DYZ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 15
•6 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 15
File number(s): MLG 1921 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 6 February 2024 Catchwords: MIGRATION – protection visa application – application for judicial review – alleged failure to properly consider protection claims – alleged failure to afford natural justice – grounds seeking impermissible merit review – jurisdictional error not established – application for review dismissed Legislation: Migration Act 1958 (Cth) s 36 Cases cited: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
MZZNK v Minister for Immigration and Border Protection [2015] FCA 217
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 29 November 2023 Place: Hobart For the Applicants: The First Applicant in person Counsel for the Respondent: Mr Hibbard Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 1921 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYZ17
First Applicant
DZA17
Second Applicant
DZB17
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
6 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application for review filed 5 September 2017 is dismissed.
2.Costs are reserved.
UPON HEARING THE COSTS APPLICATION BY THE FIRST RESPONDENT AND HEARING SUBMISSIONS BY BOTH PARTIES, THE COURT ORDERS THAT:
3.The First and Second Applicants pay the First Respondent’s costs, fixed in the amount of $5,000.
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
JUDGE TAGLIERI
On 5 September 2017, the First Applicant filed an application in the Court for review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division (“the Tribunal”) dated 11 August 2017.
BACKGROUND
The First Applicant is a non-citizen of Australia who applied for a Protection Visa on 22 April 2016. He is of Sikh faith, Indian ethnicity and speaks Punjabi, Hindi and English. The Second Applicant is his wife and the Third Applicant is his child. All three Applicants rely on the claims for protection advanced by the First Applicant.
The application for a Protection Visa was refused by a delegate of the First Respondent on 23 January 2017 and the Applicants applied to the Tribunal for review of the refusal decision.
The Tribunal conducted a hearing on 4 August 2017 with the assistance of a Punjabi interpreter. The First Applicant represented himself at that hearing and he gave evidence.
On 11 August 2017 the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection Visa.
The application for judicial review of the Tribunal’s decision came before me for hearing on 29 November 2023. At the hearing, the First Applicant again represented himself with the assistance of a Punjabi interpreter.
BASIS OF TRIBUNAL DECISION
The Tribunal concluded that it was not satisfied that the First Applicant met the requirements of s 36 of the Migration Act 1958 (Cth) (“the Act”) to be eligible for a Protection Visa either as a refugee or on the basis of complementary protection.
The claimed basis for the Protection Visa related to the First Applicant becoming a follower of Dera Sacha Sauda (“DSS”) since his arrival in Australia.[1] He claimed that he and his family would be attacked by extremist Sikhs because of his association with DSS if they were to return to his home state of Punjab in India.
[1] Court Book, p 166 at [28] and p 169 at [56].
The First Applicant’s evidence when questioned by the Tribunal about the specifics of his involvement with DSS was that he was a follower (not a paying member of any kind) and his engagement with DSS was limited to listening to sermons on YouTube.[2]
[2] Court Book, p 169 at [51]-[57].
The First Applicant claimed that, whilst residing in Australia, he received threatening phone calls pressuring him to leave DSS and that if he did not leave he would be killed. It was as a result of these threats that he made an application for a Protection Visa. He claimed that these calls continued to occur even when he moved his family between different states in Australia. However, after questioning from the Tribunal, the First Applicant confirmed that he had only received between five to ten of these calls over a two-year period.[3]
[3] Court Book, p 170 at [63].
The Tribunal concluded that the First Applicant lacked credibility, noting that his evidence regarding DSS was “vague and lacking in detail”.[4] Nor did it accept that the First Applicant had been threatened in any way, that his move between Australian states was as a result of threatening phone calls, or that he had suffered any harm as a consequence of watching videos of the DSS group leader on YouTube (which the Tribunal concluded was the extent of his involvement with DSS).[5]
[4] Court Book, p 180 at [118].
[5] Court Book, p 180 at [118]-[127].
The Tribunal also addressed the question of relocation, finding that it would be possible for the First Applicant to relocate within India if he had concerns about returning to his home area of Punjab.[6]
[6] Court Book, pp 180-181 at [127].
