SZVYW v Minister for Immigration
[2017] FCCA 1088
•29 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVYW v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1088 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal took into account an irrelevant consideration – whether the Tribunal’s finding was illogical or irrational or unreasonable – Tribunal’s consideration of the objections to relocation – no jurisdictional error by Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 MZACX v Minister for Immigration & Anor [2015] FCCA 681 |
| Applicant: | SZVYW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 36 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 21 February 2017 |
| Date of Last Submission: | 21 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Phillips |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 6 January 2015 and amended on 7 February 2017 is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 36 of 2015
| SZVYW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 January 2015, and amended on 7 February 2017, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 8 December 2014, which affirmed the decision of the Minister’s delegate to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court, is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”), and the affidavit of Andrew Hatte, Administration Assistant, affirmed 27 March 2015, which annexed a transcript (“T”) of the Tribunal hearing.
Background
The applicant’s submissions filed in these proceedings on 7 February 2017, provide a fair summary of the relevant procedural background ([4] – [8] of the applicant’s written submissions):
“[4] The applicant arrived in Australia in July 2012 on a boat intercepted off Christmas Island. On 16 January 2013, the Minister lifted the bar imposed by s 46A of the Migration Act 1958 (Cth) (Act) on lodgement of a valid visa application by unauthorised maritime arrivals for the applicant, allowing him to lodge a valid application for a protection visa (CB 144). He applied to the Department of Immigration for a Protection (Class XA) visa on 27 February 2013 (CB 16, 33) (protection visa application).
[5] On 5 September 2013, the applicant’s protection visa application was refused by the Minister’s delegate (CB 137) (Delegate’s Decision). On 1 October 2013, the applicant lodged an application for review of the Delegate’s Decision.
[6] The applicant provided a written submission to the Tribunal on 31 January 2014 (CB 217). That submission dealt with, inter alia, the reasons why it was unreasonable for the applicant to relocate within India should he return to that country (CB 229-231). A hearing took place before the Tribunal on 4 November 2014, at which the applicant was legally represented and gave evidence through a Hindi interpreter. On 21 November 2014, the applicant’s representative provided a post-hearing submission addressing a number of matters raised at the hearing, including the issue of whether relocation within India was reasonable (CB 260-262).
[7] On 9 December 2015 the Tribunal notified the applicant of its decision to affirm the Delegate’s Decision not to grant him a Protection (Class XA) visa (CB 277).
[8] On 6 January 2015, the applicant’s application in this Court was filed.”
The applicant is a citizen of India. He claimed to fear harm because he had campaigned for the Indian National Congress party, and had been harassed and beaten by a rival political party. Further, he claimed to fear harm because of his Hindu religion.
The Tribunal accepted that he had been involved in political campaigning and given country information and what it found to be the applicant’s “generally consistent” evidence, it found that he was known to opposition parties and had been beaten by members of their parties ([38] at CB 285).
The Tribunal also found that opposition parties might harm him again if he returned to his local village. However, the Tribunal was satisfied that the real chance of harm was “localised to the proximity of his village” ([45] at CB 286).
The Tribunal then turned to consider the question of “relocation”. It is this analysis by the Tribunal, and its conclusion, that is the target of the applicant’s sole ground of the amended application. Although it must be noted that each of the four particulars to the ground appear to assert different errors of law.
Application to the Court
The terms of the amended application are as follows:
“[1] The Tribunal fell into jurisdictional error in finding (at [56] and [64]) that it would be reasonable for the applicant to relocate to an area of India outside of Punjab, having accepted (at [45]) that the applicant faced a real chance of harm if he returned to the proximity of his village in Punjab and having accepted (at [56]) that the applicant had no family support outside of Punjab.
(a) The Tribunal took into account an irrelevant consideration in relation to the reasonableness of relocation, being that the applicant had ‘proven able to live in Indonesia and Australia without family support’ (at [56]).
(b) The Tribunal failed to consider the effects of lack of family support on the applicant’s prospects of employment outside Punjab.
(c) The Tribunal applied the wrong test, in that the Tribunal failed to determine the relocation issue on the basis of what the applicant might reasonably be expected to do upon return to India.
(d) Further, or in the alternative to the above grounds, the Tribunal’s finding at [56] that it would be reasonable for the applicant to relocate to an area of India outside Punjab was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.”
It is convenient to deal with each particular separately. Particular “a”, as pleaded, directs attention to the Tribunal’s finding that the applicant had, in the context of the consideration of the question of relocation within India, “proven able to live in Indonesia and Australia without family support” ([56] at CB 288). The assertion of legal error is that that was an irrelevant consideration.
The context for this finding was that the applicant, essentially through submissions made by his representative, had set out a number of objections as to why it was not reasonable or practicable for him to relocate to another part of India away from his home village.
