FDR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 176
•29 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FDR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 176
File number(s): PEG 374 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 29 October 2021 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – refusal of a protection visa - whether Tribunal misapplied or misinterpreted law – whether Tribunal decision illogical or irrational – whether applicant denied procedural fairness by Tribunal – no interpreter at Tribunal hearing – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A), 91R(1), 425, 476, 477(1) Cases cited: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 15 October 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr P J Hannan Second Respondent: Submitting appearance, save as to costs Solicitor for the First Respondent: Minter Ellison Lawyers ORDERS
PEG 374 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDR20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
29 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application filed on 15 December 2020 is dismissed.
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 LADHAMS:
INTRODUCTION
By application filed on 15 December 2020, the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 4 December 2020. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (protection visa). The application is filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision and I dismiss the application.
BACKGROUND
The applicant is a citizen of India. He arrived in Australia in April 2007 as the holder of a student visa which expired on 15 March 2009.
On 4 April 2013 the applicant applied for the protection visa. In his written application, the applicant claimed that he would face persecution in India due to his political beliefs. He claimed that:
(a)he supported, and was a youth leader of, the Congress Party;
(b)at party meetings, he vocally urged people not to support the Akali Dal Party;
(c)on one occasion, he was assaulted by Akali Dal supporters, and during the altercation, he hit an Akali Dal supporter later said to be the son of an Akali Dal politician, who then sought revenge against the applicant;
(d)after that incident, he received threats to his life and went into hiding; and
(e)if he returns to India he will be assaulted, persecuted and physically harmed by Akali Dal supporters and he would be put into jail on fake charges.
The applicant attended an interview conducted by an officer of the Minister’s Department on 14 May 2014 to discuss his claims for protection. A delegate of the Minister made a decision to refuse to grant the applicant a protection visa on 13 February 2017.
On 4 March 2017 the applicant lodged an application for review by the Tribunal.
The applicant attended a hearing convened by the Tribunal on 1 December 2020. At the Tribunal hearing, the applicant raised an additional claim that he would face harm in India as a member of a lower caste. The applicant gave evidence to the effect that he was a member of a lower caste in India, and faced discrimination and harassment by members of a higher caste. He said that he feared he would be persecuted or gaoled as a result of false allegations. He also gave evidence in relation to the claims outlined in his written protection visa application.
On 4 December 2020 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal considered that the applicant appeared to be honest and truthful in giving his oral evidence.
In relation to the applicant’s claim based on his caste, the Tribunal accepted that:
(a)the applicant is a member of the ‘Chamar’ subset of the ‘Shudra’ caste and that this caste is considered to be of low status;
(b)while living in India, the applicant experienced persistent low-level harassment, described by the applicant as ‘teasing’ and ‘bullying’, from members of higher castes; and
(c)the applicant experienced this harassment personally and also observed other members of his community experiencing such harassment.
In relation to the applicant’s claim based on his political beliefs, the Tribunal accepted that:
(a)the applicant was a member of the Congress party in India;
(b)on one occasion following a meeting, the applicant was involved in a physical altercation with members of a rival party; and
(c)after the altercation, the applicant was taken to a police station, but was not arrested or charged with an offence.
The Tribunal also accepted that the applicant does not presently know the whereabouts of his family in India or what has become of them.
However, the Tribunal considered that the applicant’s evidence was vague and lacking in detail in respect of his claim to have a well-founded fear of persecution. The Tribunal found that the applicant’s claimed fear of persecution as a result of his caste status or membership of a political party was merely speculative and did not amount to a well-founded fear.
Having considered all of the applicant’s claims and evidence, country information and personal circumstances, the Tribunal concluded that there was not a real chance that the applicant would suffer persecution on the grounds of race, religion, nationality, membership of a particular social group, political opinion, or any other reason if he returns to India now or in the reasonably foreseeable future. The Tribunal also considered the applicant’s claims under the complementary protection provisions and, based on its earlier factual findings, was not satisfied that there were 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.
PROCEEDINGS IN THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on 15 December 2020. The application was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application can be interpreted as raising the following two grounds of review:
(1)the decision-maker did not make orders according to law; and
(2)the decision-maker did not care about safety of life.
These grounds do not contain any particulars which would enable the Court to identify any jurisdictional error that the applicant is seeking to allege.
Pursuant to consent orders made on 28 January 2021, the applicant was ordered to file any amended application and further evidence by 22 April 2021 and to file submissions 28 days prior to the hearing. The applicant did not file any documents in accordance with these orders.
The matter came before me for hearing on 15 October 2021. The applicant represented himself at the hearing and the Minister was represented by Mr Hannan of counsel.
