SZTVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 335
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZTVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 335
File number(s): SYG 123 of 2018 Judgment of: JUDGE VASTA Date of judgment: 6 April 2023 Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: SZTVU v Minister for Home Affairs [2019] FCAFC 30 Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 6 April 2023 Date of hearing: 6 April 2023 Place: Brisbane Counsel for the Applicant: The Applicant in person with the assistance of an interpreter Counsel for the First Respondent: Ms Gawidziel, Solicitor Solicitor for the First Respondent: Australian Government Solicitor ORDERS
SYG 123 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZTVK
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS THAT:
1.The application filed on 16 January 2018 as amended on 26 September 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,467.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
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
On 19 December 2017, the Immigration Assessment Authority (“IAA”) affirmed a decision of the Minister to refuse to grant the applicant, SZTVK, a protection visa. On 16 January 2018, the applicant asked this Court to review that decision.
The matter was first mentioned in Court before His Honour Judge Dowdy on 11 May 2018. His Honour made a number of directions as to the filing of material. His Honour listed the matter for a final hearing on a time and date to be advised.
The matter eventually became part of the National Migration docket. It was assigned to be heard by me today, Thursday, 6 April 2023. This means that it has been almost five and a quarter years since the applicant filed his application until today when the Court can actually hear and determine it.
This is an inordinate amount of time and on behalf of the Court I apologise to the applicant, SZTVK, for the delay in finalising his matter. This is a part of the reason as to why I am giving my decision now ex tempore.
The background to the matter is quite convoluted. The applicant came to Australia on 19 July 2009. He was the holder of a student dependent visa; that is, his spouse was the holder of a student visa and the applicant was a dependent of her. The applicant separated from his spouse while here in Australia.
He then applied for a temporary skilled graduate visa. That application was refused by the Minister in August 2012. The applicant went to the then Migration Review Tribunal and that Tribunal affirmed that decision on 22 February 2013.
The applicant then made an application for a vocational education sector visa on 18 March 2013. This application was deemed to be invalid. The applicant’s bridging visa ceased on 2 April 2013 and he became an unlawful non-citizen. He was taken into detention on 8 May 2013.
The applicant then lodged an application for a protection visa on 13 May 2013. The application was refused by a delegate of the Minister on 18 September 2013. This decision was then affirmed by the Refugee Review Tribunal (“RRT”) on 16 January 2014.
As can be seen from this chronology, the applicant was still in detention at this stage. In February 2014, there was a data breach which meant that the applicant’s details were published on the website for a short time.
There was a request then for ministerial intervention. On 5 September 2017, the Minister intervened to this extent: the Minister allowed the applicant to make a further application for a protection visa but that application was to be considered under the fast-track application regime.
The applicant lodged a further application for a protection visa on 19 September 2017. On 10 November 2017, a delegate of the Minister refused the applicant’s visa application. Because this matter was a fast-track application, the material was automatically forwarded to the IAA.
The IAA had before it all of the previous material that had been provided by the applicant. It also had before it all of the other relevant material that was in the possession of the Secretary of the Department. The IAA then reviewed the total material.
The IAA summarised the applicant’s claims as follows:
Firstly, that the applicant is a Sikh from the Punjab region of India, he claimed that he would be persecuted for reasons of his religion, ethnicity and actual or imputed political opinion.
Secondly, the applicant claims he will suffer serious or significant harm from members of the Bharatiya Janata Party (BJP). The applicant claimed that this entity had threatened and harmed him in the past in an attempt to have him compel his father to reinstate a complaint made against the Indian National Congress (INC) party, which he withdrew in 1985.
Thirdly, the applicant believes he cannot seek protection from State authorities as, when he had previously lodged complaints to the police, they took no action. He also believes that members of the BJP party would find him anywhere in India, so he cannot safely relocate.
Fourthly, he claimed that he would suffer serious or significant harm from the Indian authorities as a result of his poetry and songs. He claims that these express anti-government opinions and are about the Punjab not being part of India. He said the songs have been put on YouTube and he has uploaded his poetry and song lyrics to Facebook under an assumed name.
Fifthly, he believes he cannot seek protection from the State authorities, as they would be the ones harming him, and for those same reasons, he cannot relocate anywhere in India.
Finally, he claims that he is at risk of harm, as his personal details were released in the data breach, in February 2014, and these details may be linked. He claims that his personal details may be linked to the publication of his RRT decision on the RRT website at the same time, together with the Facebook songs. He said that this would bring him to the adverse attention of the Indian authorities.
