SZVDF v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 644
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
SZVDF v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 644
File number: SY 3596 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 7 May 2025 Catchwords: MIGRATION - Class XA visa application – whether a testimony should be considered in isolation or within context – whether the Administrative Appeals Tribunal (“AAT”) failed to consider country information – whether the AAT denied the applicant a fair opportunity to address adverse material – whether the AAT failed to acknowledge a real risk of harm – whether the AAT failed to consider the totality of claims raised - whether the AAT failed to adhere to a Ministerial Direction – whether the AAT failed to adequately evaluate the risk of significant harm - proposed grounds of judicial review have no merit – proposed claims invite an impermissible merits review - application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a) of the Act, 36(2)(aa), 36(3), 438, 438(1)(b) Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Fox v Percy [2003] HCA 22
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78; [2013] FCA 123
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 98 Date of hearing: 10 April 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Pinder (Mills Oakley) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SY 3596 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SZVDF
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,400.00.
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 D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision by the (then) Administrative Appeals Tribunal dated 27 November 2018, affirming a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (“the visa”).
For the reasons set out below, the application is dismissed.
BACKGROUND
The applicant is a male citizen from India. The applicant was granted a Subclass 456 Short Stay Business visa (“business visa“) on 30 October 2012, which remained valid until 4 March 2013.
On 4 December 2012, the applicant arrived in Australia. On 1 March 2013, the applicant lodged his protection visa application claiming to fear harm in India as a Muslim due to his and his father’s membership in the All India Majlis-e-Ittehadul Muslimeen (AIMIM), and due to their work in the Muslim community.
On 15 July 2013, a delegate of the Minister refused to grant the visa on the basis that the applicant had not substantiated a claim of a well-founded fear of persecution.
On 1 August 2013, the applicant applied to the Tribunal for merits review . On 31 March 2014, a differently constituted Tribunal affirmed the decision of the Department of Immigration on the basis that the applicant was not a credible witness as to his claims.
On 2 September 2014, the applicant applied to the (then) Federal Circuit Court. On 15 June 2017, the Court ordered, by consent, that the matter be reconsidered on the basis that s 438(1)(b) of the Migration Act 1958 (Cth) (“the Act”) applied to certain documents or information, and the notification was not disclosed to the applicant in the course of the review.
The matter was remitted back to the Tribunal for consideration. The applicant appeared before a second Tribunal on 14 November 2018 to give evidence and present arguments. The applicant was given until 16 November 2018 to provide any further independent information to support his claims. The Tribunal also contacted the representative who appeared at the hearing with the applicant to ask if the independent information provided at the hearing could be re-sent to the Tribunal by 16 November 2018.
On 27 November 2018, the Tribunal affirmed the delegate’s decision.
The applicant applied to this Court for judicial review on 18 December 2018.
On 20 January 2025, the matter was set down for a final hearing before the me on 12 March 2025. The parties were notified of the listing by e-mail. Additionally, a letter was forwarded by post to the applicant’s last known residential address.
On 4 March 2025, the applicant filed an Affidavit and emailed Chambers seeking a two-week extension of time commencing 12 March 2025, in which to file an Amended Application and submissions.
On 7 March 2025, the Court ordered that the hearing date be vacated and re-listed to 10 April 2025. The applicant was granted leave to file an Amended Application and outline of written submissions.
THE TRIBUNAL’S DECISION
The Tribunal decision record consists of 108 paragraphs spread over 27 pages. It is a thorough and detailed consideration of the applicant’s claims by reference to this changing evidence over time and the concerns this raised as to his credibility.
The Tribunal identified that the relevant issues for consideration in the matter included:
1.Does the applicant have a right to enter and reside in any other country?
2.Is the applicant credible as to his claims?
3.Does the applicant have a well-founded fear of persecution in relation to India and meet the protection obligations under the Refugee Convention?
4.Does he meet the protection obligations under the complementary protection provisions of the Migration Act?
At [12], the Tribunal details the material before it from the Department of Immigration file.
The Tribunal found that India was the receiving country for the purposes of s 36(2)(aa) of the Act. The question still remained if the applicant had a “right to enter and reside” in Sri Lanka in terms of s 36(3) of the Act, as he is married to a Sri Lankan citizen.
