FEDERAL COURT OF AUSTRALIA AQN17 v Minister for Immigration and Border Protection [2018] FCA 1822 Appeal from: AQN17 v Minister for Immigration [2018] FCCA 1321 File number: SAD 147 of 2018 Judge: PERRAM J Date of judgment: 21 November 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court – whether Court erred in dismissing appeal from Administrative Appeals Tribunal – whether Tribunal considered consequences of return to India Date of hearing: 21 November 2018 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: H Stanley Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS SAD 147 of 2018 BETWEEN: AQN17 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PERRAM J DATE OF ORDER: 21 NOVEMBER 2018 THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 This is an appeal from orders made by the Federal Circuit Court on 4 June 2018. That Court dismissed with costs the Appellant's originating application. That application had sought orders to set aside a decision of Administrative Appeals Tribunal to affirm an earlier decision of a delegate of the Minister not to grant the Appellant a Protection (Class XA) visa. 2 The ground of appeal in this court is that the Federal Circuit Court had overlooked the fact that the Tribunal had decided the review application without having regard to the consequences to the Appellant if he were returned to his country of origin, which is India. In the Tribunal, the Appellant submitted that if he were returned to India, he would be menaced by his ex-wife's family who were well-connected and wealthy. 3 He had travelled to Australia with his former wife on 18 June 2008. She was also a citizen of India. She had initially held a student visa and he was a dependent on that visa. She held subsequent visas upon which he was also a dependent. The relationship soured and on 18 October 2013 they separated. In about January 2015 they were divorced. The Appellant submitted, and I accept, that it was his ex-wife who had sought the divorce and not him. 4 The separation led to the cancellation of the Appellant's visa, which occurred on 7 March 2014. An application by the Appellant to review the cancellation decision failed when he did not appear before the then Migration Review Tribunal at a hearing to argue his case. It then affirmed the cancellation decision on 4 August 2014. Shortly afterwards on 18 September 2014 he applied for the grant of a Protection visa and it is that application which is the subject matter of the current proceeding. 5 The Tribunal accepted the Appellant's contention that at the time of his separation and divorce from his former wife his then father-in-law had accused the Appellant of mistreating, bullying and sexually assaulting her. The Appellant had been charged in Australia with serious offences against his former wife but was acquitted of the charges in August 2015. In this Court, he informed me, and I have no reason to doubt, that the father-in-law was the instigator of that prosecution. Further, the father-in-law's family had, so the Tribunal accepted, commenced a number of proceedings in India against the Appellant's own family. 6 The father-in-law had also made a number of threatening telephone calls at the time of the divorce. The Tribunal accepted the truth of all of these contentions via the Appellant, although it did note that all of the legal proceedings in India had by the time of the hearing before it had been discontinued. 7 Nevertheless, the Tribunal did not accept that the Appellant was eligible for a Protection visa. This was because it did not consider that he faced a well-founded fear of persecution by reason of his race, religion, nationality or membership of a particular social group or his political opinion. This was for two reasons. First, it considered that the harassment he had been suffering at the hands of his former father-in-law had itself stopped in 2015 when his ex-wife had obtained Australian citizenship and had begun to work in Australia. Secondly, even if he were to be persecuted by his ex-wife's family upon his return to India, this would not have been persecution for a Convention reason, that is to say, persecution by reason of race, religion, nationality or membership of a particular social group or political opinion. The Tribunal then briefly considered whether there might be persecution for a Convention reason because of the Republic of India's failure to protect him from persecution by the ex-wife's family but dismissed that notion too. 8 The argument therefore that the Tribunal did not have regard to the consequences to the Appellant if he were to be returned to India is not correct as a matter of fact. The Tribunal did consider the issue and thought that nothing would happen because the harassment had ceased in 2015. In any event, it did not think that that persecution would constitute grounds for the issue of a Protection visa. 9 This was the Federal Circuit Court's conclusion, as well, and in this, so it seems to me, it was clearly correct. The submission that it erred in not concluding to the contrary is therefore not sustainable. The Appellant's ground of review in this court likewise must fail. 10 In this Court this morning the Appellant submitted that it would also be dangerous for him to be returned to India because there had been bomb blasts in Amritsar. Strictly speaking, this is not a matter which this Court is authorised by law to consider. However, even if I could have had regard to it, it would not have made any difference to the outcome of the appeal. This is not because I do not believe the Appellant about it, rather it is because even accepting it be so, it does not make out persecution for a Convention reason, that is to say, by reason of race, religion, nationality or membership of a particular social group or political opinion. 11 The risk of the bomb blasts in Amritsar is a risk faced by everyone in Amritsar and not by the Appellant by reason of his membership of any particular group. Accordingly, even if I were able to accept that that was a matter which could be raised on the appeal, it would not lead to any different conclusion. 12 I do not disregard that if the Appellant is returned to India, he will no longer be able to see his daughter, who was born here, and who is presently in the custody of his ex-wife. I accept the tragic nature of that outcome. However, even so, it does not permit me to find an error in the decision of the Tribunal or the Federal Circuit Court where no error exists. For those reasons, the appeal will be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 21 November 2018