DQG16 v Minister for Immigration
[2018] FCCA 1047
•29 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQG16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1047 |
| Catchwords: MIGRATION – Visa – protection visa – whether Tribunal misconstrued evidence of applicant – impermissible request for merits review – whether failure on part of Tribunal to give clear particulars – whether Tribunal failed to correctly apply test as to re-location – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.130 Migration Act 1958 (Cth), ss.36, 36(2)(a), (aa), (b) & (c), 36(2A), 36(2B)(a), 424A, 424AA, 438 and 499 Migration Regulations 1994 (Cth), Schedule 2 |
| Cases cited: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 |
| Applicant: | DQG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 412 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 5 March 2018 |
| Date of Last Submission: | 5 March 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 29 May 2018 |
REPRESENTATION
| The Applicant: | In person with an interpreter |
| Counsel for the Respondents: | Ms C Stokes |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent in the amount of SIX THOUSAND DOLLARS ($6,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 412 of 2016
| DQG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs to issue in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 3 November 2016. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. The applicant has identified four grounds of application as follows:
“1.The Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to India.
2.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequences of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular: the Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
3.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.
4.The Tribunal’s decision was effected by judicial error in that the Tribunal failed to correctly apply the test in s 36(2B)(a) of the Migration Act 1958.
Particular: Having been satisfied that applicant is active member of DSS and tussle is going on between followers of DSS and Government of Punjab in India and there was a real risk and significant harm to the Applicant in India, so Tribunal was required to consider whether it would be reasonable for him to relocate the applicant to an area of the country where there would not be a real risk that the applicant will suffer significant.”
(Re-produced verbatim)
On 2 March 2017, the applicant was given leave by the Registrar to file and serve any amended application, and to file any further material on which he sought to rely in these proceedings by 28 July 2017. The applicant was ordered to file and serve an outline of submissions 10 days prior to this hearing. No amended application has been received, no further materials filed, and the applicant has not provided the Court with written submissions. He relies on the materials in the Court Book filed by the first respondent and his affidavit filed with the original application. That affidavit annexes a copy of the Tribunal decision and asserts that the decision was unjust and failed to take into account the gravity of his claims, but otherwise adds nothing of assistance to these proceedings. The applicant appeared before me unrepresented and with the assistance of an interpreter in the Punjabi and English languages.
Background
The background to the Tribunal hearing and the hearing itself have been helpfully summarised by the first respondent in its outline of submissions. I do not understand that summary to be disputed by the applicant, and I have paraphrased it below.
The applicant is an Indian citizen, having arrived in Australia in January of 2013. At that time, he held a visitor’s visa, which expired in April of 2013. He lodged the subject visa application on 18 April 2013. He claimed to fear harm because of his religion, and he is a follower of the Dera Sauda Sirsa (‘DSS’) religious sect. He also claimed to fear harm because of his imputed political opinion as a result of the fact that he is a follower of the Indian National Congress (‘INC’) party. He also claimed to fear harm on the basis of his membership of the social group of Sikh Dalits. At the time he applied for the subject visa, his wife was listed as a secondary applicant. He is now divorced and his wife took no part in these proceedings.
The application for the visa was refused by a delegate of the Minister in November of 2015. On 28 December 2015, the applicant applied for a review of that decision by the Tribunal. He was invited to attend at a hearing for the purpose of presenting evidence and arguments in support of his application for review. That hearing occurred on 26 October 2016. He was assisted by an interpreter on that occasion but was otherwise unrepresented.
The Tribunal affirmed the decision not to grant the applicant a visa on 3 November 2016. His application for judicial review in this Court was filed on 30 November 2016.
The Tribunal identified the issues before it as being whether the applicant met either the refugee or complimentary protection criteria as a consequence of:
a)the fact that he is a follower of the DSS religious sect;
b)because of his imputed political opinions as a follower of the INC party; or
c)his membership of the group of Sikh Dalits (Mazhabis) which is a scheduled caste.