The IAA thoroughly assessed all of these claims. The IAA set out the background to the claim against the BJP. This stemmed from the anti-Sikh riots in Delhi in 1984. The applicant said that his grandfather was killed in those riots and then the applicant’s father lodged a complaint to the police. That complaint alleged that the responsibility for harm committed that day rested on the INC, especially a person called Sajjan Kumar. The father later withdrew that complaint. The applicant’s family relocated due to fear of further violence, and the applicant was born in Punjab. All of this history was consistent with country information.
The applicant claimed that, in 1999, members of the Sikh community, who were also supporters of the BJP, wanted his father to reinstate his complaint. The father refused to do so, and the applicant claimed that the father started to receive threats over the phone.
The applicant said that, in 2000, his mother was ill and his father was taking her to the doctor on the bicycle. The bicycle was hit by a car and both parents were injured, and his mother subsequently died. The applicant said that the police investigated the matter, but two months later, they closed the case without any conclusion. The applicant believes that this accident was deliberately caused by Sikh men who intended to threaten the father for not reinstating his complaint.
The applicant did concede to the delegate that no one ever took responsibility for the accident or further threatened or intimidated him after that accident. He said though, in 2005, that some of the villagers in his father’s village had joined forces with Sikh men. He said that, after this, he found out that a member of the BJP told his father, in 2000, that the BJP were responsible for the mother’s death and that they would carry out further attacks. The IAA did not accept that this was probable or likely.
The IAA looked at the statistics of car accidents in India. The IAA noted that the father was a constant rider of his bike, and the IAA noted that there had been no attack targeted at the father when on his bike by himself.
The applicant claimed that, some years later, between 2005 and 2008, he, the applicant, started receiving threats from Sikh men who were urging him to convince his father to resume his complaint. He said that, on at least three occasions, he was severely physically mistreated by these men, who beat him to try and get him to persuade his father. He said that he made a complaint, but the police did nothing. He said he could not find any documentation of his complaint from the police because all of their records were destroyed in flooding in 2010.
The applicant said, in December 2008, he was riding his motorcycle when a car was following him and collided with his motorbike. He said he was knocked off his motorcycle on to the street and severely injured. He said that two Sikh men came towards him with weapons, getting out of the car that had hit him.
He said that before these two men could do anything, oncoming traffic approached and they left. He said that bystanders rushed him to hospital where he was treated for his injuries. He said that his toe was amputated because of those injuries.
The IAA did not accept that there were Sikh men who deliberately caused this accident attempting to harm the applicant. The IAA said that they did not find the applicant’s evidence was credible about being threatened and harmed by Sikh men.
The applicant said that his family assisted him to make necessary arrangements to flee from India which included undergoing a contrived marriage with a woman who had a student visa, which would enable him to travel as her dependent to Australia in July 2009. The IAA said that they were of the view that the applicant did not make the decision to flee India because he had a genuine fear of persecution or significant harm.
The applicant said, in September 2010, the Supreme Court directed that Saijan Kumar go to trial. The applicant said that his father was asked to attend this hearing, but he was threatened by Sikh men. The applicant said that his father did not attend for fear of reprisals from the INC.
The IAA looked at a number of source material and country information. The IAA noted that there was a commission of inquiry into the 1984 anti-Sikh riots. That commission conducted its inquiries over a four-year period to the end of 2004. The commission’s results were published in February 2005.
The IAA said that it seemed reasonable to assume that, if people were being pressured to provide evidence to the commission, this would have occurred during the investigation stage and not after the commission had delivered its findings and report.
Having regard to all of these matters, the IAA said that they were not satisfied that the applicant has ever been threatened, assaulted or attacked by Sikh men or buy members of the BJP or the INC or any other person.
The IAA was not satisfied that the applicant’s motorcycle accident was a result of a deliberate intention to harm him by Sikh men, members of the BJP or INC or any other person, prior to his departure from India.
The IAA said that they were not satisfied the applicant faces a real chance of serious harm from the BJP or any other individual as a result of being a family member of a victim of the 1984 anti-Sikh riots or as a result of being a family member of a person who initially laid a complaint against members of the INC in 1984 and subsequently withdrew that complaint.
The IAA then looked at claims relating to the applicant being a person of Punjabi ethnicity and a member of the Sikh religion. The IAA looked at quite a deal of country information and was satisfied that there was no real chance that the applicant would suffer serious harm for reasons of his Punjabi ethnicity.
The IAA also was satisfied that there was no chance that the applicant faced serious harm for reasons of his Sikh religion in India. The IAA then looked at the combination of being a member of the Sikh religion and of Punjabi ethnicity and came to the view that these circumstances did not lead to the IAA being satisfied that there was a real chance that the applicant would face serious harm.
The IAA then looked at the claim of persecution for reasons of actual or imputed political opinion as a result of writing the poetry and songs which had anti-government sentiments. The applicant had said that he had composed two anti-government songs which have now been performed by known Indian singers and uploaded to YouTube.
