FUU17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 902
Federal Circuit and Family Court of Australia
(DIVISION 2)
FUU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 902
File number(s): MLG 2880 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 1 November 2022 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – Protection (Class XA) Subclass 866 visa – where no identification of jurisdictional error on the part of the Tribunal and Court unable to engage in impermissible merits review – application dismissed Legislation: Migration Act 1958 (Cth) ss.36(2)(a), 36(2)(aa), 36(3), 65, 438
Migration Act 1985 (Cth) Act No. 31, 2014, ss.91R, 91S and 91T
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 Sch.2
Cases cited: AYS15 v Minister for Immigration & Anor [2015] FCCA 2865
Craig v South Australia (1995) 184 CLR 163
CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134
Gido-Christian v Minister for Immigration [2007] FMCA 825
Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 31
Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAFZ v Minster for Immigration and Border Protection [2016] FCA 1081
MZZVK v Minister for Immigration and Border Protection [2016] FCA 854
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 1
SZATV v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 233 CLR 18
SZFDV v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 233 CLR 51
SZQMR v Minister for Immigration and Citizenship [2012] FCA 122
SZSLG v Minister for Immigration and Border Protection [2013] FCA 1185
Division: Division 2 General Federal Law Number of paragraphs: 103 Date of last submission/s: 18 August 2022 Date of hearing: 3 August 2022 Place: Melbourne Applicant: Self-represented litigant Solicitor for the First Respondent: Mills Oakley Lawyers ORDERS
MLG 2880 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUU17
First ApplicantFUV17
Second ApplicantFUW17
Third ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
1 November 2022
THE COURT ORDERS THAT:
1.The application dated 29 December 2017 be dismissed.
2.The First Applicant and the Second Applicant pay the costs of the First Respondent fixed in the total sum of $5,400.
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
In Summary
This is an application for review of a decision made by the Administrative Appeals Tribunal (Tribunal). In that decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the First Applicant (and, by extension, the Second and Third Applicants) a Protection (Class XA) Subclass 866 visa, pursuant to s.65 of the Migration Act 1958 (Cth) (Act).
The Applicants are a family (wife, husband and son) who seek permanency in Australia on protection grounds due to their fear of harm by the husband’s family and followers of a particular sect on return to India. In summary because the husband’s parents disapprove of their marriage due to the First Applicant’s lower Jatt caste.
The Applicants are anonymised in this decision to protect their identities.
The husband (Second Applicant) and wife (First Applicant) were born in India and have been in Australia since 2008 and 2009 respectively – having initially entered on student visas. Their son was born in Australia and is now 8 years of age. There is another child of the marriage who was separated from her family when she was taken to India by the maternal grandmother, where she continues to reside.
This application for a protection visa was made with the Department of Immigration and Border Protection (as it then was) (department) some 6 years after the First Applicant’s arrival in Australia and following the expiry of the student visas that allowed the First and Second Applicants entry to Australia.
The Tribunal accepted that the Applicants are in danger of being victims of an honour killing by the Second Applicant’s family and, therefore, are part of a particular social group with a well-founded fear and real chance of persecution if they return to India. And, for the same reason, there is a real risk of significant harm. However, on the evidence and independent country information before it, the Tribunal was satisfied that it would be reasonable for the Applicants to relocate within India to an area where there is not a real risk of such harm. The Tribunal concluded the statutory criteria were not met and affirmed the delegate’s decision to refuse the application for a protection visa.
By this application for judicial review, the Applicants have asked the Court to grant them a protection visa. The Court’s powers on judicial review are limited to determining whether the decision and approach taken by the Tribunal were lawfully open on the evidence that was before it, the Court has no power to revisit the merits. Having carefully considered the materials but being unable to identify jurisdictional error in the Tribunal’s decision, the application is dismissed. The reasons for this decision follow.
Context
The facts
The First and Second Applicants (wife and husband, respectively) are citizens of India of the Jatt caste and of Sikh faith. The First and Second Applicants were married in India on 3 September 2008 according to Sikh faith. The Indian marriage was not officially registered. The Third Applicant (their son), was born in Australia.
On 31 October 2008, the Second Applicant travelled to Australia on a student visa. The First Applicant came to Australia on a student visa to join him on 22 February 2009. They were married in Australia on 15 April 2009.
On 14 August 2010, their first child (their daughter) was born in Australia. In January 2011, the First Applicant’s mother arrived in Australia initially to support the First Applicant and later took the first child back to India to live.
On 5 June 2011, the First Applicant lodged an application for further stay of her student visa which was refused on 17 August 2011. On 1 September 2011, the First Applicant applied for review of the decision with the Migration Review Tribunal which was affirmed on 16 July 2013. On 6 August 2013, the First Applicant applied for Ministerial Intervention which was “not considered” on 5 August 2014. On 4 April 2014, the First Applicant was granted a Bridging Visa E, expiring on 4 September 2014.
