DQO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3260

Federal Circuit Court of Australia

DQO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3260

File number(s):

PEG 234 of 2020

Judgment of:

JUDGE VASTA

Date of judgment:

26 November 2020

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)

Number of paragraphs:

60

Date of last submission/s:

26 November 2020

Date of hearing:

26 November 2020

Place:

Brisbane

Counsel for the Applicant:

The Applicant appearing on his own behalf

Solicitor for the First Respondent:

Ms Ellis

ORDERS

PEG 234 of 2020

BETWEEN:

DQO20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE VASTA

DATE OF ORDER:

26 NOVEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

1.        The Application filed 4 August 2020 is dismissed.

2.        The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A.       That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT

JUDGE VASTA

On 30 June 2020, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant the Applicant, DQO20, a protection visa.  On 4 August 2020, the Applicant asked this Court to review the decision.

The background to the matter is somewhat unusual.  The Applicant is a citizen of India.  He is an ethnic Sikh from the state of Punjab.  He arrived in Australia on a student visa on 3 May 2009.  That student visa was renewed successfully on a number of occasions.

The Applicant returned to India on several occasions between February 2012 and December 2016.  Some of those visits were for a month or more.  The Applicant also went to New Zealand during this period.

On 13 February 2017, the Applicant lodged an application for a regional employer nomination visa.  The department refused that application on 4 October 2017.  The Applicant lodged a review application with the AAT.  The AAT dismissed his application on 10 April 2018.

The Applicant sought a judicial review of that Tribunal decision.  This Court upheld the decision of the AAT and dismissed the application on 15 August 2018.

This meant that the bridging visa, that the Applicant was on, expired on 28 September 2018.  From that date onwards the Applicant was unlawfully in Australia.

In January 2020, the Applicant was arrested and charged with a number of criminal offences.  The Applicant was remanded in custody.  He was then transferred from the prison to immigration detention.  It would seem, at that stage, he was on the path to deportation.  He lodged a protection visa application on 13 January 2020.  Having lodged that application, he was granted a bridging visa on 23 January 2020.

The delegate of the Minister interviewed the Applicant on 30 January and 14 February 2020.  The delegate refused to grant the visa on 5 March 2020.  After that, it would seem that the Applicant's criminal charges were finalised and, on 19 March 2020, he was transferred for the last time from criminal detention into immigration detention.  The bridging visa was cancelled.

The Applicant had his hearing, via telephone, before the Tribunal on Friday 26 June 2020.  He had an interpreter with him, as well as a friend who was acting as a representative.  This friend will be a little more important as I will talk about him later in these reasons.

The claims of the Applicant in his original application were somewhat vague.  He expanded upon these claims when he was interviewed by the delegate.  The delegate ended up summarising the claims of the Applicant.

These claims were read to the Applicant and he, in effect, agreed that they were his claims.  Those claims are as follows:

(a)       The applicant is a follower of the Sikh faith and believes that he will be targeted by government and local authorities because of this; 

(b)       The applicant's father was a religious Sikh and he was killed by authorities;

(c)       His father was religiously active within the community;

(d)      The applicant, himself was just an infant when his father was killed.

(e)       When he was in grade 11 at school, the Applicant started to inquire with the police as to how and why his father was killed. 

(f)       Because he did this, the police started harassing and threatening the Applicant.  The police raised false cases against the Applicant and harassed his family.

(g)       As well as this, the Applicant's extended family are affluent and influential within the local community.  His family have political positions and are affiliated with the Akali Dal party in India. 

(h)       The Applicant believes that his extended family are the ones who have been causing him and his family problems with the local authorities.  He said that many threatening incidents happened between 2007 and 2009 and he believes that his extended family will create further problems for him in the future.

(i)        He says that due to personal enmities with higher authorities in the government and political parties, he fears he will be harassed physically and mentally should he return home. 

(j)        He said that he believes he would be subjected to death or severe injury by the authorities. 

