DYF18 v Minister for Home Affairs

[2019] FCCA 2237

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYF18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2237

Catchwords:
MIGRATION – Application for protection visa – inconsistencies in applicant’s claims – applicant’s claims not credible – applicant able to relocate within India to a safe place in any event – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1)(c), 36(2)(a), 36(2)(aa), 65, 499

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Applicant: DYF18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 776 of 2018

Judgment of: Judge Egan

Hearing date: 12 August 2019

Date of Last Submission: 12 August 2019

Delivered at: Brisbane

Delivered on: 12 August 2019

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms L. Helsdon of Sparke Helmore

IT IS ORDERED THAT:

1. The application for review filed on 31 July 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 776 of 2018

DYF18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 15 May 2016 as the holder of a tourist (class FA) (subclass 600) visa. 

2. On 3 August 2016 the applicant applied for a protection visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’).

3. On 17 March 2017 the delegate refused to grant the visa to the applicant on the basis that the applicant was not a person to whom Australia owed protection obligations.

4. On 12 April 2017 the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 20 April 2018 the Tribunal invited the applicant to attend a hearing before it scheduled for 18 June 2018. 

5. On 18 June 2018 the applicant appeared at the hearing before the Tribunal to give evidence and to present arguments. He was assisted at the time by an interpreter in the Punjabi and English languages.

6. On 3 July 2018 the Tribunal affirmed the delegate’s decision. 

7. On 31 July 2018 the applicant filed an application for review of the decision of the Tribunal. 

8. The relevant history and claims of the applicant are as set out in paragraphs [14]-[33] of the reasons of the Tribunal, which history and claims are as follows:

   Background:

   [14] The applicant is an 18 year old man from Ghaore Shah Awan, Province of Punjab, India.

   [15] The applicant is of the Sikh faith, is of Punjabi ethnicity, and speaks Punjabi and can read and write in English.

   [16] The applicant is single. His two parents and sister live in India.

   [17] The applicant completed education to Year 10 in India in April 2016.

   [18] The applicant stated in his application form that he has never worked.

   [19] The applicant arrived in Australia on 15 May 2016, under Passport No L9804376, issued 29 May 2014 and expiring 17 July 2017 pursuant to a subclass FA-600 (Tourist) visa granted on 5 May 2016 and expiring 4 August, 2016.

   [20] The applicant applied for a protection visa on 3 August 2016.

   [21] The applicant attended an interview with the delegate on 23 February 2017. Immediately prior to this hearing, the applicant presented some documents including a letter from the Shiroman Akali Dal Party (“SAD”), an article about a Sikh from the UK and some pages with text upon them about a Sikh being imprisoned for 225 days. He also provided a copy of his statement.

   Claims:

   [22] The applicant claims that whilst he was growing up the applicant became aware of the atrocities committed against the Sikhs by the central and state government.

   [23] The applicant claims that while he was completing his school certificate, the applicant became affiliated with the banned "All India Sikh Student Federation (SSF)" despite his father's objection. He was motivated by the prospect of a separate state of Khalistan, and to take their revenge.

   [24] The applicant claims that he was outspoken about the atrocities committed against Sikhs.

   [25] The applicant claims that on 2 January 2016 he was arrested by the local police from his house in the morning. He was interrogated by the Punjab Intelligence Branch. He was tortured and after six hours he was released with strict conditions.

   [26] The applicant claims that after his release his father restricted his movement. He only had contact with other SSF members via telephone. He was not deterred by the interrogation and pursued his SSF work.

   [27] The applicant claims that he organised mini meetings amongst area youth and was distributing leaflets.

   [28] The applicant claims that in February he attended a highly confidential meeting at a friend's farmhouse. Suddenly they realised the house was surrounded by police. Six of the members were arrested, and the applicant and the others escaped.

   [29] The applicant claims that the police were searching for him everywhere and visited his house twice. His father bribed the local police to stop arresting him.

   [30] The applicant claims that his father paid money to delete his name from a list to depart Australia.

   [31] The applicant claims that since the applicant has arrived in Australia, he was told that the Punjab police organised a new task force to combat the current growing conflict. They have started to arrest those people with previous records.

   [32] The applicant claims that if he goes back to India he will be arrested and perhaps killed by undercover agents.

   [33] The applicant claims that he is seeking protection in Australia to avoid further serious harm in India and to save his life.

9. At [3]-[11] of its reasons the Tribunal set out, with particularity, the relevant criteria which had to be met in order that a person might be granted a protection visa. 