In reference to s 36(3) of the Act, and through information from the Minister of Foreign Affairs, the Tribunal found that the applicant was eligible for a two-year residence visa through his marriage. However, this was not an automatic right. The right must be at the discretion of the decision maker. Further, the right must presently exist and not be a past or lapsed right, or a potential right or expectancy. Accordingly, the Tribunal found that it was not an existing right, and the applicant did not have a right to enter and reside in Sri Lanka.
The Tribunal summarised the applicant’s claims and documentary evidence at [22]-[32].
The Tribunal accepted that the applicant and his family are Muslims. The applicant married his wife, a Sri Lankan citizen, in 2006, and she lives with her children in Sri Lanka. He and his wife were detained in Thailand for nine months in March 2007 due to holding false Singaporean passports. The applicant’s father died in December 2007 after being hit by two youths on a motor scooter. The applicant applied for a business visa and was notified that it had been granted on 30 October 2012. The applicant took his wife and children to Sri Lanka and travelled back to India by himself. The applicant left India to travel to Australia on 3 December and arrived on 4 December 2012.
In assessing the applicant’s credibility, the above circumstances were those taken by the Tribunal to have remained consistent over time and of which the Tribunal was satisfied were true.
In noting those circumstances, however, the Tribunal did not accept the following at [35]:
•That the applicant was a credible witness as to him and his family, particularly his father.
•That the applicant or his father were involved in any Muslim organisation including AIMIM and as a result of their involvement, activism, leadership, humanitarian and political work that the applicant or his father suffered the harm or difficulties in India that they claim, such that the applicant would leave India and fear returning.
•That the applicant was involved in selling cattle or faced any difficulties as a result.
Central to the applicant’s claims for protection was his fear of returning to India as he and his father were members and supporters of the AIMIM. Further that the applicant held the position of Secretary in the AIMIM. The Tribunal noted the applicant had provided inconsistent evidence as to when he became a member and then Secretary, and what he and his father did while involved with the AIMIM ([36]-[37]).
These inconsistencies were particularly significant because if the applicant and his father had been involved in the AIMIM, the claims would be consistent as to what roles they played in the group and what activities they had undertaken.
The Tribunal did not accept the claim that the death of the applicant’s father in 2007, whilst staged as an accident, was actually a murder attributable to two Hindus, because of his father’s involvement in the AIMIM. The applicant first claimed in his visa application that his father’s death in 2007 was suspicious and provided a police report that said his father was hit by a scooter “ridden by two males negligently”.
The applicant then raised to the Department that two days before his father’s death, a few youths threatened his father, however the police refused to take action against them. At the first Tribunal hearing, the applicant stated that a court case had commenced against the two youths. The Tribunal raised with the applicant that this was inconsistent with his earlier evidence that the police did not take any action. The Tribunal also found that if the applicant’s father had been threatened with harm two days before his death, then the applicant would have said so in his initial statement.
The Tribunal found the applicant’s evidence as to his return to India “confusing and changing”. The applicant’s evidence was inconsistent as to whether he had returned to his home or not, sold his home or not, and whether he was in hiding. There was no evidence in the application to support the applicant’s evidence. Further, the Tribunal viewed that the applicant’s return to India undermined his claims that he faced difficulties and left India in fear for the reasons he claims, as, if he had been chased and threatened in the way he claims to at [54], he would not have returned to India and his home area from November 2012 to December 2012.
The applicant also claimed to fear harm on the basis that he was a Muslim involved in selling cattle and goats around the time of Eid. The Tribunal rejected this claim on the basis that he only raised the claim at the Tribunal hearing in November 2018 and found that he had an opportunity to raise the claim earlier.
The Tribunal found that the applicant’s evidence as to his work history was changing and inconsistent.
The Tribunal found that the applicant failed to advise the Department of his conviction and detention in Thailand in both of his visa applications. The applicant also gave inconsistent evidence as to whether he was convicted and appeared in Court. The Tribunal rejected the applicant’s explanation that he was “nervous and under pressure”. This added to the finding that the applicant was not a credible witness.
For all the reasons given above, the Tribunal did not find the applicant to be a credible, truthful, and reliable witness, and was not satisfied that he was a truthful witness as to his protection claims. The Tribunal took into account the possibility of discrepancies’ arising because of lapses of memory, nervousness and the like, along with cultural differences that can impact an applicant’s response as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’; however, it did not accept that these factors explain or excuse the concerns it had.