The Tribunal acknowledged these objections. One of the objections was that the applicant had “no family support outside his home region” ([52] at CB 288). The Tribunal reasoned, in part, that he had been able to live in Indonesia and Australia without family support, and that it would therefore be reasonable for him to live in India, his home country, but outside his local area, in similar circumstances.
The ground as pleaded, and the ground as explained in written and then oral submissions, were different.
The ground as pleaded, that is, the taking into account of an “irrelevant consideration”, would ordinarily seek to involve the relevant propositions explained in Minister for Aboriginal Affairs v
Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24(“Peko-Wallsend”) (per Mason J at [39] – [40] and per Brennan J at [24] and [27]).
That is, having regard to the ground as pleaded, to succeed, the applicant would need to show that the fact of his having lived in Indonesia and Australia without family support, was a consideration expressly excluded by the Act. Before the Court, the applicant made no attempt to show that this was a consideration explicitly, or for that matter, implicitly, prohibited by the Act. Nor can I otherwise see that to be the case.
In written submissions, the applicant’s complaint appeared to derive from what was said by this Court in MZACX v Minister for Immigration & Anor [2015] FCCA 681 (per Judge Driver) at [82]:
“At [46] the Tribunal referred to the applicant’s youth, which was open to it, and resourcefulness (which requires some examination). Reference was made to the applicant’s lack of a family or friendship network in Islamabad or Rawalpindi. The Tribunal’s references to resourcefulness in relation to his travel to Australia might seem misplaced in circumstances where he travelled with family and friends who died on the voyage to Australia and where the applicant himself would have also died had he not been rescued by the Australian Navy. From the point of rescue onwards, the applicant has had no need or opportunity to demonstrate any resourcefulness. Whether it was he or others who arranged for the subsistence of the group or individuals within it in Indonesia is a matter of conjecture. If the mere fact of journeying from one’s home country to Australia (even in difficult circumstances) was sufficient to demonstrate skills necessary to relocate internally in that country of origin, then the Tribunal would have an easy task. More is required. It is necessary for the Tribunal to look at the actual circumstances in the proposed place to which the applicant would be expected to relocate. That the Tribunal did. Read in context, in my opinion the Tribunal, in referring to the applicant’s resourcefulness, was merely noting that the applicant appeared to have demonstrated some resourcefulness prior to coming to Australia and recognised that he would need to be resourceful in order to find shelter and sustenance and employment after the relocation.”
In essence, the argument appears to be that whether the applicant was able to live in Indonesia and Australia without family support, was not relevant to whether the applicant was able to live in other parts of India, without family support, given particular differences in political, economic and social conditions. In oral submissions before the Court, the complaint was further explained that the comparison made by the Tribunal, given the differences emphasised by the applicant’s representative as to the prevailing conditions in each country, was not a valid comparison.
I accept the applicant’s submissions before the Court, that India, Indonesia and Australia are different societies with different prevailing economic, social and political conditions.
However, the applicant’s complaint, as explained before the Court, appeared to be that it was not reasonably open to the Tribunal to make the finding that it did, in relation to the reasonableness and practicability of the applicant’s relocation within India, based on the applicant’s demonstrated capacity to live in other “different” countries. Further, to the extent that this relates to particulars “c” or “d”, that is dealt with below.
For the purposes of particular “a”, before the Court, the applicant was unable to demonstrate how the Tribunal fell into legal error in taking this matter into consideration.
The Tribunal did not simply “dispose of the applicant’s objections to relocation” merely on the basis that he had lived in Australia or Indonesia (with respectful reference to what was said in MZACX v Minister for Immigration & Anor [2015] FCCA 681 at [82]). Rather, as one of a larger number of factors, the Tribunal reasoned that the applicant had no family support outside Punjab, but had demonstrated a capacity to live in different environments (to the Punjab), in both Indonesia and Australia without family support. Therefore, the Tribunal considered that it should be reasonable for him to similarly do so elsewhere in India.
That finding is a finding of fact. Findings of fact are for the Tribunal to make. It is to be remembered that the objection to relocation due to the absence of family support, was raised by the applicant himself through his representative. Having raised that objection, the Tribunal was obliged to deal with it. That it chose to do so, in part by finding that the applicant had demonstrated the ability to live in different societies without family support, is simply a finding of fact for the Tribunal to make.
In the circumstances, the applicant is plainly aggrieved that the Tribunal took the view that, in part, it was reasonable of him to live elsewhere in his own country without family support when he had done so in Indonesia and Australia. The applicant’s particular “a”, as explained in submissions, is no more than an expression of disagreement with a factual finding made by the Tribunal which was reasonably open to it. The particular invites merits review from this Court, and does not reveal legal error.
