FGW17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 155
Federal Circuit and Family Court of Australia
(DIVISION 2)
FGW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 155
File number(s): MLG 2626 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 2 March 2023 Catchwords: MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal affirming decision not to grant protection visa – Court unable to remake the factual findings of the Tribunal – Court unable to consider new evidence that was not before the Tribunal – no legally relevant error identified by the Applicants in relation to either the procedure undertaken by the Tribunal or its decision – application dismissed. Legislation: Migration Act 1958 (Cth) s.476
Migration Act 1985 (Cth) Act No. 62 of 1958 as amended (commenced 24 March 2014) ss. 36, 91R, 91S
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2
Federal Circuit Court Rules 2001 (Cth) Sch 1
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, art 1A(2)
Cases cited: CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 21 February 2023 Place: Melbourne Applicants: Appearing in person Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 2626 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FGW17
First ApplicantFGX17
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
2 MARCH 2023
THE COURT ORDERS THAT:
1.The application filed on 30 November 2017 be dismissed.
2.The Applicants pay the First Respondent’s costs fixed in the sum of $7,328.
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 MANSINI
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (the Tribunal) pursuant to s.476 of the Migration Act 1958 (Cth) (Act). In that decision, the Tribunal affirmed a decision of a delegate of the First Respondent (Minister) not to grant the Applicants a protection visa.
For the reasons that follow, the application ought be dismissed with costs.
Factual context
The Applicants are husband and wife who, at the time of hearing before this Court, have lived in Australia for some 15 years and are parents of a 4-year old daughter. They are anonymised in this judgment to protect their confidentiality.
The First Applicant is a citizen of India of Sikh faith and of Nai Sikh caste. He arrived in Australia on 7 March 2008 on a Class TU (subclass 573) student visa.
The Second Applicant is also a citizen of India and of Sikh faith and of Jat Sikh caste. She arrived in Australia on 6 November 2008 on a Class TU (subclass 572) student visa with her former (then) husband as her dependent.
On 17 April 2014, the First Applicant, by his migration agent, applied for a Protection (Class XA) Visa and listed the Second Applicant as the secondary applicant.
On 7 January 2015, the delegate refused to grant the Applicants’ visa application.
On 2 February 2015, the delegate’s decision was referred to the Tribunal for review. The Tribunal convened two hearings, on 28 April 2016 and 6 June 2017 (on both occasions with the assistance of an interpreter). The Applicants also provided further information to the Tribunal on 26 April 2016, a jointly signed statement (undated) and a letter of 3 November 2017 (regarding the Certificate).
On 8 November 2017, the Tribunal affirmed the delegate’s decision.
The Tribunal’s decision
In its statement of reasons (Reasons), the Tribunal acknowledged the Applicants’ claims and evidence: Reasons, at [22]-[93]. In particular, the Reasons referred to the new information before it (that had not been before the delegate), at paragraphs [49]-[50] and [54]-[56] and the oral evidence provided at the hearings at [58]-[70], [71]-[79] and [83]-[91].
Having regard to distinctions in the evidence before the Tribunal, the Tribunal accepted that the Applicants belonged to different castes and were in an inter-caste spousal relationship: Reasons, at [115]-[116].
The Tribunal did not accept their claims: that the First Applicant was ostracised and threatened by his family due to his marriage to the Second Applicant - finding his purported fear of returning to India was undermined by his travel history; as to why the First Applicant did not apply for a protection visa earlier; the alleged honour killing of an acquaintance of the First Applicant; that the Second Applicant had an ongoing fear of harm as a result of her inter-caste marriage since 2009 or at the time of the visa application; and as to the reasons for the Second Applicant’s unlawful presence in Australia for a number of years prior to applying for a protection visa: Reasons at [128], [129]-[132], [133]-[139], [117]-[120], [121]-[122].
These findings of fact were made against the backdrop of the Tribunal’s credibility concerns which include those recorded at [123], [132], [140]-[152].