He said he has also posted romantic and anti-government poetry on his Facebook page under an alias. He claimed to have received a threat on his Facebook page after posting his poetry and songs. He said that he had deleted his Facebook page after being detained, because of bad comments that he had received. However, he also said that only his friends could access his Facebook page, and so there was a question as to how the applicant could receive bad comments.
The applicant was unable to prove any evidence of these threats, because he said he had blocked people who provided adverse comments on online platforms.
The IAA was satisfied that the applicant had posted anti-government poetry and songs on a Facebook page under an alias. The IAA was satisfied that two of the songs had been sung by an Indian singer and uploaded to YouTube. But the IAA said there was nothing to suggest that any of these postings have been under the applicant’s own name. The IAA did not accept that the applicant was threatened on his Facebook page, by anyone, after he had posted those poetry and songs.
The IAA said that the chance that that anyone other than his close friends would know that the alias of the Facebook page is one that the applicant uses, as being extremely remote. However, the IAA still gave consideration to the possibility that Indian authorities and other parties have seen the post on Facebook, and seen those songs performed on YouTube.
Again, the IAA looked towards country information; the report from DFAT was that there was a vigorous democratic environment that existed in Punjab. According to the report, opponents of the government were able to voice their opposition without fear of repercussions. Protests are often held on a range of issues, but are typically peaceful. The IAA noted that the applicant had not claimed that he is engaged in any other activities deemed to be anti-government, other than posting his songs and poetry on Facebook and YouTube.
The IAA said that they were satisfied that there was no real chance that the applicant could suffer serious harm from Indian government authorities, or any political party or individual, as a result of what was expressed in his poetry and songs.
The IAA then looked at claims regarding the data breach and the RRT decision; the information that was available on the website, for a short time, gave details of 9250 people who were in detention in Australia. It gave details of person’s name, date of birth, nationality, and details of the detention. There were no details, regarding protection visa applications or claims, disclosed when this data breach occurred. The information was available on the website for about eight and a half days.
The IAA was satisfied that the information about the application, that was inadvertently published, was limited to these things: his full name, gender, citizenship, date of birth, when immigration detention began, the location of immigration detention, and why the applicant was deemed to be unlawful.
In the applicant’s case, he had been found to be living and working unlawfully in Australia. Given that limitation, the IAA did not accept that Indian authorities would be aware of the applicant’s claims for protection as a result of the data breach itself. While there was no definitive information as to whether Indian authorities accessed in the information of the 9250 detainees, the IAA accepted that they may have done so.
The IAA said at paragraph 68 of their reasons, “At the time the data breach occurred, the applicant had not applied for protection, and no details relating to any claims for protection have been released”, I will return to that sentence later in these reasons.
At about the same time as the data breach, the RRT had published decisions of that Tribunal on their own website. This was not unusual, and it was happening as a regular occurrence on the RRT website. However, the applicant’s name and other personal identifying details – such as his location in India – were redacted from that decision. The IAA said that, “Even if someone had accessed the website and became aware that the applicant was in detention, the chance that they would then link this to an RRT decision on an RRT website, to be able to identify the applicant, was so remote as to be non-existent.”
The IAA said that they were not satisfied that the Indian authorities, or any other individual, would have reason to link the applicant’s personal details and the RRT decision, because he was not of adverse interest to the Indian authorities, prior to his departure.
The IAA said there was only an extremely remote chance of the publication of the poetry and songs, under an assumed name, would give rise to the applicant being identified as a person of adverse interest to the Indian authorities, or to anyone else. At paragraph 70 of their reasons, IAA said that they found that the data breach does not, of itself, or together with the publication of the applicant’s RRT decision on the RRT website – even if somehow linked to the publication of the poetry and songs – give rise to a real chance of the applicant facing serious harm, or significant harm, in India.
The IAA then looked at the claims relating to the applicant returning to India as a failed asylum seeker. The IAA was satisfied that there was no chance that this circumstance would cause him to face serious harm. The IAA then considered all of the applicant’s claims cumulatively.
The IAA was not satisfied that the applicant has a genuine fear of persecution, or that there was a real chance that he would face serious harm, for any reason, if he were to be returned to India. The IAA concluded that the applicant did not meet the requirements for the definition of refugee.
The IAA then looked at the complementary protection criteria. That caused a reconsideration of many of the aspects that were considered for the refugee criteria. The IAA concluded that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to India that there was a real risk that the applicant would suffer significant harm.
For those reasons the IAA affirmed the decision of the delegate not to give the applicant a protection visa.
There were two grounds of application. The first ground was that the IAA fell into jurisdiction error in failing to act reasonably and put its new findings to the applicant to comment in accordance with his request to the IAA.
