DAN23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 377
•29 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DAN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 377
File number(s): PEG 291 of 2023 Judgment of: JUDGE OBRADOVIC Date of judgment: 29 April 2024 Catchwords: MIGRATION LAW – JUDICIAL REVIEW – Protection visa application – Whether there was a logical or probative basis for credibility findings – Whether there was a logical or probative basis for findings concerning mental health issues – Application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa) Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Division: Division 2 General Federal Law Number of paragraphs: 39 Date of hearing: 11 April 2024 Place: Parramatta Appearing for the Applicant: In person Solicitor for the Respondents: Mr Westenberg of Sparke Helmore ORDERS
PEG 291 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAN23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
29 APRIL 2024
THE COURT ORDERS THAT:
1.The Application for judicial review filed 6 December 2023 is dismissed.
2.The applicant to pay the first respondent’s costs as agreed or assessed.
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 OBRADOVIC:
These are the Reasons for Judgment in relation to the application filed 6 December 2023 seeking judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) dated 10 November 2023. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“delegate”) refusing the applicant a protection visa. The applicant is currently in immigration detention.
The applicant stated the grounds for judicial review in his application as follows:
1.Fear of a person with strong political influence in India and who also has strong ties with gang members and drug dealers. The tribunal failed to give any credibility to my claims relating to my fear of harm, persecution, or being killed by [Person X] if I am returned to India. The tribunal was given specific details regarding when I was violently attacked and seriously beaten by a group of men who were linked to the same person mentioned above.
2.The tribunal failed to consider claims about the mental health challenges that I have endured since the death of my wife and father and the impact it would have on me if I were to be returned to India and in which I will evidently be in constant fear of being attacked or seriously harmed by men again linked to [Person X].
(emphasis in original)
BACKGROUND
The applicant is a citizen of India and identifies himself as Sikh and ethnically Punjabi. On 30 May 2019, the applicant arrived in Australia with his wife on a visitor visa.
On 17 June 2023, the applicant applied for a protection visa.
On 21 June 2023, the delegate invited the applicant to provide further information.
On 29 June 2023, the delegate refused to grant the applicant a protection visa.
On 26 July 2023, the applicant lodged his application for review with the Tribunal.
On 8 September 2023, the applicant appeared before the Tribunal to give evidence in person and was assisted by an interpreter.
On 29 September 2023, the Tribunal provided the applicant the Department of Foreign Affairs and Trade Country Information Report: India dated 29 September 2023 (“2023 DFAT Report”) and invited the applicant to make any submissions relevant to his protection claims by 9 October 2023. By the time of the Tribunal’s decision, the applicant had made no submissions regarding the 2023 DFAT Report.
On 10 November 2023, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.
THE TRIBUNAL’S DECISION
The Tribunal identified a jurisdictional issue in its decision in so far as the applicant’s application for review was out of time. As it was a reviewable decision under Part 7 of the Migration Act 1958 (Cth), the time for the applicant to seek review was 7 days. The applicant filed for review 27 days after being notified of the delegate’s decision. However, as the applicant had been incorrectly advised that the review period was 28 days the Tribunal found that notice was defective, and that the time for the applicant to seek review had not yet commenced to run, the Tribunal considered it to have jurisdiction to conduct the review.
The Tribunal summarised the applicant’s initial claims for protection, as presented in his visa application, as follows:[1]
•He left his country because he was threatened and harmed by a politically influential individual called [Person X];
•He did not seek any assistance in India because [Person X] was a strong politician, who has connections with the government of Punjab as well as the Central government;
•He moved to other parts of his country and went into hiding for several years; however, [Person X] has connections throughout India and would be able to find the applicant;
•If he returns to India, he will be persecuted by [Person X], who is the leader of a political party called [Party W];
•As a member of a university group called ‘GGS group’, he knew many secrets about [Person X];
•He cannot seek assistance from the Indian authorities because they themselves want to harm him.
[1] CB:145[14].
The Tribunal noted that, other than the material provided to the delegate, the applicant did not provide the Tribunal any further information in support of his application for review. In its decision, the Tribunal summarised the further information the applicant had provided the delegate, in response to the invitation of 21 June 2023, as follows:[2]
•He did not apply for a protection visa earlier because he was hopeful of receiving permanent residency through his wife, who was studying in Australia to become a Chef; however, his wife passed away, leaving him and their only son. Subsequently, the applicant suffered from depression and stress. Later he moved to Sydney and stayed with one of his cousins;
•The student group he joined in India was registered by [Person Q] and his brother [Person R]. In addition to this submission, the following documents and YouTube links were provided in support of the applicant’s claims for protection:
§A screenshot showing the applicant allegedly with [Person Q];
§A link to a video on YouTube about the Biography of a ‘gangster’ by the name of [Person Q] in Punjab;
§Two links to news articles concerning [Person X].
