COT16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-01-31|Before: Ms J, Markovic J

The appeal is dismissed.
The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 The appellant is a citizen of India. He appeals from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) on 15 May 2017 dismissing an application for judicial review of a decision of the second respondent (Tribunal) made on 22 August 2016. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Protection (Class XA) visa (Visa).

background 2 The appellant arrived in Australia on 28 June 2009 as the holder of subclass TU 572 student visa as the dependent of his then spouse. By application dated 28 May 2014 he applied for the Visa. 3 In a statement accompanying his application for the Visa the appellant claimed that he had separated from his wife, an Indian national, and that she had filed for divorce. He said that his in-laws were very angry with him for abandoning his wife and that friends told him that they were waiting to take revenge on him. The appellant said that in India a breakdown of marriage is viewed as an insult to the family, that his former wife's family was "conscious of family honour and pride" and that they had "spread vicious rumours that [he was] to be blamed for the marriage break up and that [he] should be punished". The appellant claimed that his family had told him not to return to India because his former wife's family was waiting to inflict harm on him. He said that revenge for such issues is quite common in India and that the authorities do not take these incidents seriously, leaving him with no recourse. 4 On 17 February 2015 a delegate of the Minister refused to grant the appellant the Visa. The appellant appeared at a hearing before the Tribunal on 8 July 2016. On 22 August 2016 the Tribunal affirmed the delegate's decision not to grant the appellant the Visa.

The Tribunal decision 5 The Tribunal expressed concerns about inconsistencies in the appellant's evidence presented in his written claims, to the delegate and to the Tribunal. The Tribunal also found aspects of the appellant's claims to be vague and lacking in detail. Notwithstanding that, the Tribunal was prepared to extend to the appellant the benefit of the doubt and to accept that the appellant and his wife were divorced; that divorce is deemed traditionally unacceptable in parts of India and can lead to family violence; that the appellant and his family had been harassed, threatened and received death threats from his ex-wife's family; and that the appellant changed his phone number and commenced living separately to his ex-wife to avoid being threatened. 6 The Tribunal accepted that there was a real chance or risk that the appellant could face serious or significant physical harm or even death at the hands of his ex-wife's family on return to his local area in Punjab. However, the Tribunal was not persuaded that the appellant's in-laws had the connections he claimed, such that they would be in a position to make and uphold false allegations against him. Nor was it persuaded that the appellant's in-laws were so influential that they could locate him in another part of India if he relocated. 7 The Tribunal acknowledged that unrest was reported for various reasons in different parts of India but observed that any risk of harm the appellant might face in that respect would be the same as for the general population and therefore did not amount to persecution or significant harm. The Tribunal was not persuaded that the appellant faced a real chance or risk of serious or significant harm on the basis that there was no safety in India because anarchy and restlessness were on the rise and there were not enough resources to cope with the problems. 8 The Tribunal was of the opinion that it was not unreasonable for the appellant to relocate to another part of India given his past work experience in agriculture and as a taxi driver, his language skills and his demonstrated ability to re-establish himself outside his local area. It was of the view that the general security situation in India did not prevent the appellant from relocating. The Tribunal concluded that it was not unreasonable or unsafe for the appellant to relocate to another area of India to avoid any harm he might encounter from his ex-wife's family in his local area. 9 Having considered the appellant's claims individually and cumulatively the Tribunal found that there was not a real chance that the appellant would suffer serious harm for a Convention reason if he returned to India now or in the reasonably foreseeable future. It therefore found that the appellant did not have a well-founded fear of persecution and did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (Act). 10 The Tribunal also found for the same reasons that it was reasonable for the appellant to relocate to an area of the country where there would not be a real risk that he would suffer significant harm from his in-laws. It was thus not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there was a real risk that he would be significantly harmed for the reasons he claimed or for any other reason. The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.

The Federal Circuit Court Proceeding 11 By application filed on 12 September 2016 the appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. The appellant raised the following grounds of review, as written: 1. The Tribunal did not correctly interpret law relating to the applicant's protection claims, namely s. 36(2)(a) and s.36(2)(aa) of the Migration Act 1958; Particulars The applicant submits that the Tribunal did not appropriately consider whether there is a real chance that he will be persecuted if he returns to India. He submits that the Tribunal took the decision that he will not be persecuted in India by suggesting that he is able to relocate within India and thereby not actually addressing evidence he presented. In doing so, the Tribunal failed to take into account evidence that were related significantly to establishing elements of sections 36(2)(a) and 36(2)(aa). 2. The applicant pleads that the Tribunal took into account irrelevant considerations and disregarded relevant considerations. Therefore, the applicant submits that there was procedural unfairness during the decision making process of the Tribunal which resulted in the breach of rules of natural justice; 3. In considering Ground number 2 above, the applicant pleads that the Tribunal did not exercise jurisdiction vested in it appropriately and misconceived its authority incurring a jurisdictional error. 12 The primary judge dismissed the appellant's application. The primary judge noted that, although the Tribunal made certain adverse credibility findings, it gave the appellant the benefit of the doubt in relation to his assertions concerning threats from his ex-wife's family. The primary judge held that the adverse findings made by the Tribunal in relation to other parts of the appellant's claims were open to it and could not be said to lack an evident and intelligible justification: COT16 v Minister for Immigration & Anor [2017] FCCA 989 (COT16) at [22]. 13 The primary judge also held that, on the material before the court, it was open to the Tribunal to find that it was reasonable for the appellant to relocate and that the Tribunal properly considered whether it was reasonably practical for the appellant to relocate in his personal circumstances, expressly addressing the appellant's capacity to sustain himself in light of his education, experience and job history: COT16 at [23]. 14 The primary judge then considered and dismissed each of the grounds raised in the appellant's application. In relation to the first ground the primary judge held that the Tribunal correctly identified the relevant law and that it was open to it to find that the appellant could reasonably relocate in his circumstances within India. His Honour held that it was thus open to the Tribunal to make the adverse findings in relation to the requirements of ss 36(2)(a) and 36(2)(aa) of the Act: COT16 at [24]. 15 In relation to the second ground the primary judge found that no irrelevant or relevant considerations were identified by the appellant and that the Tribunal complied with its statutory obligations in the conduct of the review: COT16 at [26]. 16 In relation to the third ground the primary judge found that, for the reasons he had already given, it was open to the Tribunal to make the adverse findings it did in relation to the appellant's ability to relocate and that the Tribunal's findings could not be said to be unreasonable, irrational or illogical. The primary judge held that there was no substance to the contention that the Tribunal did not exercise its jurisdiction appropriately or that the Tribunal misconceived its authority: COT16 at [27].

