FEDERAL COURT OF AUSTRALIA

DQG16 v Minister for Immigration and Border Protection [2018] FCA 2021

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

BESANKO J:

1    This is an appeal from an order made by the Federal Circuit Court of Australia. On 29 May 2018, that Court dismissed the appellant’s application for judicial review.

2    The appellant is a citizen of India. He arrived in Australia in January 2013. He held a Visitors visa which expired in April 2013. On 18 April 2013, he lodged an application for a Protection (Class SA) visa. He claimed to fear harm on a number of grounds. He is a follower of the Dera Sacha Sauda (DSS) religious sect and claims to fear harm because of his religion. He also claimed to fear harm because of his imputed political opinion as he is a follower of the Indian National Congress (INC) party. Finally, he claimed to fear harm on the basis of his membership of the social group of Sikh Dalits.

3    The appellant’s wife was listed as a secondary applicant on the appellant’s application for a Protection visa. By the time of the proceeding in the Federal Circuit Court, the appellant and his wife had divorced and she took no part in the proceeding.

4    In November 2015, the appellant’s application for a Protection visa was refused. On 28 December 2015, the appellant applied for a review of the delegate’s decision by the Administrative Appeals Tribunal (the Tribunal). He appeared before the Tribunal on 26 October 2016. On 3 November 2016, the Tribunal affirmed the decision not to grant the appellant a Protection visa. On 30 November 2016, the appellant lodged an application for judicial review.

5    In his reasons, the Federal Circuit Court judge summarised the reasons of the Tribunal (DQG16 v Minister for Immigration & Anor [2018] FCCA 1047). It is convenient to set out that summary:

7.    The Tribunal identified the issues before it as being whether the applicant met either the refugee or complimentary protection criteria as a consequence of:

  a)    the fact that he is a follower of the DSS religious sect;

b)    because of his imputed political opinions as a follower of the INC party; or

c)    his membership of the group of Sikh Dalits (Mazhabis) which is a scheduled caste.

8.    The Tribunal considered the evidence of the applicant. With respect to his claim to participate in the DSS sect, it found that his evidence was vague and lacking in detail. It accepted that he was what it described as an ordinary follower of the DSS, but that he rarely attended the DSS ashram in India. For that reason, it found that his involvement was limited to attending occasional small gatherings with other supporters in his local community.

9.    As far as his involvement with the INC party was concerned, the Tribunal did not accept that he was an active member or an organiser of protests, or that he was politically affiliated with that party. It did not accept that his family home had been targeted by anti-DSS persons or that he had been targeted by orthodox Sikhs.

10.    The Tribunal did accept that he had been caught up in protests involving DSS followers and orthodox Sikhs between the years 2009 and 2011. It accepted that he might have indirectly suffered injury during those protests. It did not accept that he was an activist or targeted in any way in the protests, or that he was denied state protection.

11.    The Tribunal considered country information and accepted that whilst the authorities had taken some action against orthodox Sikh leaders and DSS protestors in the past, it was not satisfied that the applicant would be denied state protection on return to India in the reasonably foreseeable future, because he was simply an ordinary DSS supporter.

12.    In considering the country information which it found to be relevant, the Tribunal concluded that there was not a real chance that the applicant would face persecution because of his imputed political opinions, if he were to return to India during upcoming elections. This was because it considered that there was available state protection for DSS supporters, by virtue of the applicant’s unremarkable profile as an ordinary DSS supporter, and his absence from India for a number of years.

13.    The Tribunal accepted that the applicant was a member of the scheduled Dalit caste. However, the Tribunal was satisfied that if the applicant returned to India, it would be possible for him to obtain employment and accommodation notwithstanding his membership of that caste. It found it relevant to that conclusion that he had previously operated a business as an electrician and was the owner of land in India. The Tribunal was not satisfied that there was a real chance that he would face serious harm to the extent that he would be subjected to any significant economic hardship. It was not satisfied that he would be denied the ability to earn a livelihood to the extent that his capacity to subsist would be threatened.

14.    Having made those findings, the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution because of his membership of the Dalit caste, because of his religion, or because of any political opinions that might be imputed to him as an INC party supporter or someone who was against the government.

15.    The Tribunal also considered the complementary protection criteria and was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to India, that the applicant was at a real risk of suffering significant harm. As a result, it concluded that this country did not have protection obligations to the applicant by virtue of s.36(2)(a)a of the Migration Act 1958 (Cth) (‘the Act’).

16.    For that reason, it affirmed the decision of the delegate not to grant the applicant a protection visa.

6    The primary judge noted that there were four grounds in the appellant’s application for judicial review. He considered that it was appropriate to deal with Grounds 1 and 3 together. Those grounds are as follows:

1.    The Tribunal misconstrued the risk and fear of significant harm as set out in s. 36(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 (sic) to India.

3.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

7    The primary judge noted that the Tribunal had correctly identified the criteria for a Protection visa under s 36 of the Migration Act 1958 (Cth) (the Act) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), and noted that it was necessary for the appellant to meet one of the criteria in either s 36(2)(a), (aa), (b) or (c) of the Act. He noted that the Tribunal had considered all of the claims made by the appellant. The Tribunal had considered at some length relevant country information and applied that information to its consideration of the appellant’s claims. The primary judge was satisfied that the findings made by the Tribunal were open to it. The Tribunal summarised the relevant criteria, both with respect to refugees and complementary protection, in a manner that was orthodox and adequate, and the primary judge said that the Tribunal was clearly aware of the relevant tests to be applied. The primary judge said that the appellant had not been able to identify how any error had occurred and that, on his examination of the decision record, he was not able to identify an error in the Tribunal’s approach to s 36(2A) of the Act. The primary judge accepted the submission made by the Minister to the effect that the appellant’s complaint was about the merits of the decision and an invitation to undertake a fresh fact finding task that might look more favourably on the appellant’s circumstances. The primary judge noted that this was not the purpose of judicial review. The primary judge rejected Grounds 1 and 3.

