CRD16 v Minister for Immigration

[2017] FCCA 1500

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1500

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – refusal of protection visa – applicant fears return to India because of risk of suffering persecution by means of honour crime – country information – assessment of applicant’s credibility – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 65, 474, 474(1), 476(1)

Cases cited:
Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437

Applicant: CRD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 302 of 2016

Judgment of: Judge Brown

Hearing date: 21 June 2017

Date of Last Submission: 21 June 2017

Delivered at: Adelaide

Delivered on: 30 June 2017

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms C Stokes

Solicitors for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Submitting Appearance

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 302 of 2016

CRD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application in the nature of judicial review.  It seeks the issue of a constitutional writ to quash a decision of the Administrative Appeals Tribunal “the AAT” not to grant the applicant a protection visa, pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.

2. The applicant is a citizen of India.  He arrived in Australia on 14 April 2009, pursuant to a student visa.  This visa was cancelled on 9 December 2010. 

3. The decision to cancel the applicant’s student visa was subject to an unsuccessful merits review by a delegate of the Minister for Immigration & Border Protection “the Minister” on 30 May 2011, which in turn was subject to an unsuccessful application for judicial review on 21 November 2011.

4. On 7 November 2011, the applicant married.  He is a person of the Sikh religion, of the Saini caste.  His spouse is a Hindu by religion, who was born in Nepal.  She is from a different caste to him.

5. On 21 November 2011, following his marriage, the applicant applied, again, unsuccessfully, for a partner visa.  This decision was in turn subject to unsuccessful internal merits review, by a delegate of the Minister and then judicial review, also unsuccessfully.  The review process concluded on 30 August 2013. 

6. The applicant was granted a bridging visa, in June 2014, which was valid to 8 July 2014.  It was a condition of that visa that the applicant make arrangements, within the visa period, to leave Australia.  The applicant apparently did not abide by the condition of that visa.

7. On 11 July 2014, the applicant invalidly applied for a protection visa.  He reapplied for a protection (XA 866) visa “the visa” on 8 September 2014.  It is this visa application, which is the subject of these proceedings.

8. On 14 December 2015, the Minister’s delegate declined to grant the visa.  This decision was subject to a merits review in the Tribunal.  On 25 August 2016, the Tribunal affirmed the decision not to grant the applicant the protection visa sought by him.

9. On 20 September 2016, the applicant commenced the current proceedings seeking to review the decision of the AAT.  The application was fixed for hearing on 21 June 2017.  The applicant appeared on his own behalf.

10. The applicant claims to be at risk of suffering persecution, if returned to India, because of his marriage to a person, who does not share his religious affiliation, nationality or caste.  He asserts that he is at risk of suffering persecution because of his inter-faith marriage.

11. It is further his case that the risk of him suffering harm, because of his marriage, is a significant one.  In this context, he asserts that there is a high degree of prevalence of honour killings in India, of individuals, by members of their family, who are regarded as having brought shame or dishonour, on their family by inter-faith/caste marriages.

12. Pursuant to section 65 of the Act, the Minister is required to grant a protection visa, if satisfied that all relevant criteria attaching to that visa has been satisfied.

13. The relevant criteria are set out in section 36(2) of the Act. In particular, pursuant to section 36(2)(a), a person is entitled to a protection visa if he or she satisfies the definition of refugee contained in Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”), which provides that a refugee is a person who:

    “…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

14. In addition, pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.  Subsection (2A) defines significant harm.  It includes being subject to torture; being subjected to cruel or inhuman treatment; and degrading punishment and treatment.  This is known as the complementary protection criterion.

15. In Minister for Immigration & Citizenship v SZQRB[1] the Full Court of the Federal Court had held that the risk threshold for complementary protection under s.36(2)(aa) of the Migration Act is equivalent to the real chance test which applies with respect to Convention obligations enshrined in s.36(2)(a) of the Act, namely that there is a real chance that the person will suffer significant harm.[2]

    [1]  Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505

    [2] Ibid at 551 [248] per Lander & Gordon JJ and 557 [297] per Besanko & Jagot JJ

16. It is the applicant’s assertion that Australia owes an obligation to him to provide its protection, as Australia is a signatory to the Refugees Convention.   Accordingly, the jurisdiction conferred upon the Tribunal was for it to determine whether the Minister was obliged to grant a protection visa to the applicant because there was a real risk, he would suffer significant harm, if returned to India for a reason related to one of the grounds specified in the Refugees Convention.

