FEDERAL COURT OF AUSTRALIA

NBDV v Minister for Immigration and Border Protection [2016] FCA 658

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as taxed if not agreed.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1    The appellant is a citizen of India of Sikh background. He arrived in Australia on 30 November 2000 and applied for a protection visa in July 2001. His claims at that time relied, in substance, on s 36(2)(a) of the Migration Act 1958 (Cth), namely, that the appellant was entitled to protection as a refugee.

2    The application for a protection visa on refugee grounds was refused and legal challenges were finally dismissed in 2008 (NBDV v Minister for Immigration and Citizenship [2008] FCA 778 and NBDV v Minister for Immigration and Citizenship & Anor [2008] HCASL 505).

3    On 3 October 2012, the appellant lodged an application for a protection visa relying on s 36(2)(aa) of the Migration Act (complementary protection grounds). Such a course has been held to be permissible even where an earlier application relying on s 36(2)(a) was refused (SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235). The further application for a protection visa was refused by a delegate of the Minister on 8 July 2014.

4    The appellant then applied to the Refugee Review Tribunal (“the Tribunal”), whose earlier functions are now performed by the second respondent, for review of the delegate’s decision. On 17 June 2015, the Tribunal affirmed the decision of the delegate not to grant a protection visa on complementary protection grounds.

5    On 14 July 2015, the appellant filed an application for judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia (“the FCCA”) which, on 18 January 2016 dismissed the application with costs, finding no jurisdictional error by the Tribunal (NBDV v Minister for Immigration & Anor [2016] FCCA 69).

6    The appellant has now appealed to this Court. The grounds of the appeal are:

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

2.    The Federal Circuit Court failed to take into consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

7    Those grounds of appeal are misconceived and offer no prospect of success. Section 91R applies to claims for a protection visa based on s 36(2)(a), but it does not apply to claims based on s 36(2)(aa) (see SZRAG v Minister for Immigration and Border Protection [2016] FCA 189, per Katzmann J at [23]).

8    The second ground of appeal could only relate to the assessment by the Tribunal of the merits of the appellant’s additional claim for a protection visa.

9    The application to the FCCA for judicial review was confined to questions of jurisdictional error. It could not extend to any examination of the merits, or to any question about how the Tribunal examined the merits, unless a jurisdictional error was committed.

10    Nevertheless, I shall briefly explain the course of decision-making to dispel any further concern in this area and to deal with one further matter which has been raised.

11    The Tribunal’s decision was concerned with an assessment of claims by the appellant that his activities in India before his arrival in Australia exposed him to a real risk of significant harm if removed from Australia to India. “Significant harm” is defined by s 36(2A) as follows:

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(Emphasis in original.)

12    The assessment of the Tribunal included the following:

ASSESSMENT OF CLAIMS AND EVIDENCE

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm?

17.    The Tribunal has considered the applicant’s claims to fear significant harm in India. As indicated above, the applicant has claimed that he fears harm due to his involvement in Sikh nationalist activities some years ago. Having considered all of the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he is removed from Australia to India. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

…

22.    Furthermore, as discussed extensively with the applicant during the hearing, his evidence does not indicate that he was of any ongoing adverse to the authorities in relation to incidents which occurred almost 30 years ago. The Tribunal does not accept that it is credible that any persons arrested by the police after that time in relation to Sikh nationalism would tell the authorities that the applicant had provided them with accommodation. The applicant’s own evidence also indicates he was never charged with an offence, arrested or brought before a Court. The Tribunal also does not accept that the applicant would have continuously been required to report to the police without any charges or offences or any further action taken against him if he was considered to be involved in Sikh nationalism or terrorism activities. The Tribunal accepts there are continuing reports that Indian police are poorly trained, corrupt and ineffective and the judicial system remains overburdened. The Tribunal also accepts that someone who was arrested and released on bail would be required to report to the police. However, as discussed during the hearing, India has a functioning judicial system which is modelled on the British system and the applicant’s evidence was also that he was never charged with an offence and he was never taken before a Court. The Tribunal is not satisfied that if the applicant had been suspected of involvement in Sikh terrorism he would continually be required to report to the police and interrogated and released without at any point being arrested or charged in relation to particular offences over the course of several years. The Tribunal also considers that had the applicant been of ongoing interest to the police in 1987 he would not have been able to leave Bihar for the Punjab. The Tribunal does not accept that the applicant fled to the Punjab or that he was in hiding in India or required to report to the authorities from 1987 for several years, or that when he left India in 2000 he did so because he feared harm from the police or the Indian authorities.

…

24.    The Tribunal accepts that the applicant is a traditional Sikh and is identifiable as such by his appearance, and that he may personally support Sikh human rights and nationalism. However, the Tribunal does not accept that the applicant will be viewed as a Sikh nationalist or terrorist upon his return to India or that he will be viewed as an “enemy of the State”. The Tribunal also does not accept that the applicant will seek to be involved in human rights or Sikh nationalist activities upon his return to India. Although the Tribunal has had regard to the independent evidence provided by the representative, other information overwhelmingly indicates that there are no restrictions on Sikh religious practises and that Sikhs comprise a very substantial and vocal community in India, particularly in the Punjab where they comprise approximately 60 per cent of the Indian population. Accordingly, the Tribunal is not satisfied that the applicant will suffer significant harm because he is a Sikh or that there is any evidence he will be unable to continue to practise his religion in India or unable to continue his traditional customary and religious practises. The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm because he is a Sikh or as a result of any actual or imputed involvement in Sikh nationalism.

