BYT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-11-26|Before: Anastassiou J

The appeal be dismissed.
The Appellant pay the First Respondent's costs of and incidental to this appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANASTASSIOU J: 1 The Appellant has appealed from a decision of the Federal Circuit Court of Australia (BYT19 v Minister Immigration & Anor [2020] FCCA 1168). In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the First Respondent, the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the Appellant a subclass XA-866 Permanent Protection Visa under s 65 of the Migration Act 1958 (Cth). 2 For the reasons that follow, the appeal is dismissed.

before the circuit court 15 By amended application dated 3 March 2020, the Appellant applied to the Circuit Court for review of the Tribunal's decision, raising two grounds of appeal as follows: 1. The Tribunal failed to consider an objection to relocation, based on the Indian caste system. 2. The Tribunal did not have power to "allow" a hearing by video-link, absent the applicant's consent. 16 The Appellant was represented before the Circuit Court. That application was dismissed on 15 May 2020, with the primary judge finding as follows in relation to the first ground of appeal: Ground 1 12. No point was specifically made by the applicant directing the caste system issue as one particular to relocation. 13. The Tribunal considered and addressed matters of the caste system in India regarding its complementary protection criteria decision. The Tribunal summarised the applicant's claim in respect of his caste at [15], [16], [17] and [23] of the Tribunal decision and directed questions to the applicant about his caste at the hearing, at [26]. 14. At [40] of its decision the Tribunal made reference to country information regarding the significance of caste in parts of India and indicated that honour crimes do continue to occur, particularly in northern India. 15. The Tribunal addressed the applicant's claims concerning his caste regarding whether he faces a real chance of suffering persecution involving serious harm, including from the Jatt caste Sikh community or the Indian authorities, including by reason that he is a member of a particular social group, comprising his lower-caste group: [27], [43], [44] and [59] of the decision. 16. At Tribunal decision [44], the Tribunal noted: The Tribunal put to [the applicant] that his evidence did not indicate that his caste had proved a barrier to him in the past as it was clear that his caste had not stopped him from achieving in his education, work or in having friendships with people from a wide range of backgrounds. The Tribunal commented that despite his caste he had lived with Mr A, Mr B and Ms B in Australia. 17. The Tribunal addressed the applicant's claims regarding his caste and the caste system in India in relation to the refugee criteria, but those findings of fact are equally apposite to his complementary protection and relocation claims. 18. The issue of relocation as well as the relevance of the evidence and the Tribunal's findings at [44] are apposite to the Tribunal's findings about the capacity and practicability for the applicant to relocate to a location in his receiving country away from his home area. 19. At [66] of its decision, the Tribunal applied the correct test in considering the practicality of the applicant relocating to a location in his receiving country away from his home area. 20. The Tribunal has already made findings in relation to the applicant's claim regarding his caste and the caste system in India, and in circumstances where the applicant did not raise any particular claim or objection to the reasonableness of relocation in India in relation to his caste, those findings are relevant to considerations regarding the practicability of relocation. There is no error in the way that the Tribunal considered the complementary protection claims and the reasonableness of relocation, as it dealt with any claims made regarding the caste system. 17 In substance, ground 1 before the Circuit Court is that which the Appellant presses on appeal to this Court.

Application to this Court 18 On 29 May 2020, the Appellant filed a Notice of Appeal in this Court with two grounds of appeal as follows: 1. Grounds has been misinterpreted and couldn't reach properly to the Federal Circuit Court of Australia. 2. The Tribunal and Federal Circuit Court of Australia failed to consider an objection from Appellant to relocate to different part of India on the basis of Appellant and Appellant's immediate family's safety concerns. 19 At the hearing, I granted leave for the Appellant to file and rely on an Amended Notice of Appeal dated 22 September 2020. Leave was not opposed by the Minister. The Amended Notice of Appeal included only one ground of appeal: 1. The Tribunal failed to consider an objection to relocation, based on the Indian Caste system. Particulars a. The Tribunal was required to assess objections to relocation as part of its assessment of the complementary protection criteria, in terms of whether it was reasonable in all of the circumstances for the appellant to relocate from his home area to another safe area. b. The appellant raised a substantial issue that had to be, but was not, considered by the Tribunal in relation to the supposed reasonableness of relocation, being his concerns arising from the 'caste system' in India and his membership of a lowly caste. c. The Tribunal failed to give consideration to that objection, and thus failed to complete its statutory task. 20 I set out the relevant submissions and consider that ground of appeal below.

