DPC18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 294

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DPC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 294

File number(s):	MLG 1988 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	14 February 2023
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth):s 36(2), s 36(2B)(a), s 422
Division:	Division 2 General Federal Law
Number of paragraphs:	60
Date of last submission/s:	14 February 2023
Date of hearing:	14 February 2023
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Mr Mintz, Solicitor
Solicitor for the First Respondent:	Clayton Utz

ORDERS

MLG 1988 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DPC18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	14 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The Application filed on 10 July 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,467.

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
(Ex tempore)

JUDGE VASTA

1. On 6 June 2018 the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed the decision not to grant the applicant, DPC18, a protection visa.  On 10 July 2018, the applicant asked this Court to review that decision.

2. The applicant lodged his application within the 35-day time limit.  However, this Court has taken an extremely lengthy period within which to dispose of the application.  On my looking at the file, it was not until November 2019 that the matter came before a Registrar which meant it had been in the Court for one year and four months by then.  And it was not until 21 November 2022, that the Registrar assigned the matter to me.

3. I am hearing it today, 14 February 2023, which is over four-and-a-half years after the applicant filed the application.  On behalf of the Court, I apologise to him for the inordinate delay in being able to hear the matter and that is certainly part of the reason why I am giving the decision today ex tempore. 

4. The background to the matter is that the applicant was and is a citizen of India.  He came to Australia in February 2008 as the holder of a student visa.  That visa ceased on 18 April 2010. 

5. He was an unlawful citizen for about six weeks before he applied for and was granted a bridging visa.  That bridging visa was only in force for about a week until the applicant lodged a further application for a student visa and was granted an associated bridging visa to go with that application.  The application for the student visa was refused. 

6. The applicant then went to the Migration Review Tribunal arguing that there had been – that the Tribunal should give him the student visa.  The Migration Review Tribunal affirmed the refusal of that student visa.  That meant that the bridging visa that the applicant had ceased as at 14 September 2011. 

7. The applicant then became an unlawful non-citizen for nearly four months.  On 10 January 2012, the applicant was granted a bridging visa which was in effect for a week.  The applicant was then granted another bridging visa on 17 January 2012 that ceased after two weeks.  The applicant then became an unlawful non-citizen. 

8. The applicant then ended up in custody for an unrelated, it would seem criminal matter and that time in criminal remand and custody ended on 4 November 2017.  On 4 November 2017, the applicant then was removed from custody and placed in immigration detention.  On 13 November 2017, the applicant lodged the present application for a protection visa. 

9. Further background to the matter is that the applicant is a citizen of India and he has no other claims to live or be a citizen of any other country other than India. 

10. As far as the reasons for which he has claimed that he fits the requirements of a protection visa revolve around his claim that he was a witness to a gang fight in 2007.  He said that he had gone to a village about 25 kilometres or so from his home village to play cricket.  He said that after the game in the late afternoon he was preparing to travel home and he made a phone call to his girlfriend.  While he was on the phone, he heard a gun fire and he looked and he saw a group of people running away from two bodies.  He said that he recognised the men running as local gangsters associated with the Jagereara Boxers gang and he said he knew the nicknames of two of the men.  As a result, he immediately got on his bike and rode away from the crowd and the general area from where the gun had been fired. 

11. He said that he later learned that the incident was as a result of a land grab.  He said that the protagonists and the antagonists were rival gangs in India.  One were Congress Party supporters and the other were Shiromani Akali Dal Party supporters.  He said that the Shiromani Alkali have ruled in Punjab for the past 10 years. 

12. The incident was covered by the media and, at Court book 163 to 167, a printout from the Hindustan Times describes the incident.  The article is headed Gangsters Exchange Fire in Tarn Taran, One Killed.  There is a photograph of a damaged SUV the gangsters abandoned and the story talks about what had happened and gives some other details. 

