FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v AHL15 [2017] FCA 1178

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The first and second respondents pay the appellant’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J :

introduction

1    The Minister appeals against a decision of a judge of the Federal Circuit Court of Australia (the FCCA), allowing an appeal by the first and second respondents from a decision of the Refugee Review Tribunal (the Tribunal) affirming the decisions of delegates of the Minister refusing to grant visas to the first and second respondents. Only one ground of appeal was raised by the Minister, namely that the judge erred in law in considering a criterion for applications for visas by the first and second respondents that they never relied on, and which the Tribunal did not address.

2    The Tribunal considered and rejected a submission made on behalf of the first and second respondents, on the issue of whether they could relocate to a place in India other than the Punjab, that “people in India are much more interconnected ... than in Australia and that as a result of the cultural factors at play there[,] word will spread about them so that it will be harder for the applicants to ‘get lost’ than it would be in Australia”.

3    Before the judge, counsel for the first and second respondents, although conceding that they had made no express claim before the Tribunal that “social media and the internet would make it easier for their family to discover that they had left Australia and returned to India”, submitted that it was nonetheless “implicit” in the contention that “people in India are much more interconnected” that it included a claim with respect to “electronic forms of communication, such as the internet and social media”, and that the Tribunal erred in failing to deal with that implicit submission.

4    The judge agreed and held that, in the “unusual circumstances” of the case, and despite the fact that the first and second respondents’ submissions had not alerted the Tribunal to the issue of the internet and social media, the Tribunal’s failure to consider it amounted to an error of law, necessitating reconsideration and redetermination by the Tribunal.

5    For the reasons that follow, the learned judge was wrong to allow the appeal because the submission made by the first and second respondents before the Tribunal did not raise explicitly or implicitly for its consideration a claim that the use of the internet and social media were factors relevant to the Tribunal’s consideration of the issue of relocation. The Court will, for the reasons set out below, accordingly allow the appeal with costs.

the visa applications

6    The first and second respondents are citizens of India from the state of Punjab. The first respondent arrived in Australia in June 2007, the second respondent in April 2008. They married in Australia in January 2009.

7    On 8 January 2014, the first and second respondents separately applied for Protection (Class XA) visas, claiming to fear harm from their families because they had married within the same “gotra”, or lineage. They claimed that their parents, upon discovering the relationship between them, had threatened to kill them when they returned to India.

8    On 28 May 2014, separate delegates of the Minister refused to grant the first and second respondents visas.

The Tribunal’S REVIEW

9    In June 2014, the first and second respondents applied to the Tribunal for a review of the delegates’ decisions.

10    I set out below the important parts of the Tribunal’s reasons relied upon by counsel for the first and second respondents, Ms Franceska Leonica, in her detailed and helpful written submissions.

11    On 11 December 2014, the Tribunal held a combined hearing of the applications. The first and second respondents appeared before the Tribunal to give evidence and present arguments. They were represented by a migration agent. The first and second respondents contended that they would not be safe if they returned “anywhere in India as [the first respondent’s] father is a powerful man with significant wealth and influence to exert harm anywhere in the country”.

12    On 26 February 2015, the Tribunal affirmed the delegates’ decisions not to grant the first and second respondents’ visas. The Tribunal accepted the first and second respondents’ evidence about their fear of harm from their families if they were to return to the Punjab. The Tribunal (at [63]) accepted that the first and second respondents’ families are strongly opposed to their marriage and that both their fathers had threatened to kill them. The Tribunal also accepted that the second respondent was seriously assaulted by her father when he first learned of her relationship with the first respondent. The Tribunal found the first and second respondents to be credible witnesses.

13    The Tribunal also found as follows:

Having regard to the country information above regarding familial and societal attitudes to inter-religious marriage and the prevalence of “honour killings” for reason of marriages which take place without family approval in India, especially in Punjab, the Tribunal finds there is a real chance that the [second respondent] will be seriously harmed or killed by her father or other relatives or by [the first respondent’s] father or his relatives if she returns to the state of Punjab now or in the reasonably foreseeable future. The Tribunal finds also on the evidence before it that there is a real chance that the [first respondent] will be seriously harmed or killed by his father or other relatives or by [the second respondent’s] father or her relatives if he returns to Punjab now or in the reasonably foreseeable future.

14    The Tribunal further concluded that the harm that the first and second respondents would face would amount to serious harm capable of amounting to persecution for the purposes of s 91R(1)(b) of the Migration Act 1958 (Cth).

