Cuk17 v Minister for Immigration

[2018] FCCA 2998

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUK17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2998

Catchwords:

MIGRATION – Application for review of Administrative Appeals Tribunal decision – where the Tribunal found no evidence that the applicant feared harm – where there was no need for the Tribunal to undertake a further inquiry into the applicant’s claim – no jurisdictional error demonstrated – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2)(aa), 36(2A), 36(2)(B), 65, 476(1)

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123

Minister for Immigration and Citizenship v Le (2007) 154 FCR 151

First Applicant: CUK17

Second Applicant:  CUL17

Third Applicant:  CUN17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS
TRIBUNAL

File Number: BRG 592 of 2017

Judgment of: Judge Egan

Hearing date: 7 September 2018

Date of Last Submission: 7 September 2018

Delivered at: Brisbane

Delivered on: 7 September 2018

REPRESENTATION

Solicitors for the First Applicant: Self-represented

Solicitors for the Second Applicant: No appearance

Solicitors for the Third Applicant: No appearance

Solicitors for the First Respondent: Sparke Helmore Lawyers

Solicitors for the Second Respondent: Submitting an appearance

THE COURT ORDERS ON A FINAL BASIS:

1. That the Application for Review filed on 14 June 2017 be dismissed.

2. That the First Applicant pay the First Respondent’s costs fixed in the amount of five thousand dollars ($5,000.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 592 of 2017

CUK17

First Applicant

CUL17

Second Applicant

CUN17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who, when arriving in Australia on 12 May 2014, was the holder of a bridging visa.  On August 2016, the applicant made the subject visa application.  The applicant’s wife and son, who are the second and third applicants respectively in these proceedings, applied for a visa as members of the family unit.  They did not advance any separate protection claims.  On 24 November 2016, a delegate of the Minister refused to grant the first applicant the visa he applied for.  On 21 December 2016, the first applicant applied for review of that decision before the Administrative Appeals Tribunal (“the Tribunal”).

2. A hearing before the Tribunal occurred on 8 May 2017.  On 26 May 2017, the Tribunal affirmed the decision of the delegate.  The applicants seek judicial review of that decision of the Tribunal dated 16 May 2017. 

3. The proceedings are brought pursuant to section 476(1) of the Migration Act 1958 (Cth) (“the Act”). At paragraph 17 of the reasons of the Tribunal, the claims of the applicant were recorded. Those claims are relevantly that:

   a)The applicant was born into a conservative Sikh family in Punjab.

   b)The applicant was affiliated with the banned “All India Sikh Student Federation (SSF)”.

   c)His father was an activist of the Khalistan movement and believed in the independence of Khalistan. 

   d)The applicant’s family was known to the intelligence branch of the Punjab police.

   e)He is aware of atrocities having been committed against Sikhs by the State and Central Government and he has been outspoken about it, although he is not in favour of using force or any violent means to create the state of Khalistan.

   f)The Government authorities have followed the applicant’s movements and warned his father about the consequences presumably of the applicant’s support for a separate State.  His father, he said, advised him to leave India to avoid tension.

   g)The applicant asserted that in recent times many of the followers had been detained by the security agency and that his father had warned him not to return to India.

   h)The applicant stated that he feared that as an active member of the SSF he will be at risk of detention, interrogation and torture if he returned to India.

4. The Tribunal went on to assess the applicant’s claims.  There are three grounds of the applicant’s application for review, both in respect of the claims listed above and in respect of the applicant’s claims that he had been attacked on a number of occasions by people he did not know due to tensions between India and Pakistan; that he and his family had been attacked by people on motorbikes who chased them with swords, albeit that he could not remember approximate dates of the attacks and notwithstanding that the attacks had not been reported to the police; and the claim that despite allegedly fearing serious harm he had twice returned to India.

5. Ground 1 of the application for review is as follows:

   The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India for being involved with AISSF.

6. It is noted that such ground is not particularised. However, when examining the claims of the applicant, the Tribunal at CB154-155 set out, and had regard to, the provisions of section 36(2)(aa), section 36(2A) and section 36(2)(B) of the Act. It is noted, however, that the Tribunal’s decision did not hinge upon any construction of the definition of the term “significant harm”. The Tribunal, rather, found that there were no substantial grounds for believing that as a necessary consequence of the applicant returning to India that there was a real risk that he would suffer significant harm.

