GMM18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 389

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GMM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 389

File number(s):	MLG 3792 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	6 April 2023
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth): s 442B
Division:	Division 2 General Federal Law
Number of paragraphs:	47
Date of last submission/s:	6 April 2023
Date of hearing:	6 April 2023
Place:	Brisbane
Counsel for the Applicants:	The Applicants appearing on their own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Ms Bosnjak, Solicitor
Solicitor for the First Respondent:	Mills Oakley

ORDERS

MLG 3792 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GMM18

First Applicant

GMN18

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	6 APRIL 2023

THE COURT ORDERS THAT:

1.The application filed on 13 December 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,200.

IT IS NOTED:

A.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 21 November 2018, the Administrative Appeals Tribunal (“AAT”), affirmed a decision not to grant the applicants GMM18 and GMN18 Protection visas.  On 13 December 2018, the applicants filed an application in this Court seeking that this Court review that decision. 

2. The fact that the matter has now gone on to the National Migration docket and was given to me to hear today on 6 April 2023 means that the applicant has been waiting nearly four and a half years for the Court to determine her application.  The Court acknowledges that this is an inordinate amount of time to wait to have a matter determined.  On behalf of the Court, I apologise to the applicant for the Court having taken so long to reach her matter and to determine it.  That is part of the reason why I am giving this decision ex tempore today.

3. The applicants are husband and wife.  The applicant, GMM18, is the person who is making the claims for protection.  Her husband, GMN18, is a dependent spouse on the same application and his claims rise and fall with those of his wife.  The applicant and her husband are citizens of India.  They arrived in Australia on 5 March 2014 as a holder of a Student visa and dependent spouse.  On 13 August 2014, the applicants applied for another Student visa.  On 10 November 2014, the first Student visa, which was a 573 Student visa, was cancelled.

4. On 17 November 2014, the applicants sought a merits review of the cancellation decision in the Tribunal.  The Tribunal affirmed that cancellation on 12 February 2015.  The applicant then came to this Court seeking a judicial review of that decision of the AAT.  On 10 June 2015, this Court dismissed the application for review.  On 31 August 2015, the applicants applied for Ministerial intervention to review the cancellation decision of the first Student visa.  The outcome of that was that the Minister said that the matter was inappropriate to consider.

5. On 12 May 2016, the applicants lodged the application for the Protection visa which is the subject of these proceedings.  On 2 September 2016, the delegate of the Minister refused to grant the Protection visa.  On 12 September, the applicants applied to the AAT to review that decision and, as I have already noted, on 21 November 2018 the Tribunal affirmed the decision not to give the applicants a Protection visa. 

6. The matter was considered by the Tribunal who noted the applicants’ Sikh ethnicity and Sikh religion.  The Tribunal also noted that the applicant gave birth to a boy in about August 2016.

7. In her application for protection the applicant had said that she had always supported Shiromani Akali Dal.  That is abbreviated as SAD and is a powerful ruling party of Punjab.  In her application, the applicant said that as an NRI, meaning non-resident Indian, she always helped the party in the form of money that she donated.  She said that when she returned to India recently, she saw the leaders of the party taking bribes from the people so she quit donating money to the party. 

8. From that time onwards, the party started bothering her and demanding that she pay a huge amount.  She said when her wedding came about, she did not invite the party leaders so they started spreading rumours about her.  She said that she was afraid of the corrupt leaders and very concerned about the safety of her family.

9. She said that she tried to live in some other part of the country but, because the SAD have political links, they tried to harm her and her family members.  She said, as they are the dominant political leaders in Punjab, if she tried to lodge a complaint against them, her case would be easily manipulated and would fall on deaf ears.  She said she has no faith in the Indian police because she belongs to a mid-caste family while they are rich people.  She said if someone has money in India they can pay the police and the case can be manipulated. 

10. The Tribunal considered these claims and interviewed the applicant thoroughly about them. 

11. The Tribunal started off by ensuring that the applicant was confirming what was written in her statement was true.  She said that it was true and that she did not wish to make any amendments.  She said that she had prepared her statement by herself without any help from anyone else. 

12. She said that she and her husband are not working and they are supported with assistance from the applicant’s family in India and a cousin of hers in Canada.  She said that she had never travelled outside of India before coming to Australia and had not returned to India since she first arrived in Australia on 5 March 2014. 

13. The Tribunal asked her why she referred to herself in the statement as a “non-resident Indian”.  She said she had said that because she was living in Australia.

14. The Tribunal asked the applicant about how much money she donated to the party and how often.  The Tribunal described the applicant as being somewhat evasive in answering this question.  She said that she would give a small amount of money, which she described as being 4000 to 5000 Indian currency units.  This converts to about A$77 to A$96.  She said that she gave money whenever the party needed it, but eventually said that it was about once every two months. 

