EDQ16 v Minister for Immigration

[2018] FCCA 1752

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1752

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal misunderstood or misinterpreted evidence – whether Tribunal failed to consider evidence of applicant – whether Tribunal made arbitrary findings – whether findings illogical, irrational or unreasonable – application dismissed.

Legislation:

Indo-Nepal Treaty of Peace and Friendship Act

Migration Act 1958 (Cth), ss.5H, 5J, 36(3), (4), (5) & (5A) and 65

Cases cited:

Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 136 ALD 508

V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018

Applicant: EDQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 646 of 2016

Judgment of: Judge Heffernan

Hearing date: 7 May 2018

Date of Last Submission: 7 May 2018

Delivered at: Adelaide

Delivered on: 3 July 2018

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Mr W Evans for the Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the amount of SIX THOUSAND DOLLARS ($6,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

PEG 646 of 2016

EDQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for constitutional writs in relation to a decision of the second respondent dated 15 November 2016. That decision affirmed an earlier decision of a delegate of the first respondent refusing to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant raises three grounds of application as follows:

   “1.Decision maker made jurisdictional errors in conclusions based on wrong interpretations/understandings in paragraphs 13, 27, 30, 63, 74.

   2.Arbitrary conclusions made in decision based on available information rather than based on evidence provided by the applicant, making the decision unfair to the applicant.

   3.If proper consideration not given to the claims, the applicant face significant harm and even death if return back to the country of origin.”

   (Re-produced verbatim)

2. The grounds of application were handwritten.  It was not apparent to me whether the second of the paragraphs of which the applicant complains in ground 1 should read ‘27’ or ‘29’.  As will be seen, I have considered both of those paragraphs.

3. On 16 March 2017, a Registrar of the Court gave the applicant leave to file and serve any amended application by 28 July 2017.  Leave was also given to the applicant to file and serve further materials, including the transcript of the proceedings, if he sought to rely on such material.  Finally, the applicant was ordered to file and serve an outline of submissions at least 10 days prior to the hearing in this matter.  No amended application, further materials, or outline of submissions have been filed by the applicant.

4. The applicant appeared before me unrepresented and with the assistance of an interpreter in the Punjabi and English languages.  The grounds of review relied on by the applicant take issue with various aspects of the findings of the Tribunal, but it is not apparent to me, and he has not indicated in his oral submissions, that he disputes the summary of proceedings and relevant background matters identified by the first respondent in its outline of submissions.  I have accordingly summarised those matters by paraphrasing the relevant parts of the Minister’s outline.

Procedural Background and Chronology

1. The applicant is an Indian citizen who first arrived in this country in February 2009 on a student visa.  He is approximately 27 years old.[1]  He has previously made applications to the Tribunal, this Court, and the Federal Court in relation to past student visas, but it is not necessary to summarise those matters here.[2]

   [1]     Court Book (‘CB’), p 7.

   [2] CB, Decision Record, p 180 at [18].

2. He applied for a protection visa in May 2016.  On 30 June 2016, a delegate of the Minister refused the visa application[3] and as a result the applicant applied to the Tribunal on 11 July 2016 for a review of the delegate’s decision.  On 20 July 2016, the Tribunal sent him an invitation to attend a hearing.  He responded to that invitation and appeared before the Tribunal on 5 August 2016.  The Tribunal affirmed the delegate’s decision on 15 November 2016[4] and the applicant made an application for judicial review to this Court within time on 29 November 2016.

   [3]     CB pp 122 to 131.

   [4]     CB pp 177 to 188.

3. The basis of his claims were as follows:

   a)He claimed that both he and his family belong to the Sikh religion;

   b)He claimed that he and his family had for most of his life been followers of the Sant Baba Ranjit Singh Ji Dhadrianwale sect (‘Dhadrianwale’).  By reason of this, he claimed to be at risk of persecution from followers of the Sant Baba Harnam Singh Dhumma sect (‘Dhumma’) sect.  He claimed that members of that sect have threatened his family and have threatened to kill any person who follows the Dhadrianwale sect; and

   c)In addition to the above, the applicant made a linked claim that he would be at risk if he were to be returned to India because contrary to strict Sikh beliefs, he has cut his hair and has a tattoo on his neck and left hand.  He claimed that followers of the Dhumma sect regard these actions as completely contrary to the Sikh religion and as a result he is at risk from those persons because of his actions. 

4. The Tribunal accepted a number of claims made by the applicant.  It accepted that he was an Indian male, a Sikh, and that he was a follower of Dhadrianwale.[5]  The Tribunal also accepted that, on the basis of the applicant’s evidence, he would no longer be regarded as a “proper” Sikh because he had cut his hair, had shaved his facial hair, did not wear a turban, and is not vegetarian.[6]

   [5] CB p 183 at [37].