On 10 June 2014, the Applicants’ second child (their son, being the Third Applicant) was born.
On 20 August 2014, the First Applicant applied for a Protection (Class XA) Subclass 866 visa (protection visa). By that same application form, the Second and Third Applicants applied for visas as migrating family members.
On 8 April 2015, the First and Second Applicants attended an interview before the delegate. At the interview, the First Applicant raised additional claims that her father-in-law had lodged a police complaint about her and her husband and that her mother had been physically assaulted by the Second Applicant’s father and brothers. On 18 June 2015, the delegate refused to grant the protection visa application(s) and provided the Applicants with a decision record.
On 8 July 2015, the First Applicant applied to the Tribunal for review of the delegate’s decision and annexed a letter of the First Applicant’s mother dated 6 November 2011 regarding an alleged attack by the Second Applicant’s father on 5 March 2011.
On 6 April 2017, the First and Second Applicants attended a hearing before the Tribunal (the first hearing). At the first hearing, the First Applicant provided the Tribunal with a further 3 statements of additional witnesses to the alleged March 2011 attack dated March, April and July 2017, some media articles (an unsourced extract titled ‘What is the number of Nepalese immigrants from Nepal living in India?’ dated 3 April 2015, a wikipedia extract titled ‘Prem Singh Chandumajra’) and 6 photographs.
On 10 April 2017, the Tribunal sent a letter to the Applicants informing them that the adjourned hearing would be resumed on 21 April 2022. By request of the First Applicant, the adjourned hearing was postponed to and conducted on 24 April 2017 (the second hearing).
On 5 October 2017, the Tribunal (constituted by a different Member) conducted the third and final part of the hearing (the third hearing). In the interim, the First Applicant had filed an additional “Response to Hearing Invitation” form. The Tribunal informed the First Applicant that all documents and other material that were previously considered by the first Member in the first and second hearings had been given to the new Member conducting the third hearing (including the department file; recordings of any hearings with the Tribunal; and any submissions and other evidence provided to the Tribunal). At the third hearing, the First Applicant provided the Tribunal with a medical certificate of her husband dated 30 September 2017.
On 14 November 2017, pursuant to s.424A of the Act, the Tribunal wrote to the First Applicant and invited her comment on information that (subject to her response) the Tribunal considered would be a reason or part of a reason for affirming the delegate’s decision on review. Specifically, that the First and Second Applicants had given inconsistent evidence of the reasons why the husband’s family objected to their marriage.
By response on 28 November 2017, the First Applicant provided the Tribunal with two, unsigned statements of the First Applicant. The First Applicant’s statements denied any discrepancy or undisclosed information and maintained that her husband’s family objected to the marriage since she belonged to a lower caste. Also, and among other things, the First Applicant claimed that her mother-in-law was a member of a cult led by a guru named Sant Baba Ajit Singh Hansali Wale (the Hansali sect), which had a massive following and all its members knew about the mother-in-law’s opposition to the First Applicant’s marriage; she also stated that the Second Applicant’s family came to demand constant dowry in both cash and kind and then started to threaten the couple which posed great threat for their safety; and described her grief at separation from her first child whom she claimed the Second Applicant’s family was not aware is in India.
On 13 December 2017, the Tribunal affirmed the delegate’s decision to refuse to grant the Applicants visa(s). The Applicants were notified by letter of the Tribunal on 15 December 2017 and provided a copy of the Tribunal’s statement of decision and reasons (Reasons).
The Tribunal’s decision
The Tribunal commenced its Reasons by providing a short summary of the nature of the application and an overview of the statutory criteria for a protection visa. It also acknowledged at [11] the account taken of policy guidelines:
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In its consideration of claims and evidence, the Tribunal stated that it had read and considered all the documentary evidence provided by the First Applicant: Reasons, at [14]. The following was specifically referenced in the Reasons:
(a)The First Applicant’s written claim, obtained from the department file CLF2014/116388 (Reasons, at [12]).
(b)Additional documentation provided to the Tribunal at the Tribunal hearing:
(i)Affidavit of Tejinder Singh dated 6 January 2015;
(ii)Affidavit of Bhushan Lal dated 7 January 2015;
(iii)Affidavit of Mandeep Kaur Chahal dated 6 November 2011;
(iv)Affidavit of Mandeep Kaur Chahal dated 7 January 2015;
(v)Statement by Mandeep Kaur dated 6 November 2011;
(vi)Statement by Yadwinder Singh dated 24 March 2017;
(vii)Statement of Malvinder Singh dated 25 March 2017;
(viii)Statement by the Millennium School Pariala dated 4 April 2017;
(ix)Queensland Marriage Certificate dated 21 April 2009;
(x)Passport of Puneet Kaur issued 21 December 2007;
(xi)Passport of Gurvinder Singh issued 25 October 2007;
(xii)Passport of Guneetvir Kaur issued 8 October 2010;
(xiii)Birth Certificate of Guneetvir Kaur 14 August 2010;
(xiv)Various Diplomas’ issued by Metro College of Technology to Puneet Kaur;
(xv)Various Photos and newspaper articles;
(Reasons, at [13]).
