DHZ17 v Minister for Immigration

[2020] FCCA 2106

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHZ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2106

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in India (Jammu and Kashmir) – Tribunal accepting the applicant’s claims but finding that he could relocate within India – unparticularised ground of review – no jurisdictional error.  

Legislation:

Migration Act 1958 (Cth), ss.436A, 438, 499

Cases cited:

EUY17 v Minister for Immigration & Anor [2019] FCCA 361

Minister for Immigrationv SZMTA [2019] HCA 3

Minister for Immigrationv Wu Shan Liang & Ors (1996) 185 CLR 259

NAHI v Minister for Immigration [2004] FCAFC 10

SZATV v Minister for Immigration (2007) 233 CLR 18

WZAVW v Minister for Immigration [2016] FCA 760

Zarro v Australian Securities Commission (1992) 36 FCR 40

Applicant: DHZ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2326 of 2017

Judgment of: Judge Driver

Hearing date: 31 July 2020

Delivered at: Sydney

Delivered on: 31 July 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr Gao of Australian Government Solicitor

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application filed on 24 July 2017 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2326 of 2017

DHZ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 29 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the Tribunal decision on them are set out in the Minister’s outline of submissions. 

Background

1. On 15 November 2013, the applicant arrived in Australia on a tourist visa and a false passport in another name.[1] On 25 November 2014, the applicant applied for a protection visa, in his real name, on the basis that:

   a)he is from Jammu and Kashmir, and his father and brothers are in the Indian army and living in an army cantonment;

   b)the local mafia wanted to recruit him to wage war against the local people and the Indian army. When he refused, they threatened to kill him. His mother then sent him to Calcutta; and

   c)he came to Australia on a false passport to save his life as the police will not protect the poor.[2]

   [1] Relevant Documents (RD) 14, 30, 49

   [2] RD 19-22

2. On 28 October 2016, the delegate refused the protection visa. Relevantly, the delegate accepted the applicant’s identity as claimed. The delegate found that the applicant would not face a real chance of serious or significant harm in India as there were effective protection measures available to him in India. On the same day, a certificate was issued pursuant to s.438 of the Migration Act 1958 (Cth) (Migration Act) (s.438 certificate).[3]

   [3] RD 84

3. On 17 November 2016, the applicant applied for review of the delegate’s decision by the Tribunal.[4] On 8 February 2017, the applicant failed to attend the Tribunal hearing and the Tribunal dismissed the application for non-appearance pursuant to s.426A of the Migration Act.[5] On 13 February 2017, the applicant applied for reinstatement of his application and his application was reinstated on 14 February 2017.[6] On 9 May 2017, the applicant attended a Tribunal hearing with the assistance of his migration agent.[7]

   [4] RD 87-88

   [5] RD 111

   [6] RD 121

   [7] RD 143-145

Tribunal Decision

1. On 29 June 2017, the Tribunal affirmed the decision under review.[8]

   [8] RD 155

2. The Tribunal noted the background of the matter and the legal principles relevant for the purpose of its review.[9]

   [9] RD 156-159 at [1]-[24]

3. The Tribunal referred to country information and accepted that the applicant faced a real chance of persecution in Jammu and Kashmir State at the hands of Muslim militants for reasons of his actual or imputed political opinion and his religion. However, it found this to be localised to his home area in Jammu and Kashmir State. The Tribunal analysed country information and found that the applicant would not be able to access adequate level of protection from the Indian authorities in Jammu and Kashmir State.[10]

   [10] RD 159-160 at [26]-[29], [31]-[33]

4. The Tribunal considered the applicant’s claim at the hearing that he feared harm from the Indian authorities, and found this claim to be highly implausible. It noted the applicant had family members in the army, and his evidence was that he had never assisted the militants. As such, it found that the applicant would not face a real chance of persecution from the Indian authorities.[11]

   [11] RD 160 at [30]

5. Having found the applicant faced a real chance of harm in Jammu and Kashmir State, the Tribunal considered whether it would be reasonable for the applicant to relocate to another state in India. The Tribunal considered and rejected the applicant’s claim at the hearing that he was attacked by local Muslims when he went to Calcutta as the claim was not raised earlier and that such claim was not supported by any evidence.[12]