[2] CB:146[18].
The Tribunal also considered two country information reports, one from 2019 and the 2023 DFAT Report. While only the 2019 report was raised with the applicant at hearing, the Tribunal had invited the applicant to make submissions after the hearing regarding the 2023 DFAT Report and, in any event, was satisfied that a further hearing was not required as the issues arising from the 2023 DFAT Report had been raised with the applicant at the hearing, and no new dispositive issues were raised by the 2023 DFAT Report.
Refugee Criterion
Regarding the applicant’s protection claims, the Tribunal had significant concerns about the credibility of the applicant’s claims. In particular, the Tribunal stated that:[3]
The Tribunal has significant concerns about the credibility of the applicant’s claims. There were significant inconsistencies in aspects of his core claims in relation to events which occurred in India in 2003 and 2004 including with respect to his engagement or involvement with [Person X] or his associates. Further, with respect to aspects of his claims he struggled to provide meaningful detail and context and failed to provide any corroborative evidence regarding his claims. In addition, his explanations for what amounted to significant inconsistencies in his account of his personal circumstances and, in particularly, his wife’s claimed death, were implausible.
[3] CB:157[91].
The Tribunal set out the applicant’s account in detail and, inter alia, found that:
(a)The applicant is a citizen of India;
(b)The Tribunal did not accept that the applicant suffered from any condition which impacted his ability to articulate his claims or provide credible evidence;
(c)The Tribunal found that the inconsistencies or vague evidence relating to the applicant’s claims could not be explained merely by the passage of time, poor recollection, or claimed mental health issues;
(d)The Tribunal accepted, on the basis it was plausible, that the applicant was a student at University Y during 2001 and 2002 at the same time as Person Q, and that Person Q was killed in 2003;
(e)The Tribunal accepted that Person X was a former politician, was charged with a range of criminal offences in India, and had been released on bail and is pending trial;
(f)The Tribunal did not accept on the evidence that Person X was responsible for Person Q’s death, and found there was no evidence to suggest the applicant was involved with Person Q such that he would be targeted;
(g)The Tribunal did not consider that the video provided any basis for a claim that the applicant would be targeted for harm on return to India. Further, even if the applicant was a member of the student group, there was no evidence suggesting all 300 members were targeted for any reason. The Tribunal did not accept that the applicant had any particular profile among them to lead to him being targeted;
(h)Noting the applicant was not identified in the video aside from being in a photo montage, the length of time since the production of the video, and the fact neither the applicant nor his family had suffered any threats or instances of harm based on the material, the Tribunal did not accept the applicant faced any risk of harm arising from the production or release of the video;
(i)Noting that Person Q was referred to as a gangster in the video, the Tribunal found the applicant was not a gangster in India and was not at risk of harm on that basis;
(j)The Tribunal accepted the applicant bears injuries to his leg and arm but did not place significant weight on them as evidence that the applicant was attacked. The Tribunal did not accept that the applicant was shot in 2003 by associates of Person X nor that he was attacked with a baseball bat in 2004;
(k)The Tribunal viewed the applicant as being unable to offer a plausible explanation as to why he would not also have been killed for the phone recording which he claims three others were attacked and killed for, and considered the applicant’s explanation for the lack of further instances of harm as being not credible;
(l)The Tribunal found the applicant’s claims to fear harm as he would be persecuted by Person X, his associates, authorities, or any other person because of his association with a named student association and other named persons lacked credibility and were not genuinely held. The Tribunal also did not accept, in any event, that the fears, if genuine, were well-founded;
(m)The Tribunal did not accept that the applicant’s clam that he could live in Town A by ‘hiding’ explains the purchase of the house by the applicant’s father or the significant period he was able to live in Town A without issue given the applicant’s claims to being targeted by associates of Person X in Town A;
(n)The Tribunal found the fact the applicant and his wife left their young son in Town A when moving to Australia was not consistent with the applicant’s claim he was continuing to be pursued for a mobile phone with recordings;
(o)The Tribunal did not accept as plausible the applicant’s claim to have forgotten the date of his wife’s departure and death, and given the significant inconsistencies in this evidence, did not accept the wife’s death, casting doubt on the broader credibility of his claims and motivations for seeking protection;
(p)The Tribunal did not accept that the applicant suffered from any mental illness which would place him at significant harm on return to India; and
(q)The Tribunal accepted that the applicant may suffer stress associated with his return to India, but found there was no real chance that the applicant faced serious harm on the basis of mental health issues now or in the reasonably foreseeable future.
The Tribunal found the applicant’s claims to lack credibility and were not well-founded, that there was no real chance the applicant would be seriously harmed on his return to India for the reasons claimed, and that there was nothing to suggest the applicant would face persecution now or in the reasonably foreseeable future. The Tribunal was not satisfied the applicant has a well-founded fear of persecution nor that he met the criteria set out in s.36(2)(a) of the Act.