The background to this ground is that, on 28 November 2017, the applicant, through his representative, made a request of the IAA. That request was for an opportunity for the applicant to comment in an interview or in writing on new information if the IAA makes the finding or findings that are different from the delegate’s findings. The IAA declined to interview the applicant.
The applicant contends that the IAA did make new findings. Those new findings were that the IAA considered the possibility of someone seeing the data breach, the RRT decision, and the songs on Facebook. The IAA had said that this was so remote as to not be able to be truly considered, but they said even if somehow someone could link all of those matters together, it would still not give rise to a real chance of the applicant facing serious harm or significant harm.
I cannot see that these are new findings. I have looked at the delegate’s decision, especially at CB 233. Under the heading “Cumulative Consideration of the Applicant’s Claims”, the delegate had considered the circumstances of someone who has written and/or published online pieces of poetry and songs, a person whose details were inadvertently released online in a website disclosure and whose partially redacted RRT decision record was published online as well as a number of other circumstances.
It seems to me then that one could never describe what was said by the IAA, at paragraph 70, as constituting “new findings”.
The applicant has criticised the sentence at paragraph 68 which I highlighted earlier. It seems to me that the sentence was inelegantly worded because it read “at the time the data breach occurred, the applicant had not applied for protection”. That was clearly incorrect if the sentence is looked at in isolation. But, looking at the paragraph as a whole, the intention of the IAA was clear. It was that the information in the data breach would only have detailed that the applicant was unlawfully living and working in Australia. At the time the applicant was put into detention, he had not applied for protection, and because of this there could be no details relating to any claims of protection being released in that data breach. This is clearly correct.
I accept the Minister’s submission that this error should be categorised as “typographical”. It certainly could never rise to the level of being a jurisdictional error. It seems to me then, when one looks at all of this particular claim, that it was certainly within the discretion of the IAA not to receive any further evidence. The decision not to allow the applicant to comment was not an error by the IAA. It was a decision that was made in accordance with the legislative framework for fast-track decisions.
For all of those reasons, ground 1 fails.
Ground 2 states that the directive IMMI 17/015 is invalid insofar as it purports to apply to the applicant. The ground is really taking issue with the characterisation of the applicant as a fast track applicant. The validity of IMMI 17/015 has been discussed by the Full Court of the Federal Court in a decision of SZTVU v Minister for Home Affairs [2019] FCAFC 30. At paragraph 64 of that judgment, the Court stated:
We do not consider that that there is anything about the context of the definition, including the operation of other provisions of the Act that deploy, or which are dependent upon, the definition of “fast track applicant”, that supports the construction advanced by the appellant. The operative provisions of the Act, such as s 473CA affect only persons who have made a valid application for a protection visa. This is a consequence of the content of the definition of “fast track decision” referred to at paragraph [57] above, and of s 47(3) of the Act referred to at paragraph [58] above which mandates that the Minister is not to consider a visa application that is not a valid application. There is therefore no incongruity that arises from the terms of the definition construed without the limitation advanced by the appellant.
The arguments advanced by the applicant in his amended application are arguments that have been rejected by the Full Court. I do not blame the applicant for presenting this ground because he submitted his amended application on 26 September 2018 and the Full Court gave its decision about a year afterwards. However, because the Full Court has made its decision, this ground cannot be successful.
The applicant appeared before me today unrepresented but assisted by an interpreter. I asked the applicant if there was anything more that he wished to point out to the Court other than his grounds of application. The applicant said that he has been upset because he has been struggling with the Australian immigration system for 14 years.
He said that he wanted a fair decision to be made so that he would be able to meet his family members. I did not understand what that meant, so I asked the applicant to expand upon this. The applicant told me that his father was in India and the applicant would like the opportunity to see him. He said that he, the applicant, will not go to India, but that he wants his father to come to Australia.
I asked why his father has not come to Australia, even on a visitor visa. The applicant told me that his father made two applications for a visitor visa to Australia and on both occasions the department has refused the request for the visa. The applicant said that if he is given the protection visa, that gives him a level of permanence in Australia. He said that, if he has that level of permanence, he is then able to sponsor his father to come to Australia. Of course such a consideration is not relevant to a review application, but it does explain the motivation of the applicant.
The applicant also said to me that whilst the IAA may have said that there would be no harm that would come to him, the applicant rhetorically asked, “If these people found out my name, what would happen then?” It is clear, in the recitation of the reasons of the IAA, that this question has actually been answered by the IAA.
Having looked thoroughly at the decision of the IAA and taking into account everything that the applicant has urged upon me, I have not found that there has been any jurisdictional error.
I dismiss the application with costs fixed in the sum of $7,467.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Vasta. Associate:
Dated: 3 May 2023
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