The grounds for review

1. The applicant has acted on his own behalf throughout these proceedings.  Accordingly, he prepared his own grounds for review.  Essentially, it is his position that the Tribunal did not give appropriate weight to a number of factors germane to his case and accordingly did not properly discharge the jurisdiction conferred upon it. 

2. Utilising, the applicant’s own terminology, the relevant grounds for review are as follows:

   “If I return to India I will face persecution from my own community for having entered into marriage with a Nepalese Hindu woman as I am a Saini Sikh.

   In my community honour killings is prevalent for interfaith and inter­ caste marriages. My own family has disowned and disinherited me for the same reason and to protect themselves from being harmed.

   It has been addresses as an issue that only women are being prosecuted in honour killing in past but that not true. Many men have also been killed and this ritual has now been extended to men as well.

   As I have brought dishonour upon the family or community. I believe that my relatives and people from community pose a great threat to me because of my marriage.

   AAT has made Jurisdictional error by not considering the fact that I request for refugee status because I owe well-founded fear of being persecuted for reasons of race, religion.  In my case it must be considered as serious harm (Under s.91R(1) of the Act persecution must involve ‘serious harm’) because I will be killed.

   I have substantial grounds for believing that as a consequence being removed from Australia to my native country, there is a real risk that I will suffer significant harm.”

3. The Tribunal stands in the shoes of the Minister. Pursuant to section 65 of the Act, the Minister is required to grant any visa if satisfied that the various statutory conditions, which apply to such a visa, have been satisfied.

4. The jurisdiction conferred upon the Tribunal is to review any ministerial decisions, if requested to do so.  In conducting such a review, the Tribunal is required to invite each applicant to appear before it to provide evidence and make submissions in support of the visa application in question. 

5. In this particular case, the applicant was invited to appear before the Tribunal and subsequently did take up the opportunity to present evidence and make submissions before it.  The Tribunal also had before it the departmental file, which contained evidence of the applicant’s earlier submissions to the Minister, as to why he should be granted the visa, as well as his migration history.

6. The applicant is from a small village in the Punjab.  He has Indian qualifications as a hairdresser.  His parents still live in the village, in which he was born.  The applicant told the Tribunal that he had informed his parents of his marriage about two weeks after it had occurred.  He reported that they “were not happy” because he had chosen his own partner and married outside of his religion. 

7. It is the applicant’s evidence that his marriage has not been a successful one.  As a consequence, he has separated from his wife and they are in the process of applying for a divorce.  The separation is not marked by any significant acrimony. 

8. It is the applicant’s position that his parents are upset that they did not choose his spouse and are not pleased about his impending divorce.  In these circumstances, it is the applicant’s position that his father has publically disinherited and disowned him by publishing a public notice in a local newspaper. 

9. The applicant informed the Tribunal that neither he nor members of his family had currently received any threats because of his marriage.  He further indicated that he did not believe that his divorce, would of itself, place him at any additional risk of harm. 

10. In these circumstances, the Tribunal inquired of the applicant, in the following manner:

    “I asked why he believed that he would be targeted in circumstances where there were no threats made against either the applicant or his family and where the involvement of the male partner’s family/community in honour killings was highly unlikely unless the man had been involved with a Dalit woman.  He said that honour killings happen in a lot of cases and that he ‘was scared that it could happen to [him] as well’.