   [12] RD 160-161 at [35]

6. The Tribunal noted the applicant’s evidence that he was not well-educated, could not undertake manual labour and would be unable to find employment, and rejected them for want of evidence. The Tribunal took into account the applicant’s limited education, lack of previous employment and lack of family support outside of his hometown in assessing whether it would be reasonable for the applicant to relocate to another state in India. However, the Tribunal found that these factors were outweighed by factors indicating that it would be reasonable for the applicant to relocate, including:

   a)a high rate of internal mobility and successful relocation within India;

   b)Sikhs are not at risk of being discriminated against in terms of employment;

   c)the applicant’s ability to speak Hindi which is an official language of India;

   d)India’s low unemployment rate; and

   e)the applicant has no family of his own to support.[13]

   [13] RD 161 at [36]

7. After considering the applicant’s circumstances and country information cumulatively, the Tribunal found that it would be reasonable for the applicant to relocate to another state in India.[14]

   [14] RD 161 at [37]

8. In relation to the s.438 certificate, which was before the Tribunal, the Tribunal recorded that it had disclosed the existence of the certificate to the applicant at the hearing and invited his comments. The Tribunal found that the s.438 certificate was valid. It noted the information contained in the documents covered by the s.438 certificate related to the investigation of the applicant’s identity, which was neutral to the applicant’s claims in circumstances where his identity was not an issue before the Tribunal.[15]

   [15] RD 162 at [39]

9. For these reasons, the Tribunal affirmed the decision under review.[16]

   [16] RD 162 at [40]-[43]

The current proceedings

1. These proceedings began with a show cause application filed on 24 July 2017.  The applicant continues to rely upon that application.  There is one ground in it:

   The Appeals Administrative Tribunal did not consider my circumstances. They did not take into consideration my evidences and made a decision based on external reports.

   (errors in original)

2. The application is supported by a short affidavit filed with it.  In that, the applicant repeats his assertion that the Tribunal did not consider all of the applicant’s circumstances.  I received that affidavit as a submission.  I have before me as evidence the book of relevant documents filed on 14 September 2017. 

3. This matter was initially docketed to Judge Barnes, but at a callover on 13 March 2019 she transferred the matter to me.  The matter was listed for a final hearing before me today.  Only the Minister filed pre-hearing written submissions in accordance with procedural orders made by a registrar.  I invited oral submissions from the applicant this morning.  His submissions were directed at the question of additional documents which he was unable to put before the Tribunal.  Although it is not entirely clear in the absence of a transcript, the applicant asserts that at the Tribunal hearing he was either asked to provide more documents or given the opportunity to do so upon his request. 

4. The Tribunal decision confirms at [5] that at the hearing the Tribunal gave the applicant and his agent the opportunity to make submissions and provide further evidence in support of his claims by 26 June 2017.  However, no further material or submissions were provided, and no further time was requested, so the Tribunal proceeded to its decision.  The applicant asserts that when he went to see his agent, the agent asked for money and the documents were not sent.  At another stage the applicant said that the documents had to come from India and he had difficulty getting them. 

5. The applicant told me that the documents were a combination of medical records verifying that he was injured by militants in Kashmir and documents verifying that Kashmiri militants had threatened his life.  The Minister’s solicitor in his submissions noted that the Tribunal had provided additional time for further documents, and in the absence of anything being received the Tribunal was entitled to proceed to make its decision.  He pointed out that there is no evidence before the Court of any fraud on the part of the agent. 

6. As I pointed out to the Minister’s solicitor and the applicant, it does not appear to me that the documents, if provided, would have been material.  That is because the Tribunal at [26] accepted that the applicant had been threatened and suffered harm at the hands of Kashmiri militants.  At [33], the Tribunal accepted that the applicant would not be able to access effective state protection from the Indian authorities in Jammu and Kashmir and concluded that he faced a real chance of serious harm should he return there.  The Tribunal’s decision turned on a relocation finding on which the documents referred to by the applicant did not impact. 

