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

The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 24 July 2017 is dismissed.
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

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

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
On 28 October 2016, the delegate refused the protection visa. Relevantly, the delegate accepted the applicant’s identity as claimed. The delegate found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2106
Decision Date: 31 July 2020

CaseChat Overview and Summary

The applicant, DHZ17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the refusal of a protection visa. The applicant, who claimed to fear harm in Jammu and Kashmir, India, had his claims of persecution accepted by the Tribunal. However, the Tribunal found that he could safely relocate to another part of India, thereby refusing the visa.

The central legal issue before the court was whether the AAT had committed a jurisdictional error in its assessment of the applicant's ability to relocate within India. The applicant contended that the Tribunal's finding on internal relocation was flawed, constituting an unparticularised ground of review.

Judge Driver found that the AAT's reasoning regarding internal relocation, while perhaps not as detailed as the applicant might have wished, did not amount to jurisdictional error. The Tribunal had considered the evidence and made a finding that the applicant could relocate to a place of safety within India. This finding was open to the Tribunal on the evidence before it, and the applicant had not demonstrated that the Tribunal failed to exercise its jurisdiction or acted outside its legal authority.

The application for judicial review was dismissed.

Orders