Complementary Protection Criterion
The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of returning to India, there was a real risk he would suffer significant harm due to Person X, his associates, authorities, or any other person because of his association with a named student association and other named persons, or because of his mental health.
The Tribunal did not accept on the evidence, and the applicant did not claim, that his relative economic circumstances in India would give rise to a real chance of significant harm. For the avoidance of doubt, the Tribunal did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of returning to India, that there was a real risk the applicant would suffer significant harm on the basis of economic circumstances.
The Tribunal found the applicant did not satisfy the criterion in s.36(2)(aa) of the Act.
Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
DETERMINATION
The applicant was not represented at the hearing. While he had not availed himself of the opportunity of filing written submissions in accordance with the Court orders of 5 January 2024, the applicant did make oral submissions to the Court. He was assisted by an interpreter at the hearing.
The Court also had before it the applicant’s affidavit filed 11 December 2023.
Prior to the applicant’s oral submissions, the Court explained to the applicant that it had a very limited role in a judicial review application, that it could not grant the applicant a visa and that it could not conduct a merits review of the Tribunal’s decision.
The applicant’s oral submissions did not address the matters raised in his application for judicial review.
The applicant submitted to the Court that he did not remember dates and that he generally had a poor memory. He said that his father passed away, his wife passed away and that he has been in immigration detention, consequently he did not remember anything just his son’s date of birth. He further submitted that whatever story he told ‘them’ was the truth, but that maybe he had forgotten some dates. The applicant further submitted that he told a true story, and that ‘they’ can check the facts, as movies have been made about the incident he spoke about. The applicant submitted to the Court that if he has to return to India he would not feel safe at all, and that he just requests that if he is not granted a visa, that he stay in detention or in gaol. The applicant further submitted to the Court that he has been doing medical check-ups and that if the Court wanted to get him checked he would be willing to do so, and that if ‘they’ don’t believe him they can check.
Ground 1
The applicant’s complaint in respect of ground 1 is no more than a disagreement with the Tribunal’s findings in respect of credibility.
The Tribunal rejected the applicant’s evidence on three bases:[4]
(a)Firstly, the Tribunal considered the claimed risk of harm was inconsistent with the applicant having remained in the same area without harm despite claimed attacks on his friends; that the applicant had left his son behind in the area, without any harm, while he moved to Australia; and that twenty years had passed since the claimed events;[5]
(b)Secondly, the Tribunal considered that the delay between the applicant’s arrival in Australia and his date of lodgement of the protection visa application was inconsistent with the claimed fear of harm;[6] and
(c)Thirdly, the Tribunal had significant concerns about the applicant’s claimed personal circumstances and, in particular, the fact that the applicant ‘had claimed his wife had returned to India in September 2021 to attend a wedding but had died of an asthma attack on 9 November 2021, yet Departmental movement records indicate the applicant’s wife left Australia on 19 November 2021, after the date on which she was claimed to have died’. In this regard the Tribunal did not accept the applicant’s claim to have forgotten the date of death of his wife.[7]
[4] The Court accepts the submissions of the Minister.
[5] CB:159-160 [104]-[108].
[6] CB:158 [96].
[7] CB:160 [109].
The reasons of the Tribunal must be read as a whole, they should be considered fairly and not be read critically and one should not read the reasons with a fine-tooth comb attempting to find fault.[8]
[8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; [1996] HCA 6 at [24] (Kirby J).
The reasons disclose a logical and probative basis for the findings made by the Tribunal.
The applicant has not made out ground 1.
Ground 2
While the applicant contends that the Tribunal failed to consider his mental health and the impact of his fear if he was to return to India, this contention fails.[9]
[9] The Court accepts the submissions of the Minister.
The Tribunal clearly considered the applicant’s claim that he experienced mental health issues and how these may have impacted his evidence. The Tribunal however, noted that the applicant offered no medical or other evidence to corroborate his claims that he was suffering from mental health issues.[10]
[10] CB:157 [92]; CB:160 [110]-[113].
The Tribunal did not accept that the applicant suffers from any condition which may have impacted his ability to articulate his claims or provide credible evidence as claimed.
Furthermore, the Tribunal considered whether the claimed mental health issues gave rise to any claims for protection and did not accept that the applicant suffers from any mental health illness which would place him at risk of serious or significant harm on return to India.
As noted with respect to ground 1, the Tribunal’s reasons disclose a logical and probative basis for the findings made by the Tribunal in respect of the applicant’s claimed mental health issues and the purported effect of such issues.
The applicant has not made out ground 2.
CONCLUSION
The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis or unreasonableness.[11]
[11] See ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] (per Griffiths, Perry, Bromwich JJ) (“ARG15”).
The application for judicial review is dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 29 April 2024
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