The Tribunal noted that the Applicants will face some distress in returning to India, including departing without their pets and leaving behind their new social networks in Australia. It accepted that the Applicants have some treatable mental health problems arising from the prospects of returning to their country but noted that the Applicants did not provide any medical information to support this claim and that they have each other for material and emotional support: Reasons at [154].
Although it did not appear to be relevant to the grounds of review, for completeness, a certificate was issued under s.438(1)(b) of the Act applying to folios 110-112, 121 and 126 of file number CLF2014/60511 on the basis that the information was given to an officer of the Department in confidence.
Proceedings before this Court
The Applicants commenced the current proceedings for judicial review on 30 November 2017, by lodging an application together with an affidavit that annexed the Tribunal’s Reasons and no other evidence.
On 22 December 2017, the First Respondent filed a Response.
Various procedural orders were made. On 20 January 2023, the matter was scheduled for final hearing before the Court as presently constituted with orders for filing of further materials in advance.
On 23 January 2023, the First Respondent filed a Court Book.
On 31 January 2023, the Applicants filed an outline of submissions on which they sought to rely.
On 7 February 2023, the First Respondent filed an outline of submissions on which it sought to rely. A list of authorities was filed on 14 February 2023.
The matter proceeded to hearing before the Court as presently constituted on 21 February 2023. The Applicants represented themselves, with the assistance of an interpreter. The First Respondent was represented by a solicitor.
At the hearing of this matter, the scope and limitations of the Court’s powers in contrast to that of the Tribunal were canvassed with the Applicants. It was also confirmed that the Applicants were in possession of the Court Book and other relevant documents. The First Applicant confirmed to the Court that the Applicants had read and understood the First Respondent’s submissions.
The First Applicant made oral submissions on behalf of the Applicants. In summary, those oral submissions were understood to say: that due to the inherent difficulty in obtaining such information themselves it was the Minister’s responsibility to investigate and/or verify the truth of their claims; the Tribunal was unduly focussed on their delay in filing for a protection visa; and that the Court should take into account their recent circumstances, in particular relating to their child born since the Tribunal’s Reasons were delivered.
Grounds of review
By this application, the Applicants seek relief of an order quashing the decision of the Tribunal and a writ of mandamus directing the Tribunal to determine the application according to law. The Applicants articulated their grounds of review in the following terms:
1.Our names are Gurjeet Singh and Ramandeep Kaur and we are nationals of India born on 18 October 1989 and 21 November 1988, respectively.
2.We applied for a Protection Visa in April 2014 because we have a well-founded fear of being killed or persecuted in our home country of India. The delegate refused to grant the visa on 7th January 2015 on the basis that we did not satisfy the grounds for a Subclass 866 Protection Visa. They did not effectively consider our situation and did not understand that we truly had a well-founded fear of persecution if we went back to India.
3.We sought a review of the delegate’s decision at the Administrative Appeals Tribunal (AAT) but the AAT did not give a fresh look at our case but rather affirmed the decision.
4.We have an inter-caste marriage which is why we are seeking protection in Australia. Inter-caste marriages are seen as a sin in India for which many people have been killed in the past. If not physically, Indian society will mentally and psychologically isolate and shun you for being involved in an inter-caste marriage.
5.I believe that the AAT and DIBP made an error by not appropriately considering the genuine reasons we had to seek protection in Australia. They did not consider the social rules and expectations in Indian society properly when making this decision. If they did they would know how serious the consequences for inter-caste marriage in India can be. We also gave them evidence to support our case but it was still not taken into consideration effectively.
6.The injustice of this decision will have detrimental impacts on our life because we have a genuine need for protection in Australia.
7.Without protection, we will have to return to India where we have almost definite chances of persecution and getting killed because we have an inter-caste marriage.
8.We believe the AAT has made a jurisdictional error in deciding our application and we would like the Federal Circuit Court to investigate this matter and return our application to the Administrative Appeals Tribunal for reassessment.
statutory framework
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175.
The Applicants lodged their application for a protection visa on 17 April 2014 at which time the applicable legislation was the Migration Act 1985 (Cth) Act No. 62 of 1958 as amended (commenced 24 March 2014), which provided, at s.36:
36 Protection visas
(1) There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) 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 non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa.