7. At paragraphs [48] – [57] inclusive of the reasons of the Tribunal.  The Tribunal set out how it did not accept that the claims of the applicant were creditworthy.  It did not accept that the applicant or his family had ever been associated with the AISSF or any other organisation supporting a free Khalistan concept.

8. The Tribunal found that the applicant was vague in his description of the attacks he allegedly suffered, the tribunal finding that the applicant’s claim to have been attacked was lacking in credibility, thereby constituting a finding against the applicant in terms of his claims that he had been attacked on two occasions due to his association with AISSF.  The Tribunal also found that the applicant was vague and evasive when questioned about the attacks he claimed his father had suffered.  There was no evidence of any police report having been made.  In relation to any attack, no police report or copy of it was ever provided to the Tribunal.

9. A further aspect of the claims of the applicant which were not accepted as credible by the Tribunal was the applicant’s admitted return to India on two occasions in 2012 and 2014. The applicant said that he returned, allegedly, due to health concerns about his mother-in-law, and otherwise to show a child to the rest of the family.  The Tribunal did not accept that the applicant had any genuine fear of harm by reason of the fact that he voluntarily returned to India on such two occasions.

10. Had he had such fears as he claimed, the Tribunal found that he would not have returned to India.  The Tribunal also found that the applicant had not been associated with AISSF, and it did not accept that the applicant had been attacked in India due to any association with AISSF.  The Tribunal had earlier referred to country information which relevantly suggested: 

    ·The ban on AISSF had been lifted in 1985, and that as at 9 September 2013, the AISSF was not on the Indian Government’s list of prescribed terrorist organisations.

    ·There were no reports of attacks on members of AISSF by state or non-state actors in India since the 1990s.

    ·There were no reports of arrests or physical harm of people due to membership of AISSF, and no English articles suggesting such on the AISSF website.

    ·The AISSF remained highly critical of current and former police in Punjabi and Delhi, but had conducted such criticism without its members suffering harm from current or former members of the police or non-state actors.

11. The Tribunal also noted that although there were many recent examples of public campaigns and statements by the AISSF:

    ·Despite separatism being designated as an unlawful activity, no members of the AISSF had been prosecuted for such support.

    ·Authorities had not targeted ordinary Sikhs who expressed non-violent support for a free Khalistan.

12. The tribunal found that there was no evidence that Sikhs in contemporary India had any heightened risk of official or societal discrimination beyond that experienced by the broader community.  The Tribunal did not accept that the applicant had any basis for his claim that his family was known to the Intelligence Branch of the Punjab Police.  Such claim was made in the face of the applicant having said in the hearing before the Tribunal that his father was a government employee.

13. Having considered all of those matters, the Tribunal found that the applicant’s claim to fear harm on the basis of an association with the AISSF (or any other organisation supporting the free Khalistan movement) and his claim that he had been attacked by reason of any such association, was lacking in credibility.  The Tribunal appropriately addressed the factual issues raised by the applicant.  It did not fall into jurisdictional error by doing so.  There is no merit in ground 1 of the application for review.  This court is not entitled to conduct a merits review of the decision of the tribunal.

14. Ground 2 of the application for review provides as follows:

    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

    Sections 36(2) and 65 of the Act require the Tribunal to reach a requisite level of satisfaction in respect of the relevant criteria before a visa can be granted. The Tribunal was not so satisfied, and refused to grant the visa. As referred to above, the Tribunal gave clear reasons as to why it did not accept that the applicant gave creditworthy evidence. No jurisdictional error has been demonstrated as claimed in ground 2 of the application for review.

15. As to Ground 3, it is claimed:

    The Tribunal has failed to investigate applicant’s claim, specifically the grounds of persecution in India.

    As a matter of law, it is clear that the Tribunal has a duty to review the delegate’s decision (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [18] and [25]). In this case, the applicant made no suggestion before the Tribunal that it ought to undertake any further inquiries, nor was there any obvious inquiry not made by the Tribunal which it ought to have made (Minister for Immigration and Citizenship v Le (2007) 154 FCR 151 at [60]).

16. There was no information or submission made before the Tribunal, or before this Court, to indicate what information might have been the subject of any such inquiry, nor was there any information or submission made which was suggestive of some need for an inquiry which would have been critical to the review, or otherwise which would have made a difference to the outcome before the Tribunal.  Ground 3 has no merit.  Essentially, the applicant, in challenging the findings, has sought that the Court undertake a merits review of the decision of the Tribunal, something which is not permitted.  The application for review is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  26 October 2018