13. The applicant said that after this incident he rode his bike straight home.  He explained what he had seen to his father and immediately left to stay at his cousin’s house.  He said he did not speak to anyone from the gang but that he knew that something would happen and he stayed with his cousin for 15 to 20 days and then with his uncle for a period of a month. 

14. He said that he found out that people were looking for him.  He said that two people came to his family’s house looking for him but his brother spoke to them but they did not explain why they were looking for the applicant.  He said that the men who went to his house were not his friends so he assumed that they were looking for him because of the incident. 

15. He said that while he was at the uncle’s house he thought he saw two men riding a bike who were looking for him.  He said that he panicked, ran away and started living with a friend.  He said he then arranged to travel to Australia to escape the gang. 

16. The Tribunal had a problem with the credibility of that particular story.  The biggest problem for the applicant was the delay in making his application. 

17. The applicant came to Australia in 2008 and yet did not make the application for a protection visa until 2017, some nine years afterwards.  The applicant said that he did not know that he could make a protection visa claim until he had been put into immigration detention. 

18. The Tribunal did not accept that as an excuse and the Tribunal pointed to the fact that the applicant had gone through a number of visa applications and consultations with visa or migration agents in his dealings with the Department. 

19. The Tribunal, in effect, was saying that they found it incredulous that if this incident were really the reason for the applicant to have come to Australia in the first place that it would not have been mentioned to any of those people who would have advised an application for a protection visa rather than what the applicant ended up doing in applying for student visas. 

20. The Tribunal had asked the applicant about the actual incident.  The applicant’s version did not gel with the media version that I referred to in the Court Book.  The Tribunal said that in their opinion the applicant did not provide plausible, compelling or persuasive answers to questions about the incident. 

21. The Tribunal noted that the applicant had said that he had no contact with any gang member, he did not receive any threats directly or indirectly and his family was not threatened by any of the gang members.  All the applicant said was that he was sure that he was still under threat but there was no independent evidence in support of that claim that some ten years after the incident occurred that there would still be people on the lookout for the applicant. 

22. The Tribunal noted that whilst the applicant said that the gang leaders and members were well-known in his village, his own family have remained unharmed and unthreatened by any member of the gang in the intervening time.  The Tribunal at paragraph 41 of their reasons said:-

    Therefore, based on the applicant’s evidence, the Tribunal does not accept that he has a subjective fear regarding members of the Jagereara Boxers Gang.  As a result, the Tribunal finds that the applicant belongs to a membership of a particular social group, namely a person who is a victim of a gang.  However, based on the applicant’s own evidence and the fact he was not able to provide any independent evidence to support his claim that there was a real risk that he would suffer serious harm if he were returned to India, the Tribunal does not accept that the applicant has a genuine and credible fear of being harmed by the Jagereara Boxers Gang in the event he returns to India.  Accordingly, the Tribunal finds the applicant does not have a real chance of being seriously harmed for any reason mentioned in section 5J(1)(a), in the event he returns to India now or in the foreseeable future. 

23. For that reason, the Tribunal found that the applicant did not meet the refugee criteria.  The Tribunal then turned to the complimentary protection criteria and noted that while the Tribunal did not accept that the applicant had a subjective fear of being harmed as a result of being a victim of the Jagereara Boxers Gang, the Tribunal had to look at whether, nevertheless, there was a risk of harm to the applicant. 

24. The Tribunal noted that the applicant was not able to provide it with any independent evidence that would indicate there was a real risk that he would suffer significant harm from members of the Jagereara Boxers Gang.  The Tribunal said that, having considered the applicant’s evidence and taking into account the absence of any independent evidence in support of his claims, the Tribunal found that there was no real risk that the applicant would suffer significant harm if he were removed from Australia to India.  Therefore, the applicant did not satisfy the complimentary criteria of the section.

25. The Tribunal, nevertheless, did what is colloquially known as the “what if I am wrong” test and looked at whether even if there were such a risk that the applicant would suffer from this gang, whether that risk existed throughout the country.  The Tribunal went through the country information and came to a conclusion that the applicant could relocate to Delhi.  The Tribunal looked at whether it was reasonable for the applicant to do so. 