Particular “b” asserts that the Tribunal failed to consider the effects of the lack family support on the applicant’s prospects of employment outside the Punjab.
The applicant’s submission to the Court was that this “set the parameters for the Tribunal’s enquiry” (MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 (“MZACX”) at [34], citing MZYXP v Minister for Immigration and Border Protection [2013] FCA 1352 at [61]). Further, that it demonstrated a failure to address integers of the applicant’s claim (see also Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431). Both propositions were said to reveal jurisdictional error.
The applicant’s argument before the Court was that even on a “beneficial” reading of its decision record, the Tribunal did not engage with the applicant’s claims. In particular, the applicant points to
[54] - [57] (at CB 288) of the Tribunal’s decision record, and describes the reasoning there as “sparse” (see [40] of the applicant’s written submissions).
It is the case, as the applicant appeared to accept in submissions to the Court, that Tribunal decisions are to be read fairly, holistically and not with an eye “attuned to error” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). It is also the case that the Tribunal is not required to consider every piece of evidence before it (see for example Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 184; (2003) 256 FCR 593 (“Applicant WAEE”)).
Relevantly, the obligation on the Tribunal is to consider all substantial, clearly articulated claims relying upon established facts, expressly made or clearly arising from the circumstances presented (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2)[2004] FCAFC 263; 144 FCR 1 (“NABE (No.2)”).
Further, in the context of relocation, the Tribunal is required to consider an applicant’s “objections” to relocation. The Tribunal, in the current case, took into account all of the applicant’s “objections” to relocation in the sense required by SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”). Further, the Tribunal identified and focused on a location to which the applicant could relocate (SZOJV v Minister for Immigration and Citizenship [2012] FCA 459).
It must be said that the applicant’s argument did not appropriately acknowledge that the Tribunal set out a summary of the applicant’s submissions as to why he could not reasonably or practicably relocate within India. While the applicant’s attack focused on [54] – [57] (at CB 288) of the Tribunal’s decision, immediately preceding these paragraphs, the Tribunal set out a fair summary of the applicant’s objections to relocation at [51] (at CB 287) - [53] (at CB 288).
There was nothing put by the applicant to the Court to say that what the Tribunal summarised at [51] (at CB 287) - [53] (at CB 288) was not a fair summary of the applicant’s objections to relocation, and his claims in this regard. Further, I agree with the Minister, having regard to the evidence before the Court, that it was a summary comprehensive of those objections.
Before the Court, the applicant submitted that it was not his argument that the Tribunal had not “recorded” the applicant’s representative’s submissions, regarding his claim that he had no family support outside Punjab. Rather, the complaint appeared to be concerned with the Tribunal’s consideration of these objections.
In this context, the Minister specifically reminded the Court of what was relevantly said by the Full Federal Court in Applicant WAEE at [46] – [47] as follows:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
To be clear, the Tribunal simply noting the applicant’s written submissions would not of itself, in the current case, have constituted consideration of the claim. However, the importance of what the Tribunal set out at [51] (at CB 287) - [53] (at CB 288), for current purposes, is that on the evidence, it provides a basis to find that the Tribunal understood, comprehensively, the nature and context of the applicant’s objections to relocation.
What follows in the Tribunal’s decision record at [54] – [57] (at CB 288), cannot be read in isolation. In my view, and certainly on a fair reading of the Tribunal’s decision, what was set out at [54] – [57] (at CB 288), was its consideration of the relevant objections set out at [51] (at CB 287) - [53] (at CB 288).
At best, the applicant’s assertion of legal error, as explained before the Court, was that the manner in which the Tribunal dealt with the applicant’s objection to relocation, either did not engage with, or did not properly engage with, those objections.
When pressed, the explanation of the complaint appeared to be that the Tribunal did not answer the “submission”, that without family support outside the Punjab in India, the applicant would have difficulty in securing employment.
I do not agree that this represents, or can be said to arise from, a fair reading of the Tribunal’s reasoning. The Tribunal specifically noted (at [55] at CB 288) the submissions regarding the applicant’s limited education and employment opportunities. In this light, the Tribunal noted that, notwithstanding his limited education, the applicant worked in India as a plumber for five or six years. That is, he had certain trade skills which were “transferable” to other parts of India, in spite of his limited education.
The Tribunal accepted that the applicant had no family support outside the Punjab. However, it reasoned that the applicant had demonstrated that he had been able to live in other environments, different to his home environment, and different to the environment in India, and that this was a factor in finding that it was reasonable and practicable for him to live in another, different, part of his home country.
I cannot agree with the applicant that the “issue” of his being able to find meaningful employment in another part of India without family support was not considered. The entirety of the Tribunal’s analysis (particularly at [51] (at CB 287) – [56] (at CB 288)), must be taken into account in determining this matter. Jurisdictional error is not revealed simply because the Tribunal did not repeat in [57] (at CB 288), everything that it had set out and found at [51] (at CB 287) - [56] (at CB 288) on the matter of family support and employment.