10. At [12] of its reasons the Tribunal noted that it had had regard to policy guidelines prepared by the Department of Immigration in accordance with ministerial direction number 56 made pursuant to the provisions of s.499 of the Act, as well as relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection-status-determination purposes.

11. At [37]-[100] of its reasons, the Tribunal, in a very careful manner, recorded the information before it, as well as the evidence it received from the applicant at the hearing. 

12. At [39] of its reasons, it was recorded by the Tribunal that in response to the question as to why the applicant had left India the applicant said that he was in danger. The applicant said that he was with the “SSF” (namely Sikh Student Federation). When asked what it meant by him saying that he was a member of such organisation, the applicant said that he wasn’t a member, he was just with them. When asked what he meant by saying that he was “with them”, he said that the SSF liked to get Sikhs involved to help other Sikhs. As to the question of whether the applicant was in danger or not because of his alleged association with the SSF, the applicant said that he was in danger because Sikhs were in danger.

13. At [40] of its reasons, the Tribunal read to the applicant his claims as set out in [22]-[33] of its reasons, asking whether such claims were accurate. The applicant replied that they were. The applicant said that his claims were complete, and when asked whether he had any additional claims, he stated that he did not.

14. At [41] of its reasons, the Tribunal asked the applicant why it had taken him three months after his arrival in Australia to make his protection-visa claims, noting that the applicant had made an application for a protection visa one day before the expiration of his tourist visa. The applicant said he didn’t know about protection visas. 

15. As to the production by the applicant of a letter allegedly from the SAD Party (Shiromani Akali Dal Party), the Tribunal, at [49] of its reasons, suggested to the applicant that he didn’t need the letter to make a claim, late as it was, that in some way corroborated the applicant’s claims that he was in danger if he was to be returned to India. The Tribunal at [44] noted that it was apparent to the Tribunal that the applicant had little idea what was in the letter. The Tribunal also noted that the letter stated that he had been a supporter of SAD in 2014 which would have made him 14 years of age at the time. 

16. At [51]-[55] inclusive of its reasons, reference was made by the Tribunal to the applicant’s claim that he was in fear of being killed by police should he be returned to India. It was noted that the applicant responded that his basis for such fear was because they didn’t like Sikhs. At [59] of its reasons the Tribunal noted inconsistencies concerning what the applicant had told the Tribunal about his involvement in the “All India Sikh Student Federation”.

17. The Tribunal noted that in seeking to answer its questions, the applicant stated that neither he nor his father had been involved in such organisation.  At [59] of its reasons, when further asked about any role which the applicant might have had in the All India Sikh Student Federation, the applicant was recorded as having responded that he did not know what the organisation was and that he had never heard of it.  When asked about his having given contradictory answers in relation to such organisation, the applicant said that he was confused. 

18. At [60]-[67] of its reasons, the Tribunal dealt in detail with various claims made by the applicant about his having been allegedly arrested by police, his running away from police at the Farmhouse, the police allegedly turning up at his home, and his possible interest to the security agencies. At [66] of its reasons, when referring to the alleged release of the applicant on “strict conditions”, the applicant was noted as having replied that he had been released with no conditions.

19. At [68]-[81] of its reasons, the Tribunal discussed with the applicant the conditions in which Sikhs lived in India and, in particular, Punjab.  It was noted at [77] of its reasons by the Tribunal that DFAT had assessed that Sikhs in Punjab had no higher risk of suffering from religious-based official or societal discrimination or violence than that faced by people from any other religious groups. 

20. At [78] of its reasons, the Tribunal noted that country information suggested that, apart from random incidents of crime which were prevalent in every country,

    “…the overall security situation in the Punjab is generally calm.”

21. At [79] of its reasons the Tribunal referred to the Immigration and Refugee Board of Canada (‘IRBC’) country information as having stated that:

    “… the present situation in Punjab is generally regarded as peaceful”…

    and that:

    “…The human rights situation for Sikhs in Punjab and India has improved to the extent that it can no longer be said that there is a general risk of ill-treatment on return solely on the basis of believing in the establishment of Khalistan.”

22. At [82]-[85] inclusive of its reasons, the Tribunal recorded that there were difficulties associated with the investigation of criminal cases and the legal punishment for perpetrators of crime in India. 

23. At [86]-[102] inclusive of its reasons, the Tribunal dealt with the issue of the applicant being able to relocate to places within India should he be returned. At [86] it was noted that DFAT stated that there was a very high rate of internal mobility within India. At [87] it was also noted that Indian law provided for freedom of movement within the country and that the government generally respected that as a matter of practice. 