26. The applicant told the Tribunal that he could go to Delhi but that his wife did not want to go.  The Tribunal noted that the applicant had spoken about his wife but had not produced to the Tribunal any certificate of marriage and the wife did not appear as a witness at the tribunal hearing. 

27. For that reason, the Tribunal did not accept that he was actually married to the person that he said was his wife.  Therefore, in looking at whether it was reasonable to relocate, the Tribunal said that the mere fact that this other person would not want to go to Delhi was not something that would make the relocation unreasonable. 

28. The Tribunal said that it found that the applicant could relocate to another area within India such that there would not be a real risk that he would suffer significant harm and, accordingly to s 36(2B)(a) of the Migration Act 1958 (Cth) (“the Act”) there was taken not to be a real risk that the applicant would suffer significant harm in India and, as such, they do not satisfy the complimentary protection criteria. For those reasons, the Tribunal came to the conclusion that the applicant did not meet the criteria.

29. In the application that was lodged with the Court, the applicant had listed 14 grounds, most of which were unparticularised.  I will go through each of the grounds seriatim.

30. Ground one is that:

    1. The application should be considered according to law.”

31. I note that this ground is not a true ground but rather a statement. Ground two is that:

    2. The decision of the AAT made on 6 June 2018 should be quashed.

32. Again, I note that this is not a ground but rather a statement made by the applicant. Ground three is that: 

    3. The AAT, in making the decision, did not comply with rules of natural justice and the applicant was denied procedural fairness.

33. It is trite to say that the complete statement and exhaustive statement of the rules of natural justice and procedural fairness are codified in s 422 and following of the Act. It is clear that the applicant made an application. The AAT invited him to appear at a hearing. The applicant was represented and a migration agent had been in contact with the Tribunal. The Tribunal listened to all of the arguments and the Tribunal made a decision. It does not seem to me that it could be said at all that there had been any denial of procedural fairness, and certainly no contravention of any of those sections of the Act.

34. Ground four is that:

    4. The AATs decision included an error of law.

35. Again, this is unparticularised and does not mean anything without any further detail. 

36. Ground five is that: 

    5. The AAT took into account irrelevant considerations.

37. Again, it is trite to say that irrelevant considerations in this context means that the Tribunal looked at matters that they were prohibited to look at in their deliberations.  There has been no identification of any such considerations. 

38. Ground six is that:

    6. The AAT’s decision was unreasonable.

39. This means that it was a decision that simply could not have been reached upon the evidence.  Having gone through the decision as I have, I cannot see that the decision could be in any way, shape or form described as unreasonable. 

40. Ground seven is that:

    7. The AAT failed to take into account relevant considerations.

41. This means that the allegation is that the Tribunal did not look at material that it was mandated to look at.  Again, no such material has been identified and, as I have said going through the Tribunal decision, it would seem to me that the Tribunal did, in fact, look at all material that it was mandated to look at. 

42. Ground eight is that:

    8. The decision of the AAT failed to meet refugee law when making the decision.

43. As I have gone through, the Tribunal looked at both aspects of s 36(2) that is the refugee criteria and the complimentary criteria.  Not only that, the Tribunal then, whilst it had no need to do so, still applied the “what if I am wrong” test to ensure that, even if it were wrong about there not being any grounds for complimentary protection, that all aspects of the law had been complied with.  If it were they were wrong about their primary conclusions, in my view, it cannot be said that the Tribunal has failed to meet refugee law when making that decision. 

44. Ground 9 was phrased this way:

    9. I believe the Tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness. 

45. As I have said, the Tribunal asked the applicant and invited him to come to a hearing.  He was represented by an agent. The Court Book has a number of examples of the interaction between the Tribunal and the agent.  There is no suggestion at any time by the agent that either the agent or the applicant were ill-prepared and not ready for this hearing. 