    I then turned to the issue of political opinion, as mentioned in the delegate’s decision.  The applicant said that he had no political connections.  He and his family currently support the party in power.  He said that the support of that party would not cause him danger, but it could assist persons wishing to hurt him to discover and locate him elsewhere in India if he tried to live in another part.  He did not make any claims to fear harm based on his actual or imputed political opinion.”[3]

    [3]  See casebook at 216 [53] & [54]

11. The Tribunal had available to it some country information in respect of the prevalence of honour killings, in India, and the context in which they occurred, produced by an academic attached to the Department of Political Science at Guru Nanak Dev University, Amritsar in India.[4]

    [4]  See casebook at 149-158

12. The relevant article had been provided to the applicant, prior to the Tribunal hearing, for his comment.  The salient features of the article can be summarised as follows:

    ·Honour based violence, including honour killings, were predominantly committed by male family members against female family members, who were considered to have embarrassed their family through establishing pre-marital or extra-marital relationships;

    ·The mere perception that a woman had behaved in a specific way to dishonour her family was sufficient to trigger an attack;

    ·However, other triggers existed, for such honour-based violence, which included the failure of a woman to marry a man of her family’s choice and the commission of adultery;

    ·It was a misnomer to categorise the harassment of couples who had married against the wishes of their community or family members as honour crimes;

    ·Honour killings are directly mostly against woman and girls, but have been extended to men;

    ·Approximately one thousand people per year are killed in India because of alleged honour killings; 

    ·The population of India is 1.3 billion.  In comparison approximately 250,000 people die, each year, in India, in road traffic accidents.

13. In response to this information, the applicant cited his own research into the prevalence of honour killings, in India, particularly so far as they pertained to men.  The examples provided by him were as follows:

    ·A father suing his son for entering into a marriage with a woman from a lower caste;

    ·A couple attacked, by villagers, when it was learnt that the wife concerned belonged to the Dalit community;

    ·A couple being barred from community and religious activities, when it was discovered that the wife was a Dalit;

    ·A man being disowned because of his marriage to a Dalit woman.

The Tribunal’s findings

1. The Tribunal had regard to the applicant’s migration history and, in this context, evinced some doubts about the credibility of his claim that he was at risk of suffering a significant level of harm because of his marriage.  In this regard, the Tribunal noted that it was only in 2014 that the applicant had raised his fears about potentially being the subject of an honour killing and this was only after he had exhausted all other migration options in respect of his student and partner visas.

2. The Tribunal further noted the applicant’s evidence that neither he nor his family had, up to the stage of the hearing, either been injured or threatened, as a consequence of the applicant’s marriage.  In this context and having regard to the country information available to it, the Tribunal found as follows:

   “While I accept that a relatively low number of people are killed in India each year in so-called honour killings, very few of these involve male victims and even fewer involve the male partner's community as the perpetrators.  As I do not consider that applicant or his family is begin targeted for revenge by either his community or his ex-partner's community, I do not consider that there is a real chance that the applicant will face persecution on this basis were he to return to India.

   I have considered the effect of the newspaper notice asserted to have been taken out by the applicant's father and find that its apparent purpose and intended effect is to disinherit the applicant and to distance the applicant form his family.  I do not consider that this, on its own, amounts to either persecution or significant harm attracting Australia's protection obligations.

   I have considered whether the applicant faces harm because of his political opinion, imputed or actual.  I find that, based on his own evidence to the Tribunal, he does not face harm on this basis, nor does he claim to.”[5]

   [5]  See casebook at 218 [67] – [69]

3. For these reasons, the Tribunal did not accept that the applicant had a well-founded fear of being persecuted, if returned to India.  Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protective obligations under the Refugee’s Convention.

The jurisdiction of the court

1. Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”. The provision of the Constitution grants original jurisdiction, to the High Court, in matters of mandamus against any officer of the Commonwealth.

2. In his application, the applicant seeks that such a writ issue to the AAT, after its decision has been quashed, and it be directed to re-hear his application according to law. 

3. The jurisdiction conferred by section 474(1) of the Act, which stipulates that a wide variety of decisions, made under the Act, which are of an administrative nature are to be categorised as “a privative clause decision”.

4. Pursuant to the provisions of section 474 a privative clause decisions is to be regarded as final and conclusive.  As such, it cannot be subject to challenge, review or appeal.  The decisions of the Tribunal, which the applicants seeks to review, in this case, are such privative clause decision as defined by section 474 of the Act.