Ultimately, the Tribunal was not satisfied there was a real chance that in the reasonably foreseeable future the First Applicant would be persecuted for any reason, whether because of race, religion, nationality, membership of a social group or otherwise.[7] Furthermore, it found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed and returned to India there is a real risk of him suffering significant harm.[8] That is, it was not satisfied of the statutory criteria for protection as a refugee or complementary protection.
[7] Court Book, p 181 at [130].
[8] Court Book, p 181 at [131].
In arriving at these conclusions, the Tribunal had considered country information from the Department of Foreign Affairs and Trade. It had also invited the Second Applicant to comment on the claims for protection, but she had nothing to add.
COURT REVIEW
A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the First Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
GROUNDS OF REVIEW
At pages 4 to 5 of the First Applicant’s application for review dated 5 September 2017, the grounds stated were:
1. By application filed on 26 April 2016, I applied for the merit review application with administrative appeals tribunal. The grounds of the application are as follows:
1. The tribunal made a procedural error by not correctly assessing information relevant to the applicant's particular circumstances.
Particulars:
I produced before the Department of immigration and border protection and Administrative appeals Tribunal valid and relevant information with regards to their protection claims. However the evidences were rejected by both DIBP and AAT as the authorities are simply not accepting.
2. The applicants were not afforded natural justice.
Particulars:
I believe that I wasn't provided a fair hearing. My legitimate expectation to seek protection in Australia was denied by the decision of the Tribunal. AAT and DIBP simply choose to disbelieve the evidence. DIBP and AAT did not take into account relevant considerations and took into account irrelevant consideration.
3. I was miss-treated in India and if I will go back my family will be punished for following DSS. I will become no less than the prisoner in my country.
4. 38 People are been killed and 2500 are also harmed in the protest against the law and country.
5. The police of the country is killing the Dera follower and threaten their families as well.
6. The medical practitioners of India will also ignore me and never give me proper care and medication whereas in Australia, it's totally different and I feel safe in Australia.
7. Substantial justice was not provided and that's the reason I want to apply in Federal Circuit court of Australia
FIRST APPLICANT’S CASE
The First Applicant relied upon his application for review dated 5 September 2017, namely the grounds outlined above at [16] of these reasons, and he did not file any further materials for the purposes of the hearing.
He made oral submissions at the hearing with the assistance of a Punjabi interpreter and I confirmed that he was satisfied with their mutual comprehension. His submissions can be summarised as follows:
(a)That the threatening phone calls were continuing and that he continued to experience fear as a result of these calls;
(b)That he felt the Tribunal incorrectly focused on visa applications he had previously made to the United States instead of the threatening calls and fear he was experiencing;
(c)That the issue of relocation within India was addressed without properly considering the fear that would remain with him if he returned, notwithstanding any relocation; and
(d)That his son, the Third Applicant, was now an Australian citizen, which he was not at the time of the Protection Visa application and Tribunal hearing, and that it would be more dangerous to return to India with him.
FIRST RESPONDENT’S CASE
The Court Book filed by the First Respondent on 30 May 2018 and an affidavit of a solicitor acting for the First Respondent dated 14 June 2023 were received by the Court respectively as Exhibits R-1 and Exhibit R-2 without objection.
The First Respondent relied on the written submissions filed 15 November 2023 and made brief oral submissions that addressed the “new” oral submissions raised by the First Applicant at the hearing.[9]
[9] As referred to at [18] of these reasons
The First Respondent submitted that Ground 1 sought that this Court reconsider the First Applicant’s evidence and claims on merit, which constitutes an impermissible merits review. Similarly, it was argued that Grounds 3 to 7 sought merits review and did not reveal jurisdictional error by the Tribunal.
Relating to Ground 2, the First Respondent submitted that the Applicants’ grounds of appeal lacked particulars and did not particularise what he asserted was relevant and not considered, or was irrelevant and improperly considered.
The submission outlined above at [22] initially may have had force, but it can now be understood from the oral submissions made by the First Applicant at the hearing that he asserts that the Tribunal improperly took into account the visa claims made to the United States. Further, that it failed to take into account fears he would continue to experience on return to India even if he relocated, and an increased risk of harm on return to India because his son, the Third Applicant, is an Australian citizen.