   [6] CB p 183 at [38].

5. The Tribunal accepted the applicant’s evidence that the tattoo on his neck depicts a Sikh religious symbol.  It further accepted his evidence that he does not need to follow the strict tenets of Sikhism in order to be a follower of Dhadrianwale.[7]

   [7]     CB p 183 at [39] - [40].

6. The Tribunal accepted that the applicant had a subjective fear of returning to India because he would no longer be regarded as a proper Sikh.  It accepted that he had two visible tattoos.  The Tribunal doubted that supporters of Dhumma, or anyone else, had a serious intention to harm him if he were to return to India.  In assessing his evidence the Tribunal found his claims about those matters to be vague, general and unconvincing when considered as a whole.  The Tribunal was also doubtful about his claims because of what it regarded as a lengthy delay in applying for protection in this country.[8]

   [8] CB p 183 at [42].

7. The Tribunal gave detailed consideration as to whether the applicant had a right to enter and reside in a safe haven country.  It noted that as an Indian citizen he had a right under the Indo-Nepal Treaty of Peace and Friendship Act to live in Nepal and work there.  It also considered whether he would be at risk of harm or refoulement to India if he were to be returned to Nepal.  The Tribunal considered country information and found that the applicant had not taken all steps to avail himself of a right to enter and remain in Nepal, and it found that if he did he would not be at risk of harm, including any harm that might be occasioned by refoulement to India.[9]

   [9] CB pp 183 to 186 at [43] – [56] & p 188 at [74].

8. The Tribunal also found that the applicant did not have a well-founded fear of being persecuted as defined in s.5J of the Act and that he was not a refugee within the meaning of s.5H of the Act.

9. The Tribunal considered s.36(3) of the Act which sets out the consequences of an applicant not taking advantage of a safe haven country. That section is as follows:

   “Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.”

10. The Tribunal also considered ss.36(4), (5) and (5A), and the relevant exceptions to s.36(3) before making its critical finding that the applicant was not owed protection obligations by this country.

Submissions

Applicant’s submissions

1. The applicant made oral submissions before me.  He said that the Tribunal did not investigate his matter properly.  He complained that he had been told by the Tribunal that he should move to live in Nepal.  He asked rhetorically, if something happened to him, would either the Tribunal or the Department of Immigration take responsibility?  When his attention was directed to ground 1 he made the following submissions.  For the purpose of summarising ground 1, I will set out the findings of the Tribunal in the impugned paragraphs and then summarise the applicant’s submissions.

2. With respect to paragraph 13 the Tribunal found as follows:

   “The applicant claims his family have been threatened by followers of Dhumma to stop following Dhadrianwale.  He is unable to obtain protection from the authorities and he cannot relocate as the situation is country wide.  Also his father has a government job and is unable to relocate as he would lose his job and the family would then experience financial hardship.  The applicant indicates he returned to India for his sister’s wedding as there are some rites that can only be done when the older brother is present.  However the tension between the two groups increased and he has not returned since.”[10]

   [10] CB p 179 at [3].

3. The applicant’s submission with respect to the above was that moving to a different region or a different country would not be as easy for his entire family, and in any event, those who sought to persecute him would find him anywhere. 

4. Paragraph 27 of the Tribunal’s reasons found as follows:

   “The Tribunal asked the applicant how he could consider himself to be a proper Sikh when his evidence to the Tribunal was that he drank and cut his hair and had tattoos.  The applicant responded that he follows the teachings, reads the scriptures and follows what he can.  He may not be a proper Sikh but he can follow.”[11]

   [11] CB p 182 at [27].

5. The enquiry made of the applicant in this paragraph was a reasonable matter for the Tribunal to raise with him.  As I have already noted, the Tribunal accepted the applicant’s evidence that he could still be a follower of Dhadrianwale without conforming to all of the tenets of Sikhism.

6. Paragraph 29 of the Tribunal reasons found as follows:

   “Protection Obligations

   The Tribunal referred to country information that many young Sikh men now cut their hair and have tattoos and asked why he was specifically being targeted when there are many others in similar positions as him who shave their hair and have tattoos.  The applicant responded that if someone was coming to kill you would you bother to find out why they are killing you and not others?  He cannot return to India or go to Nepal as his parents are receiving threats because of him to become a proper Sikh and remove his tattoos.”[12]

   [12] CP p 182 at [29].

7. His submission with respect to paragraph 29 was that the Tribunal was wrong when it said that young Sikh men are allowed to cut their hair and have tattoos.  He submitted that the Tribunal should have given greater consideration to an article that he provided to it which suggested otherwise.[13]  He submitted, in effect, that if the Tribunal had given proper consideration to that article it would have agreed with him.  He did not understand where the Tribunal got its information from and submitted that it would be possible for him to get an opinion written by a proper Sikh who would have wider knowledge than any country information available to the Tribunal. 