(c)First Applicant’s further submissions in response to the Tribunal’s invitation to respond to adverse information, dated 22 and 28 November 2017 (Reasons, at [15]).
(d)Country information including:
(i)Department of Foreign Affairs and Trade (DFAT) Country Information Report – India, dated 15 July 2015 (DFAT Report);
(ii)The DFAT Thematic Report Indian State of Punjab dated 7 December 2016 (the Punjab Report);
(iii)The US Department of State (USDOS) Country Reports on Human Rights Practices for 2011;
(iv)US Department of State Country Reports on Human Rights Practices 2008;
(Reasons, at [43]-[56]).
The Tribunal summarised its decision to affirm the delegate’s decision at [17] as follows:
For the reasons that follow the Tribunal finds that it would be reasonable for the applicants to relocate within India to an area where they would not be at a real risk of harm. As such it does not accept that the applicants have a well-founded fear of persecution for a Convention reason, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India there is a real risk that they will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicants protection visas.
The Tribunal then proceeded to articulate its findings at length which need not be repeated in entirety here. The following are most pertinent to this application for review.
The Tribunal found that the Applicants were citizens of India and that India is the receiving country for the purposes of the refugee and complementary protection assessment. It acknowledged the “1950 Treaty of Peace and Friendship” between India and Nepal and that it was open to the Tribunal to find that the Applicants did not have a well-founded fear of persecution or real risk of significant harm if they were returned to India on the basis they would have statutory effective protection in Nepal, however declined to make a finding in this respect in light of its conclusion that it was reasonable for the Applicants to “reallocate” (sic.) to a different area of India: Reasons, at [19]-[20]. There was then a detailed consideration of country information before it: Reasons, at [43]-[56].
The Tribunal accepted and made findings favourable to the Applicants at [61] as follows:
(a)The Applicants are of the Sikh faith and Jatt caste;
(b)The Second Applicant was entitled to a share of the family’s 50 acres of property in Punjab India;
(c)The Applicants were married on 3 September 2008 according to Sikh faith and on 15 April 2009 were married in Mount Gravatt East, Queensland Australia according to Australian law;
(d)The Second Applicant’s family consented to his marriage to the First Applicant as she could assist the Second Applicant to obtain a visa to travel to Australia;
(e)The Second Applicant obtained a student visa and travelled to Australia on or about 31 October 2008;
(f)By the Panchayat agreement the Second Applicant’s family agreed to accept 50,000.00 rupees per month to stop harassing the First Applicant;
(g)The Applicant travelled to Australia on a student visa on 22 February 2009 to join her husband and to study English and hospitality;
(h)The first child of the marriage was born on 14 August 2010, in Australia;
(i)In or about January 2011, the First Applicant’s mother travelled to Australia and took the child back to India to live; and
(j)The second child of the marriage was born on 10 June 2014.
The Tribunal noted that it took into account the Applicants’ delay in making their application for a protection visa - the First and Second Applicants having arrived in Australia on 22 February 2009 and 31 October 2008, respectively, and applied for the protection visa on 20 August 2014 and that this may be relevant to assessment of credit: Reasons, at [62]-[63].
The Tribunal also noted its assessment of a number of inconsistencies and implausibility in the claims that caused it not to accept parts of the evidence. Nonetheless, it expressly accepted that the Second Applicant’s family objected to the marriage on the basis of the First Applicant’s caste or due to the fact that they had not chosen her to be his wife; but had also agreed to the marriage and accepted the First Applicant into their home because they believed she could assist her husband to travel to Australia or because they would receive a financial benefit. And, then, once the Second Applicant left for Australia without the assistance of the First Applicant, his family threatened and harassed the First Applicant and forced her to return home to live with her mother: Reasons, at [64] and [66].
Further, the Tribunal accepted that the family of the Second Applicant was prepared to stop torturing the First Applicant and her family on condition of the agreement made on advice of members of the village council in around January 2009 (the Panchayat agreement) pursuant to which the Second Applicant’s family would be paid 50,000.00 rupees per month. And, therefore, it was not surprising that the Second Applicant’s family would visit the First Applicant’s mother from time to time to find out when the couple would return to India given their expectation they would be paid under the agreement: Reasons, at [66]-[67].