In making its credibility findings, the Tribunal did not accept the inconsistencies in evidence were due to a lack of English or difficulties with English on the applicant’s part, as he had filed his own application in English, did not require an interpreter at his hearing, and had raised no language difficulties. Further, the Tribunal did not accept that the applicant may have been shocked and upset at the revelation that someone had ‘dobbed him in’, and as a result, it led him to make inconsistent statements.
The Tribunal was also not satisfied that the applicant’s decision to remain in Australia apart from his wife and children for six years, and while his mother was very sick, overcame its concerns about the credibility of his claims.
In making the adverse credibility finding, the Tribunal had regard to documents concerning the applicant’s father’s death in December 2007. The Tribunal found that these documents did not support the applicant’s claim that the motor vehicle accident was planned and that his father had been purposely killed due to his involvement with the AIMIM, or because he was a Muslim or a Muslim businessman.
The Tribunal considered the information that had remained consistent from the applicant’s evidence, such as that he is a Muslim, that he and his father were involved in the AIMIM, that he faced difficulties in October 2012 as Hindu extremists came to his shop, that he escaped, and that the extremists attended his home. In noting these matters, however, the Tribunal considered that they were “easy matters to recall” and did not outweigh the credibility concerns.
Based on the applicant’s lack of credibility, the Tribunal did not accept that the applicant left India in 2012 for any of the reasons claimed, or that he held concerns for his safety, or feared being harmed for those reasons; that the applicant worked as a cattle trader or faced any difficulties stemming from that; or that his family had been threatened or visited by fundamentalists who were looking for the applicant since his arrival in Australia.
The Tribunal assessed whether the applicant met the protection obligations under the Act. The Tribunal rejected entirely any difficulties the applicant claimed happened to either him or his family in India. The Tribunal was satisfied that the applicant did not have a profile that would bring him to the adverse attention of Hindus or Hindu groups if he were to return. The Tribunal found that neither the applicant nor his father was ever involved with the AIMIM or any Muslim group. Further, the applicant would not be involved in any activities with the AIMIM, face persecution by being involved in the AIMIM, or be targeted by fundamentalist Hindus on his return to India.
The Tribunal was satisfied the applicant did not face a real chance of harm were he to return to India.
The Tribunal found the applicant did not claim to fear harm on the basis of his wife’s Sri Lankan nationality and Malay ethnicity, and there was nothing before it to indicate that he would face harm for this reason.
The Tribunal had regard to the Department of Foreign Affairs (DFAT) country information and accepted there were continuing outbreaks of communal violence in India. Hindu extremist groups existed, and there were attacks on Muslims in India, but the Tribunal found the evidence did not indicate that these problems were so widespread that Muslims generally faced a real chance of serious or significant harm. The Tribunal noted that DFAT assesses that Muslims face a low level of official and societal discrimination. On the basis of this information and the applicant’s family’s personal situation, the Tribunal did not accept that he or his family faced a real chance of harm.
The Tribunal was not satisfied that the applicant was a refugee under s 36(2)(a) of the Act. The applicant did not meet the alternative refugee criterion in s 36(2)(aa) of the Act either.