On the evidence before the Court, the Tribunal dealt with the applicant’s objections to relocation. When the Tribunal’s decision is read holistically, it reveals that it dealt with all aspects of the applicant’s claims in this regard. Particular “b” is not made out.
Particular “c” asserts that the Tribunal applied the “wrong test”, when it determined the question of relocation on the basis of what the applicant might be expected to do when he returns to India.
The applicant’s submissions in explanation of this particular, again take issue with the Tribunal’s finding that the applicant had “proven able to live in Indonesia and Australia without family support”, in the context of its consideration of the issue of relocation ([56] at CB 288).
In short, the applicant’s argument was that the Tribunal was required to consider whether it would be reasonable and practicable for the applicant to live outside of the Punjab in India, without family support. The complaint is that the question does not involve the matter of whether he could also do so in Indonesia or Australia.
The applicant argues that in applying what the High Court found in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 (“SZSCA”), in the current circumstances the relevant focus is between the conditions in the place where it was accepted that the applicant would face harm (here his local village in the Punjab), and those parts of India outside the Punjab. That is, the relevant focus is not on the applicant’s “ability” in subsisting in India or Australia, but whether it was reasonable to relocate elsewhere in India.
The applicant’s submissions also sought to impugn the Tribunal’s conclusion on the question of relocation on a different basis. This was with reference to the Tribunal’s finding that the applicant would not have a real chance of harm outside the Punjab even if he were to again support the Indian National Congress Party (at [56] at CB 288), when compared with the finding that it was not satisfied there was a real chance of harm from the opposition party “beyond the applicant’s particular past difficulties [localised around his village] in campaigning for the Congress party” (at [54] at CB 288).
The argument appeared to be that the Tribunal’s “conclusion”, when made in light of these extracts from its reasoning, “conflated” the issue of the risk of fear of persecution outside of the Punjab with what was said to be the “different issue” of whether it was reasonable for the applicant to relocate (MZACX at [49], SZSSY v Minister for Immigration & Border Protection [2014] FCA 1144 at [26] – [29] and MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394).
This latter argument, it must be said, was not satisfactorily explained before the Court. On a fair reading of the Tribunal’s analysis, the “conflating” claim is simply not apparent. The Tribunal’s analysis of the question of the reasonableness of relocation was consistent with the approach explained in relevant authorities (for example SZSCA and SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18).
Selecting parts of two sentences from different paragraphs of the Tribunal’s analysis and simply juxtaposing them, is not an argument, on its own, capable of revealing jurisdictional error.
As to the first argument (see above at [43]), which stems from the particular as pleaded, this shares the same basis, with a different asserted legal error, as the other particulars to the ground, especially particulars “a” and “d”.
It fails to reveal jurisdictional error for the reasons already set out above. The Tribunal did not apply the wrong test as to the question of relocation. At least on a fair reading, the Tribunal’s analysis was directed to the reasonableness and practicability of relocation having regard to the applicant’s circumstances. It dealt with all of the applicant’s objections to relocation. Particular “c” is not made out.
Particular “d” asserts that the Tribunal’s finding that it would be reasonable for the applicant to relocate outside of the Punjab in India was irrational, illogical, and not based on findings or inferences supported by logical grounds.
The applicant’s submissions made clear that particular “d” relied on the same “factual” assertion as for the other particulars, and simply sought to characterise that matter as also revealing jurisdictional error on the basis of irrationality, illogicality or unreasonableness.
To make good his argument, the applicant referred to Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37] – [38], MZACX at [53] and the reference there to SZMDS at [40] and [130].
In short, the applicant’s argument was that it was unreasonable, irrational and illogical of the Tribunal, in considering the reasonableness of relocation within India, to rely on what it found to have been the applicant’s ability to live in Indonesian and Australia without family support.
In his submissions, the Minister referred to Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] and
[54] – [56], and as “approved” in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60], for the proposition that for such a ground to succeed “extreme” illogicality must be shown such that reasonable minds could not differ about the conclusion reached (see the Minister’s written submissions at [7]). In this light, “emphatic disagreement” with the Tribunal’s reasoning is not sufficient.
As set out above, it was reasonably open to the Tribunal to reason that the applicant’s demonstrated ability to live without family in Indonesia and Australia in the past, was one relevant factor as to the question of whether it was reasonable for the applicant to relocate within India without family support. I agree with the Minister that the applicant’s ground really is a disagreement with a factual finding made by the Tribunal which was reasonably open to it. The decision was neither irrational nor illogical or unreasonable.
Conclusion
There is no jurisdictional error arising from the applicant’s ground. Therefore it is appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 May 2017
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