(k)       He said that he is very scared of the police and he escaped from his home many times in India and lived in different locations as a result.  He says that he has no resources and he says that the political party, Akali Dal, and the government police are against the Applicant and his father.

(l)        He specifically said that since he was in prison on remand for the criminal offences that one of the prison guards is an Indian Sikh officer who is creating trouble for the Applicant in India.

(m)      He said that this prison officer is linked to a criminal group in India and that group is involved in creating false cases against the Applicant.  He suspects that this prison officer also has links to the Punjab Police network in India. 

(n)       He said that he believes that this officer is phoning people in India personally so that there would now be a case against the applicant back home in India.

The delegate looked at those claims very thoroughly.  The delegate had regard to country information provided by DFAT.  The country information spoke of the situation that Sikhs face in India.  The Sikh population of India is approximately 19 million or 1.7 per cent of the total population, but most of those Sikhs live in the Punjab, where they comprise 55 per cent of the population.

In 1982, Sikhs, who wanted an independent Sikh state, moved into the Golden Temple complex.  In June 1984, the Indian Government ordered the army to eject the Sikh leaders from that complex.  This was known as Operation Blue Star.  The Sikh leader, and many of his supporters, were killed during this operation.  In retaliation for Operation Blue Star, two of Mrs Gandhi's Sikh bodyguards assassinated her at her home in October 1984. 

Following this, mobs, who were seeking revenge for the assassination, attacked Sikh homes and businesses.  Since this time and from the early '90s, there were issues for the Sikh population, but DFAT reported that, since the early 1990s, Sikhs have lived peacefully in India, and the majority do not experience discrimination or violence.  DFAT assessed that Sikhs in India generally face a low level of official or societal violence and discrimination.

The information also was that the Indian Congress Party formed the National Government at the time of Operation Blue Star.  Punjab, at that time, was under president's rule, which meant it was directly governed from New Delhi.  There were elections in 1985 and the Akali Dal party won the State Government, but that government was dismissed in 1987 and replaced again by president's rule.  There were State elections that had to be cancelled because the situation was unstable.  There were elections in February 1992 and the Congress Party took government, though those elections were boycotted by the Akali Dal.

The Chief Minister of the Punjab from the Congress Party was assassinated in 1995.  There were elections in 1997.  The Akali Dal won government and ruled from 1997 to 2002.  The Indian Congress Party governed Punjab from 2002 to 2007, and the Akali Dal governed again from 2007 to 2017.  The current government, elected in 2017, is the Indian Congress Party.  The Akali Dal has only 13 seats in the 117 seat State assembly.

The evidence, before the Tribunal, was that the fractious situation between the State of India and the Sikh population in Punjab has not continued past those times in the 1990s. 

The AAT had regard to four statements that were submitted by the Applicant.

One of those was from the Applicant's mother.  She said that her husband disappeared on 29 July 1991.  She said that the authorities stonewalled her efforts to find out what happened to him.  She said that police from neighbouring villages privately told the family that the husband had been killed.  The mother said that she eventually let go of trying to find out the ultimate fate of her husband because she had to concentrate on raising her children.  She said that the Applicant became responsible for the family's farming business from an early age and that he, the Applicant, suffered from bouts of depression. 

It was of note, according to the Tribunal, that the mother did not suggest that the Applicant took up the cause of investigating his father's fate or that he ever faced any harm from the police.

The second statement was from a person who was patron of the Khalra Mission Organisation.  He reported that the Applicant's father was one of “thousands of unlucky Sikhs who were killed and disposed of by Indian security forces”.  She said that the Applicant's father was kidnapped on 29 July 1991.  She said that about 25,000 Sikhs were extra judicially killed in those days.  She said that the Applicant had been effected by this event and she said that he had been the subject of police intimidation because he was the family's elder male. 

The Tribunal said that, notably, this witness did not refer to the Applicant having been involved in investigating his father's killing.

The third statement was from a number of local village council members corroborating that date of the Applicant father's disappearance.  They say that:

Everyone in our area knows about this incident and many more like it at the time;

The family of the Applicant undertook efforts to get more information, but were met with threats and intimidation.