The First Respondent noted that the First Applicant seemed to be suggesting that he or his son would face persecution for the fact of his son’s Australian citizenship. The submission was made that this was not before the Tribunal as the Third Applicant only became a citizen after the time of that initial hearing and that the scope of this Court’s review is limited such that it cannot consider new grounds.
EVALUATION
Ground 1 does not constitute jurisdictional error. The effect of the ground is to complain of the conclusion reached by the Tribunal because it was not persuaded that the claims met the statutory criteria for protection.
The Tribunal’s reasons are detailed and thorough, clearly setting out the claims made, the evidence relied upon and the basis for not being satisfied that the First Applicant qualified for a protection visa.
It was the function of the Tribunal to assess the veracity of the evidence and claims made.[10] The Tribunal made extensive enquiry of the First Applicant about his DSS beliefs and involvement.[11] It also considered country information about circumstances in India for DSS followers, Sikhs and those with Hindu beliefs.[12]
[10] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; and MZZNK v Minister for Immigration and Border Protection [2015] FCA 217.
[11] Court Book, pp 169-170 at [51]-[77].
[12] Court Book, pp 171-178 at [78]-[109].
The Tribunal largely accepted the claims about the First Applicant being a DSS follower, but found his involvement to be limited.[13] However, it did not accept the evidence that he had been threatened in any way, explaining why that was so.[14]
[13] Court Book, p 180 at [118]-[119].
[14] Court Book, pp 180-181 at [120]-[128].
Not being satisfied of threats against him, the Tribunal was not satisfied that the First Applicant would face a real risk of persecution or significant harm. This conclusion was logically and reasonably open on the evidence before the Tribunal and no jurisdictional error is demonstrated. Ground 1 fails.
Ground 2 in part asserts a failure by the Tribunal to provide a fair hearing. No detail has been given as to why the hearing was unfair. For this reason alone, the assertion is without substance. Further, it is self-evident from the Tribunal records and decision that the First Applicant was afforded a fair hearing. In particular, he appeared at the hearing, was assisted by an interpreter, and gave evidence and presented his claims, which the Tribunal carefully and thoroughly addressed. The Tribunal also invited the Second Applicant to be heard, but she declined to say anything.
The second part of Ground 2 contends improper consideration of the claims as described at [18], [23] and [24] of these reasons. The contentions have no substance and do not disclose jurisdictional error for the following reasons:
(a)Although the Tribunal made enquiry about the visa applications to the United States, it is apparent from the reasons that it placed no reliance on the evidence the First Applicant gave about this. Instead, the basis for not being satisfied that the protection criteria were satisfied related to a rejection of the evidence about the nature of threatening phone calls he claimed to be receiving;
(b)Even if the Tribunal had accepted that the First Applicant subjectively would fear harm on return to India because of his DSS beliefs and the threatening phone calls, this would not meet the statutory criteria for protection which requires a real chance assessed objectively as likely that he would suffer serious harm in the foreseeable future. This was conveyed by the Tribunal stating that the First Applicant’s fear of persecution was not well-founded and that there was no real risk that he would suffer significant harm in India; and
(c)The claims now made in relation to the Third Applicant being an Australian citizen were not made before the Tribunal and cannot relevantly form a basis of it having fallen into jurisdictional error.
The terms of what purport to be Grounds 3 to 7 of the application are not capable of being construed as any recognised form of jurisdictional error. Instead, they merely reagitate the protection claims previously made, which, like Ground 1, essentially seeks to invite the Court to undertake an impermissible merits review.
For all the foregoing reasons, each ground of review fails. The application is dismissed in respect of all three Applicants as they were reliant on the contentions of the First Applicant, which have failed.
The First Respondent has sought costs in the event of dismissal of the application. If the parties reach agreement about the terms of the order that should be made, I will make such order in Chambers upon receipt of a consent minute. However, if the Applicants oppose the order sought and wish to be heard, liberty is granted to the parties to seek an appointment before me.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 6 February 2024
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