Evq20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 249

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 249   

File number(s):	SYG 2618 of 2020
Judgment of:	JUDGE STREET
Date of judgment:	15 February 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal misapplied the relevant law – whether the Tribunal denied procedural fairness– whether adverse finding were open – no jurisdictional error made out – amended application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 476
Number of paragraphs:	41
Date of hearing:	15 February 2021
Place:	Sydney
Counsel for the applicant:	Ms E Buzo
Solicitor for the applicant:	Hearn Legal
Counsel for the Respondent:	Mr M Varley
Solicitors for the Respondent:	Australian Government Solicitors

ORDERS

SYG 2618 of 2020

BETWEEN:

EVQ20

Applicant

AND:

MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MUTLICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	15 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The amended application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“The Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 October 2020 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (subclass 866) visa (“the Visa”).

2. The applicant is a citizen of India and the claims for protection were assessed against that country.

3. In March 2014, the applicant arrived in Australia on a Higher Education Sector (subclass 573) student visa.  The applicant was granted further student visas and travelled from Australia to India on 10 January 2018 and returned on 19 February 2018. The applicant travelled again to India on 21 October 2018 and returned on 13 November 2018.

4. On 5 February 2020, the applicant was convicted in a local Court of an offence. The applicant’s student visa was cancelled on 2 June 2020 and the applicant was detained on 16 June 2020.

5. The applicant applied for the Visa on 23 August 2020.  The applicant claimed to fear harm from the family of his previous roommate who had committed suicide.

6. On 2 September 2020, the Delegate found that the applicant failed to meet the criteria for the grant of the Visa.  The applicant applied for review on 3 September 2020. 

7. The applicant appeared before the Tribunal on 13 October 2020 to give evidence and present arguments. 

8. The Tribunal identified the background to the Visa application, as well as setting out the relevant law, including in an attachment incorporated by pagination in the Tribunal’s reasons. 

9. The Tribunal summarised the applicant’s claims, referring in particular to the applicant being of Sikh ethnicity and religion, the applicant reading and writing English, Punjabi and Hindi, and never having married.

10. The Tribunal referred to alleged incidents involving unknown men approaching the applicant’s father’s farm and referred to the applicant providing different reasons as to why he could not relocate to a city in India such as Mumbai or Delhi.  The Tribunal expressly referred to the applicant’s assertions of racism, especially from Muslims and Sikhs, and referred to the applicant contending that getting a rental property would be challenging without a bank guarantor. The Tribunal also referred to the applicant’s assertions of and the need for a birth certificate and the applicant’s difficulty in obtaining a rental property, and the applicant’s inability to contact his family as his calls would be traced.

11. The Tribunal also referred to the applicant’s submissions that there are too many overqualified people who do not have a job in India and that his studies in Australia provide no scope for getting a job in India. 

12. The Tribunal referred to the supporting evidence provided by the applicant and expressly referred to the Department of Foreign Affairs and Trade (“DFAT”) country information report.  The Tribunal referred to country information and found, as the Delegate did, that the applicant may face a real chance of serious or significant harm from the family or other individuals associated with the particular family, who hold the belief that the applicant was somehow responsible for the applicant’s roommate’s death in Australia.

13. The Tribunal then turned to identifying the consideration as to whether the real chance of serious harm applied to all parts of India, as well as whether it would be reasonable for the applicant to relocate to a different part of India to avoid a real risk of significant harm.  The Tribunal referred to the applicant’s contention that the relevant family had relatives all over India, as well as claiming that the family had political connections, that would make it easy to locate the applicant wherever he was in India.  The Tribunal was not satisfied of this, given the large geographic size of India and its enormous population, identifying the same as 1.3 billion, as well as the many big cities of India.

14. The Tribunal referred to the proposition that even if there are family members of the particular family around India, the Tribunal was not satisfied, given the size and population of India, that it makes it reasonably likely that the applicant would be located by them if he moved to a large city.  The Tribunal referred to the proposition that even if the particular family had political connections, the Tribunal is not satisfied that these connections would extend to facilitating the use of governmental systems to track down the applicant in India.

15. The Tribunal referred to what occurred during the hearing and asked the applicant for details about the relevant family. The Tribunal also referred to a claim advanced by the applicant that the family had a connection in New South Wales which will result in the applicant being jailed indefinitely in New South Wales because of his complicity in the death of the roommate.  The Tribunal raised with the applicant that this was obviously not correct and that there was no evidence the New South Wales Police were accusing the applicant of complicity in the death, and the applicant acknowledged that proposition.

16. It was in those circumstances that the Tribunal raised with the applicant that his claim was “overblown” in relation to the influence of the particular family in India, and that the claim in New South Wales could be seen as undermining the applicant’s claim that the family have such high level political connections.  The applicant nonetheless maintained his assertions.