   [13]    CB p 95 “Are Sikhism Tattoos Allowed?”

8. Paragraph 30 of the Tribunal reasons stated as follows:

   “The applicant told the Tribunal that when he lived in Delhi there was no threat to his life.  This started in 2013.  When he was detained it was in his mind to go back but then the attacks happened in May 2016 and this refreshed his fear so he sought protection.  When asked if he was fearful in 2013, why did it take so long to apply for protection, the applicant responded that it was not in his mind then that he would be detained and deported back to India.  He was going through the student skilled visa process.  He told the Tribunal that his visa was refused in 2013 as he did not have the mark for his IELTS, the department also did not contact him to advise that he (sic) visa application was refused.  When asked why he didn’t apply for protection the applicant responded that his migration agent told him to seek review and it was not in his mind at that time.  He told the Tribunal that he had other options and it was not in his mind he could apply for protection.”[14]

   [14] CB p 182 at [30].

9. His submission with respect to that paragraph was that he had returned to India on only one occasion for the wedding of his sister and therefore it did not make sense to ask him why he had not applied for a protection visa earlier.  He told the Court that his thinking was that he would finish his studies in Australia and obtain permanent residency here, but he had been placed into detention, and applying for a protection visa was the only option he had.  He said that his father had told him not to return to India because his life would be in danger, and for that reason he made an application for a protection visa. 

10. Paragraph 63 of the Tribunal reasons found as follows:

    “The Tribunal accepts general country information suggests that Nepal is a poor country with challenging economic circumstances which may have deteriorated further since the earthquakes in April and May 2015.”[15]

    [15] CB p 186 at [63].

11. He submitted that the Tribunal had noted that Nepal was a poor country.  He said that when he was in immigration detention he had signed papers presented to him to say that he was willing to return to Nepal, but he claimed that the Government of Nepal had refused it.  I was not assisted by that submission.  There was no evidence to that effect before me and it is not apparent to me that the Tribunal was seized of any information to that effect.

12. Paragraph 74 of the Tribunal’s reasons found as follows:

    “The Tribunal finds that the applicant has a right to enter and reside in Nepal and has not taken all possible steps to avail himself of that right. Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted as required by s.5J of the Act and therefore finds that he is not a refugee within the meaning of s.5H in Nepal and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s.36(3), there would be a real risk of the applicant suffering significant harm in Nepal.”[16]

    [16]    CB p 188.

13. The applicant submitted that he was told that he would be sent back to Nepal, and when requested, presumably by someone in the Department, he signed papers.  He stated that he could not understand why he was not sent back to Nepal.  He told the Court that he requested Immigration officers on five occasions to send him to Nepal but that it did not happen.  The applicant disputed the findings of the Tribunal that he had not done his best to avail himself of his right to resettle in Nepal.  He maintained that he had signed papers at the request of the Department of Immigration, and yet he still was not sent.  Whether that is the case or not, it does not assist the applicant in establishing jurisdictional error as a result of the finding in that paragraph.

14. In the course of his submissions, the applicant accepted that he had said the things attributed to him by the Tribunal and maintained that he would still be regarded as a follower of the Sikh religion by the Dhadrianwale sect. 

15. The applicant sought to tender to the Court a copy of an article about a story on the SBS website that related to his earlier Tribunal and judicial review processes when he was seeking a different type of visa.  I declined to receive that item because it was not before the Tribunal, and in any event, it had no relevance to this application. 

16. The applicant told the Court that he was ready to go to Nepal but asked again, is there anyone who would take responsibility for him if something happened?

17. The applicant was given an opportunity to make further submissions but did not address the Court separately on grounds 2 and 3.  In any event, they appear to be an attempt to further particularise the complaints made in ground 1.

First Respondent’s Submissions

1. Mr Evans, for the first respondent, submitted that the Tribunal had given consideration to all of the claims made by the applicant.  It was submitted that the dispositive issue was the finding by the Tribunal that the applicant had a safe haven country available to him and that he had not taken all possible steps of the right to reside in Nepal.  He submitted that the complaints in ground 1 with respect to paragraphs 13, 27, 29 and 30 were, in effect, a request for an impermissible merits review.  It was the Minister’s submission that the conclusion of the Tribunal in paragraph 74 of its Decision Record was neither illogical nor irrational and that it simply amounted to the applicant expressing a preference for a different finding. 

2. The Minister submitted that a claim of illogicality or irrationality can only be made out if it can be demonstrated that the Tribunal formed a view that no rational or logical decision-maker could have arrived at on the same evidence.  This was clearly not the case here, and it was submitted that the Tribunal made a decision that was open to it on the evidence before it. 

