FMI17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 1045

Federal Circuit and Family Court of Australia

(DIVISION 2)

FMI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1045

File number(s):	SYG 3890 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	7 December 2022
Catchwords:	MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error –error established in Immigration Assessment authority’s decision – writ of certiorari issued
Legislation:	Migration Act 1958 (Cth): s 5J, s 36(2B)
Division:	Division 2 General Federal Law
Number of paragraphs:	36
Date of last submission/s:	7 December 2022
Date of hearing:	7 December 2022
Place:	Brisbane
Counsel for the Applicants:	Mr Honnery
Solicitor for the Applicants:	McCabes Lawyers
Counsel for the Respondents:	Ms Maddocks
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

SYG 3890 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FMI17

First Applicant

FMJ17

Second Applicant

FMK17

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	7 DECEMBER 2022

THE COURT ORDERS:

1.That a writ of certiorari issue directed to the Second Respondent quashing its decision dated 17 November 2017.

2.That the First Respondent pay the Applicants’ costs fixed in the sum of $7,853.

3.That a writ of Mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application according to law.

4.That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex tempore)

JUDGE VASTA

1. On 17 November 2017, the Immigration Assessment Authority (“the IAA”), affirmed a decision of the delegate not to grant the Applicants, FMI17, FMJ17 and FMK17, protection visas.  On 13 December 2017, the Applicants asked this Court to review the decision. 

2. The background to the matter is this:  Applicant 1 is a male; Applicant 2 is a female.  When they lived in India, they were members of the same caste but members of different sub-castes.  Applicant 2 was of a sub-caste that is superior to the caste of Applicant 1.  The IAA found that the father of the Applicant 2 wished his daughter to marry someone of the same caste and he had already in mind someone who was close to his own age, but quite a bit wealthy. 

3. It would seem that Applicant 2 refused to marry such a person.  Instead, she began a relationship with Applicant 1.  At the time, Applicant 1 was, for all intents and purposes, the equivalent of a taxi driver.  Applicant 2 was still a person under the age of 18 years. 

4. On 17 February 2013, Applicant 1 and Applicant 2 married in a Hindu ceremony at a temple with two witnesses who were friends.  They did not register their marriage in India because Applicant 2 was still 17 and, therefore, underage.  It would seem almost immediately after the father of Applicant 2 found out that this marriage had happened, he lodged a complaint to police that his underage daughter had been abducted. 

5. After the marriage, the two Applicants moved to the home area of Applicant 1 which was about 500 kilometres from the father of Applicant 2’s residence.  They were there for about six weeks.  The IAA accepted that they were fearful of the consequences of the opposition by the father to their relationship, and that because Applicant 2 was underage, she could be potentially forced to return to her father’s home.  The Applicants moved from place to place in that area until they went to another part of India to get on a boat to come to Australia. 

6. The IAA accepted that the father of Applicant 2 was a member of the BJP political party.  The IAA accepted that the father of Applicant 2 went to the home of the mother of Applicant 1.  He made threats that he would harm Applicant 1 if he caught him. 

7. The IAA accepted, as a possibility, that the father smashed some furniture and assaulted the mother in his anger.  The IAA also accepted it was possible that he lodged a complaint with the police alleging that his daughter had eloped with Applicant 1 and that she was underage. 

8. The IAA accepted that Applicant 2 phoned her father from Australia, around the end of 2013, and informed him that she was three months pregnant.  She had not been pregnant when she departed India.

9. The IAA accepted that the Applicants legally married in Australia, on 17 February 2017.  The Applicants have since had the child that the mother was pregnant with.  That child was around three years of age at the time of the IAA application and he is Applicant 3. 

10. The IAA had to look at the question of whether the threats to harm Applicant 1 purportedly made by the father of Applicant 2 were such that it gave rise to a well-founded fear of persecution.  But then, more importantly, whether the fact of that, combined with the fact that these two Applicants were in an inter-caste marriage, was such that there was a well-founded fear of persecution. 

11. The IAA concluded that there was a fear of persecution but that this did not relate to all areas of India. This meant that there was no well-founded of persecution, as that term is defined in s 5J(1) Migration Act 1958 (Cth) (“the Act”).

