CPW15 v Minister for Immigration

[2018] FCCA 1307

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPW15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1307

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – applicants’ son not an applicant for review to the Tribunal – no standing to be an applicant before the Court – orders vacated – Tribunal made findings reasonably open to it and gave cogent reasons probative of the material before it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412, 476

First Applicant: CPW15

Second Applicant: CPX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3326 of 2015

Judgment of: Judge Nicholls

Hearing date: 26 February 2018

Date of Last Submission: 9 March 2018

Delivered at: Sydney

Delivered on: 25 May 2018

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: Ms M Donald of Sparke Helmore Lawyers

ORDERS

1. Orders 1, 2 and 3 made on 11 February 2016 are vacated.

2. The application made on 7 December 2015 is dismissed.

3. The applicants pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3326 of 2015

CPW15

First Applicant

CPX15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 December 2015 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 November 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.

2. The following is in evidence before the Court:

   a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

   b)The affidavit of Mia Donald, solicitor, made on 19 February 2018 with annexure.

Background

1. The first and second applicants are husband and wife. The applicants are citizens of India (CB 13 and CB 37). The first and second applicants applied for the visa which was received by the Minister’s department on 24 February 2014 (CB 1 to CB 27). The second applicant applied as a member of the first applicant’s family unit.

2. I note that part of the second applicant’s application was received by the Minister’s department on 26 February 2014 after a “call” she received from the Minister’s department (CB 34 to CB 43). The first and second applicants also provided various other documents to the Minister’s department in support of their application (CB 44 to CB 61).

3. The first applicant is of Sikh religion and ethnicity (CB 13). He claimed to fear harm on this basis. The first applicant claimed to “fear of being killed by anti sikh (sic) parties like congress”, following the murder of Indira Gandhi on 31 October 1984 by “Sikh guards”. The applicant claimed that when he was two years old, his father was “burnt live (sic)” and his home was “set on fire”. “Somehow” his mother managed to escape with the applicant, but he grew up with the “terror of being killed” because “whenever” there was a “mishappening (sic) in Punjab against Indian majority Hindus, raction (sic) in New Delhi was faced by Sikh families” (see  question 43 at CB 18).

4. The first applicant also claimed that his family “stood against congress leaders Jagdish Tytler and Sajjan Kumar” in “civil Courts” and gave testimony against them. He claimed that these leaders were “very powerful” and that his family lived in a “high risk area” (see question 47 at CB 20). The first applicant further claimed that the Congress Party “who are in power” also “controlled” the police and therefore the police could not protect “Sikh members” (question 48 at CB 21).

5. The first applicant attended an interview with the delegate on 25 September 2014 (CB 62 to CB 64 and see CB 72.3). The delegate refused the application for the visas on 2 October 2014 (CB 65 to CB 82).

6. The first and second applicants applied for review to the Tribunal on 5 October 2014 (CB 83 to CB 85). The first and second applicants were invited to, and attended, a hearing before the Tribunal on 25 August 2015 (CB 93 to CB 94 and CB 101 to CB 104). The Tribunal affirmed the delegate’s decision on 18 November 2015 (CB 119 to CB 135).

7. The Tribunal summarised the first applicant’s claims to fear harm as they appeared in the protection visa application, as they were discussed at his interview with the delegate, and from information provided by him and the second applicant at the hearing before the Tribunal ([19] at CB 125 to [26] at CB 128). The Tribunal also outlined various country information regarding the situation for Sikhs in India ([27] at CB 129 to [33] at CB 133).

8. The Tribunal accepted that the first applicant’s father had been “killed in anti-Sikh riots and their property burned”, on the basis that the first applicant had given “clear and consistent oral and documentary evidence” to the Tribunal ([35] at CB 133 to CB 134).

9. However, when questioned about harm he had experienced in India, or what he feared if he were to return to India, the first applicant referred to a “general” feeling (or expression) of fear ([35] at CB 134 to [37] at CB 134 to CB 135). Aside from stating that he would be killed for “speaking out” against the “people” responsible for killing Sikhs, the first applicant acknowledged that neither he, nor his mother, had been harmed for “speaking out in the past”.

10. The country information before the Tribunal did not indicate that Sikhs in India were at risk of harm on this basis alone. On the evidence before the Tribunal, it was not satisfied that the first or second applicant would face serious or significant harm on the basis of their Sikh religion ([38] at CB 134).

11. The Tribunal noted that since the death of his father, the first applicant had lived without further threat of harm and had been able to “obtain housing, education and employment”. For this reason, the Tribunal was not satisfied that the first or second applicants would face serious or significant harm if they were to return to India because of the events of 1984 ([39] at CB 134).

12. The Tribunal considered the first applicant’s claim that he had spoken out, and would continue to speak out against the “events of 1984”. However, the Tribunal noted that there was “no evidence” that he had been harmed or threatened with harm because of this. The Tribunal also considered that this did not give rise to a real chance of serious or significant harm to either of the applicants if they were to return to India ([41] at CB 134).