The Tribunal considered the evidence of the applicant. With respect to his claim to participate in the DSS sect, it found that his evidence was vague and lacking in detail. It accepted that he was what it described as an ordinary follower of the DSS, but that he rarely attended the DSS ashram in India. For that reason, it found that his involvement was limited to attending occasional small gatherings with other supporters in his local community.[1]
[1] Court Book (‘CB’), decision record at [66].
As far as his involvement with the INC party was concerned, the Tribunal did not accept that he was an active member or an organiser of protests, or that he was politically affiliated with that party. It did not accept that his family home had been targeted by anti-DSS persons or that he had been targeted by orthodox Sikhs.[2]
[2] Ibid.
The Tribunal did accept that he had been caught up in protests involving DSS followers and orthodox Sikhs between the years 2009 and 2011. It accepted that he might have indirectly suffered injury during those protests. It did not accept that he was an activist or targeted in any way in the protests, or that he was denied state protection.[3]
[3] CB at [67].
The Tribunal considered country information and accepted that whilst the authorities had taken some action against orthodox Sikh leaders and DSS protestors in the past, it was not satisfied that the applicant would be denied state protection on return to India in the reasonably foreseeable future, because he was simply an ordinary DSS supporter.[4]
[4] CB at [68].
In considering the country information which it found to be relevant, the Tribunal concluded that there was not a real chance that the applicant would face persecution because of his imputed political opinions, if he were to return to India during upcoming elections.[5] This was because it considered that there was available state protection for DSS supporters, by virtue of the applicant’s unremarkable profile as an ordinary DSS supporter, and his absence from India for a number of years.
[5] CB at [69].
The Tribunal accepted that the applicant was a member of the scheduled Dalit caste. However, the Tribunal was satisfied that if the applicant returned to India, it would be possible for him to obtain employment and accommodation notwithstanding his membership of that caste. It found it relevant to that conclusion that he had previously operated a business as an electrician and was the owner of land in India. The Tribunal was not satisfied that there was a real chance that he would face serious harm to the extent that he would be subjected to any significant economic hardship. It was not satisfied that he would be denied the ability to earn a livelihood to the extent that his capacity to subsist would be threatened.[6]
[6] CB at [70] to [71].
Having made those findings, the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution because of his membership of the Dalit caste, because of his religion, or because of any political opinions that might be imputed to him as an INC party supporter or someone who was against the government.[7]
[7] CB at [72] to [73].
The Tribunal also considered the complementary protection criteria and was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to India, that the applicant was at a real risk of suffering significant harm. As a result, it concluded that this country did not have protection obligations to the applicant by virtue of s.36(2)(a)a of the Migration Act 1958 (Cth) (‘the Act’).
For that reason, it affirmed the decision of the delegate not to grant the applicant a protection visa.
Submissions
The applicant made brief oral submissions before me. Those submissions did not to any significant extent address his grounds of application. In essence, he complains that the Tribunal has fallen into error because it did not properly appreciate the gravity of his situation. I invited the applicant to address me on the specific grounds identified in his application and to tell the Court why, in his submission, those grounds amounted to jurisdictional error. As I have noted, his submissions did not in large part relate to the grounds. They did not add anything of substance to the wording of the grounds themselves.
In his submission, the applicant complained that the Tribunal relied on country information but had misinterpreted it. It was wrong for the Tribunal to conclude that after the troubles it acknowledged had occurred in 2012 that everything in India was fine for a person in his circumstances. He complained that there is a difference between what was found by the Tribunal and the real situation on the ground in India.
The applicant raised a couple of matters that were relevant to his circumstances but which had occurred after the Tribunal hearing. He referred to the fact that on 25 August 2017 there were riots involving his group and that as a result members of his group would be considered as traitors to India. Things have changed since the decision was made and the situation in India was significantly worse for a person of his background. This is in large part because, he says, the government is now run by a particular party which is against his political group.
The applicant stressed that since the Tribunal hearing his family circumstances have changed. He is now divorced. Had things been normal for him in India he would never have left his child behind. He stressed that he lived in Adelaide for five years and has not harmed any person. He told the Court that as a result of changes that have occurred in India, he is now at risk of harm. He expressed surprise that the Tribunal had not concluded that he was at risk of harm because it was obvious that his life was in danger. In his submission, he should at least be allowed to live in Australia until his son is 18 years old, and it was his ambition to bring his son to live here. He told the Court that whilst his family was looking after his son in India, the child was not receiving the proper guidance or education that he would otherwise have received from his parents.