GROUNDS OF JUDICIAL REVIEW
The applicant relies on an Amended Application filed on 28 February 2025 and advances 13 grounds of judicial review. They are as follows:
1.Credibility Assessments - (Inconsistent Testimonies and Socio-Political Context)-Paragraphs 7, 33, 39,40 and 73
2.Failure to Consider Country Evidence - (Disregard for Critical Information on Persecution) - Paragraphs 90, 95, and 98
3.Misapplication of Legal Standards on "Well-Founded Fear" - (Narrow Interpretation of Fear of Persecution) - Paragraphs 102 and 103
4.Section 438 and Confidential Information Disclosure - (Lack of Transparency and Fairness) - Paragraphs 14 and 16
5.Inconsistent Findings Regarding the Applicant's Activities - (Contradictory Assessments of Involvement with AIMIM)-Paragraphs 36, 48, 49, and 82
6.Failure to Acknowledge Real Risk of Harm - (Underestimation of Threats to the Applicant)-Paragraphs 101 and 102
7.Misinterpretation of "Well-Founded Fear" - (Failure to Address Complexity of Risk) - Paragraphs 102 and 103
8.Inadequate Consideration of Cumulative Claims - (Failure to Assess Overall Evidence in determination of the availability of a complementary protection) - Paragraph 103 and 104
9.Neglect of Protection Obligations - (Misunderstanding of Legal Responsibilities) - Paragraphs 104, 105 and 106
10.Complementary Protection Criterion (Paragraph 104, 105 and S.36(2)) - (Inadequate Risk Assessment)
11.Reasonableness of Relocation (S.36(2B) Migration Act 1958) - (Failure to Analyze Relocation Options)
12.Ministerial Direction Consideration - (Failure to Adhere to Relevant Guidelines)
13.Inadequate Evaluation of "Significant Harm" - Complementary Protection Criterion (S.36(2)(aa)) - (Lack of Thorough Examination)
The applicant relied upon an Affidavit of 18 December 2018, that annexed a copy of the Tribunal decision. To the extent that the Affidavit contained material that post-dated the Tribunal decision, this was ignored by the Court or treated as submissions. Given the number of grounds, it is convenient they be dealt with separately.
Ground One
Applicant’s Submissions
Ground one is a complaint that the Tribunal’s finding that the applicant is not a credible witness who relied on “inconsistent testimonies”, fails to account for the broader socio-political context affecting Muslim communities in India and the traumatic impact of events that can lead to variations in recollecting past events. The applicant submitted that when considering the applicant’s testimony, it should not be considered in isolation but within the context of “communal tensions” in India, particularly against Muslims. The applicant places reliance on NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR (“NABE No. 2”) at [63]-[65] to contend that credibility assessments should be understood and made with an understanding of psychological and cultural factors, such as that the assessments made are contextual to the circumstances that affected the applicant. This failure to consider the applicant’s testimony within the context of the psychological state and external pressures he faced, is a significant error of law.
Respondent’s Submissions
As to ground one, the first respondent submits that the Tribunal’s credibility findings were logically and rationally open to it for the reasons that it gave at [33]-[86] of the decision record. The applicant was afforded procedural fairness with respect to the Tribunals concerns, and no jurisdictional error in the decision is discerned by the applicant, nor is any evident within the decision.
The Tribunal put its credibility concerns to the applicant, considered the applicant’s explanations, but altogether found they should not accept them and provided probative reasons for this.
The applicant claims that the Tribunal, in its findings, failed to consider the broader social-political context that affected Muslim communities in India; however, the applicant has not particularised what those contexts entail. Guided by the evidence before the Court, the first respondent submits that the applicant does not appear to have advanced an explanation before the Tribunal.
The Tribunal was not required to consider an explanation the applicant did not give: NABE No. 2 at [68] per Black CJ, French and Selway JJ.
The Tribunal noted potential cultural differences that could have affected its credibility findings at [74] of its decision.
The Tribunal did not accept that events, that the applicant described as having a traumatic impact on him, occurred.
The applicant refers to the inconsistencies in his evidence as being “minor” and refers to the Tribunal’s failure to consider the applicant’s psychological state. The first respondent observed that there was no probative psychological evidence before the Tribunal to the effect that the applicant’s credibility was impacted by his psychological state.
Consideration: Ground One
It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62].
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
The Court accepts the submission of the respondent that, in essence, this ground seeks to cavil with the Tribunal’s emphatic credibility findings and ought to be seen as an attempt to engage this Court in impermissible merits review.
The findings of the Tribunal as to why it rejected key aspects of the applicant’s claims were set out in detail and provided a logical, evidential basis for the conclusions the Tribunal arrived at. At [74]-[75], the Tribunal specifically raised and considered issues associated with cultural differences and made specific reference to the Tribunal’s ‘Guidance on Assessment of Credibility’ and any possible interpretation difficulties. Having considered these matters, the Tribunal still arrived at the conclusion that the applicant was not a credible witness.
The Court is satisfied that the credibility findings made by the Tribunal were open to it based on the evidence before it and for the reasons it gave. Ground one has no merit.
Ground Two
Applicant’s Submissions
Ground two argues that the Tribunal failed to consider country information that indicated the threats faced by Muslims in India, particularly where Hindu extremism is prevalent. It is contended that the various sources of country information form the very basis for understanding the context in which the applicant would be returning to India, and this must be considered when assessing the risk of persecution.