15    The Tribunal then turned to the issue of relocation. That issue arises in cases such as this because under the Refugee Convention an applicant for protection will not be a refugee if, notwithstanding a well-founded fear of persecution in her or his home region, there is another part of the country to which the applicant can reasonably be expected to relocate and within which she or he does not have a well-founded fear of persecution: Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426 at [7] per Lord Bingham; SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19]-[22] per Gummow, Hayne and Crennan JJ.

16    The first and second respondents gave evidence, which the Tribunal accepted, that they feared that their families would be able to locate them if they returned to India. The second respondent has relatives in Delhi and Bombay. The first respondent has an uncle in Delhi and there are about 10 people from his village who now live in Mumbai. The first and second respondents testified that they feared that people they encountered in India or people they knew in Australia would “share information” about them. They said that they would not tell their families where they were going but it would only be a matter of time before their families found them. They also feared that their families would seek them out and may hire someone to find them.

17    Importantly for current purposes, the Tribunal recorded (at [83]) the statement of the first and second respondent’s representative, in oral submissions, that:

… people in India are much more interconnected in India than in Australia and that as a result of the cultural factors at play there[,] word would spread about them so that it will be harder for [the first and second respondents] to “get lost” than it would be in Australia.

18    The Tribunal concluded that there was not a real chance that the first respondent or the second respondent would be seriously harmed because of their marriage to each other or for any other reason if they relocated to an area in India outside the state of Punjab, reasoning as follows (at [85]-[86]):

The Tribunal accepts that the [second respondent] has relatives in Delhi and Bombay and the [first respondent] has an uncle in Delhi. The Tribunal accepts that there may be people from the [first respondent’s] village living in Mumbai. The Tribunal also accepts that social interconnections are more significant in India than they are in Australia. However, the Tribunal finds that given the vast population of India and the length of time the [first and second respondents] have been outside the country there is less than a remote chance of either of the [first and second respondents] coming in contact with and being recognised by those relatives or villagers and of those relatives or villagers contacting the [first and second respondents’] immediate families or taking action in relation to the [first and second respondents’] immediate families’ opposition to their marriage.

The Tribunal finds on the evidence before it that the harm faced by the [first and second respondents] is localised to their home state of Punjab. On the evidence before it the Tribunal does not accept that in a country the size of India with a population in excess of 1.25 billion that if the [first and second respondents] moved to a location outside Punjab without disclosing to their families their departure from Australia, return to India or whereabouts in India, there would be a real chance they would be located by their families now or in the reasonably foreseeable future.

The case before the FCCA

19    The first and second respondents then sought judicial review of the Tribunal’s decision in the FCCA on a number of grounds.

20    One ground of appeal was successful, namely:

The Tribunal failed to consider properly the test whether [the first and second respondents] would suffer serious harm as per sec. 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

21    The learned judge, in allowing the ground of appeal, reasoned as follows (at [22]-[27]):

The reasoning of the Tribunal would be entirely appropriate in a pre-internet and social media society. What is conspicuously absent from the reasoning process is any consideration of the impact of the internet and more particularly that of social media. We live in an age where most people under 40 have a presence on social media, sharing information about their lives and making connections with others through the use of technology. The internet makes people from all over the world accessible and more easily traceable. The Tribunal has not considered the impact of this seismic cultural shift as a result of the new internet technologies upon the question of whether or not the parties were likely to be located by family members. Similarly the Tribunal has not considered whether or not it was reasonable to expect the parties to curtail their use of internet technology. Of course, in the modern age of computing simply changing one’s name is insufficient if there are photographs on the internet, as a result of modern facial recognition searching being undertaken by the major search engines and social media providers. To ignore the impact of social media in today’s world would be equivalent to ignoring the existence of the telephone or postal services.

As electronic communication and social media have become ubiquitous it is an affront to common sense to conclude that they need specific references in submissions any more than references to telephones or postal services.

This consideration may not be relevant in cases where perpetrators of harm are unlikely to travel to other parts of the country, as may well be the situation with harm perpetrated simply on racial or political grounds. This case, however, is unusual in that involves harm perpetrated on an individual level by perpetrators that would remain highly motivated to pursue the [first and second respondents] and perpetrate the harm involved.

The question that remains is whether or not the consideration of the impact of internet and social media is so central to the determinations in a case such as this, which involves a threat of honour killing by wealthy and highly motivated parents, such that a failure to have regard to it is a failure to have regard to a relevant matter that results in jurisdictional error.

Ultimately the determinations in a case such as this must be based upon practical, real-world considerations. It is unfortunate that the submissions to the Tribunal member did not alert the member to this issue in a clear statement. However, the failure to consider modern communication and the effects of information sharing through social media is of such significance, at least in the peculiar circumstances of this case, as to result in an error on the part to the Tribunal in failing to take it into account.