13. The Tribunal accepted the first applicant’s claim that in August 2013 there was a “violent street clash” in his home neighbourhood. However, the Tribunal noted that reports of the event indicated that the police arrived and attempted to “quell the unrest and that reconciliation attempts were made”. The Tribunal was not satisfied that the August 2013 incident was “a basis for ongoing fear for Sikh residents in the area” and that this incident also did not give rise to a real chance of serious or significant harm ([42] at CB 134 to CB 135).

14. The Tribunal found that the first and second applicants did not meet either criteria for the grant of the visas ([44] – [47] at CB 135). 

The Application to the Court

1. The application to the Court is in the following terms:

   “1. I am not happy with decesion.

   2. Sikhs are still under threat.

   3. No justice for Sikh in India.

   I provide the real document but I don’t know why immigration refuse my application.”

   [Errors in original.]

2. The application to the Court filed on 7 December 2015 included the first and second applicants. The matter then first came before a Registrar of the Court on 11 February 2016. Various orders were made by consent, including giving the applicants the opportunity to file any amended application and evidence by way of affidavit. No further documents were filed in this regard.

3. Order 1 made on that date also added a “third applicant” as a party to the proceedings (the applicants’ son). The “third applicant” was, according to the Minister’s submissions, born on 31 May 2015, and was neither an applicant for the visa, nor an applicant for review before the Tribunal (see [5] of the Minister’s supplementary written submissions filed on 9 March 2018).

4. The matter again came before a Registrar of the Court on 21 April 2016. Orders made on that date, included that the matter be set down for final hearing on 28 August 2017, and that the parties be given the opportunity to file written submissions. The final hearing of the matter was subsequently relisted for hearing on 26 February 2018. The applicants filed no written submissions. The Minister filed written submissions on 19 February 2018.

5. At the hearing, the applicants appeared in person. They were assisted by an interpreter in the Punjabi language.

6. Why the Registrar made the order adding the applicants’ son as a third applicant in these proceedings is, in the circumstances, not clear.  Nor is there any explanation for the Minister’s apparent consent to the making of this order.

7. The jurisdiction of this Court in matters of this type is derived from s.476 the Act. The Court has jurisdiction to review “migration decisions” which are not “primary decisions”, as defined in s.476 of the Act.

8. In the current case, the migration decision before the Court is the decision of the Tribunal made on 18 November 2015.  The applicants’ son was not an applicant for review before the Tribunal regarding that decision, or for that matter, an applicant for the protection visa made to the Minister’s department by the applicants on 24 February 2014 that formed the basis for review to the Tribunal. Therefore, the “third applicant” was not a subject of the Tribunal’s consideration, and was not a part of the Tribunal’s decision.

9. Nor, as the Minister now submits, was he capable of being an applicant for review before the Tribunal. Given s.412(2) of the Act, the applicants’ son had no standing to seek review of the delegate’s decision. On the evidence, he was born after that decision was made. He was not an applicant for a protection visa, and was therefore not a subject of the delegate’s decision (that is, “primary decision” as defined in s.476 of the Act).

10. A Tribunal “Case Note” made by a Tribunal officer is reproduced at Court Book page 90.  The “Case Note” reveals that the first applicant asked the Tribunal by telephone on 29 June 2015, whether he could add his child as an applicant in the review.

11. The Tribunal officer told the first applicant that that “it would not be possible” to add his child to the review application.  In the circumstances, and given what is set out above, there was no error in that advice.

12. However, what is not clear is why the Tribunal officer also told the applicant that he could “ask” the Tribunal member, but that “it would be up to the Tribunal member to add [the child] as a party”.

13. It does not appear that any such subsequent request was made.  In any event, given what is set out above, the Tribunal had no jurisdiction to consider any application from the applicants’ child. It is therefore not appropriate that the applicants’ son be a party to these proceedings.  The Registrar was in error in making the order adding the “third applicant” as a party before the Court, and appointing a litigation guardian for him.  The Registrar’s orders one, two and three made on 11 February 2016 are therefore vacated.

14. As noted above, before the Court, the first applicant appeared in person as did the second applicant. They were assisted by an interpreter in the Punjabi language. 

15. Before the Court, the first applicant repeated the bare assertions made in the grounds of the application to the Court.  As set out below, they seek impermissible merits review and do not reveal jurisdictional error in the Tribunal’s decision.

16. There are four assertions in the applicants’ grounds.  None reveal jurisdictional error in the Tribunal’s decision.

17. First, the first applicant asserts that he is “not happy” with the Tribunal’s decision.  The first applicant’s state of unhappiness may be understandable, but the Tribunal was not obliged to make a decision with which the first applicant was “happy”. The Tribunal’s obligation is to make a lawful decision.  There is nothing in the evidence before the Court to indicate that it has not done so.

18. The second and third assertions are that Sikhs are “under threat” in India, and that there is “no justice” for Sikhs in India.

19. The Tribunal specifically considered the first applicant’s claims to fear harm in India as a Sikh.  It had regard to the first applicant’s evidence about Sikhs and to country information about the situation for Sikhs in India. It also had regard to the second applicant’s evidence in this regard ([26] at CB 128). In essence, her claims to fear harm were for reason of being a Sikh.