Respondent’s Submissions
The Tribunal had regard to independent country information, and it was a matter for the decision-maker as to the choice and evaluation of that evidence: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ. The applicant did not identify what relevant country information the Tribunal disregarded or failed adequately to address.
Consideration:Ground Two
The Court accepts the respondent’s submission that the selection of and weight given to country information is a matter for the Tribunal. The Court notes the applicant has not identified what country information was disregarded. At [95], the Tribunal set out the country information it had relied upon, including a DFAT report on India from 2018. At [96], the Tribunal set out, again in some detail, the articles and reports provided by the applicant. The Court is satisfied that the conclusions, contained in [97]-[101], were open to it based on the evidence before it and for the reasons it gave. Ground two has no merit.
Ground Three
Applicant’s Submissions
Ground three is a complaint that the Tribunal improperly considered the applicant’s fear of persecution and applied an “overly restrictive” interpretation, focusing on a statistical likelihood of the applicant’s persecution, rather than broad, qualitative factors. The applicant argues that the Tribunal did not have to find a precise, quantifiable risk, and the principles enshrined in the Refugee Convention do not require such an approach. Further, a well-founded fear should be considered on the grounds of a person’s reasonable apprehension of danger, based on their individual circumstances, and the overall environment in their country of origin, citing NABE No. 2 at [61]-[62].
NABE No. 2 at [61]-[62] reaffirmed that an interpretation of “well-founded fear” involves a subjective and objective component. In undertaking this test, decision-makers should avoid an overly strict approach but find that a real and substantial chance of persecution exists.
Respondent’s Submissions
As to ground three, the first respondent contends that there is nothing within the Tribunal’s decision to suggest it misunderstood or misapplied the relevant test. The Tribunal’s rejection of the applicant’s claims for protection was open to it for the reasons it gave. The Tribunal found in this matter that the risk of harm faced by the applicant were he to return to India fell short of the requisite threshold.
Consideration: Ground Three
For the reasons given at [102]-[103], the Tribunal comprehensively rejected the applicant’s evidence as to the reasons why he would be the subject of a real chance of serious harm and was thus not satisfied he was a refugee pursuant to s 36(2)(a) of the Act.
The Tribunal then went on at [104] to consider whether the applicant qualified for complimentary protection. Again, the Tribunal found that the applicant did not qualify for protection under s 36(2)(aa) of the Act.
Having read the entirety of the Tribunal’s decision record, the Court can find no error in the manner the Tribunal instructed itself as to the relevant considerations for refugee protection and complimentary protection, and then how it applied those relevant considerations to the facts as it found them. The Court accepts the submission of the respondent that the risk of harm found fell short of the requisite standard required for a protection visa. Ground three has no merit.
Ground Four
Applicant’s Submissions
By ground four, the applicant takes issue with the Tribunal’s treatment of the s 438 certificate. The Tribunal noted at [16] its decision that an allegation was made against the applicant; however, it had placed no weight on the allegation. The applicant complains that although the Tribunal noted the anonymous allegation would not be relied upon, its treatment of the certificate was “concerning” and did not adequately justify how the undisclosed evidence would impact the applicant’s claims and the Tribunal’s credit findings. There is a “lack of transparency” in the Tribunal’s disclosure of confidential information, which resulted in the applicant effectively responding to allegations or doubts raised by the Tribunal. By this, the applicant contends that he was denied a fair opportunity to address any adverse material that may have influenced the Tribunals decision.
Respondent’s Submissions
By ground four, the first respondent submits that the applicant was provided with one of three documents which were the subject of the s 438 certificate. The Tribunal disregarded and placed no weight on two of the documents. The first respondent submits that the applicant is inviting the Court to doubt that the Tribunal disregarded these two documents, however there is no basis for the Court to conclude that the Tribunal did not disregard the two documents after expressly stating it did.
Consideration: Ground Four
The s 438 certificates are dealt with at [14]-[16] of the decision record. The Tribunal set out the information contained in the certificate. The Tribunal noted that one of the documents had already been provided to the applicant. At [16], the Tribunal explicitly stated that it placed no weight on the anonymous claims made against the applicant. Notwithstanding this, the Tribunal put the ‘gist’ of the allegations to the applicant and noted his response.