46. Ground ten is that: 

    10. The AAT also made an error by finding that I do not engage the protections afforded at section 36(2)(a) of the Act and therefore misapplying and misconstruing section 36(2)(a) and 36(2)(aa).

47. I have already mentioned those matters. I cannot see any error in the manner in which the Tribunal did look at those sections of the Act.

48. Ground eleven is that: 

    11. There was insufficient evidence or no evidence to support various findings made by the AAT.

49. Having gone through in some detail the decision of the AAT, it would seem to me that any finding that they made was actually backed by fairly cogent evidence and very reasonable inferences to be made for the evidence. 

50. Ground twelve is that:

    12. The AAT has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugee’s protection in the context of complimentary protection criteria regarding the real of significant harm at section 36(2)(aa).

51. This is really a repeat of earlier grounds and what I have said earlier applies with regard to this ground as well.  It would seem to me that everything that the applicant wanted to say was listened to, evaluated, discussed, considered and a ruling or a finding or conclusion was made accordingly.  I cannot see any error in the manner in which the Tribunal has looked at this aspect. 

52. Ground thirteen is that:

    13. The AAT’s conclusion in making the decision is vague and is without considering the facts of my country report information.

53. The only country report information the applicant put before the Court was the article.  It is obvious that the AAT looked at that article because it found that what is contained in that article was in juxtaposition to the evidence that the applicant had given about the incident, such that the AAT did not accept the applicant’s account of the incident at all.  It cannot be said that the conclusion was vague, it was instead quite clear. 

54. Ground fourteen is that: 

    14. The acknowledged difficulties of preparing and presenting my case.  I am from a different social, ethnic and cultural background and the difficulties I have with English language.

55. It seems to me that this ground was earlier covered by the fact that the applicant had been well and truly represented.  He has given no evidence of any difficulties.  In fact, today when he appeared before me unrepresented he did have the services of an interpreter given to him but chose to conduct the hearing himself in English. 

56. Notwithstanding that, I ensured that the interpreter stayed on the line and, if it were that the applicant had any problems at all with anything I was saying or the Minister’s representative that he simply had to let me know and the interpreter would interpret what it is that was being said.

57. Similarly, if he was having any trouble expressing in English what it was that he wished to convey to the Court, that the interpreter was there at his disposal to listen to what he was saying in his own language and to interpret what he was saying and convey that to the Court. 

58. As I had just said, the applicant did appear before me unrepresented.  He did not go into any further detail on any of the grounds that made up the grounds of his application.  He gave no further detail as to any errors that he was claiming that the Tribunal had made.  What he did say was that the Tribunal did not look at the effects of his having to leave Australia upon his present partner.  He also said that he had been in Australia for 15 years and he had lots of connections, lots of friends and quite a network.  For him to be forced to leave Australia would be a devastating blow to all of those connections that he had.  He said that that was not taken into consideration.  As I explained to the applicant then and I put on the record as part of my reasons now, while those matters may be so, the effect upon persons in Australia is not part of the refugee or complimentary protection criteria of a protection visa.  Whilst those matters may be quite personally devastating for the applicant and those persons with whom he has formed viable relationships over the past 15 years, they are really quite irrelevant to the consideration of the criteria in a protection visa application. 

1. The applicant reiterated that what he had said at the Tribunal was true and, whilst he did not say it directly, he hinted that he really did not understand why it was that the Tribunal had not accepted what it was that he was saying.  Unfortunately for the applicant, that sort of reasoning ventures into impermissible merits review.  Having gone through the Tribunal’s reasons and the applicant having listened to me, he may understand now why it was that the Tribunal ruled the way they did.  It may be that the applicant simply does not agree with the conclusions that the Tribunal had come to but that does not amount to a jurisdictional error. 

2. Having looked at everything that the applicant has said and looked at all of the matters before me, I cannot find that there has been any jurisdictional error that has been committed by the AAT.  For that reason, I dismiss the application for review.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       20 April 2023