The Tribunal found that the evidence of the First Applicant’s mother contained a number of inconsistencies and was at times implausible. For that reason it placed little weight on a particular incident about alleged attack of the mother on 5 March 2011. Nonetheless it found that the First Applicant’s mother was visited by the Second Applicant’s father and brother on or about 5 March 2011 but was not attacked or injured: Reasons, at [68]. The Tribunal considered the First Applicant mother’s claim that the Second Applicant’s family had used their influence to direct police to harass and detain her (the mother). With regard to the country information the Tribunal accepted that police corruption exists in India but ultimately found the evidence not sufficient to persuade the Tribunal that the Second Applicant’s family had such influence and rejected the evidence of the First Applicant’s mother that the police harassed and detained her: Reasons, at [69]-[70].
The First Applicant mother’s evidence of being threatened and beaten by the Second Applicant’s family in December 2012 and December 2014 was found to be improbable after such period of time and in the absence of provocation; and the supporting affidavits were afforded no weight as the deponents were not present at the time of the alleged attacks and did not explain the deponents’ knowledge of the event: Reasons, at [71]-[72].
The Tribunal found limited evidence of threats against the Applicants from the Second Applicant’s family and other members of the Sikh community and, in the absence of independent evidence of such, found no threats had been made against the lives of the First or Second Applicants. It found other allegations of threats toward the First Applicant’s mother and daughter to be grossly overstated: Reasons, at [73]-[74].
The Tribunal considered country information regarding the Hansali sect. It found the evidence not enough to persuade it that the Second Applicant’s mother had the influence within the sect such that members of the sect would harm the Applicants. The Tribunal also found it unlikely that the sect would engage in any threatening or harassing behaviour and that the followers would not threaten or harass the Applicants should they return to India: Reasons, at [76]-[77].
At [79], the Tribunal acknowledged the Applicants’ subjective fear of the Second Applicant’s family having married against the family’s wishes. And, having considered the country information, accepted that honour killings occur in India and in particular in the Applicants’ State of Punjab. The Tribunal concluded that as a result of their marriage and by not paying the money under the Panchayat agreement, the Applicants are in danger of being victims of an honour killing by the Second Applicant’s family.
The Tribunal further concluded that, as potential victims of an honour killing, the Applicants are part of a particular social group who have a well-founded fear of persecution and it therefore accepted and found that there is a real chance the Applicants will be persecuted by reason of their particular social group in the event they are returned to India.
Having made the above findings, the Tribunal then embarked on its assessment of the statutory criteria which reasons are summarised in the following under the Tribunal’s original headings.
Refugee protection
Under its refugee protection assessment pursuant to s.36(2)(a) of the Act, the Tribunal considered that it was required to apply the definition of “refugee” in Article 1 of the 1951 Convention Relating to the Status of Refugees. It noted that the concept of “protection obligations” in s.36(2)(a) is qualified by s.36(3), which provides that Australia is taken not to have protection obligations in respect of a non-citizen in certain specified circumstances, and ss.91R, 91S and 91T, which explain or qualify some aspects of the Convention definition: Reasons, at [81].
At [84], the Tribunal concluded:
In this case the applicants’ fear of harm arises from a domestic relationship by which they now find themselves in conflict with the demands of [the Second Applicant]’s family. As a result, the Tribunal finds that the applicants’ fear of persecution does arise by reason of their membership of a particular social group being victims of honour killings in India. As there is a real chance that the applicants will suffer serious harm by reason of their membership of the social group. Accordingly the Tribunal finds that [the First and Second Applicants] are people to which Australia has protection obligations as refugees pursuant to s.36(2)(a).
Complementary protection
Immediately following, the Tribunal considered whether complementary protection is owed pursuant to s.36(2)(aa) of the Act and noted the test here is forward-looking and of reasonable foreseeability, wherein the exposure to the risk (and not the harm itself) must be a necessary and foreseeable consequence of the return. The Tribunal determined that, in this case, it is reasonably foreseeable that the Applicants will be victims of an honour killing and be significantly harmed if they are returned to Patialia, Punjab in India: Reasons, at [85]-[86].
Further, the Tribunal was satisfied that the Applicants are at a real risk of being victims of an honour killing by the Second Applicant’s family and a result will suffer significant harm upon their return to India: Reasons, at [88] and [89]:
Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required by s36(2)(aa).
Reallocation
As a Refugee
The Tribunal then considered whether the Applicants might reasonably relocate to another part of India with regard to case authorities for the principle of internal relocation: Reasons, at [90]-[91] citing: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 1 (Randhawa); SZATV v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 233 CLR 18 (SZATV) and SZFDV v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 233 CLR 51 (SZFDV); Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317
Ultimately, although it had accepted that the Applicants faced real chance of serious harm and real risk of significant harm, the Tribunal found that any real chance the Applicants will suffer serious harm is localised to the area of Patiala, Punjab in India: Reasons, at [92].