7. In his submissions in reply, the applicant sought to raise issues relating to relocation.  Those went to the merits of the Tribunal decision, which are beyond the scope of this proceeding.  I am not persuaded that the applicant’s oral submissions point to any jurisdictional error by the Tribunal.  I agree with the Minister’s submissions concerning the ground of review advanced. 

8. I also agree with the Minister’s submissions concerning the s.438 certificate.

9. As noted above, the applicant’s initiating application contains a single ground of review. The ground contains bald assertions which are wholly unparticularised, and is therefore liable to be dismissed on that basis alone.[17] For completeness, it is nonetheless briefly addressed below.

   [17] WZAVW v Minister for Immigration [2016] FCA 760 at [35]

10. To the extent the ground asserts that the Tribunal failed to consider the applicant’s evidence, it cannot succeed. It is apparent from the Tribunal’s reasons that it had expressly considered the applicant’s written claims contained in his application and his oral evidence given at the Tribunal hearing, as it found the applicant faced a real risk of harm in his home area.[18] The Tribunal also considered the applicant’s personal circumstances in assessing whether it would be reasonable for him to relocate to another state in India. For completeness, the Tribunal’s finding that it was reasonable for the applicant to relocate to another state in India was open to it having regard to the personal circumstances of the applicant.[19]

    [18] RD 159-160 at [25]-[33]

    [19] see SZATV v Minister for Immigration (2007) 233 CLR 18 at [23]-[26]

11. Insofar as the ground contends the Tribunal had erroneously relied on “external reports”, it is misconceived. The Tribunal is required, under s.499 of the Migration Act and Ministerial Direction No. 56, to take into account Department of Foreign Affairs and Trade country information in assessing the applicant’s claims.[20] Country information to which the Tribunal has regard, and the weight it gives to that information, is a matter for the Tribunal.[21]

    [20] RD 159 at [24]

    [21] see NAHI v Minister for Immigration [2004] FCAFC 10

12. In those circumstances, the ground set out in the application rises no higher than an invitation to the Court to engage in impermissible merits review.[22]

    [22] see Minister for Immigrationv Wu Shan Liang and Ors (1996) 185 CLR 259 at 272

s.438 certificate

1. While the applicant has not raised this as an issue, the Minister submits in accordance with his obligation as a model litigant, that the Tribunal did not breach any procedural fairness obligation in the conduct of the review when dealing with the s.438 certificate. I agree.

2. As recorded by the Tribunal at [39] of its reasons, it found the s.438 certificate to be valid. It disclosed the existence of the s.438 certificate and summarised the content of the documents covered by that certificate to the applicant at the Tribunal hearing, and invited his comments. The Tribunal found that the documents covered by the s.438 certificate related to the investigation of the applicant’s identity conducted by the Minister’s Department, and given it had accepted the applicant’s identity as claimed, they were “neutral” to his claims.

3. The Tribunal was correct to find that the s.438 certificate was valid because the reasons given for the issuing of the certificate, that is, the release of the documents covered by the certificate could “jeopardise future investigations and sources of information”, could form a basis for claiming public interest immunity.[23]

   [23] see s 130(4)(c) of the Evidence Act 1995 (Cth); Minister for Immigrationv SZMTA [2019] HCA 3 (SZMTA) at [19]; Zarro v Australian Securities Commission (1992) 36 FCR 40 at 46

4. In view of these factors, the present case is distinguishable from cases such as SZMTA.[24] Therefore, the Tribunal had complied with its implied obligation to afford the applicant procedural fairness in the conduct of the review.[25]

   [24] see EUY17 v Minister for Immigration & Anor [2019] FCCA 361 at [24]

   [25] cf SZMTA at [39]-[45]

5. In any event, having found that the documents were not relevant to the dispositive issue before it, namely, the reasonableness of relocation, any consequent failure by the Tribunal to afford procedural fairness to the applicant, would not be material.[26]

   [26] SZMTA at [45]

6. I conclude that the applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed. 

7. I will therefore order that the application filed on 27 July 2017 be dismissed.

8. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,000.  That is significantly below scale costs.  The applicant said that he did not know what to say in relation to the issue of costs.

9. I will therefore order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 11 August 2020