15. She indicated that, in India, she was paid 10,000 currency units a month, which later increased to 15,000 currency units a month.  She commented that, while she supported SAD when she was in India, she changed when she came to Australia. 

16. The Tribunal took the applicant to her statement that said:

    When I returned to my home country recently I saw that leaders of the party were taking bribes from people.

17. The Tribunal had problems with this statement because the applicant had not returned to India and had not left Australia.  The applicant said that she must have made a mistake when she prepared her application.  She said that she came to know about bribes and that is when she stopped giving donations.  She was queried about how she saw the leaders taking bribes, and she said that she meant that, in India, people are taking bribes wherever you go.  The Tribunal queried her, if she was not in India, how these people could bother her and demand that she pay a huge amount.  She said that her family were facing the problems and are still facing problems and that the SAD people are compelling her family members to tell her to send them money. 

18. The Tribunal also queried the applicant’s statement about her wedding because that occurred before she came to Australia.  They queried the comment that these party leaders started spreading rumours about her.  She said that there was some dispute between the parties and they thought that she was involved in that so they started creating problems for her.  She said that, when they were coming to Australia, they had to wait a couple of days because there was a problem with her husband’s electronic visa.  The applicant said that she believed that SAD people were responsible for delaying her trip to Australia. 

19. The Tribunal asked the applicant to again confirm when it was that she stopped supporting SAD.  She said that she could not remember but it was a long time back and it was before she was married.  The Tribunal queried the applicant as to why SAD would bother her because she was a young person, under the age of 23, who was making relatively small donations to a party every two months and providing them some clothes.  The applicant replied it was because she stopped supporting them and, in India, they make big decisions for small matters. 

20. The Tribunal queried the applicant about her comment that she had tried to live in some other part of the country.  The applicant gave a reply that was somewhat difficult to understand.

21. The Tribunal also queried the applicant about her immigration history and the fact that she made a Protection visa application, it would seem, only after she had exhausted all other options.  The applicant replied that she came on a Student visa and did not think there would be problems.  The applicant said that her focus was on getting a Student visa.  The Tribunal asked the applicant if she raised her concerns regarding SAD and about returning to India when she sought Ministerial intervention.  She said that she did not raise it.  The Tribunal asked “why not?” and the applicant said that, at the time, she was not aware of how to do this or the importance of raising it.

22. The Tribunal then looked at country information, especially reports from the Department of Foreign Affairs and Trade or DFAT.  That report indicated that SAD is a primarily Sikh based regional party that was actively involved in the movement to create a separate Punjabi speaking state in Northern India.  The report indicated that elections in Punjab are generally free and fair and vigorously contested.  The report suggested that opposition parties are able to freely campaign and put forward their views and persons are comfortable that they can publicly criticise the government without fear of harassment or detention. 

23. The country information was that SAD was swept from power in the March 2017 state election. It only gained 18 seats whilst the INC gained 77 seats in the 117 member Punjab State Assembly.  Country information was that SAD was no longer the dominant political force in Punjab and therefore would not be able to manipulate any complaints or cases that the applicant might make against them.  The applicant commented that SAD are still in power in the village where she was living and it does not matter whether they are in government or not as they have links throughout the country and no place is safe for her. 

24. The applicant said that she is very concerned now that she has a small child and it would be difficult for the child to survive in India having been brought up in Australia. 

25. The Tribunal found that the applicant’s claims were unconvincing.  There were a great deal of inconsistencies between what she had said in her written statement and what she had said to the Tribunal.  This included the matters that I have already touched on as to what it was that she was doing to support SAD, how often she was paying the money to support SAD, when it was that she saw bribes being taken, how she saw bribes being taken, and her own timeline. 

26. The Tribunal said at paragraph 43:

    Considering all of the above cumulatively, the Tribunal concludes that the applicant did not provide support to the SAD party in the form of monetary donations and did not cease providing monetary donations either before or after she came to Australia…

27. The Tribunal said that, therefore, they found that she and family members were never threatened, harassed or harmed by SAD officials or members or supporters.  The Tribunal did not accept that the applicant sought to relocate anywhere else in India to avoid harassment from SAD officials.  The Tribunal gave a lot of weight to the fact that the applicant did not mention any of these problems when she made an application for Ministerial intervention.  The Tribunal said that, if the applicant really did have a genuine fear for her safety, she would have raised these concerns in her submission to the Minister.

28. The Tribunal said that, even if there was some credence in what the applicant had said about SAD, things had changed in India.  The Tribunal found that SAD simply does not have the sort of power to be able to do the things that the applicant said that they would do.  The Tribunal considered them a spent political force and that there was not a real chance that the applicant would suffer persecution from any officials or members of SAD. 