The Tribunal considered country information about guaranteed freedom of movement of Indian citizens within India and that there is a right to settle and reside in any part of the country. It also noted the limiting factors such as language barriers, lack of documentation, lack of familial or community networks, lack of financial resources and employment opportunities and discrimination based on ethnicity, religion or caste: Reasons, at [93]. These factors were then analysed, at [94], wherein the Tribunal concluded that the Applicants’ cost of moving would be at least comparable or less than moving to and around Australia as the Applicants had done over the last few years; that the Second Applicant holds a recognised Indian qualification as an engineer; that both the First and Second Applicants are relatively youthful and fit and able enough to find work. Whilst acknowledging they would face difficulties and challenges, the Tribunal did not accept the Applicants would not be able to access paid employment into the reasonable foreseeable future.
The Tribunal went on to analyse country information about regions of possible relocation within India and concluded it objectively reasonable to expect the Applicants to relocate to another area in India where there is no real chance they will suffer serious harm. And, by reason of the Applicants being able to relocate in India, it must therefore be taken that there is not a real chance the Applicants will suffer serious harm in India by reason of them being a member of a particular social group, that is, as potential victims of an honour killing: Reasons, at [95].
Complementary protection
Under this sub-heading, the Tribunal referred to its reasons given above and found that there is no real risk that the Applicants will suffer significant harm in other areas of the country of India and, accordingly, the Tribunal found the real risk of significant harm the Applicants will suffer is localised to the area of Patiala, Punjab in India: Reasons, at [97].
Also for the reasons it had given above, the Tribunal determined that the Applicants could relocate to another area within India such that there would not be a real risk that they would suffer significant harm and, accordingly, pursuant to s.36(2B)(a), there is taken not to be a real risk that the Applicants will suffer significant harm in India and in all the circumstances they do not have a well-founded fear of persecution - and as such they do not satisfy s.36(2)(aa) in this regard: Reasons, at [98]-[99].
Conclusion
At [101] to [103], the Tribunal again referred to the reasons it had given above and confirmed its conclusions that:
(a)it was not satisfied that the Applicants are people in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees;
(b)having concluded that the First Applicant does not meet the refugee criterion in s.36(2)(a), it had considered the alternative criterion in s.36(2)(aa) but was not satisfied that the Applicants are people owed protection obligations under s.36(2)(aa);
(c)the Third Applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa; and
(d)accordingly, the Applicants do not satisfy the criterion in s.36(2).
At [104], the Tribunal affirmed the decision not to grant each of the Applicants a protection visa.
Proceedings before this Court
On 29 December 2017, the Applicants lodged this application for judicial review together with an affidavit exhibiting a copy of the Reasons, a copy of the Third Applicant’s birth certificate, and adducing no other evidence.
On 22 January 2018, a response was filed on behalf of the First Respondent contending that the decision of the Tribunal was not affected by jurisdictional error.
On 4 October 2018, procedural orders were made by consent in chambers by which the parties were directed to file and serve: any amended application, a court book and written submissions. The matter was listed for final hearing on 4 March 2020.
On 2 September 2019, the matter was transferred to the Court’s Melbourne Migration list and the original hearing date was vacated and adjourned for a date to be fixed.
On 16 October 2018, the First Respondent filed a court book.
On 6 May 2022, the parties were notified that this matter was listed for final hearing before the Court as presently constituted.
On 19 July 2022, the First Respondent filed written submissions and a supplementary court book containing a non-disclosure certificate under s.438 of the Act and folios covered by the certificate. The Applicant did not file any amended application, any supplementary court book, or written submissions.
On 3 August 2022, the matter proceeded to hearing. The First Applicant represented herself and, with the Court’s permission, attended by telephone in accordance with the Federal Circuit and Family Court of Australia COVID-19 Hearing Protocol (SMIN-COVID-HEARINGS) FCFCOA Special Measures Information Notice and was provided the assistance of a Punjabi interpreter who attended the hearing by video link. The Second and Third Applicants did not enter an appearance. The First Respondent was represented by counsel.
At the commencement of the hearing, the First Applicant provided her assurance to the Court that she was fit and willing to proceed. The First Applicant made oral submissions which I assessed she was able to do without difficulty.
At the conclusion of the hearing, having sought the opportunity to do so, the First Respondent was directed to address a question of the Court by way of supplementary written submissions. The Applicants were invited to respond. The First Respondent filed supplementary written submissions on 10 August 2022 and the Applicants filed supplementary written submissions on 18 August 2022.
This application for judicial review
Statutory context and applicable principles
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 20 August 2014, at which time the applicable legislation was the Migration Act 1985 (Cth) Act No. 31, 2014 (commenced 29 June 2014) which provided, at s.36(2)(a):
(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.
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.
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.
The criterion in s.36(2)(a) is (and was, at the relevant times) qualified by s.36(3). Section 36(3) provided that 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.
Additional (or alternative) criterion for a protection visa was provided at s.36(2)(aa):
(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.