Appellant's submissions 21 In summary, the Appellant submitted that the Tribunal did not consider his membership of a lowly caste and how that may affect the reasonableness of relocation in relation to the question of complementary protection. Indeed, having accepted that the Appellant was exposed to a real risk of significant harm upon return to India, the Appellant submitted that the Tribunal was required to assess whether relocation to a safe part of India was reasonable in the Appellant's circumstances, and that assessment should have properly considered whether the Appellant's lower caste membership may affect his relocation in circumstances where the caste system is ubiquitous in India. 22 The Appellant submitted that the Tribunal only considered evidence regarding the caste system in India, and the Appellant's status in that system, for the purposes of assessing the risk of harm to the Appellant. However, it did not consider that evidence for the purpose of assessing whether it was reasonable for the Appellant to relocate within India. In support of the proposition that this approach constitutes a legal error, the Appellant relied on the reasoning of Mortimer J in MZANX v Minister for Immigration and Border Protection [2017] FCA 307 at [49]-[51]: In my opinion the contention made on behalf of the appellant is correct. The appellant's objections to relocation were not dealt with in a way that enabled the Tribunal to assess reasonableness and practicality for the appellant, as an individual. The assessment of whether a person who has been found to have a well-founded fear of persecution in one part of her or his country of nationality, can relocate to another region or part of that country of nationality is not to be approached only by reference to the risk of harm, whether assessed under the Refugees Convention or in accordance with complementary protection obligations. It is also to be assessed by reference to the individual circumstances of the person concerned, and what is practicable and reasonable for that person, taking into account what it is really like to live in the place said to be safe. In SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 (SZATV) at [24] the plurality said: What is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality. In any context, whether refugee law or otherwise, what is "practicable" and "reasonable" for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.