The applicant told the Court that whilst he could not identify any specific person who presented a danger to him, that violence could occur in India anywhere. He offered to provide the Court with further documents, if required, to demonstrate that the situation in India had significantly deteriorated.
The first respondent relied on its written outline of submissions insofar as the actual grounds of application were concerned.
The Minister’s counsel appropriately dealt with grounds 1 and 3 together. It was submitted that those grounds were, in reality, an invitation to embark upon an impermissible merits review. The applicant had been unable to articulate how the Tribunal had either misconstrued the risk and fear of significant harm as set out in s.36(2A) (‘ground 1’) or why it had not reached a state of “reasonable satisfaction” as required by the Act (‘ground 3’). As the findings were clearly open to the Tribunal, the Minister submitted that these grounds should be dismissed.
With respect to ground 2, the Minister submits that the applicant has not identified what information falling within the ambit of s.424A was not given to him by the Tribunal. It was submitted that there was no information of the type identified in SZBYR v Minister for Immigration and Citizenship[8] that would have engaged the relevant obligation to invite comment from the applicant under s.424A or s.424AA.
[8] (2007) 81 ALJR 1190.
Finally, with respect to ground 4, the Minister submitted that the question of relocation did not arise. The findings that the applicant did not meet either the refugee criteria or the complementary protection criteria meant that relocation to another part of India was a moot point.
In oral submissions, counsel for the Minister responded to three matters that were raised in the applicant’s oral submissions but which were not encompassed by his grounds of application. Firstly, the complaint by the applicant that the Tribunal had considered information from Commonwealth countries about the question of harm and risk, seemed to be a complaint about the reliance by the Tribunal on the country information identified at paragraphs 32 to 44 of its decision record. Counsel for the Minister made the orthodox submission that the weight to be given to country information was a matter for the Tribunal as part of its fact-finding function. Similarly, it was submitted that the accuracy of the country information was a matter for the Tribunal and not this Court. Those submissions were both plainly correct.
It was submitted that without any detailed particulars as to what the applicant said the Tribunal inappropriately took account of with respect to country information, there could be no suggestion that an error had been demonstrated on the part of the Tribunal with respect to country information.
Secondly, insofar as the applicant referred to new information which had arisen since the Tribunal hearing, that material was not before the Tribunal. The events described by the applicant which had apparently occurred in August of 2017, and the subsequent deterioration of circumstances in India at that time, and more recently, were not matters that could be raised before this Court, because the Tribunal was obviously confined to making a decision on the matters that were before it. Similarly, the changes to the applicant’s personal circumstances with respect to having been recently divorced and his concern for the present circumstances of his son in India were also matters that were not before the Tribunal and so could not be relied on at this stage to demonstrate error on its part. I accept that submission.
The Minister otherwise submitted that the balance of the applicant’s oral submissions were all directed to the merits of the Tribunal decision itself.
The Minister brought to the attention of the Court that this matter involved the issuing of a s.438 certificate by the delegate. The existence of the certificate was not disclosed to the applicant. The Minister accepts that the certificate was invalid.[9] It was accepted by the Minister that the certificate was invalid for the reasons identified by Beach J in MZAFZ.[10]
[9] MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 at [37].
[10] Ibid.
The Minister relied on an affidavit of William Evans.[11] That affidavit referred to the circumstances of the certificate being issued, and annexed copies of the bundle of emails that had passed between the Department of Immigration and Border Protection and the Australian High Commission in New Delhi with respect to the verification of the applicant’s marriage certificate as being genuine. Parts of the documents in that annexure have been redacted, and the Minister claims public interest immunity pursuant to s.130 of the Evidence Act 1995 (Cth). I am satisfied that the redacted portions do attract the immunity. The redacted information relates to information that would identify confidential methodology used by the Department and the High Commission to verify the authenticity of documents. The Minister submitted, and I accept, that the fact that the Tribunal received an invalid certificate did not of itself establish jurisdictional error on its part, nor did the fact that it did not notify the applicant of the existence of the certificate.[12]
[11] Affidavit dated 28 February 2018.