20. As set out above, having regard to the evidence before it, the Tribunal was not satisfied that the applicants’ circumstances, and the situation of Sikhs in India in general, revealed the likelihood of serious or significant harm in the foreseeable future if the applicants were return to India.  The Tribunal’s findings were reasonably open to it on what was before it.  The Tribunal gave cogent reasons probative of the material before it.  No jurisdictional error is revealed. 

21. Fourth, the applicants say that the first applicant provided “the real document”, but that he still does not “know why” the Tribunal refused his application. There are no particulars to the applicants’ ground to identify the document to which the ground refers.

22. On the evidence before the Court, the first applicant provided a copy of his father’s death certificate in support of the protection visa application.  This was before the Tribunal (CB 61 and the affidavit of Ms Donald at annexure “A”).  The applicant also provided an “Information Report” given by his mother to the Delhi Relief Commissioner in relation to his father’s death, and the destruction of the family’s property (CB 60 and the affidavit of Ms Donald at annexure “A”).

23. The Tribunal expressly referred to, and considered, both documents ([21] at CB 126).  The Tribunal found that the first applicant’s oral and documentary evidence was “clear and consistent”.  It accepted that the first applicant’s father had been killed, and that the father’s family’s property was burnt in anti-Sikh riots ([35] at CB 133).  However, the Tribunal found that these events had occurred in 1984, and given such a lengthy passage of time, it was not satisfied that these events gave rise to a real chance of serious or significant harm in the reasonably foreseeable future.

24. The first applicant’s assertion that he does not know “why” his application was refused is simply answered.

25. The Tribunal’s task was to assess the likelihood of harm if the applicants were to return to India in the reasonably foreseeable future.  It was reasonably open on the material before it, for the Tribunal to find that the applicants would not face serious or significant harm because of the events of 1984.  That is, events 31 years ago (at the time of the Tribunal’s decision).  The Tribunal gave cogent reasons for this.  No jurisdictional error is revealed.

26. The first applicant also raised a number of other matters before the Court.

27. First, that the Tribunal did not give specific consideration to his circumstances with reference the riots of 1984 when his father was killed, and in regard to a later incident in 2013.

28. The first applicant’s claim the Tribunal did not consider these matters has no foundation on the evidence before the Court.

29. The Tribunal accepted that there had been riots in 1984 and that the first applicant’s father had been killed ([35] at CB 133).  However, the Tribunal found that the first applicant had made no claim to fear harm subsequently in India because of these events. Nor that any specific harmful incident had occurred since that time (however see below in relation to the incident of 2013). 

30. The Tribunal was not satisfied that the first applicant had any ongoing fear.  The Tribunal found that while he made reference to a “general feeling of fear”, he produced no details of this ([36] at CB 133).  In the circumstances, the Tribunal’s finding was reasonably open to it.

31. The Tribunal also accepted that there was a violent street clash in the first applicant’s home neighbourhood in 2013 ([42] at CB 134 to CB 135).  The Tribunal had regard to country information which stated that the police were able to “quell the unrest”.  The Tribunal found that this was not likely to establish a basis for an on-going fear of harm, in circumstances where it could not locate reports of any other street clashes in this neighbourhood. The Tribunal’s findings were again reasonably open on what was before it ([42] at CB 134 to CB 135).

32. Second, the first applicant submitted that he had given a “DVD” (digital video disk) to the Tribunal but that the Tribunal did not “look at” it.  He claimed to have given the DVD to the Tribunal with his application for review.

33. The application for review was made to the Tribunal on 5 October 2014 (CB 83).  The application form indicates that the applicants submitted five documents with their application (CB 85).  There is nothing there to indicate they submitted, or intended to submit, any DVD.

34. The first applicant then stated to the Court that the DVD was given to the Tribunal “after”. In context, I understood this to be an assertion he had given a DVD to the Tribunal at some time after he made the application for review. There is no evidence before the Court that this occurred.  The applicants have not put a transcript of the Tribunal hearing in evidence before the Court to show that it was given at the hearing. Nor is there evidence of any DVD given to the Tribunal at any time during the course of the review.

35. There is evidence that the applicant had given a “CD” (compact disc) to the delegate, as the delegate’s decision recorded (see CB 73.1).  However, this related to the events of 1984 which, as set out above, the Tribunal accepted had occurred. 

36. The second applicant submitted to the Court that there was “nothing left” for “them” in India. This does not rise above a request for impermissible merits review.

37. The second applicant also submitted that there were “problems” with their child.  There is nothing before the Court to show she, or the first applicant, made any such claim, let alone a claim to fear harm on this basis, to the Tribunal.  There is no jurisdictional error arising from, or even indicated by, what the second applicant submitted to the Court.

Conclusion

1. There is no jurisdictional error arising from the applicants’ grounds or their submissions.  It is appropriate to dismiss the application.  I will make the appropriate order.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 25 May 2018