29. The applicant had raised concerns about her son and the Tribunal did not accept that there was any threat to the son because it did not accept that there was any threat to the applicant. 

30. The Tribunal was not satisfied that the applicant had fulfilled the criteria of being a refugee pursuant to the Migration Act.

31. The Tribunal then looked at the complementary protection criteria.  Looking at many of the same issues that they considered regarding the refugee criteria, the Tribunal came to this conclusion; that is, that they did not accept that there was a real risk that either of the applicants would suffer significant harm as a necessary and foreseeable consequence of their being removed from Australia to India. 

32. As the Tribunal was not satisfied that the applicants met either the refugee criteria or the complementary protection criteria, the Tribunal affirmed the decision not to grant the applicants Protection visas. 

33. The applicant’s originating application contained a number of statements.  Three of those statements, in the application, comprise the grounds for this application. 

34. The first ground is that:

    The Tribunal made a procedural error by not correctly assessing information relevant to the applicant’s particular circumstances. 

35. The applicant had a grievance that, as far as she was concerned, she presented valid and relevant information to the Tribunal but it was rejected.  She said, in her submissions to me during the hearing, that the matters that she raised were simply not taken into consideration.  She said to me “if you look at what is happening in India today you can see that the Tribunal could not have taken into consideration” what it was that she had said.  The applicant ended up agreeing with me that, what she was saying was that, the Tribunal could not have taken her claims into consideration because, if they had taken them into consideration, they would have believed her.

36. There is a logical fallacy in that form of submission.  Having regard to the recitation of the salient points of the Tribunal’s reasons, it is clear that the Tribunal considered everything that the applicant put to them.  The problem for the applicant is that the Tribunal simply did not accept the veracity of those claims.  That was a conclusion that was open to the Tribunal on the evidence and they gave clear reasons for coming to that conclusion.  As I explained to the applicant, during the course of the hearing, it does not matter whether I or anyone else agree with that conclusion; if it were open to the Tribunal to come to that conclusion, then there is no jurisdictional error.

37. The second ground was that:

    The applicants were not afforded natural justice. 

38. It is trite to say that the exhaustive and complete list of the principles of natural justice and procedural fairness have been codified in s 422B and following of the Migration Act 1958 (Cth). In going through all of the sections in that exhaustive list, it is clear that the Tribunal complied with their obligations in each and every way.

39. The applicant had said that she believed she was not provided a fair hearing and her legitimate expectation to seek protection in Australia was denied by the Tribunal.  She said that it was unfair that the Tribunal simply chose to disbelieve the evidence that she had presented.  Unfortunately for the applicant, it is the job of the Tribunal to discern what it is that is credible, and what is not credible, in assessing the veracity of any claim before them.

40. In the end, it is for the Tribunal to be satisfied of these claims.  If they are not satisfied, it is their duty not to allow persons to have a visa.  Not only is that fair, it is actually the law, and the Tribunal must follow the law. 

41. In the hearing before me today, the applicant said that it was the responsibility of the Tribunal to save lives.  The responsibility of the Tribunal is to assess the claims and to act upon what it is that they accept or that they do not accept.  Whether this saves lives or does not save lives is really not to the point.  The Tribunal has acted with natural justice and has not committed any jurisdictional error in the way in which they proceeded with the hearing.  For this reason, ground 2 fails.

42. Ground 3 is that:

    Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact. 

43. The hearing records shows that the hearing occurred on 20 November 2017 and the Tribunal delivered its written decision on 21 November 2017 which is the next day.  There is nothing in the hearing record that shows that the applicant asked for any extra time to present any further material or arguments.  The applicant did not claim that she had asked for any extra time in the hearing before me today.  It would seem to me that the AAT acted properly in assessing the evidence and very promptly coming to a decision and giving the applicant notice of that decision.  There was nothing before this Court to indicate what would have happened or what could have been provided if extra time had been given in any event.  For this reason ground 3 also fails. 

44. I have gone through the Tribunal decision very thoroughly.  I asked the applicant if there was anything more that she wanted to say about the application as a whole.  She again mentioned her son.  She said that there was news from India that someone had shot a six year old child.  She said that is not a place where she wants to raise her child and that there are no guarantees that her son would be safe if it were that he went to India. 

45. This was certainly something that was considered by the Tribunal.  It would seem to me that realistically all of the applicant’s claims before me today, amount simply to a disagreement with the factual conclusions reached by the Tribunal. 

46. Her submissions really do descend into impermissible errors review.  I have not been able to discern any jurisdictional error committed by the Tribunal in the manner in which they have arrived at their decision.

1. I dismiss the application with costs in the sum of $5200.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       6 April 2023