…

DECISION

28.    The Tribunal affirms the decision not to grant the applicant a Protection visa.

(Footnotes omitted.)

13    On the merits, therefore, as it assessed them, the Tribunal affirmed the decision of the delegate not to grant a protection visa on complementary protection grounds.

14    As I have said, the application to the FCCA for judicial review could only succeed if a jurisdictional error was identified. The grounds of the application to the FCCA were as follows:

1. 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 consequence 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.

2. The Tribunal applied the wrong test:

Particulars:

a) The Tribunal left out individual elements of the applicant’s claims and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.

b) By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt.

(Bold in original.)

15    The FCCA concluded:

7.    In relation to the first ground, this was a case where the Tribunal made adverse findings in relation to the applicant’s claims. There was no information that the Tribunal took into account that enlivened any obligation under s.424A of the Migration Act 1958. Ground 1 fails to make out any jurisdictional error.

8.    In relation to ground 2, the assertion of the Tribunal applying an erroneous test is without substance. In respect of particular 2(a), the Tribunal was concerned with complementary protection under s.36(2)(aa), not persecution in relation to s.36(2)(a). Even if particular 2(a) were to be read as referring to whether there was a real risk the applicant will suffer significant harm under s.36(2)(aa), it is clear that the Tribunal took into account the whole of the applicant’s claims and that particular 2(a) fails to make out any jurisdictional error.

9.    In relation to particular 2(b), there is no evidence that the Tribunal required the applicant to obtain independent evidence or that the Tribunal imposed an onus or high onus upon the applicant. Particular 2(b) fails to make out any jurisdictional error.

(Italics in original.)

16    Those particular findings have not been challenged on the present appeal. Instead, the grounds of appeal I set out above have been advanced.

17    However, there was one further matter which was raised orally before the FCCA and also, very briefly, in this Court. It concerned a complaint that the Tribunal had proceeded with a hearing while the appellant was unwell.

18    As is apparent from the extracts of the Tribunal’s decision set out earlier, the claims based on complementary protection grounds were rejected on their merits. However, part of the discussion by the Tribunal also concerned particular events referred to by the appellant. The Tribunal discerned inconsistencies amongst some of the claims. It referred, in its decision, to such matters and to the appellant’s explanation that he was unwell. For example, the Tribunal said:

19.    The applicant also told the Tribunal that he last had contact with the police in 1994. When asked why he was interrogated in 1994, the applicant stated that there was a “very big case” and during that time they caught many people. The applicant referred to a truck which was full of ammunition. The applicant was interrogated because the truck belonged to Sikh terrorists and he knew that person and they were all living together in the city. The applicant was not arrested or charged in 1994. The applicant confirmed that he was not ever taken before a court in relation to any of these incidents. When asked if he could provide further details of what occurred in 1994, the applicant stated that he was beaten up but he was released. When asked what he was questioned about in 1994, the applicant stated that he was asked the “whereabouts” of those people who the police suspected were involved in the deaths of two people. When asked for further details about the incident and advised that the Tribunal is uncertain what particular incident he is referring, the applicant confirmed that he is not referring to the attack on the Golden Temple in 1984 but an incident in 1994. The Tribunal advised the applicant that it is unclear what incident to which he is referring in 1994 but it would attempt to obtain some information relating to this. When asked again whether that was the last time he had any contact with the police, the applicant stated that he thinks that was the last time but his memory is “not good.” The applicant stated that whenever people are interrogated relating to terrorism activities they always give his name to the police as someone who was involved in providing them with accommodation. When asked whether he had any involvement with terrorist groups or any other reason why the police would have any interest in him if he returned to India, the applicant stated that there is not. He also stated that he has no relationships with those people and only two or three of his friends became terrorists.

20.    When advised during the hearing that his evidence is inconsistent in relation to the last interrogation and detention, the applicant stated that he is very confused and there are numerous incidents. He also stated that he is very upset at the moment and cannot recall things. The representative submitted that the applicant is suffering from a health condition which may affect his ability to recall all aspects of his claims.