5. However, the High Court has held that the provisions of section 476 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.

6. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[6]

   [6]  See Craig v South Australia (1995) 184 CLR 163

7. In Minister for Immigration & Citizenship v Li[7] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker.  As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.

   [7]  Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]

8. It is important to note that, in exercising its jurisdiction under section 476(1) of the Act, the court is not authorised to conduct a merits review of the hearing in question or to substitute its own findings of fact for those of the Tribunal.

9. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang[8] the High Court said as follows:

   “…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.”

   [8]  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

Conclusions

1. In my view, the Tribunal correctly acquitted the jurisdiction conferred upon it, pursuant to the Act.  In particular, it considered whether there was a real chance that the applicant would suffer persecution, if returned to India.  In this context, it considered both the country information directly available to it and that provided by the applicant. 

2. More significantly, it also considered the evidence put forward by the applicant himself and found some aspects of it to be unsatisfactory, particularly given that he had been in Australia for a significant period of time before voicing his concerns about being at risk because of being possibly the subject of an honour killing. 

3. The Tribunal did not consider that there was a real chance that the applicant would be the subject of an honour killing.  This is because there were relatively few such killings, in India, each year and the vast majority of those involved females.  In my view, this was a finding of fact, which was reasonably open to the Tribunal. 

4. It is the function of this court to determine whether the decision of the Tribunal was within its legal powers.  It is not the function of the court to examine the merits of that decision or substitute its own view of the facts, as found by the Tribunal. 

5. Similarly, it is the function of the administrative tribunal concerned to make findings about the credibility of any witness or piece of evidence involved and not for the court to substitute its own view or finding in this regard. 

6. In re Minster for Immigration & Multicultural Affairs: Ex-parte Durairajasingham[9] the Tribunal concerned found one part of the particular applicant’s claim to be “utterly implausible”, which McHugh J categorised as:

   “… this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.”

   [9]  See Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407

7. In this particular case, the Tribunal was entitled to test the evidence of the applicant, including the country information put forward by him, and was not bound to accept it uncritically.[10]  In this context, the Tribunal specifically put to the applicant its concerns about the country information put forward by him regarding honour crimes against men – namely the majority of the cases referred by him involved relationships between men and Dalit women, which was not his situation.

   [10]  See Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451

8. The gist of the applicant’s complaint is that the country information put forward by him indicates that it is not only women, who have been persecuted, in India, for honour crimes.  As such, he bluntly asserts that “many men have also been killed and this ritual has now been extended to men.”

9. In this context, he further asserts that as it is his perception that he has brought dishonour upon his family, he is at significant personal risk, if returned to India, from being the subject of some form of honour crime, particularly an honour killing. 

10. In my view, the Tribunal considered this specific component of the applicant’s claim.  It did not accept it.  This was because the applicant himself was unable to provide any evidence of any specific threat levelled against either him or his family personally and the country information provided by the applicant was not germane to his situation.

11. In addition, although the Tribunal accepted that some men were the subject of honour crimes, these men were very few.  In addition, the Tribunal summarised the country information provided by the applicant. 

12. In none of these cases was there any evidence that the men concerned had suffered significant physical harm.  Specifically, they dealt with relationships involving Dalit women, which was not the applicant’s situation. The Tribunal was entitled to give this information whatever weight, if any, which it considered appropriate.

13. In these circumstances, in my view, the finding that the applicant was not subject to a real chance of suffering persecution, if returned to India, was a finding of fact arising within its jurisdiction.  It is not the function of this court to conduct a re-hearing of the merits of the applicant’s case.

14. Rather, its authority is to determine whether the Tribunal concerned properly discharged the jurisdiction conferred upon it.   In my view, it did so.  There can be no suggestion of any form of legal unreasonableness. 

15. For all these reasons, the application is dismissed.  The first respondent seeks its costs, which will be granted according to the relevant scale in the sum of $7,206.00.

16. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         30 June 2017