The fourth statement was from a welfare group that assisted the Applicant's family after what they said was the father “falling victim to State butchery” back in 1991.

The general position in all four statements, according to the Tribunal, was that the treatment of the Applicant's father was peculiar to the events of the time.  The Tribunal noted that, on the evidence before it, there were already five people, including the Applicant, attesting to the Applicant's father having been done away with by Indian security forces.  The Applicant wished to call, as witnesses, some of those people to support that same view.  The AAT said to the Applicant that it seemed unnecessary to call that witness and the Applicant agreed.

The Applicant told the AAT that he had been taking some medication and it made it hard for him to remember dates from the past and the AAT took this into account.

The Applicant said that his mother and two younger brothers still live in Punjab.  He said that his mother makes a living from the family land on which the family grows wheat, rice and vegetables.  He said that his middle brother works on the family land and sometimes works on land nearby belonging to his aunt.  He said that the youngest brother stays at home due to some mental issues.  He said that he recalls his father being picked up by police when he was farming and that this used to happen at that time.

The Applicant claimed again, at the hearing, that the police and government were responsible for his father's death.  He then made a claim that his distant family members, who belonged to Akali Dal, had his father killed.  The Tribunal asked the Applicant why Akali Dal, which was a pro-Sikh party, would have his father killed.  The Applicant did not answer that question, but rather went on to say that the father was killed by the National Government and the Government of Punjab.  The country information was that these two entities, that is the government, were enemies of Akali Dal at the time.

The AAT questioned the logic of what the Applicant was claiming because he was claiming that the Akali Dal and the congress were in cahoots.

The Applicant did not clarify the Tribunal's query, but kept repeating that the Akali Dal was very powerful.  The Applicant said that he had heard that his father had been angry about the attack on Golden Temple and Operation Blue Star.

The Applicant said that the posture of Akali Dal had been “a drama” and it was actually involved, or complicit, in the attack; but the Applicant did not provide any material that would in any way support this claim.  The Tribunal described this evidence from the Applicant as being confused, implausible and fanciful.

The Tribunal asked questions about the Applicant's work history.  The Applicant said that firstly, he did not work and he was hiding from the police. And then he said he sometimes stayed with his aunt, and then he said that he sometimes helped out on the farm in both locations.  He then said he worked in his home village whenever he was there.  The Tribunal put to him that this did not sound like he was hiding from the police if he was doing these things.  He said he did not tell anyone what he was doing at the time.

The Applicant then claimed that he used to go and stay in New Delhi from time to time after the police tortured him.  The use of the word "torture" seemed to concern the AAT and they asked the Applicant to tell them what he meant by that.  He said that the police did not physically harm him, but used to ridicule him and put him down, making him feel worthless.  He said that this happened when he would keep going to the police station to ask them for information about why his father was killed.

The Tribunal asked the Applicant to explain why, if he knew that the police were responsible, he would keep going back to the police station year after year to interrogate them?  In reply the Applicant said to the Tribunal, "Why kill him?"  The Tribunal said that the Applicant already seemed to know why it happened, that being that his father was a Sikh who was opposed to Operation Blue Star.

The Tribunal asked the Applicant why he came to Australia in 2009 and the Applicant said that he did so for his future.  He was asked why he did not lodge a protection visa application until 10 or 11 years after he arrived.  He said that nobody had guided him to do so.  The Tribunal asked if he had applied for any visas other than the student visas he held as a dependent of his ex-wife.  He said that he applied for a permanent residence employer-nominated visa, but was unsuccessful.

The Tribunal noted that it did appear that the Applicant had access to some level of migration advice at that time.  The Tribunal noted that after the Applicant failed to obtain permanent residence, he still did not apply for protection until three years later.  The Tribunal asked the Applicant when he first found out that he could apply for a protection visa, and he said that it was in 2019.  He said that an Indian lawyer had advised him or assisted him.