21.    The Tribunal has considered the applicant’s claims and the evidence provided. The Tribunal is prepared to accept that the applicant was interrogated and detained in 1987 for four days in relation to inquiries regarding the provision of accommodation to persons who were later found to be terrorists. The Tribunal accepts that during a period of intense conflict between the Sikh community and the Indian authorities following the attack on the Golden Temple in 1984 that many thousands of innocent Sikhs were massacred by mobs in Delhi and elsewhere, and that Sikhs were questioned, detained and mistreated about their possible involvement in Sikh terrorism or nationalism. The Tribunal also accepts that reports indicate that arbitrary detentions, torture, extrajudicial extortions and enforced disappearances of Sikhs continued for over a decade from 1984 to 1995. However, the Tribunal does not accept that the applicant was of any continuing interest to the authorities after 1987 or that he was interrogated on many occasions or of any adverse interest to the police or the Indian authorities when he left India in 2000. Although the applicant claimed on the application form that he was involved in fighting for human rights of Sikhs and Sikh nationalism, the extent of his involvement according to his evidence at hearing was that he inadvertently provided accommodation for persons in the 1980s who he later found were involved in Sikh terrorism. Additionally, the applicant’s written claims to the Department, although very brief and with no further elaboration provided in a statutory declaration despite the submission on 2 October 2012 that one would be provided “shortly”, refer only to one interrogation in 1997. Although the Tribunal has been unable to obtain any details of the 1994 truck ammunition incident it is prepared to accept that such an incident occurred. However, the Tribunal does not accept that the applicant was questioned or interrogated in relation to this incident. The Tribunal considers that if there was an explosion resulting in the deaths of two persons, and the applicant was interrogated in relation to it, he would recall whether it occurred in 1994 or 1997. The Tribunal does not accept that the applicant’s inability to provide consistent evidence in relation to this incident is due to confusion, memory problems or his health condition as submitted by the representative. The Tribunal accepts that the applicant underwent a gall bladder operation in March 2015, some two and a half months before the hearing, but is not satisfied that there is any evidence that this would affect his memory or his ability to recall important aspects of his claims.

(Emphasis added.) (Footnotes omitted.)

19    After stating its principal conclusions on the merits of the appellant’s claims, based on complementary protection grounds, the Tribunal said:

25.    In reaching the above conclusions, the Tribunal has had regard to the applicant’s claims regarding his medical condition and the submission by the representative. As indicated above, although the Tribunal declined the request for two months extension of the hearing, the applicant did not attend a hearing for some two and a half months after his gall bladder operation. No further medical evidence was provided to the Tribunal to indicate that he was not competent or able to appear before the Tribunal. The Tribunal is satisfied that the applicant was able to fully participate in the hearing and is not satisfied that his ability to give evidence was affected by an operation he underwent in late March 2015. The Tribunal has also not accepted that the applicant’s memory was responsible for the problematic aspects of some of his evidence. The Tribunal is satisfied, therefore, that it has fulfilled its obligations pursuant to s.425 of the Act.

20    The appellant raised those matters orally before the FCCA. After dealing with the stated grounds for the application for judicial review (in the extracts I set out earlier), the FCCA said:

10.    At the commencement of the hearing the applicant was invited to put submissions either in answer to the submissions of the first respondent or in support of his application. The applicant suggested that the Tribunal failed to properly consider the whole of his claims. That proposition is contrary to the detailed reasoning of the Tribunal. To the extent that the applicant suggested that the Tribunal failed to take into account his medical condition, it is clear from the Tribunal’s reasons that the applicant obtained a postponement of the initial hearing date and that the applicant then appeared via video link on the adjourned hearing date before the Tribunal on 12 June 2015 to give evidence and present arguments and that the hearing was also one in which the applicant was assisted by an interpreter and represented by his registered migration agent.

11.    The Tribunal identified the recent gall bladder operation that the applicant had undergone and considered whether or not that would affect his memory or his ability to participate in the hearing. The Tribunal found that it was satisfied the applicant was able to fully participate in the hearing and was not satisfied that his ability to give evidence and present arguments was affected by the operation that he underwent in March of 2015. Nor did the Tribunal accept that the applicant’s memory was responsible for the problematic aspects of his evidence. I find the applicant had a genuine hearing.

12.    The applicant also suggested from the bar table that he needed more time, which was not provided by the Tribunal. No request for an adjournment is identified in the Tribunal’s reasons or on any material adduced before the Court. Following the hearing the applicant’s representative provided further submissions to the Tribunal and no request for an adjournment was made in that further material provided dated 12 June 2015 and referred to in the Tribunal’s reasons.

13.    Nothing said by the applicant from the bar table identified any basis upon which there could be said to be a jurisdictional error. The application fails to make out any jurisdictional error. The application is dismissed.

21    No issue of this kind was raised by the notice of appeal in this Court. The appellant filed no written submission in support of the appeal. When invited to make an oral submission he said, without elaboration, that at the hearing before the Tribunal he was not well, physically or mentally, and was for that reason confused about some matters.

22    Any suggestion that the Tribunal had denied, or failed to provide, a fair hearing would need a firm foundation. It is apparent that the Tribunal considered whether the appellant was labouring under any difficulty which would affect the reliability of his contribution to the hearing and concluded that he was not. In particular, the Tribunal was satisfied that it had afforded the appellant a proper and fair opportunity to present his claims. The FCCA reached a similar conclusion.

23    I see no appealable error in the decision of the FCCA. I see no jurisdictional error in the decision of the Tribunal, whether as to the matters raised by the application for judicial review in the FCCA or in the notice of appeal to this Court or otherwise.

24    The present appeal must be dismissed with costs.

Associate:

Dated:    6 June 2016