3. Finally, Mr Evans submitted that ground 3 took issue with the findings of the Tribunal generally and the amount of consideration given to the applicant’s evidence.  He submitted that the Tribunal had expressly considered the evidence given by the applicant in its decision.[17]  He submitted further that the Tribunal gave comprehensive reasons for its ultimate findings.  Insofar as the applicant’s complaint was about the amount of weight the Tribunal chose to give to any aspect of the evidence, it was submitted that this was a matter for the Tribunal itself.

   [17]    CB pp 179 to 183 at [13] to [34].

Consideration

1. As to the opening submission of the applicant to the effect that the Tribunal had not investigated his matter properly, it is well-established that the Tribunal had no general duty to make enquiries on behalf of the applicant.  The High Court has had this to say on that matter:

   “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…”[18]

   (citations omitted)

   [18]    Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429 at [25].

1. I am not satisfied that it can be demonstrated that the Tribunal fell into jurisdictional error by way of a constructive failure to exercise jurisdiction on the basis of a failure to make enquiries, or that a failure to make obvious enquiries caused it to fall into any other form of jurisdictional error.

2. With respect to ground 1, I am not satisfied that the Tribunal made any jurisdictional error by virtue of its consideration of the evidence, or any conclusions it expressed in the impugned paragraphs.  I am not satisfied that it misinterpreted or misunderstood the effect of any of the evidence or claims referred to in those paragraphs.  With respect to paragraph 13, the Tribunal accepted that he had a subjective fear of returning to India, but did not accept that he had a well-founded fear of being persecuted if he were to return there.  As to paragraph 27, having queried the applicant about the choices he had made with respect to his hair and tattoos, it accepted that he was still able to follow Dhadrianwale Sikhism.  With respect to paragraph 29, it was a matter for the Tribunal as to what country information it relied on.[19]  As the Full Court has observed:

   “The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”[20]

   [19]    NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].

   [20] Ibid at [11].

3. The Tribunal was clearly alive to and considered the implications of the applicant having cut his hair and getting tattoos.  Its process of reasoning on this matter, in light of the country information it referred to, does not appear to be illogical, irrational, or unreasonable in the relevant sense.

4. As far as paragraph 30 is concerned, the Tribunal made findings against the applicant as to the objective value of his evidence with respect to the danger he claimed to face in India.  It also appears to have drawn an inference against him because of the delay in making an application for a protection visa.  It was open to the Tribunal to do so.

5. No jurisdictional error was occasioned by the remarks of the Tribunal in paragraph 63 of the Decision Record.

6. Paragraph 74 deals with the issue of whether the applicant had availed himself of his right to reside in the safe haven country of Nepal.  The consideration given to this issue was extensive[21] and in my view demonstrates no error. The Tribunal considered the relevant test with respect to the application of s.36(3) of the Act as enunciated by Allsop J (as he then was) and followed in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU.[22]In the earlier matter, Allsop J had this to say:

   “… I see no reason to restrict the meaning of the word "right" to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question. …”[23]

   [21]    CB p 183 to 184 at [43]-[56] & p 188 at [72]-[73].

   [22] (2013) 136 ALD 508.

   [23]    V856/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 1018.

7. The Tribunal made enquiries as to the practical and administrative arrangements for Indians entering Nepal,[24] consistent with the course endorsed in SZRHU.[25]The Tribunal found on the basis of those enquiries and analysis that the applicant had a presently existing[26] right to enter and reside in Nepal either temporarily or permanently on the basis of his being an Indian citizen, a matter he could demonstrate by producing his passport.[27]

   [24]    CB p 184 at [48] & p 185 at [50]-[56].

   [25]    Op cit.

   [26]    As at the time of its decision.

   [27] CB p 185 at [53].

8. I am not able to discern any error in principle and no jurisdictional error in the approach taken by the Tribunal on this issue.  As the first respondent has submitted, the findings of the Tribunal as to the applicant’s right to avail himself of a safe haven in Nepal, his failure to take all possible steps to avail himself of that right and its rejection of the questions of the applicant having either a well-founded fear of persecution, or that he would come within the complementary protection obligations for that country, were ultimately dispositive of this matter.  I am not satisfied that the Tribunal failed to properly consider the evidence or arguments of the applicant, or that it failed to consider any of his claims or an integer of any of them.  It properly considered all of the claims and evidence and made findings on the material before it.  The findings it made were not irrational, illogical or unreasonable.  To the contrary, they were open to it.  The applicant disagrees strongly with those findings, but such disagreement, however genuinely felt, does not establish jurisdictional error.  In effect, this application amounts to a request for an impermissible merits review.

9. I dismiss the application and make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 3 July 2018