17. The Tribunal referred to having considered all the evidence and was not satisfied that the applicant would be located by the particular family in a large city in India, given the geographical size and enormous population of India.  The Tribunal was not satisfied that the political connections of the particular family extend to obtaining information from police and authorities in either local or other parts of India as to the location of the applicant in terms of information that he may need to provide for residence purposes.  The Tribunal was not satisfied that the particular family would have the ability to identify the location of the applicant in India by tracking bank transfers or otherwise pressuring the applicant’s family members to reveal his location.

18. The Tribunal was not satisfied that the real chance of persecution to the applicant relates to all areas of India and found the applicant is not a person in respect of whom Australia has a protection obligation under the Refugee Convention. 

19. The Tribunal then turned to the issue of complementary protection and identified the need to assess the reasonableness of relocation in the sense of what is practical. The Tribunal referred to the discussion that the Tribunal had with the applicant at the hearing as to the wide range of viable internal relocation options in India to those seeking to escape localised harm. The Tribunal expressly referred to those options being more limited for individuals depending on their personal circumstances. 

20. The Tribunal then turned to the applicant’s personal circumstances and found that they did not suggest significant impediments to his ability to relocate to a large city in India.  The Tribunal referred to the languages the applicant speaks, the completion of his secondary education and tertiary studies, certificate in marketing and partial completion of a Bachelor of Business which would enhance his employment opportunities. 

21. The Tribunal also referred to the applicant’s family who appear to have resources to support the applicant given their financial support of him during his studies in Australia.  The Tribunal also took into account the age at which the applicant arrived in Australia from a foreign country and found that he was a person of resilience and independence and was able to make a life of his own apart from his family.

22. The Tribunal expressly referred to taking into account the assessment of the multilingual, multiethnic nation of India and the practice of Sikhism in Mumbai. 

23. The Tribunal referred to the applicant’s alleged relocation hurdles of not having an identity card in a local language or birth certificate.  The Tribunal noted, that in the absence of independent information, and DFAT indication of widespread internal movement in India, the Tribunal did not consider that these are actual practical hurdles to relocation.

24. The Tribunal then referred to the applicant’s difficulties raised in respect of renting housing and referred to country information in relation to difficulties of Muslims renting houses in Mumbai. The Tribunal referred to information referring to the need for compulsory tenant registration but took into account that that is not always the case.  The Tribunal in that regard referred to having put to the applicant that it would not be inclined to consider there was a risk to the applicant as a result of having to register for housing. 

25. The Tribunal in any event referred to having also raised with the applicant the ability to live in informal settlements.  The Tribunal referred to cities where more than half the population of all households live in informal settlements and raised with the applicant that he could live in an informal settlement and referred to the applicant’s response if he was concerned that his identity would be revealed and that the particular family would locate him.  The Tribunal was not satisfied that the relevant family would have this ability through political connections. 

26. The Tribunal then referred to the raising of the reasonableness of relocation with the applicant and the ability to track him down.  The Tribunal expressly sought to raise and clarify with the applicant that if the family could not track him down all over India, whether there was any other claim that it would be unreasonable for him to relocate. 

27. The Tribunal noted that the applicant eventually indicated that it would be unreasonable because of language concerns and difficulty in obtaining a job.  The Tribunal referred to the languages spoken by the applicant and the qualifications of the applicant and, in those circumstances, was not satisfied that it would not be reasonable for the applicant to relocate within India because of language or difficulties obtaining a job. 

28. The Tribunal was not otherwise satisfied that it would be unreasonable for the applicant to relocate and found the applicant did not meet the criteria in s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review. 

    THE GROUNDS:

29. The grounds in the amended application are as follows:

    GROUNDS OF JUDICIAL REVIEW

    Ground One – Error of Law

    (1)The Second Respondent acted outside its jurisdiction by not applying Ministerial

    Direction 84 when determining that it was not satisfied that the real chance of persecution to the applicant related to all areas of India. The Second Respondent failed to consider the DFAT Country Information Report for India regarding relevant considerations relating to the applicant’s ethnicity and religion. As such, the Second Respondent failed to have regard to the applicant’s individual characteristics in assessing his protection claim and therefore failed to perform the review function.

    Ground Two – Denial of procedural fairness

    (2)The applicant was denied procedural fairness by having the option of living in an “informal settlement” put to him as an alternative to registering his residency in another city, when the information before the Second Respondent indicated that the commonly used terminology in India was “slum”. The term “informal settlement” is a term only used by the Special Rapporteur and by using unfamiliar terminology the applicant was not given the opportunity to respond to the reasonableness of the proposition that he relocate to a slum.

    Ground Three – Error of Law

    (3)The Second Respondent acted outside its jurisdiction by concluding, in the absence of evidence, that:

    The Tribunal is not satisfied that the political connections of Gurpreet’s family extend to obtaining information from police/authorities in either local or other parts of India as to the location of the applicant in terms of information he may need to provide for residence purposes.

    (4)The Second Respondent made this determination regarding the political connections of Gurpreet’s family in the absence of probative evidence.

