DYZ17 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FedCFamC2G 15

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

  1. 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

  2. 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.

  3. The application for a Protection Visa was refused by a delegate of the First Respondent on 23 January 2017 and the…

Continue reading DYZ17 v Minister for Immigration, Citizenship and Multicultu...

Sign in free to access the full text

Details
AGLC
DYZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 15
Case
[2024] FedCFamC2G 15
Decision Date

CaseChat Overview and Summary

The case of DYZ17 v Minister for Immigration, Citizenship and Multicultural Affairs involved a non-citizen, the First Applicant, who applied for a judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) to uphold the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse a Protection Visa. The First Applicant, who is of Sikh faith and Indian ethnicity, claimed that he and his family would be persecuted by extremist Sikhs if they were to return to Punjab, India, because of his association with Dera Sacha Sauda (DSS). The Applicants sought to challenge the Tribunal's decision on several grounds, including alleged failure to properly consider the protection claims and afford natural justice.

The central legal issues were whether the Tribunal had failed to properly consider the First Applicant’s claims for protection, and if it had erred in law by not providing the Applicants with an opportunity to respond to certain evidence or by seeking an impermissible merit review. The Applicants argued that the Tribunal had not adequately assessed the credibility and detail of the First Applicant’s evidence, and had failed to consider the threat of harm if they were returned to India. They also contended that the Tribunal had not afforded natural justice by allowing them to respond to certain evidence presented by the Minister.

The Court dismissed the application for judicial review. It found that the Tribunal had properly considered the First Applicant’s claims and had provided detailed reasons for its conclusions. The Court held that the Tribunal's assessment of the First Applicant's credibility and the detail of his evidence was reasonable and that the Applicants had not established any jurisdictional error. The Court also found that the Tribunal had not erred in law by failing to provide an opportunity to respond to certain evidence, as the Applicants had not demonstrated how this affected the outcome of the decision. The Court concluded that the Tribunal's decision was not affected by jurisdictional error and dismissed the application for review.

No further orders were made by the Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.