12. The IAA then had to turn to whether the complimentary protection criteria applied. The IAA, in effect, considered that as a necessary and foreseeable consequence of the Applicants being removed from Australia to India, specifically the area where the father of Applicant 2 lived, there was a real risk that they would suffer significant harm, but, pursuant to s 36(2B) which says that:

    (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm…

    concluded that the criteria had not been satisfied.

13. For those reasons, the IAA affirmed the decision of the Minister. 

14. As I have said, the Applicants filed their application on 14 December 2017.  The matter came before his Honour Judge Dowdy, on 6 April 2018, and His Honour made orders and put the matter down for final hearing on a date and time to be administratively advised before His Honour. 

15. On 14 August 2018, His Honour made an order giving leave for the Applicant to rely upon an amended application and extended some of the original dates.  His Honour never got around to hearing the matter and the matter was subsumed into the National docket.  It was then allocated to me to be heard today, 7 December 2022.  This means it has been almost five years since the Applicant filed his originating application to today when it is that the Court can actually hear the matter. 

16. On behalf of the Court, I apologise for that inordinate delay, and it is part of the reasons that I am giving my decision by way of ex tempore reasons today. 

17. The grounds of this application were that:

    1.The IAA misapplied s 36(2B)(a) of the Migration Act 1958 (Cth) and failed to engage in the required analysis to assess whether relocation was reasonable for each of the applicants.

    2.The IAA misapplied the real chance test under 5J of the Migration Act 1958 (Cth).

    3.The IAA failed to consider that the applicants would face discrimination and levels of risk that did not amount to a “real risk” of significant harm when assessing the reasonableness of relocation.

    4.The IAA failed to consider that the applicants would have to conceal their inter-caste relationship to avoid harm when assessing the reasonableness of relocation. 

18. With regards to grounds one, three and four, they all really stem from a submission that the Tribunal has not fully engaged in an exercise as to whether relocation would be reasonable. 

19. With regard to ground two, it seems to me that the Tribunal did apply the proper test, under s 5J. Whilst it is that the Applicant is really attacking the methodology of finding the real risk and submits to me that the IAA undertook a “relative” assessment instead of an “objective” assessment, it seems to me when one really goes through and reads the reasons as a whole, there has been an objective test applied as to whether there was a real risk of persecution:

    … for reasons of race, religion, nationality, membership of a particular social group or a political opinion. 

20. I need not go into fully the reasons for that other than to say that I do not find that there has been any jurisdictional error illustrated and that ground would fail. 

21. With regard to grounds three and four, it seems to me that they, really, are arguments as to whether there had been a proper intellectual grasping of what was required to be considered in looking at whether relocation was reasonable.  Having looked at the judgment as a whole and not dissecting the judgment in minute detail with an eye keenly attuned for error, it seems to me that the Tribunal went about its business in looking at whether the refugee criteria had been established in a very diligent and proper manner.  In looking at the reasons that had been given by the Tribunal, there is a logical sequence to what it is that has been said. 

22. At paragraph 33, the IAA, in looking at country information, said that the country information: 

    …suggests that if inter-caste couples relocate to an area where they are not known they may not be identified in the course of interaction with government authorities in India, particularly if the couple have not crossed the “untouchability line” (which is a reference to the country information from the Immigration and Refugee Board of Canada) and if the wife has adopted the husband’s name, as is in the case of this matter, it is therefore likely that members of the community and authorities with whom may have to register if they relocate would not be aware that they are an inter-caste couple. 

23. At paragraph 34, the IAA said:

    …I am satisfied that there was only an extremely remote chance that the applicants would suffer serious harm, having regard to the extensive examples provided in s 5J(5) of the Migration Act, if they did not live in an area in which Applicant 2’s father is located, or in Applicant 1’s home town.

    35. I am satisfied that the threat of harm to the applicants by non-State actors, that is, Applicant 2’s father does not relate to all areas of India.  Although I accept there is a chance of harm from Applicant 2’s father if the couple were to return to [omitted] or, possibly, Applicant 1’s hometown of [omitted], I am not satisfied that there is more than an extremely remote chance of harm if the couple were to relocate to a major urban centre such as Chennai where there are employment opportunities and access to services including state protection, and it is less likely that their inter-caste marriage would either by detected or come to the adverse attention of members of the community or government authorities. 