In accordance with the practice recommended by cases such as DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], I gave the applicant an opportunity at the hearing to explain what he means by his grounds and to explain what he believes the Tribunal did wrong. The applicant did not materially elaborate on the grounds in his written application for judicial review. In his submissions from the bar table, the applicant said:
(a)he had safety concerns in India;
(b)he had provided all material to the Tribunal and had some family concerns at that time;
(c)he has been in Australia for a long time now; and
(d)he does not have family in India.
CONSIDERATION
In order to be entitled to relief by this Court, the applicant must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’.[1]
[1] MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said that if the Tribunal:[2]
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[2] Craig at [14].
The examples of jurisdictional error set out in Craig are not exhaustive.[3] Other examples that often arise in migration cases include where the Tribunal fails to afford an applicant procedural fairness,[4] and where the Tribunal decision is affected by actual or apprehended bias.[5]
[3] See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81].
[4] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81].
[5] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [135].
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome.[6]
[6] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45].
The applicant has not clearly articulated any jurisdictional error in his written application or his oral submissions, and he appears to be asking the Court to engage in merits review. The Court has no power to consider for itself whether the applicant meets the criteria for a visa.
In circumstances where the applicant is self-represented, I have endeavoured to read the grounds as broadly as practicable. I have also reviewed the Tribunal decision myself to ascertain whether there is any readily identifiable jurisdictional error. I have not identified any jurisdictional error in the Tribunal decision.
Identification and application of relevant law
It is possible that the applicant’s assertion that the Tribunal did not make orders according to law could be interpreted as an assertion that the Tribunal has made an error of law or that the Tribunal has misidentified or misapplied the relevant law.
In conducting the review, the Tribunal properly had regard to the version of the Migration Act that applied at the time that the applicant lodged his protection visa application. The Tribunal correctly identified that it needed to consider:
(a)whether the applicant met the refugee criteria in s 36(2)(a) of the Migration Act, which required that he be a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Convention) (at [4]); and
(b)if the applicant did not meet the criteria in s 36(2)(a), whether he met the complementary protection criteria in s 36(2)(aa) of the Migration Act, which required that he be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm (at [14]).
The Tribunal accurately summarised the relevant requirements that an applicant must satisfy to meet the refugee criteria at [4]-[13] of its reasons. These included that:
(a)an applicant must be outside his or her country;
(b)an applicant must fear persecution, which must involve serious harm to the applicant and systematic and discriminatory conduct, as required by s 91R(1) of the Migration Act;
(c)the persecution feared by the applicant must be for one or more of the reasons set out in the Convention definition, namely, race, religion, nationality, membership of a particular social group or political opinion;
(d)the applicant’s fear of persecution for a Convention reason must be well-founded; and
(e)the applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country of nationality.
The Tribunal accurately summarised the requirements to meet the complementary protection criterion at [14]-[16] of its reasons. This summary included a reference to the definition of ‘significant harm’ in s 36(2A) of the Migration Act, which states that a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
There is nothing on the face of the Tribunal decision to indicate that the Tribunal has misunderstood or misapplied the relevant legislation in any way, or made any other error of law.
The Tribunal found that the applicant did not meet the refugee criteria primarily because it was not satisfied that his fear of harm was well-founded. The Tribunal reached this conclusion after taking into account the applicant’s evidence, including his descriptions of harm that he had faced in the past, his explanation of the foundation of his specific fears for the future, and country information (see [63]-[69] of the Tribunal’s reasons). The requirement that a fear of persecution be well-founded is a key element of the refugee criteria, and having found that the applicant’s fear of persecution was not well-founded, the Tribunal appropriately found that the applicant did not meet the refugee criteria.
In relation to complementary protection, the Tribunal relied on its earlier findings of fact and then proceeded to make findings that the applicant did not face a real risk of being subjected to any form of harm that would amount to ‘significant harm’ within the meaning of s 36(2A) of the Migration Act (see [72]-[73]). There is nothing in the Tribunal decision to suggest that it misunderstood that definition.
Irrationality or illogicality
The applicant’s assertion that the decision-maker did not care about safety of life might generously be interpreted as an allegation that the Tribunal’s decision was illogical or irrational.
As the High Court explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] and [135] (per Crennan and Bell JJ):
[131] … The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
In the present matter, the Tribunal carefully considered the applicant’s claims to fear harm on account of his lower caste and his political activities. This included a careful consideration of the claimed teasing and bullying that he faced as a result of his caste and the physical harm that he experienced on one occasion in the course of his political activities, as well as the applicant’s descriptions of the harm that he fears he will be subjected to in the future. The Tribunal also had regard to relevant country information.
The Tribunal’s findings were reasonably open to it on the evidence before it. This is not a matter where only one conclusion was open on the evidence, and the Tribunal did not come to that conclusion. There was a logical and cogent basis from which the Tribunal could conclude that the applicant’s fear of harm was not well-founded, and that the claimed harm was not harm of a nature that would meet the definition of ‘significant harm’ in s 36(2A) of the Migration Act. The logical and cogent basis included the applicant’s own evidence describing the teasing and bullying he faced in the past, as well as his evidence in respect of the harm he claimed to fear in the future, which was found to be vague and lacking in detail.