Under that provision, consideration of whether an applicant enlivened Australia’s protection obligations was undertaken with reference to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (hereinafter collectively referred to as the Convention).
The term “refugee” was defined by Article 1A(2) of the Convention as a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person including non-exhaustively defining serious harm and membership of a particular social group.
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
91S Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:Section 5G may be relevant for determining family relationships for the purposes of this section.
By the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth), the reference to the Convention was subsequently removed from s.36(2)(a) and definitions of “refugee” and “well-founded fear of persecution” were inserted in the legislation. Pursuant to Schedule 5, Part 2 and s.2, those amending provisions applied to protection visas made on or before 16 December 2014 and, accordingly, the provision of s.36(2)(a) as in force at the time of the Applicants’ protection visa application (and the Convention) remained relevant to the Tribunal’s assessment.
consideration
On a plain read of the grounds of review, it is apparent that grounds 3 and 5 are in terms that may disclose a basis for judicial review, whereas the remainder are a recitation of the Applicants’ claims or contentions.
The Applicants were afforded the opportunity to do so in writing and orally at the hearing, and had the benefit of the First Respondent’s submissions (which highlight the problems in this respect), but did not particularise or elaborate on those grounds of review at 3, 5 or otherwise. This failing, of itself, is sufficient to dismiss the grounds of review: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (which proposition remains relevant following the decision of the Federal Court on appeal), CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27].
In any event, the materials before the Court establish that the Tribunal conducted its own, fresh review of the merits of the application and did not simply affirm the delegate’s decision. The Reasons reflect that the Tribunal had regard to the information and evidence that the Applicants put before the Tribunal after delivery of the delegate’s decision. For example, by finding in favour of the Applicants’ claim to be of an inter-caste spousal relationship, the Tribunal relied on that information which was not before the delegate and the Tribunal reached a different conclusion (its own conclusion) in that respect.
Further, the Tribunal engaged with the Applicants’ claims about their reasons for seeking protection in Australia and their claims to fear persecution and of risk of harm on account of their inter-caste marriage. However the Tribunal did not accept that the Applicants’ evidence was reliable and/or credible in large part as relevant to these claims. Those were findings that the Tribunal was entitled to make and does not of itself disclose error or a failure to consider evidence. There was no obligation on the Tribunal to conduct its own searches or verification of the Applicants’ claims.
As I endeavoured to explain to the Applicants at the hearing, at this stage of the process, the Court is unable to re-make the factual findings that were made by the Tribunal or to receive new evidence or to assess whether or not the Applicants’ claims for protection ought to be accepted. Merits review is beyond the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It ought be acknowledged that the Applicants’ changed circumstances, including that of the addition to their family, are unfortunate but not matters that the Court is able to take into account in this review. It would appear that the Applicants have not sought ministerial intervention as may be available to them.
I have taken into account that the Applicants were self-represented at the time of the final hearing. To the extent that the grounds of the application were not particularised, I am satisfied that the Applicants have been on sufficient notice of the issues (some 5 years since the response was filed in these proceedings) and afforded ample opportunity to understand the issue(s), to seek independent advice, and to respond including by invitation of this Court to elaborate orally at the hearing. The Applicants have not availed of those opportunities by seeking to amend the application or otherwise provide the necessary particulars.
There is nothing on the materials before the Court which discloses that there was any error in the approach of the Tribunal to its consideration of the Applicants’ claims, the applicable statutory thresholds or application of the law. In my view, the Tribunal’s conclusions were open to it for the reasons it gave.
It follows that the application before this Court is unable to succeed.
Conclusion
For the above reasons, the application must be dismissed.
Costs are sought by the Minister fixed in the amount of $7,328. I note that this amount is the scale amount that was in place under the version of the Federal Circuit Court Rules 2001 (Cth) that was in force at the time the application was filed. It is also below the scale amount which is provided for under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) that are presently in force. I accept that the amount sought is reasonable and make that order accordingly.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 2 March 2023
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