you know three, three and a half years as you were then why haven’t you made the application back in 2010? Why have you waited until 2015 before you made the application?
Applicant:Because I was just going through the normal process, so, I get married so I was living life with my wife here, that’s good so yeah, that was fine but ah, then everything goes from my hand so when they didn’t left me any options so my parents, so then I have to go through this process, yeah
The reasons for the delay provided by the applicant are difficult to understand and less than clear. At the hearing the applicant conceded that parts of the applicant’s explanation are not clear, that “a good portion” of the explanation is not very articulate and that it is difficult to follow. The applicant first talked of the difficulties he had talking to his friends about his issues. This is clearly irrelevant to the Tribunal’s enquiry. Following a further enquiry from the Tribunal as to the reason for the delay, it appears that the applicant is saying that he was going through the “normal process” but then things went from his control and he was not left with any options. The “options” the applicant ran out of appear to be other options for visas to enable him to remain in Australia.
I accept the Minister’s submissions that this is hardly an explanation at all. It is certainly not a substantial or clearly articulated one. The applicant appears to be simply recounting his visa application history and confirming that he did not apply for a protection visa until he had no other migration options available to him. In those circumstances, firstly, I am unable to see how the applicant’s reasons for the delay are part of the claims made by the applicant as submitted by the applicant. I reject that submission. Secondly, the explanation did not necessitate further enquiry or consideration by the Tribunal. The Tribunal is only required to consider claims or evidence which are either the subject of clearly articulated argument, relying on established facts or which clearly emerge from the materials: AYY17 v Minister for Immigration andBorder Protection (2018) 261 FCR 503 at [18]. As to the absence of any reference to the explanation provided by the applicant in the decision and the assertion that the Tribunal therefore did not engage with or consider the applicant’s explanation, I also reject that submission. The Tribunal is not required to refer to every piece of evidence or every contention made by an applicant: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 256 FCR 593 at [46]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [46] –[49]. Given the lack of substance in the explanation, the absence of its reference in the decision does not, in my view, lead to the inference that the Tribunal did not consider it. Rather, as the “explanation” did no more than recount the applicant’s visa application history it was not necessary to refer to it.
The applicant relies upon the decision of ATC15 v Minister for Immigration and Border Protection [2016] FCA 1420 (ATC15). I do not consider ATC15 assists the applicant. In ATC15 the appellant gave explanations to the Tribunal for the delay in both written materials and in their oral submissions. In the circumstances of that case, her Honour said “a proper and complete enquiry in respect of the delay required that the Tribunal consider” the facts of the delay and whether they were believed. That is, her Honour’s reasons were expressed by reference to the circumstances before her Honour: ATC15 at [61]. By contrast, in this case, the applicant’s “explanation” for the delay was far from substantial and clearly articulated and, as stated above, was difficult to understand and hardly an explanation at all. It did not require further enquiry. The “facts of the delay” simply appear to be a recitation of the applicant’s visa application history.
It follows, that I reject the submission that the Tribunal erred by not taking into account the applicant’s explanation for his delay in making the visa application. It is therefore not necessary that I consider whether any such error was material.
Ground 2 also discloses no jurisdictional error by the Tribunal.
Ground 3
By ground 3, the applicant contends that the Tribunal erred by failing to consider country information about internal relocation, specifically the information at [5.9] of the DFAT Thematic Report – Indian State of Punjab (the Punjab Report) and in so doing failed to discharge its statutory task and/or failed to take into account a relevant consideration.
The applicant concedes that ground 3 is only relevant if there was also an error that affected the Tribunal’s findings as to the underlying risk of harm, as contended by grounds 1 and 2.
Having not found any jurisdictional error as contended for in grounds 1 and 2, it is not necessary to consider ground 3.
The grounds contended for by the applicant do not disclose any jurisdictional error. The application therefore cannot succeed.
DISPOSITION
For the above reasons, the Application must be dismissed.
The Minister seeks costs in the scale amount of $8,371.30. I shall order accordingly.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 4 December 2023
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