8    The second ground in the appellant’s application for judicial review was in the following terms:

2.    The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequences of its being relied upon, and to invite the applicant to comment upon or respond to that information.

Particular: The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

9    The primary judge set out s 424A of the Act. He dismissed this ground because the appellant had not identified the information he was not invited to comment upon. The primary judge said that the Tribunal was not required to put the appellant on notice of the provisions of the Act or the Regulations themselves. Furthermore, the Tribunal was not required to provide the appellant with a running commentary of the view it took of his evidence or any inconsistencies it may have discerned in his claims. The primary judge said that, in any event, it is clear that any such perception of inconsistency or inadequacy in the appellant’s account was not “information” within the meaning of s 424A.

10    The fourth ground in the appellant’s application for judicial review is in the following terms:

4.    The Tribunal’s decision was effected by judicial error in that the Tribunal failed to correctly apply the test in s 36(2B)(a) of the Migration Act 1958.

Particular: Having been satisfied that applicant is active member of DSS and tussle is going on between followers of DSS and Government of Punjab in India and there was a real risk and significant harm to the Applicant in India, so Tribunal was required to consider whether it would be reasonable for him to relocate the applicant to an area of the country where there would not be a real risk that the applicant will suffer significant.

11    The primary judge noted that relocation was not in issue in the matter because the Tribunal was not satisfied that the appellant met either the refugee criterion or the complementary protection criterion. In those circumstances, no obligation arose to consider or “correctly apply” the test in s 36(2B)(a).

12    The primary judge noted three matters that were raised in the appellant’s oral submissions, but were not encompassed by his grounds of application. None of them are raised before this Court, but I should note the certificate issue. The Minister brought to the attention of the Federal Circuit Court that the matter had involved the issuing of a certificate by the delegate under s 438 of the Act. The existence of the certificate was not disclosed to the appellant. The Minister accepted that the certificate was invalid for the reasons identified by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 at 37. The Minister tendered an affidavit to the Federal Circuit Court of Mr William Evans. That affidavit referred to the circumstances of the certificate being issued and annexed copies of the bundle of emails that had passed between the Department of Immigration and Border Protection and the Australian High Commission in New Delhi with respect to the verification of the appellant’s marriage certificate as being genuine. The primary judge said that the fact that the Tribunal received an invalid certificate did not of itself establish jurisdictional error on its part, nor did the fact that it did not notify the appellant of the existence of the certificate (Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; (2017) 253 FCR 1 at [65]-[69] and [72]-[76]). The primary judge dealt with the matter as follows (at [32]):

The Minister’s submission was that the documents provided by the applicant were accepted by both the delegate and the Tribunal as being genuine, and that it accepted his identity – in other words, that he was who he claimed to be. For that reason, the documents covered by the certificate did not and could not have had any impact on the decision of the Tribunal. There was no opportunity lost to the applicant and this can be regarded as a technical breach of a duty of disclosure only. Whether the applicant was aware of the existence of the certificate or not, it had no bearing on the outcome of the Tribunal hearing. I accept that submission.

13    The appellant’s grounds of appeal to this Court were as follows:

1.    The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amount to a breach of Statutory Obligation.

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

    (Original formatting retained.)

14    On 26 June 2018, a Registrar of this Court made a number of procedural directions. One of those directions was that the appellant file and serve a written outline of submissions no later than 10 business days before the hearing date. The appellant did not do that.

15    The appeal was listed for hearing on 23 November 2018. The appellant appeared in person. He had the assistance of an interpreter. He sought an adjournment so that a barrister might appear on his behalf. I adjourned the hearing to 13 December 2018.

16    On 13 December 2018, the appellant again appeared in person and with the assistance of a different interpreter. The appellant said that he wished to obtain assistance and he referred to lawyers who could not attend. I asked him whether he was applying for an adjournment and he responded by asking if I would give him more time. The appellant had not progressed the matter in any way since I granted the previous adjournment and there was no reasonable prospect that he would do so within an acceptable period if I granted a further adjournment. I refused to grant a further adjournment and I invited the appellant to address his appeal.

17    The appellant raised a number of matters. He complained about the assistance he had received from interpreters. It seemed from what he said that he was unhappy with the interpreter he had before the Federal Circuit Court and on the first occasion he appeared before this Court. There is no evidence that he has suffered any disadvantage as a result of the interpreters. In fact, the evidence is to the contrary. The primary judge’s reasons are thorough in dealing with the relevant matters. He certainly did not suffer any disadvantage at the first hearing before me as he secured an adjournment. The appellant also seemed to complain about not having a lawyer before the Federal Circuit Court, but he has no right to a lawyer. The appellant also complained about how the Tribunal dealt with the country information, but that was no more than an attack on the merits of the decision or a complaint about the failure to take into account subsequent information. The appellant also sought to adduce evidence of the fact that he had since been disowned by his family in India, but, having regard to this Court’s role on appeal, there is no basis upon which to receive this evidence.

18    As far as the written grounds of appeal are concerned, Ground 1 appears not to have been raised before the primary judge. It appears to be no more than an attempt to obtain a different decision on the merits. Plainly that is not the purpose of judicial review. The lack of particularity in Ground 2 means that it does not, on its face, demonstrate any merit and must be dismissed.

19    There is no error in the reasons for judgment of the primary judge. I have also considered the decision of the Tribunal and I am not able to detect any error, let alone jurisdictional error, in that decision.

20    In the circumstances, the appeal must be dismissed. The appellant must pay the first respondent’s costs fixed in the sum of $5,000.

Associate:    

Dated:    17 December 2018