The Tribunal put to the Applicant that it was hard to see that he ever fled persecution in India, because he had returned there many times up until 2016.  The Applicant said that his mother had been too sick to visit him in Australia, so he used to go there.  The Tribunal noted that the Applicant had made three visits to India in 2015 alone.  The Tribunal put to the Applicant that these visits were voluntary and that no one stopped him on the way in or way out.  He said that in 2012 and 2014 he stayed in his village, but on the later visits he did not go there.  The Tribunal noted this answer was made just after the Applicant had explained to the Tribunal that he went to India to visit his family.

The Tribunal then analysed what it was that the Applicant was claiming.  The Tribunal said that there were two main criteria that the Applicant was attempting to fulfil.  The first is being a membership of a particular social group and the second is actual or imputed political opinion.  The Tribunal accepted that the Applicant is a Sikh.  The Tribunal accepted that the Applicant had no affiliations with any political parties, religious factions or socio-political movements.  The Tribunal said yhat it was significant that the Applicant was not affiliated with the pro-Khalistan movement that was the real focus of the crackdown in Punjab in the 1980s.

The Tribunal accepted that the father of the Applicant was subjectively opposed to Operation Blue Star.  The Tribunal found that, on the evidence before them, they could find no basis for even inferring that the Applicant had any actual affiliations with any political parties or movements.  The Tribunal noted that the Applicant's actual application referred to his father disappearing in 1984, but the Tribunal accepted that the Applicant's father disappeared on 29 July 1991, and that 1984 was simply a mistake or a poorly worded reference in the application.

The Tribunal said that the Applicant had a tendency to exaggerate some of his claims.  The example they gave was the use of the word “tortured” by the Applicant.  The Tribunal said that they were also struck by the confused, implausible and fanciful nature of the Applicant's claims about Akali Dal and their role in his father's fate.  The Tribunal said that they were troubled by the Applicant's claims that he was personally investigating his father's death.  The Tribunal said that it was hard for them to accept that the Applicant did this. But if he did, the most that happened to him was that he was the subject of insulting and demeaning talk from the police officers.

The Tribunal said that they found it hard to accept that the Applicant investigated his father's death repeatedly between 2001 and 2009 because he always met with the same lack of success and the same insults and threats; and in spite of claiming that he was devoted to this cause, he never changed his approach and simply kept doing the same thing over and over again.

The Tribunal found that the Applicant's account lacked a ring of truth.  The Tribunal also found it incongruous that the Applicant would do this, notwithstanding that his mother had already been told by police from a nearby village what had actually happened to her husband.

The Tribunal found that the Applicant's claim about having to go into hiding was inconsistent.  The Tribunal said that the locations of his hiding places would have been easy for authorities to locate if they were actually searching for him.

The Tribunal did not accept that the Applicant was ever ‘framed” by Indian police in criminal matters to stop him from investigating his father's death.  The Tribunal said that this was borne out by the Applicant repeatedly and voluntarily visiting his family in Punjab.  This indicated that he was not afraid to be brought before a court in connection with these so-called falsified cases.

The Tribunal did not accept that the Applicant ever investigated his father's death, let alone by interrogating police over and over.  The Tribunal did not accept that the Applicant was threatened or intimidated for reasons of being his late father's eldest son.  As far as the Applicant's claims regarding the prison guard in Australia, the AAT gave them very little weight.  This was because of the general credibility problems that the Tribunal highlighted regarding the Applicant.

The Tribunal also looked at the fact that the Applicant delayed applying for protection in Australia long past his first arrival here.  The Tribunal made note that the Applicant did not apply until he was detained and placed on a removal pathway by the department.  The Tribunal found that the protection visa application was disingenuous.

The Tribunal then looked at the complementary protection criteria.  The Tribunal assessed all of those criteria, but came to the conclusion that the Applicant did not meet those criteria. 

Having come to that decision, the Tribunal affirmed the delegate's decision not to grant the Applicant a protection visa.

The grounds of the application were as follows:

1.   Ignoring materials the decision maker was required to look at

2.   Not adopting a fair process in making the decision

3.   Reaching a decision that is unreasonable

4.   Incorrectly interpreting or applying the law. 

Obviously, none of those grounds has any particulars.