the appeal 17 In his notice of appeal filed on 22 May 2017 the appellant pleaded grounds identical to those raised in his application for judicial review before the Federal Circuit Court. He has not filed any written submissions in support of the grounds set out in his notice of appeal. 18 At the hearing the appellant noted that he was not legally represented. He submitted that he feared persecution in India because he had received several death threats from people who he thought were awaiting his return; that he feared he could be killed; and that there have been a lot of problems in the past and he does not know what to do. In relation to the issue of relocation the appellant submitted that 95% of people in India are clean-shaven and thus, because he has a beard, he will be easily recognisable and could be attacked.

consideration 19 As noted above, the appellant's grounds of appeal repeat the grounds raised in the appellant's application filed in the Federal Circuit Court. They do not identify any error in the primary judge's reasons but concern the Tribunal's decision and the findings made by it. 20 By the first ground of appeal the appellant alleges that the Tribunal did not correctly interpret ss 36(2)(a) and 36(2)(aa) of the Act. The appellant particularised this ground by alleging that the Tribunal did not appropriately consider whether there was a real chance that he would be persecuted if he returns to India and that it made its decision by suggesting that he would be able to relocate within India and thus did not address the evidence he presented. 21 It is clear from the Tribunal's decision record at [5]-[8] and [51]-[54] that it set out and applied the correct statutory tests. In relation to its application of s 36(2)(a) of the Act, it was open to the Tribunal to find that the appellant did not fear harm for a Convention reason. In relation to s 36(2)(aa) of the Act, it was open to the Tribunal to find that the appellant could relocate within India. 22 In considering the question of relocation the Tribunal had regard to the question of whether it would be reasonable in the appellant's circumstances for him to relocate, as set out in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [32]; had regard to the objections raised by the appellant about the reasonableness of relocation; made findings in relation to the matters raised by the appellant; and considered other aspects of the appellant's circumstances which it found would make it reasonable for the appellant to relocate. 23 The appellant's allegation that the Tribunal failed to address or take into account his evidence is not made out. The appellant has not particularised the evidence that he alleges the Tribunal failed to address. The Tribunal considered the appellant's evidence and made findings that were open to it on the material before it. While the primary judge only considered this ground briefly, there is no error in his Honour's reasoning. 24 By the second ground the appellant alleges that the Tribunal took into account irrelevant considerations and disregarded relevant considerations such that there was procedural unfairness in its decision-making process. The appellant has not particularised the irrelevant considerations that the Tribunal is alleged to have taken into account or the relevant considerations that it is alleged to have disregarded. It is not apparent that the Tribunal considered anything that it was not entitled to take into account, nor that it failed to consider anything it was obliged to take into account. 25 Nor was the appellant denied procedural fairness as alleged. He was invited to attend a hearing before the Tribunal which he attended with his registered migration agent and at which he gave evidence with the assistance of a Punjabi interpreter. The Tribunal's reasons disclose that it discussed with the appellant the issues that arose at the hearing. The appellant was afforded an opportunity to give evidence and present arguments about the matters in issue before the Tribunal, including about the reasonableness of relocation, which was the determinative issue on the review: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]-[36]. Once again, there is no error in the primary judge's reasoning in relation to, and his Honour's rejection of, ground two. 26 By ground three the appellant alleges that, in considering the second ground, the Tribunal did not exercise its jurisdiction appropriately and that it misconceived its authority. This ground is not made out. The Tribunal exercised its jurisdiction appropriately and did not misconceive its authority as alleged. There is no error in the primary judge's approach to this ground and he was right to dismiss it. 27 The appellant's oral submissions do not identify any error on the part of the primary judge but seek to reagitate his claims for protection and thus seek impermissible merits review.

conclusion 28 In light of the matters set out above the appeal should be dismissed and the appellant should be ordered to pay the Minister's costs. I will make orders accordingly. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Migration Act 1958(Cth)ss 36(2)(a), 36(2)(aa)

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