FEDERAL COURT OF AUSTRALIA

AZO16 v Minister for Home Affairs [2018] FCA 1676

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal is from a judgment and orders of the Federal Circuit Court of Australia (FCCA) which is reported as AZO16 v Minister for Immigration and Border Protection [2018] FCCA 1028. The FCCA dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) which affirmed a decision of the Minister’s delegate not to grant the appellant a protection visa.

2    For the reasons that follow, the appeal will be dismissed, with costs.

Summary of background facts

3    The appellant is a citizen of India. He applied for a protection visa on 10 March 2014, which was refused by the delegate on 20 October 2014. He subsequently sought a review in what is now the AAT.

4    The appellant claimed to fear harm for reasons that include his low caste and his trouble with a named person in Australia. He first arrived in Australia in March 2008 holding a student visa. He claimed that he elected to cancel that visa so that he could sit an IELTS test with a view to being granted a skilled visa. He failed the IELTS test because the Department said that he had submitted a fake IELTS document. At this point, the appellant lodged his application for a protection visa. He claimed to fear harm due to his status as a member of a lower caste Hindu family in India; problems he had faced in Australia and India due to actions taken by another Indian whom he had met in Australia but who allegedly had many contacts in India; the wealth of his parents, which exposed him to risk of extortion; and the levels of generalised violence throughout India.

5    The AAT considered, but rejected, the appellant’s claim to have a well-founded fear of persecution because of his low caste and family origins in a particular part of India.

6    The AAT was not satisfied that the appellant was a credible witness. It found that he had embellished, if not fabricated, material claims (Reasons at [12]). Although it accepted that there is ongoing discrimination of low caste persons in India, the AAT was satisfied that the appellant would not have returned to his own home in a particular part of India, where his parents and younger brother were living, if he feared persecution. The AAT was not satisfied that the appellant had faced, or would face, a real chance of serious harm in India, noting that he had been able to engage in University studies there, had gained employment and his father had operated a shop and received rental income from property owned by him in the region.

7    The AAT stated that the appellant did not claim to fear persecution in India by reason of his religion as a Hindu.

8    The AAT explained why it did not accept the appellant’s other claims, including the alleged acquisition of his father’s land, his fears that he would be subjected to extortion in India because of his parents’ wealth and the alleged general violence in India. The AAT accepted the appellant’s claim that he was attacked around his home in India in mid-2011 by people who knew his Indian work colleague in Australia. The AAT rejected as false, however, the appellant’s new claim which was raised for the first time at the AAT hearing that his family had been questioned about his whereabouts following the alleged attack by people who sought to harm the appellant. The AAT described these claims as having been put solely to enhance the appellant’s case. The AAT found that the attack on the appellant in India in mid-2011 had been resolved and that the appellant no longer had a real chance of suffering any harm for this reason in his home region in India.

9    In any event, the AAT found that it was satisfied that the appellant could safely and reasonably relocate within India for reasons which it set out at some length in its reasons for decision.

The FCCA proceeding

10    The appellant challenged the AAT’s decision in the FCCA on three grounds:

(a)    the AAT failed properly to consider the test under s 91R(2)(a) of the Migration Act 1958 (Cth) (the Act);

(b)    the AAT failed to comply with ss 424A and 424AA of the Act; and

(c)    the AAT misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Act.

11    Each of these grounds was rejected by the primary judge. As to the first, his Honour found that:

(a)    as disclosed by the record of decision, the AAT gave full consideration to the appellant’s claims relating to threats to his life or liberty for the purposes of s 91R(2)(a); and

(b)    the AAT did not wrongly consider or not apply the relevant legal principles concerning relocation, noting that these findings were strictly unnecessary because of the AAT’s conclusion that the appellant did not have a well-founded fear of persecution throughout the whole of India, including his home region.

12    As to ground 2, the primary judge noted that it was entirely unparticularised and failed to identify what information was the subject of his complaint. The appellant was also unable to take the matter any further at the FCCA hearing.

13    The primary judge found that ground 3 also lacked meaningful particularisation and appeared to invite an impermissible merits review of the AAT’s decision.

The proceedings in this Court

14    The appellant represented himself and was assisted by an interpreter. His notice of appeal is as follows (without alteration):

Grounds of appeal

1    The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to India.

2    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

The parties’ submissions summarised

15    The appellant failed to provide an outline of written submissions, notwithstanding that he was directed to do so on 20 June 2018 and was then further reminded by an email dated 29 October 2018.

16    At the hearing, the appellant was invited to make oral submissions in support of the two grounds of appeal. He said that he had nothing to add. When asked by the Court to elaborate on the two grounds, and to identify the alleged errors by the AAT as raised by ground 2, the appellant said that he could not do so. He referred to [62] of the AAT’s reasons for decision, but that merely expressed the AAT’s conclusion. The appellant did not point to any alleged error in that conclusion. He simply said that he did not wish to return to India because he would not be safe there and he would have to try and get another country to accept him.

17    The Minister’s written submissions need not be summarised because they are substantially reflected in the reasons below for dismissing the appeal.

Consideration and determination of the appeal

18    I accept the Minister’s submission that the two grounds of appeal rise no higher than a simple disagreement with the primary judge’s findings that the grounds below were not made out and amount to nothing more than unsubstantiated assertions of error by the AAT.

19    No appealable error has been demonstrated on the part of the primary judge. Indeed, in my respectful view, the primary judge was correct to dismiss the judicial review application for the reasons given by his Honour.

20    As to ground 1 of the appeal (which repeats ground 3 of the judicial review application below), there was nothing on the face of the AAT’s reasons for decision to suggest that it erred in its application of s 36(2A) of the Act. The ground is otherwise unparticularised and seems to invite an impermissible merits review of the AAT’s decision.

21    As to ground 2, the appellant has not particularised what legal and factual errors were made by the AAT, nor is any such error evident on the face of the AAT’s reasons for decision.

Conclusion

22    For these reasons, the appeal will be dismissed, with costs.

Associate:

Dated:    7 November 2018