Minister's submissions 23 The Minister submitted that the Appellant's ground of appeal was not made out, and that the primary judge did not err by finding that the Tribunal's decision was not affected by jurisdictional error. The Minister advanced the following reasons in support of this submission. 24 First, the Minister submitted that the Appellant did not raise any particular claim or objection to the reasonableness of relocation in India in relation to his caste. Accordingly, there was no error by the primary judge in finding that no point was specifically made by the Appellant directing the caste system issue as one particular to relocation. The Minister contended that the written submissions made by the Appellant, in his Application for Review to the Tribunal dated 22 June 2017, were not relevant to relocation and merely suggested that the caste system in India put the Appellant and his family in a "vulnerable situation". Those submissions appeared under a heading "Page 6 from Decision Record Paragraph 4" and stated as follows: I didn't disclose before, but I want to share this with you that, there is caste-system in India which is still bad and people get treated according to their caste, which put me and my family in vulnerable situation, because I belong to certain caste and it's different then [sic] my victims. It could lead to massive trouble. I think caste-system is pretty much similar to race, and I can not prove Immigration department wrong. If I am not alive (after life) [sic]. 25 Second, and in any event, the Minister posited that the Tribunal did properly take into account the Appellant's place within the caste system in India, including in respect of the question of relocation, in its decision regarding the complementary protection criteria. This included an assessment of whether relocation to a safe part of India was reasonable in the Appellant's particular circumstances. The Minister identified various passages in the Tribunal's reasons to demonstrate that it had considered the reasonableness of relocation by reference to the Appellant's specific claims and the impact of relocation on him: see SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [23]-[24] (Gummow, Hayne and Crennan JJ); SZNCY v Minister for Immigration and Border Protection [2018] FCA 691 at [39] (Markovic J). 26 Relevantly, under the heading 'Findings and reasons', at [27]-[28] of the Decision Record, the Tribunal set out the Appellant's background and acknowledged evidence about his caste, stating: The Tribunal asked [the Appellant] about his caste. He said he is a Mazpi and commented that the Mazpi come under the scheduled castes in India and are a lower caste in Indian society. He said they have different temples and are not allowed to go to higher caste Jatt Sikh temples. He added that Jatt's discriminate against Mazpis a lot and that he still hears stories about this. He commented that Mazpis do not have much opportunity to sit with higher society. [The Appellant] indicated that he spent the first 20 years of his life living in different places in India including Pune in Maharashtra state, Meerut in Uttar Pradesh, Mhow in Madhya Pradesh and Hasimara in West Bengal. He said his family moved to Amritsar, which is his father's home town, in 1998 when his father was posted with the army to Chandigarh (the joint administrative capital of Punjab and neighbouring Haryana state), and that he completed Year 12 of his schooling in Punjab. He indicated his father retired from the army in 1999. 27 At paragraph [40] of the Decision Record, the Tribunal then summarised the Appellant's claims in respect of his caste, and referred to relevant country information regarding the significance of caste in parts of India: The Tribunal also accepts that caste differences between [the Appellant] and [Mr B], and notions of family and caste honour, could play into any desire on the part of [Mr B] to seek revenge on [the Appellant], noting relevant country information regarding the significance of caste in parts of India and indicating that honour crimes do continue to occur, particularly in northern India. As discussed with [the Appellant], the Tribunal notes that the country information indicates that the risk of harm based on family 'honour' varies depending heavily on individual family beliefs and that the risks tend to be lower in the case of more educated and urban based families. 28 Further, at [43]-[44] of the Decision Record, under the heading "General caste issues", the Tribunal considered the impact on the Appellant of being in a lower caste group: The Tribunal asked [the Appellant] why he thought his being a Sikh and his caste could lead to massive issues (as claimed in his submission of 22 June 2017). He replied that he was having a relationship with a married Jatt woman. He added that could be a big deal including for his parents. The Tribunal finds that the evidence indicates that his parents remain supportive of [the Appellant]. There is nothing in the evidence to indicate or suggest that they wish to cause him any harm. In relation to caste issues generally, the Tribunal put to [the Appellant] that his evidence did not indicate that his caste had proved a barrier to him in past as it was clear that his caste had not stopped him achieving in his education, work or in having friendships with people from a wide range of backgrounds. The Tribunal commented that despite his caste he had lived with [Mr V], [Mr B] and [Ms B] in Australia. [The Appellant] replied that it was 28 years before he found out what his caste is and that he had only found this when he went to Punjab state. He said he does not judge people by caste and did not disclose his caste. He added that he did live with people from the Jatt caste and with Hindus but commented that he is quite fair. He indicated that if asked about his caste he said he was a Jatt so people did not know. He said it was only when he went to Punjab that he found caste is this big thing stopping him being successful and not marrying. [The Appellant] also indicated that because his criminal convictions had been publicised the community is aware of his circumstances. The Tribunal finds that [the Appellant]'s evidence indicates that his caste background has not been a big determining factor in his life. As put to [the Appellant] at the hearing he had not raised his caste in his original statement of claims and it did not appear to have been a big issue for the first thirty years of his life. The Tribunal commented that he was able to attend an Army school where he leant English, undertake tertiary level study, secure good employment where he used his English language skills communicating with doctors about medical equipment, travel to Australia for further study, and appears to have had a wide circle of friends from various backgrounds in India. The Tribunal also notes that [the Appellant] has provided four recent character references from four different Indian friends. Considering [the Appellant]'s past history the Tribunal does not accept that his caste will prevent him from marrying or being successful if he returns to India. The Tribunal concludes that there is not a real chance that [the Appellant] will suffer persecution involving serious harm due to his caste and/or being of Sikh origin should he return to India. (emphasis added) 29 The Minister submitted that the Tribunal properly engaged with the Appellant's personal circumstances (including his membership of a lowly caste) but nevertheless concluded it was reasonable, in the sense of practicable, for the Appellant to relocate to an area outside of Punjab (at [67]).