    36. Whilst I am satisfied that the applicants have a fear of persecution for reasons of membership of a particular social group- inter-caste couples-I am not satisfied that the applicants’ fear is well-founded as I am not satisfied that there is a real chance the applicants will suffer serious harm in all areas of India or that effective protection measures are not available to the applicants in India. 

24. The Tribunal went on to talk about other aspects of the refugee criteria before concluding that the Applicants did not meet the requirements of the definition of a refugee. 

25. The IAA then had to look at complimentary protection. It was obvious from what the IAA had said in regard to the fact that the fear of persecution did not relate to all areas of India, that relocation was very much the aspect that would be needed to be looked at in an assessment of the complimentary protection assessment. 

26. At paragraph 47, the IAA said: 

    I next considered whether it would be reasonable for the applicants to relocate to an area of India where there would not a real risk that they would suffer significant harm or whether they could obtain, from an authority of the country, protection such that there would not be a real risk that they would suffer significant harm: s. 36(2B). As discussed above, I am satisfied that it is reasonable for the applicants to relocate to an urban area where being an inter-caste couple is less likely to come to the attention of members of the community and where they would have access to employment and services, and where there is only an extremely remote possibility they would be found by Applicant 2’s father.

27. There was no discussion about the “reasonableness” of relocation.  There was no particularity about why it was reasonable to relocate.  The sum total of the discussion was the sentence in paragraph 47 that began “As discussed above, I am satisfied that it is reasonable for the applicants to relocate...”

28. There had not been any discussion at all before paragraph 47 of the aspect of relocation. What had occurred was that there had been discussion as to whether this fear of persecution related to all areas of India and the IAA had come to the decision that the fear only could relate to the area where the father of Applicant 2 lived or the hometown of Applicant 1, but not to any other part of India. 

29. The IAA spoke of the fact that if it were that the couple were in a major urban centre such as Chennai, there would be a diminution of that risk of serious harm such that there was no longer the well-founded fear of persecution.

30. But finding that such a place exists is a totally different question as to whether it is reasonable for the Applicants to relocate to any such area. 

31. It may well be that the submissions of the Applicants were such that the goal posts may have been set in a very narrow way such that the bar to get over those hurdles was very low.  Applicant 1 had said that: 

    I cannot relocate to another part of India to avoid the harm because of my father-in-law’s political influence.  He will exercise this influence.  There is nowhere I could live peacefully and safely without the risk of the revenge he wants to inflict on me. 

32. Applicant 2 had said: 

    I cannot relocate to another part of India to avoid the harm because of my father’s political connections in the BJP party.  This party is nationwide, and my father would be able to find us through these connections.  When I spoke to my father on the phone to tell him about my son, he actually told me he would be able to find me anywhere and kill me. 

33. It may be that the IAA could well have thought that the Applicants were conceding that, if there were a part of India where the father would not be able to find them, then it would be reasonable for them to relocate.  As such, this is what may be thought of as being the “objections to relocation” that the Applicants had put to the Tribunal.  If that were the case, it could be argued that the IAA, in finding that such a place existed where the reach of the father would not be felt, would be sufficient to counteract the objections. 

34. But an assessment of reasonableness in relocating is more than an exercise in accepting or rejecting the objections.  What needs to occur is that the circumstances of Applicant 1, being a man with a wife and a child, and the circumstances of Applicant 2, being a woman with a husband and a child, need to be taken into account and the repercussions of relocation must be considered.  It may very well be that once those repercussions are considered that there is nothing that would point to it not being unreasonable for the Applicants to relocate, but that exercise must still occur. 

35. What has occurred in this case, and looking at the reasons in paragraph 47, is that there has been a conflation of the identification of parts of India where there would not be a fear of persecution, or where the fear of persecution would not be well-founded, with a consideration that if such a place exists, it would be reasonable for the Applicants to move there. 

36. Because of this, I am of the view that the decision of the IAA, that it would be reasonable for the Applicants to relocate, has been infected by jurisdictional error. 

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       7 December 2022