Although there was no specific provision in the legislation or the Convention, were the Tribunal to find a real chance or real risk of serious or significant harm under either s.36(2)(a) or s.36(2)(aa), the case law had by the time of the Tribunal’s decision established that it was necessary to consider the issue of relocation: Full Federal Court decision of Randhawa (and approved by the High Court of Australia in SZATV and SZFDV). See also: CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 at [45]-[48]; SZQMR v Minister for Immigration and Citizenship [2012] FCA 122; SZSLG v Minister for Immigration and Border Protection [2013] FCA 1185. Those authorities enunciated a number of general propositions, to be applied subject to the particular circumstances of a case, including that it may be reasonable for an applicant for a protection visa to relocate within their country of nationality where objectively there is no appreciable risk of the occurrence of the feared prosecution. Additionally, that in considering whether an applicant could internally relocate as not to face a real chance of serious harm, the Tribunal must consider whether it is reasonable for an applicant to relocate having regard to their particular circumstances and the impact of such relocation: SZFDV at [14], SZATV at [23]-[24].
Further, an applicant is not considered to be at a real risk of suffering significant harm if the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147.
The respective cases
The application as filed on 29 December 2017 contained three un-particularised grounds, as follows:
1.I wish to seek judicial review as the Tribunal has simply assessed my protection claims on the basis of definition of persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention under the criterion in s.36(2)(a) of the Act and s.36(2)(a) is qualified by s.36(3), but my circumstances are well supported by documentation to satisfy the definition under this act.
2.The Tribunal refused the file on the basis that I am not at risk by followers of the guru Saint Baba Ajit Hansali Wale and that Singh's family does not have the political influence to harm to the applicants; but I seek judicial review as I have evidence to prove that if I return to India I would experience harm and relocation will not help me.
3.Though the Tribunal is satisfied that the applicants are at a real risk of being the victims of an honour killing by Singh's family and as a result will suffer significant harm upon their return to India; yet application has been refused for which I seek judicial review so that evidence presented at the Tribunal can be reconsidered
(sic.)
By her application, the First Applicant selected all pre-populated options on the form and as such sought: an order that the decision of the Tribunal, Immigration Assessment Authority or Minister be quashed; a writ of mandamus directed to the Tribunal, Immigration Assessment Authority or the Minister requiring them to determine the application according to law; a declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application, an injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
The First Applicant confirmed at the hearing, they had not availed of the opportunity to file an amended application or further materials prior to the hearing. The Applicants relied on the following material filed in this matter: the originating application, accompanying affidavit, notice of address for service – and supplementary submissions filed 18 August 2022 in accordance with the Court’s invitation to do so after the conclusion of the hearing.
The First Respondent contended that the three grounds of judicial review fail to demonstrate any jurisdictional error and sought the application be dismissed with costs of $5,400 – being a reduction on the scale amount at Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 ($7,853). It relied on the following materials filed in support: response of 22 December 2018, affidavit of 30 July 2018, Court Book filed 16 October 2018, Supplementary Court Book filed 19 July 2022, Outline of Submissions filed 19 July 2022 and Supplementary Submissions filed 10 August 2022.
grounds of review
In seeking to understand and engage with the Applicants’ grounds of review, the Court has adopted the most broad and beneficial reading. It was apparent that there is some overlap between the substance of the grounds, which in each case appear to invite the Court to engage in a review of the merits of the Tribunal’s decision. Each is addressed in turn below. Where the contention is resolved by an alternate ground this has been indicated in the reasons.
Ground 1
I wish to seek judicial review as the Tribunal has simply assessed my protection claims on the basis of definition of persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention under the criterion in s.36(2)(a) of the Act and s.36(2)(a) is qualified by s.36(3), but my circumstances are well supported by documentation to satisfy the definition under this act.
By Ground 1 the Applicants contended that the Tribunal “simply assessed my protection claims” on the basis of the definition of a refugee in s.36(2)(a) which “is qualified by” s.36(3) and the Applicants’ circumstances were “well supported by documentation to satisfy the definition under this act”. In oral submissions at the hearing, the First Applicant elaborated on this ground by submitting that the Tribunal took the matter lightly and did not take it seriously.
Section 36(3)
Whilst in referring to s.36(3) as a qualification of s.36(2)(a) this ground recited the language of the Tribunal’s Reasons at paragraph [81], this ground was not understood to complain of jurisdictional error as to the application of s.36(3) nor could such contention legitimately be made out.
Section 36(3) provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail of a right to enter and reside in (whether temporarily or permanently) another country apart from Australia.
The Applicants were found to be citizens of India and that this is the receiving country for the purposes of the refugee and complementary protection assessments: Reasons, at [19].