The Court can detect no error in the manner in which the Tribunal dealt with the s 438 certificate. The Court does not accept the submission that there was any lack of transparency or that the applicant was denied a fair opportunity to address the adverse information. The Court accepts the Tribunal’s statement that it placed no weight on the allegation. Ground four has no merit.
Ground Five
Applicant’s Submissions
Ground five is an argument that the Tribunal’s findings as to the applicant’s involvement in the AIMIM are inconsistent. The Tribunal was not satisfied with parts of the applicant’s claims, based on perceived inconsistencies, but in the same vein, maintained that certain information regarding the applicant’s background had remained consistent. The applicant relied on Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [53]-[55] to substantiate the argument that an error of law will be constituted by inconsistencies in fact-finding where one part of the applicant’s account is accepted and the other dismissed without a logical basis.
Respondent’s Submissions
As to ground five, the first respondent submits that the ground is not particularised to a degree that clarifies how the findings of the Tribunal are inconsistent, and further how they result in jurisdictional error.
Consideration: Ground Five
If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
The Court is satisfied the Tribunal provided a detailed, coherent and logical basis for rejecting some of the applicant’s evidence but accepting other parts. The reasoning is well set out and is based mainly on the changes in the applicant’s evidence over time and the inconsistencies that arose. The Tribunal accepted those parts of the applicant’s evidence where he had been consistent over time. There is nothing illogical or irrational in the approach adopted by the Tribunal. Ground five has no merit.
Grounds Six and Seven
Applicant’s Submissions
Ground six complains that the Tribunal failed to acknowledge a real risk of harm faced by the applicant at [101] and [102] of the decision. The ground alleges that the Tribunal relied on a narrow interpretation of risk and failed to acknowledge the wider political and social contexts in India, which culminated to an environment of systemic oppression, violence and state-sponsored discrimination against Muslims.
Ground seven alleges that the Tribunal misinterpreted the principle of a “well-founded fear” at [102] and [103] of the decision and failed to consider the applicant’s personal experience and the cumulative effect of systemic threats. Ground seven is similar to grounds three and six in that it argues that the indication of well-founded fear is based on credible evidence rather than quantifiable certainty.
Respondent’s Submissions
Ground six and seven are submitted to make similar allegations to ground three and should fail for the same reasons. Properly understood, these two ground seeks to invite the Court to engage in impermissible merits review.
Consideration: Grounds Six and Seven
Again, these grounds cavil with the interpretation placed on the words ‘well-founded fear’ by the Tribunal. The Court does not accept the assertion. For the reasons set out in ground three, no error is apparent. The Court accepts the respondent’s submission that these grounds rise no higher than seeking an impermissible merits review of the Tribunal’s factual findings.
Ground Eight
Applicant’s Submissions
Ground eight complains that the Tribunal failed to consider the totality of the claims raised by the applicant and instead addressed each claim in isolation. The applicant’s claims, when considered together and cumulative, each claim of risk presents a “compelling” case for protection. The applicant relies on Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 to assert that the Tribunal failed to consider the applicant’s cumulative claims of risk.
Respondent’s Submissions
As to ground eight, the Tribunal rejected all of the applicant’s material claims of protection such that there were no claims to assess cumulatively: Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 (“DDK16”) at [31] per Gilmour, Markovic and O’Callaghan JJ; see also SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [135] per Barker J.
Consideration: Ground Eight
The Court notes that at [102] and [104] the Tribunal specifically considered, for the purposes of refugee protection and then complimentary protection, whether the combination of each of the individual harm claims raised by the applicant and accepted by the Tribunal would create a real risk of him being subjected to serious or significant harm on return to India. The Tribunal found they did not.
The Court accepts the first respondent’s submission that there was little left to consider on a cumulative basis, given the Tribunal had rejected the applicant’s substantive claims. Further, the Tribunal is not required to conduct this kind of cumulative assessment in any event. In DDK16, the Full Court at [34] stated
as a matter of inexorable logic…[if] all individual claims or basis for establishing entitlement to a visa are dismissed (here, dismissed is not giving rise [to] a real of significant risk of harm upon returning to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.
Ground eight has no merit.