[12] Minister for Immigration & Border Protection v CQZ15 [2017] FCAFC 194 at [65]-[69] and [72]-[76].
The Minister’s submission was that the documents provided by the applicant were accepted by both the delegate and the Tribunal as being genuine, and that it accepted his identity – in other words, that he was who he claimed to be. For that reason, the documents covered by the certificate did not and could not have had any impact on the decision of the Tribunal. There was no opportunity lost to the applicant and this can be regarded as a technical breach of a duty of disclosure only. Whether the applicant was aware of the existence of the certificate or not, it had no bearing on the outcome of the Tribunal hearing. I accept that submission.
Consideration
The Tribunal correctly identified the criteria for a protection visa under s.36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth), and noted that it was necessary for the applicant to meet one of the criteria in either s.36(2)(a), (aa), (b) or (c) of the Act.
I am satisfied that the findings made by the Tribunal were open to it. I note that it considered at some length relevant country information and applied that information to its consideration of the applicant’s claims. I am satisfied that the Tribunal considered all of the claims made by the applicant.
It summarised the relevant criteria both with respect to refugees and complementary protection in a manner that was orthodox and adequate. It was, as the Minister submits, clearly aware of the relevant tests to be applied. Further, it noted that pursuant to s.499 of the Act, it was required to have regard to the policy guidelines expressed in PAM3 as to both refugees and those to whom complementary protection obligations might attach. In view of that, ground 1 would require a properly particularised submission to establish that the Tribunal had in some way narrowly and erroneously construed the risk of significant harm as set out in s.36(2A). The applicant has not been able to articulate how he says that error has occurred. Having considered the decision record, I am unable to identify that there has been an error of approach or a misconstrual of s.36(2A). I accept the submission of the Minister that the effect of ground 1 is to complain about the merits of the decision and to invite the Court to undertake a fresh fact-finding task that might look more favourably on the applicant’s circumstances. That is not the purpose of judicial review. Jurisdictional error is not established merely by virtue of taking exception to the findings of the Tribunal.
The observations of the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[13] are applicable to this matter:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants' case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
[13] [2004] FCAFC 10 at [10].
I am satisfied that the findings made by the Tribunal were open to it. I note that it considered at some length relevant country information and applied that to its consideration of the applicant’s claims.
To the extent that the Tribunal made findings of credit, those findings were open to it. Having considered the evidence, the Tribunal simply did not accept that the applicant was at risk of harm on the asserted basis at this time or in the reasonably foreseeable future. I am unable to discern any error of the type complained of in either ground 1 or 3, and I dismiss those grounds.
With respect to ground 2, s.424A of the Act provides as follows:
“(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
I dismiss this ground. The applicant has not identified what information he was not invited to comment on. The Tribunal was not required to put the applicant on notice of the provisions of the Act or the Regulations themselves. It was not required to provide the applicant with a running commentary on the view it took of his evidence or any inconsistencies it may have discerned in his claims. In any event, as the Minister submitted, it is clear that any such perception of inconsistency or inadequacy in the applicant’s account was not “information” within the meaning of s.424A.[14]
[14] SZBYR, Op cit, at [18].
I dismiss ground 4. As I have noted in my summary of the Minister’s submission, relocation was not in issue in this matter because the Tribunal was not satisfied that the applicant met either the refugee criterion or the complementary protection criterion. No obligation arose to consider or “correctly apply” the test in s.36(2B)(a). The finding that he did not satisfy the relevant criteria was dispositive of any question about relocation.
As I have already indicated, I accept the submission of the Minister with respect to the s.438 certificate. The invalidity of that certificate, the fact that it was in the possession of the Tribunal, and the Tribunal failed to disclose it to the applicant does not, in these circumstances, for the reasons identified by the Minister, and which I accept, amount to or give rise to jurisdictional error.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 29 May 2018
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