The Tribunal’s Reasons did canvass the possibility that the Applicants have a right to enter and reside in a third country, which the Applicants denied, at paragraph [20] of its Reasons. It also referred to the provision at s.36(3) of the Act at [81]. At paragraph [20], the Tribunal noted the existence of the “1950 Treaty of Peace and Friendship” between India and Nepal (which gave Indian nationals the right to enter and reside in Nepal), but expressly declined to make any finding that the Applicants had effective statutory protection arising from the treaty between their national country, India, and a third country, Nepal (which might otherwise have been a basis to reject the application pursuant to s.36(3)). It declined to do so on account of its subsequent finding that it is reasonable for the Applicants to relocate to a different area of India where there is no appreciable risk of the occurrence of the feared persecution or a real risk that the Applicants will suffer significant harm.
On any analysis of the Tribunal’s Reasons, it did not make an adverse finding in application of s.36(3). Nor could s.36(3) have operated to assist the Applicants in meeting the requisite statutory criterion for a protection visa. I identify no jurisdictional error in this respect.
Assessment of protection claims under “refugee” criterion at s.36(2)(a)
To the extent this ground may be understood as complaining of the Tribunal’s “refugee assessment” under s.36(2)(a), neither the particulars to this ground nor the First Applicant’s submissions at hearing identified any specific integer of the claims, or evidence, that was before the Tribunal and that the Tribunal failed to take into account.
However, in endeavouring to understand the Applicants’ grounds of review at the hearing before this Court, a tension was identified between the Tribunal’s reasons:
(a)at [84], where the Tribunal found that the First and Second Applicants are people to which Australia has protection obligations as refugees pursuant to s.36(2)(a); and
(b)at [101], where the Tribunal concluded that it was not satisfied that the Applicants are people in respect of whom Australia has protection obligations under the Convention.
When read in isolation, it is perhaps understandable that the Applicants did not clearly comprehend the finding at paragraph [84] which appeared to be a dispositive conclusion but did not resonate with the final conclusion at [101]. However, on a fair reading of the Tribunal’s Reasons as a whole, it is evident that the Tribunal understood its statutory task. That is: although having found that the Applicants faced a well-founded fear of serious harm in their local area (at [84]); the Tribunal went on to consider whether the Applicants could reasonably relocate to another area within India having regard to the relevant factors and their particular circumstances (at [90]-[94]); found that by reason of the Applicants being able to relocate in India it is taken that there is not a real chance the Applicants will suffer serious harm in India by reason of them being a member of a particular social group (at [95]); before ultimately concluding (at [101], under the heading “Conclusion”), that the Applicants did not meet the refugee criterion for the grant of a protection visa at s.36(2)(a) of the Act as it applied at the time. Properly understood, its finding at [84] is that the Applicants would meet the refugee criterion in s.36(2)(a) but for its subsequent relocation findings.
It may be accepted that it was for the Tribunal to determine how, and when it dealt with relocation in its findings and a careful analysis of the Reasons when read as a whole demonstrates that there is no error in the approach or the decision of the Tribunal in this regard: MZZVK v Minister for Immigration and Border Protection [2016] FCA 854 (MZZVK) at [43]; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
As will be apparent from the summary as it appears earlier in this decision, the Tribunal embarked on a thorough examination of the evidence and arguments that the Applicants had placed before it. The Tribunal made some observations adverse to the credibility of the Applicants’ claims and some identified inconsistencies in their evidence. Nonetheless, the Tribunal made a series of findings on the evidence which underscored its acceptance of the Applicants’ claims to fear harm arising from a domestic relationship by which they are now in conflict with the Second Applicant’s family and, as a result, that they hold legitimate fear of persecution by reason of their membership of a particular social group being victims of honour killings in India. It is only by application of the internal relocation principle that the Tribunal was ultimately not satisfied that the Applicants did not meet the criterion at s.36(2)(a).
To the extent that this ground really complains of the finding that it was reasonable for the Applicants to relocate within India, that is understood to be subject of Grounds 2 and 3 and addressed below.
For completeness, to the extent that the oral and supplementary written submissions of the First Applicant sought by this ground 1 an opportunity to present more evidence or to re-argue her case - as was explained at the hearing, that is unfortunately not the role of the Court on judicial review.
Ground 2
The Tribunal refused the file on the basis that I am not at risk by followers of the guru Saint Baba Ajit Hansali Wale and that [the Second Applicant’s] family does not have the political influence to harm to the applicants; but I seek judicial review as I have evidence to prove that if I return to India I would experience harm and relocation will not help me.
By this ground, the Applicants sought the opportunity to re-argue their case and put further evidence before the Court in support of their claims that was not before the Tribunal. This was with specific reference to the Applicants’ claims to risk harm by members of the Hansali sect and that the Second Applicant’s family had sufficient political influence to harm the Applicants.