Grounds Nine and Ten
Applicant’s Submissions
Ground nine seeks to assert that the Tribunal failed to assess the heightened risk of persecution that the applicant faced due to the escalating violence against Muslims in India. Thus, the Tribunal failed to find that the applicant satisfied the refugee criterion or the complementary protection criterion.
By ground ten, the applicant argues that the Tribunal failed in its assessment of the applicant’s contemporary protection claims and its conclusion that that the applicant was not at a real risk of being subjected to significant harm on return to India.
Respondent’s Submissions
By ground nine, the applicant alleges that the Tribunal failed to find that the applicant satisfied the refugee criterion or the contemporary protection criterion. This ground fails as it is an attempt to invite the Court to engage in merits review.
Ground ten fails for the same reasons as ground nine, as the applicant contends that the Tribunal failed to find that he satisfied the complementary protection criterion.
Consideration: Grounds Nine and Ten
Both of these grounds simply take issue with the Tribunal’s ultimate findings. They constitute nothing more than an invitation for impermissible merits review and fail as a result.
Ground Eleven
Applicant’s Submissions
Ground eleven complains that the Tribunal’s finding, that it is reasonable for the applicant to relocate within India, is flawed in circumstances where the Tribunal did not consider whether relocating to another part of India is reasonable given the pervasive nature of violence and discrimination that exists against Muslims in all areas of India. The applicant argues that the risk he faces is not isolated to one area but applies to all areas of India.
Respondent’s Submissions
Ground eleven is fundamentally misconceived and is a misinterpretation of the Tribunal’s decision, in that the applicant takes issue with the Tribunal’s finding that it was reasonable for the applicant to relocate within India. However, the Tribunal made no internal relocation finding. This was not required of the Tribunal as it did not accept that the applicant faced a real chance of serious harm anywhere in India.
Consideration: Ground Eleven
A perusal of the Tribunal’s decision does not reveal that the Tribunal made any relocation finding, that is, the applicant would be safer if he relocated to a particular part of India, as opposed to that part he had previously resided in. The ground in this respect is misconceived. The Tribunal did not accept that the applicant faced a real risk of serious harm anywhere in India for the reasons it gave. This ground has no merit.
Ground Twelve
Applicant’s Submissions
Ground twelve alleges that the Tribunal failed to adhere to Ministerial Direction No. 84—Consideration of Protection Visa Applications (“Ministerial Direction No.84”) and did not adequately integrate country information assessments from DFAT, which may have resulted in the Tribunal failing to account for critical evidence that may support the applicant’s claims.
Respondent’s Submissions
Ground twelve is an allegation that the Tribunal failed to adhere to Ministerial Direction No. 84, however this direction took effect on 25 June 2019, seven months after the Tribunal made its decision. The Tribunal engaged with the relevant country information and provided reasons which comprehensively addressed the applicant’s protection claims.
Consideration: Ground Twelve
The Court accepts the first respondent’s submissions that the Tribunal was not required to take account of Ministerial Direction No. 84, as it did not take effect till after the Tribunal decision being 27 November 2018. The Direction is dated 25 June 2019.
Further, the Court accepts that the underlying complaint is that the Tribunal did not engage in a comprehensive, unbiased and transparent evaluation of the applicant’s circumstances. The Court does not accept this. The Tribunal engaged in a detailed and well-reasoned consideration of the applicant’s claims and arrived at a decision that was well within the legitimate decision making freedom of the Tribunal. This ground has no merit.
Ground Thirteen
Applicant’s Submissions
Ground thirteen complains that the Tribunal did not adequately evaluate the risks of significant harm faced by the applicant. The applicant asserts that the assessment of the risk of harm should not be based on isolated events but considered within the wider framework of rising violence against Muslims in India.
Respondent’s Submissions
Ground thirteen fails to demonstrate jurisdictional error and is an attempt to engage the Court in merits review.
Consideration: Ground Thirteen
The Court agrees that this ground does not raise any allegation of jurisdictional error and is simply vehement disagreement with the conclusions arrived at by the Tribunal. Ground thirteen has no merit.
DETERMINATION
As the applicant is self-represented, the Court has perused the relevant papers and the Tribunal's decision record but is unable to detect any unarticulated jurisdictional error.
As none of the grounds of judicial review have merit, the application must be dismissed with costs.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 7 May 2025
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