24. At [90] of its reasons, the Tribunal noted that DFAT also stated that it was not aware of any credible reports of mistreatment of returnees by Indian Authorities, including failed asylum seekers. At [98] of its reasons, it was noted by the Tribunal that millions of Indians successfully relocate every year within India, either temporarily or permanently, and that it was possible to obtain work, in large, in informal sectors without papers. It was also noted by the Tribunal that DFAT assessed that there were a range of viable internal relocation options for individuals seeking protection from discrimination or violence.

25. At [99] of its reasons, the Tribunal noted that if the applicant had concerns about returning to Punjab he could effectively disappear to another part of India, noting, as it did in [100] of its reasons, that the applicant had already established that he had proven resilient in moving to Australia as a very young man, knowing no one in Australia and that, notwithstanding those obstacles, being a person who had managed to secure a job and pay his taxes. In response, the applicant said that it was expensive to live in India and that he didn’t want to relocate anywhere else in India because he was comfortable in Punjab. The applicant, otherwise, was recorded as having said that he would like to stay in Australia until Khalistan was declared a separate state, after which he would go back there.

26. At [103]-[110] inclusive of its reasons, the Tribunal carefully set out the matters required to be taken into account by the Tribunal when assessing claims and evidence put before it, particularly in relation to protection-visa claims. At [112] of its reasons the Tribunal recorded that the applicant had appeared evasive in answering questions during the course of his hearing. 

27. At [118] of its reasons, the Tribunal did not accept that the applicant had become affiliated with the SSF, there being substantial inconsistencies in his evidence in that regard. It was noted that the applicant had very little understanding of what SSF stood for. 

28. At [119] of its reasons, the Tribunal recorded that it did not accept that the applicant was motivated by the prospect of a separate State of Khalistan. When asked, the applicant stated that he had no idea why a separate State was required, what any conflict was about, or even where the State of Khalistan might be located. 

29. At [120] of its reasons, the Tribunal found that it did not accept that the applicant was outspoken about atrocities about Sikhs, noting that the applicant had told the Tribunal that he did not make any speeches. The applicant also could not state what he actually said when he alleged that he was being outspoken.

30. At [121] of its reasons, the Tribunal found that the applicant had not been arrested.  As to that, the applicant stated that he had been called in for investigation. He could not explain why it had taken six hours for that process to be completed. 

31. At [122] of its reasons, the Tribunal found that the applicant had not been tortured. No details were given about any torture and the only compulsion adverted to by the applicant seemed to be that he had been asked questions by police. 

32. At [124] of its reasons, the Tribunal did not accept that the applicant had organised any mini-meetings, the applicant being unable to respond with precision about anything of the sort. 

33. At [126] of its reasons, the Tribunal did not accept that the police were searching for him at all. The Tribunal, from [127]-[134] of its reasons, otherwise rejected the applicant’s claims which the applicant asserted gave rise to his having a real fear of harm or death should he be required to return to India. 

34. At [134] of its reasons, the Tribunal also found that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real chance that he would suffer serious harm, and that therefore the Tribunal was satisfied, pursuant to the provisions of s. 5J(1)(c) of the Act, that there was no well-founded fear of persecution on the part of the applicant should he be returned to India.

35. At [135] of its reasons, the Tribunal found that, having considered all of the applicant’s claims, both individually and cumulatively, as well as having assessed all of the applicant’s evidence and relevant country information, there was no reasonable chance that the applicant would suffer persecution on the grounds of his race, religion, nationality, membership of a particular social group, political opinion or for any other reason if he was returned to India. The Tribunal found that the applicant did not satisfy the relevant criteria as provided for in section 36(2)(a) of the Act.

36. At [136]-[140] of its reasons, the Tribunal considered all relevant complementary protection criteria. The Tribunal found that, on the basis of its findings made earlier, it was not satisfied that there was a real risk that the applicant would suffer significant harm for any of the reasons claimed if he was returned to India. It found that the applicant did not satisfy the relevant criteria as provided for in section 36(2)(aa) of the Act.

37. At [142] of its reasons, the Tribunal found that, having considered the applicant’s individual circumstances, both individually and cumulatively, as well as country information, there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there was a real risk that he would suffer significant harm. 

38. The Tribunal carefully considered all matters of relevance placed before it.

39. It cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.

40. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

1. Further, it cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] where it was said:

   [25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.

2. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

3. The application for review is without merit and is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  26 August 2019