Consideration 30 During the course of the hearing, the ground of appeal was effectively bifurcated into two issues. The first issue was whether the Appellant had raised before the Tribunal a particular objection to the reasonableness of relocation to a different part of India due to his status as a member of a lower caste (and, consequently, whether the Tribunal was specifically required to address that issue). The second issue was whether the Tribunal did in fact consider and address the caste system in India, including the Appellant's status as a member of a lower caste (assuming, of course, that it was required to do so). I consider each of these issues in turn. 31 In relation to the first question, I accept that the Appellant raised the issue of the caste system in India, and his lowly status within that caste system, at a relatively high level of generality. However, in the circumstances, that was sufficient to warrant consideration by the Tribunal. The Appellant was self-represented, and in immigration detention. It could not be expected that he would formulate submissions precisely tailored to the relevant protection criteria (on the one hand) and to the question of relocation (on the other hand). 32 This approach is consistent with the reasoning of Mortimer J in MZANX, in which her Honour explained at [56] that there "must be a considered attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in those circumstances." Accordingly, I accept that, notwithstanding the fact that there is nothing in the Appellant's submission before the Tribunal which specifically raised the caste system as an impediment to relocation, the Tribunal was required to consider and address such matters. This is because they clearly formed part of the individual circumstances which impacted upon the practical realities facing the Appellant if returned to India. 33 The appeal therefore turns on whether the Tribunal properly considered whether it was reasonable for the Appellant to relocate elsewhere than Punjab. In my view, the Tribunal's reasons, read as a whole, demonstrate that there was in fact an adequate and thorough consideration of that issue. 34 The Tribunal summarised the Appellant's claims in respect of the caste system in [15], [16], [17] and [23] of its Decision Record. This included the Appellant's principal submission on the issue; namely, that there "is a caste system in India which is still bad and people get treated according to their caste, which put him and his family in a vulnerable position because he belongs to a certain caste" which is a lower caste in Indian society. The Tribunal then considered the facts and circumstances relevant to the Appellant's caste at [27]-[28] of the Decision Record, including that the Appellant had spent "the first 20 years of his life living in different places in India". 35 Having set out its factual findings, the Tribunal proceeded at [40] to note the relevant country information regarding the significance of caste in certain parts of India. These factual findings formed the basis for the Tribunal's conclusion that the Appellant's caste had not been a "big determining factor in his life" to date (at [44]). The Tribunal further noted that the Appellant had been able to learn English, undertake tertiary study, secure employment and develop friendships with people from a wide variety of backgrounds in India. Taking into account this past history, the Tribunal did not accept that the Appellant's caste would prevent him from developing relationships or being successful if he returned to India (at [43]-[44] of the Decision Record). 36 In considering the complementary protection claim, at [62]-[71], the Tribunal began by referring to the 'reasons given above'. By this, the Tribunal expressed its intention to rely on earlier factual findings in respect of the Appellant's refugee protection claim in respect of the complementary protection claim. This path of reasoning is consistent with the approach of this Court in a number of earlier decisions, including SZNCY, in which Markovic J held at [49]: The Tribunal set out and applied the test for complementary protection under s 36(2)(aa) of the Act at [84]-[94] of its decision record. The issues which arise when considering the reasonableness of relocation as part of a complementary protection claim are the same in assessing claims for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act. It was open to the Tribunal to rely on its earlier factual findings in relation to that issue where the same facts and circumstances were relied on by the appellants for both refugee and complementary protection claims: see MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [37]; DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [54]. (emphasis added) 37 The Tribunal proceeded at [67] to consider whether relocation was reasonable in the Appellant's particular circumstances. This included expressly referring to the Appellant's language skills, education, qualifications, employability and, crucially, the fact that he had lived in various cities in India and did not particularly like living in Punjab (in part due to the issues with the caste system). These matters are inextricably tied to the Appellant's concerns arising from the 'caste system' in India and his membership of a lowly caste. It follows that there was no error in the Tribunal's consideration of caste issues, a conclusion which is fortified by the evidence of the Appellant himself. In substance, the Appellant did not suggest that he would suffer any particular hardship by reason of relocation. To the contrary, he conveyed that the caste system had not substantially affected his life and that he had adapted to living throughout India and did not particularly want to return to Punjab.

disposition 38 For the reasons set out above, the appeal is dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.

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