The Tribunal’s decision was not illogical or irrational.
Procedural fairness
I have paid careful consideration to whether the applicant was afforded procedural fairness by the Tribunal, and the Minister, as a model litigant, has made submissions in relation to procedural fairness.
At the hearing, Mr Hannan drew to the Court’s attention emails that the applicant sent to the Tribunal on 24 November 2020 and 25 November 2020 attempting to attach documents. The Tribunal indicated to the applicant by email sent on 25 November 2020 that it had been unable to open the attachments. The applicant sent a subsequent email to the Tribunal on
25 November 2020 and this attached a letter from the Punjab Police and an English translation of that letter. The Tribunal clearly received and had regard to this letter as it expressly referred to the letter at [25(d)] and [62] of its reasons. The applicant confirmed at the hearing before the Court that the letter and its translation were the only documents that he attempted to provide to the Tribunal as an attachment to any email. I am satisfied that all documentary evidence that the applicant attempted to provide to the Tribunal was in fact before the Tribunal.
The Minister has also raised with the Court that the applicant attended a hearing before the Tribunal without the assistance of an interpreter, in circumstances where the Tribunal has indicated that the applicant requested an interpreter.
When the Tribunal formed the view that it was unable to make a decision favourable to the applicant on the basis of the material before it, it invited the applicant to a hearing as it was required to do by s 425 of the Migration Act. The invitation to attend a hearing must be a ‘real and meaningful’ one.[7]
[7] See Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [37].
Although the applicant was assisted by an interpreter in the Punjabi language at his interview with an officer of the Department back in 2014, as indicated above, he was not assisted by an interpreter at the hearing before the Tribunal.
The following evidence in the Court Book is relevant to the question of whether the Tribunal afforded the applicant a fair hearing when it conducted the hearing without an interpreter.
First, in his 2017 application to the Tribunal, the applicant indicated that he did not need an interpreter.
Second, the invitation to attend a hearing sent to the applicant on 13 November 2020 contained the following instruction in bold font: ‘Please advise us at least 7 days before the hearing if you require an interpreter.’ There is no indication in the evidence before the Court that the applicant requested an interpreter ahead of the Tribunal hearing.
Third, the Tribunal made specific reference to the hearing proceeding without an interpreter at [28] of its reasons where it said:
The applicant attended a hearing on 1 December 2020. He was not represented. Although the applicant requested a Punjabi interpreter, none were available on the day of the hearing. The Tribunal gave the applicant the option of proceeding in English or rescheduling to another day when an interpreter was available. The applicant stated that he was content to proceed in English. At the conclusion of the hearing the Tribunal again offered the applicant the opportunity to reconvene at a later date with an interpreter if he felt that would assist him in presenting his case, or in better expressing his evidence, however the applicant stated that he was content with the conduct of the hearing and that he did not wish to reconvene with an interpreter at a later date.
At the hearing before this Court, Mr Hannan submitted that it could be inferred that the applicant requested an interpreter at the hearing. I agree that it is appropriate to draw this inference. Mr Hannan further submitted that the applicant was not denied procedural fairness as a result of the hearing proceeding without an interpreter. In his reply submissions, I asked the applicant if he wished to make any submission about the lack of an interpreter at the Tribunal hearing, and he declined to make any submissions on this issue. Importantly, the applicant has not suggested to the Court that he was unable to understand anything said at the Tribunal hearing, or that he felt that he was unable to effectively participate in the Tribunal hearing.
At [29]-[54] of its reasons for decision, the Tribunal has provided a detailed summary of the evidence given by the applicant at the hearing. The oral evidence that the applicant provided in relation to his claims was far more extensive than the written evidence before the Tribunal, and the Tribunal’s summary does not disclose any difficulties in understanding or communicating throughout the hearing.
Having regard to:
(a)the applicant’s willingness to proceed at the Tribunal hearing without an interpreter, referred to at [28] of the Tribunal’s reasons;
(b)the applicant declining the opportunity offered by the Tribunal at the end of the hearing to reconvene with an interpreter at a later date, also referred to at [28] of the Tribunal’s reasons;
(c)the summary in the Tribunal decision of the extensive oral evidence that the applicant was able to give it the hearing; and
(d)the applicant declining to make any submissions or complaint to the Court about the Tribunal hearing being conducted without an interpreter,
I am satisfied that the applicant was able to effectively participate in the hearing, and that the invitation to participate in a hearing was a real and meaningful one.
The applicant was not denied procedural fairness by the Tribunal.
CONCLUSION
I have found that there is no jurisdictional error in the Tribunal decision. Accordingly, the application must be dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 29 October 2021
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