In oral submissions at the hearing, the First Applicant relied on evidence of a photograph. That photograph was before the Tribunal, and was considered in its Reasons at [13(o)] and [70]. The Tribunal was not persuaded that the photos established political influence as claimed by the Applicants: Reasons, at [70]. The Tribunal’s conclusion in this respect was reasoned and open to the Tribunal to find on what was before it.
To the extent this ground may be understood as the Applicants’ assertion that relocation would not mitigate the risk of harm from members of the Hansali sect, it does not identify any jurisdictional error and, again, appears to invite the Court to review the merit of those claims which is not within its power.
In any event, on review of the Reasons, the Tribunal adopted the correct threshold (that is, in considering whether it was reasonable in the sense of practicable for the Applicants to relocate by having regard to their particular circumstances and considering the impact of relocation on them). Specifically, it considered the independent country information before it in assessing challenges the Applicants may face on relocation within India: Reasons, at [54]-[56]. The Tribunal considered the country information regarding: the potential for discrimination based on race, ethnicity, religion or caste; that many millions of Indians relocate each year despite such difficulties; and that relocation may be a viable option for people in Punjab seeking to avoid certain types of mistreatment, as well as the DFAT country information that circumstances in which people have been the victim of an honour killing after relocating to another part of India to avoid the consequences of their family’s wishes are rare. Having considered those matters and the Applicants’ arguments, the Tribunal went on to find the risk was localised, it was reasonable for them to relocate with no appreciable risk of the occurrence of the feared persecution with no real risk of suffering serious harm [90]-[95] and not at risk of suffering significant harm: [96]-[100].
There is no identification of the Tribunal having failed to consider evidence that was not before it and unavailable to it at the time of its decision and the Tribunal’s findings were reasonably open to it on the findings it made. For completeness, for the reasons articulated in consideration of ground 1, the fact that the Tribunal only considered the issue of relocation after finding that the Applicants’ have a real chance or real risk of serious or significant harm is not controversial as it was for the Tribunal to determine how and when it dealt with any relocation findings: MZZVK at [43].
The balance of the matters raised in support of this ground at the hearing sought to persuade the Court that the Applicant’s claims to protection were genuine. However, the ground did not identify any jurisdictional error and seeks the Court to reconsider the material before the Tribunal in an impermissible exercise of merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Ground 3
Though the Tribunal is satisfied that the applicants are at a real risk of being the victims of an honour killing by Singh's family and as a result will suffer significant harm upon their return to India; yet application has been refused for which I seek judicial review so that evidence presented at the Tribunal can be reconsidered
As is plain on the face of the ground, the Applicants sought that the evidence presented to the Tribunal that the Applicants may be victims of an honour killing and suffer significant harm on their return to India be “reconsidered”. They did not articulate any basis for finding jurisdictional error.
Again, the essence of the Applicants’ complaint may perhaps be understood by the earlier identified tension at [84] with the Tribunal’s other reasons. For the reasons already articulated, there is not identifiable error of jurisdiction in this regard.
To the extent that the ground complains of the approach of the Tribunal in determining that it is reasonable for the Applicants to relocate to a different area of India where there is no appreciable risk of the occurrence of the feared persecution or a real risk that the Applicants will suffer significant harm, that is addressed at Ground 2 above and of no merit.
There is no error of jurisdiction established by this ground.
Additional issue – non-disclosure certificate
The First Respondent properly drew an additional issue to the attention of the Court (not raised by the Applicants). Specifically, that the department file contained a certificate dated 9 July 2015 which was purported to have been issued under s.438(1)(a) of the Act and certified that disclosure of folios 66, 68 and 69 of Department file CLF2014/116388 would be contrary to the public interest because they contain information relating to an internal working document and business affairs.
The First Respondent accepted that the certificate is invalid because it did not meet the requirement in s.438(1)(a) to specify a reason for non-disclosure which could form the basis of a claim for privilege.
A breach of a statutory procedure that conditions the performance of the overarching duty of the Tribunal to conduct its review will only amount to jurisdictional error where the breach is material to the outcome: MZAFZ v Minster for Immigration and Border Protection [2016] FCA 1081 at [50]-[52]; Gido-Christian v Minister for Immigration [2007] FMCA 825 at [134]; AYS15 v Minister for Immigration & Anor [2015] FCCA 2865 at [7].
An inspection of the document(s) subject of this non-disclosure issue reflects that the documents comprise:
(a)An “application and identification test details” form;
(b)A “protection visa application validity check” form; and
(c)A “bridging visa assessment”.
The documents subject of the non-disclosure certificate are administrative in nature and relate to the identity of the First Applicant. The identity of the First Applicant not being an issue in the proceedings before the Tribunal or relevant to this judicial review proceeding, it may be accepted that the invalid non-disclosure certificate is not material. There is no jurisdictional error in this respect.
Conclusion
For the reasons above, the application for review is dismissed with costs fixed in the lesser amount of $5,400.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 1 November 2022
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