    Ground Four – Error of Law

    (5)The Second Respondent acted outside its jurisdiction in unreasonably finding that the applicant could engage in illegal conduct to live in an informal settlement described in the material before the Second Respondent as “extremely inadequate housing conditions.”

    (6)The Second Respondent put to the applicant at [55]:

    In any event, as put to the applicant, the delegate cites information which suggests that in some cities, such as Mumbai, half the population live in informal settlements. Elsewhere in the same report it is stated that in a number of cities, including Chennai, Hyderabad, Kolkata and Mumbai, more than 50% of all households live in informal settlements. It was put to the applicant in the hearing that the applicant could live in an informal settlement obviating the need for more formal requirements for housing, if that was necessary.

    (7)The report relied upon by the delegate for the above information was the Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, on her mission to India. The report contained substantial and significant information pertaining to the legality, security and overall reasonableness of the suggestion to the applicant that he could relocate to an informal settlement as a means of evading authorities.

    GROUND 1

30. In relation to Ground 1, Ms Buzo of counsel on behalf of the applicant, submitted that the Tribunal had failed to take into account the applicant’s individual circumstances or individual characteristics in assessing whether the real chance of persecution applied to the applicant related to all areas of India. 

31. It is apparent from the Tribunal’s reasons that the Tribunal expressly referred to the applicant’s individual circumstances and individual characteristics as referred to above.  There was no particular claim that was advanced that required the Tribunal to make further express reference to the applicant’s individual characteristics.  There is no basis to find that the Tribunal failed to have a genuine intellectual engagement with the applicant’s claims and evidence in relation to whether the real chance of persecution to the applicant related to all areas of India.

32. Further, it is apparent that the Tribunal took into account the massive size of the geographic area of India, its enormous population and the many large cities, which were logical and rational matters open to the Tribunal to take into account and support the adverse findings made.  No jurisdictional error as alleged in Ground 1 is made out.

    GROUND 2

33. In relation to Ground 2, this was a ground said to be only able to be made out if Ground 4 succeeds.  For reasons the Court will give shortly, the Court does not accept that Ground 4 could be made out. In any event, the Court does not accept the submission that the applicant did not have a real and meaningful hearing because of the use of the term “informal settlements”.  Ms Buzo suggested that the Tribunal should have referred to “slum” rather than “informal settlement”.  The reasons of the Tribunal are not to be read with a keen eye for error and the same caution of restraint applies to the conduct of the hearing. The difference of expression or meaning between informal settlements and slums was not in this case significant or material. On a fair reading of the material before the Court as to the hearing and the use of the term informal settlements the applicant had a real and meaningful hearing. The use of the term informal settlements did not give rise to a want of procedural fairness in the conduct of the review.

34. No jurisdictional error as alleged in Ground 2 is made out.

    GROUND 3

35. In relation to Ground 3, it was alleged that the Tribunal made adverse findings in respect of the particular family’s political connections without probative evidence.  That proposition is entirely inconsistent with the Tribunal’s reasons which clearly take into account the applicant’s claims in respect of the family’s political connections extending to influencing police in New South Wales and having the applicant permanently detained.  That was a proposition clearly raised with the applicant.  The Tribunal’s adverse finding was open for the reasons given by the Tribunal.  Ground 3 is, in substance, an impermissible invitation to engage in merits review.  This is not a case where there was no rational evidence to support the adverse findings by the Tribunal.

36. No jurisdictional error as alleged in Ground 3 is made out.

    GROUND 4

37. In relation to Ground 4, it is alleged that the Tribunal’s decision in respect of relocation is legally unreasonable in relation to the taking into account of the applicant’s ability to live in an informal settlement.  In that regard, focus is given to country information, referring to problems in relation to legality and security and conditions in informal settlements.  The Tribunal’s reasons are not ones that should be read with a keen eye for error.  It is apparent that the Tribunal took into account the applicant’s concerns in relation to rental and identification, and made adverse findings rejecting that as referred to above. 

38. Further, the Tribunal went on to consider additional options in relation to not just the support from the applicant’s family but the use of informal settlements, and took into account the size of those informal settlements.  That was a logical and rational matter for the Tribunal to take into account.  The Court does not accept that the harsh conditions in informal settlements give rise to the Tribunal’s decision being one that lacks an evident and intelligible justification. 

39. The evident justification is the reasoning of the Tribunal as summarised above, concerning not just the applicant’s personal characteristics and support from his family but also the steps that would be taken to rent housing in large cities.  The reference to the informal settlements does not give rise to the Tribunal’s decision being legally unreasonable.  The adverse finding in relation to it being reasonable in the applicant’s circumstances to relocate in India is not one to which no reasonable decision-maker could come. 

1. No jurisdictional error as alleged in Ground 4 is made out.

2. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty - one (41) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 15 February 2021 and the parties were sent a sealed copy of the Court’s orders.

.

Associate:

Dated:       10 June 2021