I asked the Applicant what it was that he wanted to say both in relation to those grounds and his application generally.  The Applicant repeated on a number of occasions that the Tribunal had not looked at his file properly.  The Applicant was somewhat fixated on a statement by the Tribunal that the Applicant claimed that his father was kidnapped in 1984.

The Applicant kept saying that the Tribunal said it was 1984, but it was really 1991.  The fact that they made this sort of mistake, the Applicant said, was proof that they were not looking at his file properly.  The Applicant said that the Tribunal made their decision without really listening to him.  The Applicant said it was still dangerous for him in the Punjab.  The Applicant said that he was a Sikh and this was very dangerous for him.  The Applicant said that the police will act in a certain way and that he could produce videos of how they act if it were that I, acting as the Court on review, was not convinced of this.  He said that his return to India was to look after his sick mother, and he said that he did not know that he could apply for a protection visa until he actually did apply for the visa.

With regard to this aspect as to 1984, it is instructive to look at the Applicant's original application.  The application, which is found in the Court Book starting at page 25, says this:

79:  Did you seek help within that country/those countries after the harm?

(answered no)

Give reasons for why you did not try to seek help.

Scared of my father's kidnapping and in 1984 my father was taken by police without any reason.  During that time we got no help and I have faced threats by the concerned people in government & police.

This answer by the Applicant, at page 25 of the Court Book, is where the date 1984 comes from; but notwithstanding that this was what the Applicant said in his application, the Tribunal found that the Applicant's father was in fact kidnapped in 1991.  This aspect shows that the Tribunal did look at his file properly. 

All of the other matters that the Applicant has raised are really attempts to engage the Court in an impermissible merits review.

The Tribunal made a number of conclusions.  Those conclusions were open to the Tribunal to find on the evidence that was before it.  They do not display any jurisdictional error.  Notwithstanding this, the Minister brought to my attention that before the Tribunal there were five affidavits of other pieces of evidence.  The Tribunal, at paragraphs 44 to 48, only spoke of four affidavits.  The Minister said that it may look as if the Tribunal has disregarded the fifth affidavit.

Upon an examination of the reasons of the Tribunal, such a claim cannot be made out.  The other affidavit was from a person whom I will call Mr S.  The input of this affidavit was that the witness knew the whole story about the Applicant's family.  The witness said that he knew that the father was kidnapped and killed by Punjab Police and the body was never returned.  This witness said that he knew of the hardships that the family suffered at the hands of police and that other village people kept their distance from this family because they were scared of police.  In many respects, this affidavit did not take the matter too much further when one considers the other four affidavits.

I had earlier talked about the Applicant having a friend/representative present at the hearing.  The hearing record is found at Court Book, page 90.  It shows that the person, Mr S, who had provided the affidavit, was listed as being in attendance as both a witness and a representative.  At paragraph 49 of the reasons, the Applicant had wanted to call a further witness.  The Tribunal said this:

…On the evidence before me, there were already five people, including [the Applicant] attesting to his father having been done away with by Indian security forces in July 1991 and say that little else had been ascertainable in the matter. I put to [the Applicant] that in these circumstances it seemed unnecessary to call the proposed witness. [The Applicant] agreed and accepted this.

At paragraph 64 the Tribunal said:

I asked [the Applicant] if he had any other claims to discuss and he said he did not. I asked his advisor if he thought anything had been omitted and he indicated that he had nothing to add.

It seems to me that, if the Tribunal had made a mistake in saying that there was four affidavits rather than five, such an error did not amount to a jurisdictional error.  This is because the statement of Mr S was of the same ilk as the other four statements.  The fact that Mr S was actually present and indicated that he had nothing to add underlines this conclusion.

Having looked thoroughly at this matter and having taken into account everything that the Applicant has said to me today, I do not find that there has been any jurisdictional error established.  I dismiss the application with costs in the sum of $5,000.

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

Associate:

Dated: 4 December 2020