In the unusual circumstances of this case I am, therefore, persuaded that the Tribunal member has erred and that it is appropriate to set aside the decision and have the matter re-determined.

This appeal

22    The Minister’s sole ground of appeal relates to the Tribunal’s conclusion that the first and second respondents could safely relocate to an area outside their home state of Punjab. The precise questions on the appeal were: whether the primary judge was correct to find that the Tribunal committed jurisdictional error in reaching its decision because it failed to consider: (a) the impact of the internet and social media on the ability of the first and second respondents to relocate safely within India; and (b) whether it was reasonable to expect the first and second respondents to curtail their use of internet technology.

The applicable principles of law

23    The applicable principles admit of no doubt. They are fairly set out in the Minister’s submissions, as follows:

In determining whether there was a safe place of relocation in India the Tribunal was obliged to consider any claim to fear persecutory harm made by the respondents. Indeed, the Tribunal must correctly construe and consider each claim (including each element or integer of each claim and the cumulative effect of each claim) made by an applicant: Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 197 ALR 389 at 393–4 [22]–[24], [27] (Gummow and Callinan JJ), 407 [88]–[89] (Kirby J), 408 [95] (Hayne J) (Dranichnikov); NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 18–20 [58]–[61] (Black CJ, French and Selway JJ) (NABE).

The Tribunal’s obligations to consider claims includes claims that are expressly raised by an applicant or are apparent on the material before the Tribunal. In so doing, the Tribunal must give proper, genuine and realistic consideration to the evidence before it and each claim made by an applicant that is a “substantial, clearly articulated argument relying upon established facts” Dranichnikov at 393–3 [22]–[24]; NABE at 19–20 [61], 22 [68].

If a claim is not articulated expressly it must emerge clearly, or squarely, from the material before the Tribunal and it “will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE at 19 [58]. Indeed, the Full Federal Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 [70] endorsed the earlier observation of Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] that a claim must:

… arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

24    The first and second respondents accepted that they made “no specific reference to the impact of internet and social media” in their submissions to the Tribunal. The first and second respondents’ submission in this Court was that the submission made to the Tribunal, about the interconnected nature of Indian society, should be construed “in a modern world, [to encompass] not only face-to-face contact but also … electronic connections through social media and other forms of electronic communication”.

25    I am unable to accept that submission. In my view, the Minister is correct to submit that there was “no material before the Tribunal about the [first and second respondents’] present or intended future use of social media or internet technology or the way in which such technology could lead to the location and harm in India”. As the Minister further submitted:

[t]he claims that the primary Judge found had not been dealt with by the Tribunal simply did not rise with tolerable clarity (SZRMA) or to the level of a substantial, clearly articulated argument relying upon established facts (Dranichnikov). Accordingly, in finding that the Tribunal had overlooked these claims and thereby fallen into jurisdictional error, the primary Judge erred.

26    Adopting the words of Allsop J (as the Chief Justice then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15], the “unarticulated claim [does not] arise tolerably clearly from the material itself”. The unarticulated claim, viz that the impact of the internet and social media on the safety of the first and second respondents if they were to relocate from the Punjab to somewhere else in India, cannot be regarded as a claim that relevantly arose out of a submission that “people in India are much more interconnected ... than in Australia and that as a result of the cultural factors at play there[,] word will spread about them so that it will be harder for the [first and second respondents] to ‘get lost’ than it would be in Australia”.

27    All sorts of evidentiary questions might have arisen had the unarticulated claim been articulated. By way of example only: did the first and second respondents use the internet and social media? If yes, what social media platforms did they use? What measures were available in the use of all those things to provide a firewall of security or secrecy? How prevalent throughout India were the platforms (or other means of electronic communication) used by the first and second respondents?

28    It is true that the Tribunal did not consider the impact of what the primary judge called the “seismic cultural shift” that new internet technologies have caused. It is equally true that the Tribunal: did not consider whether or not it was reasonable to expect the parties “to curtail their use of internet technology”; did not deal with what the primary judge refers to as “modern facial recognition searching”; did not consider the question of what the primary judge described as the connection between perpetrators, like the respective fathers of the first and second respondents, who are “highly motivated to pursue the [first and second respondents]” and cause them harm; and did not consider their ability to use the internet and social media to find the first and second respondents and cause them harm. But, with great respect to the primary judge, all that is so because the first and second respondents did not ask the Tribunal to do so. In my view, none of those questions can be said to arise from a general submission concerning the “interconnectedness” of people who live in India, within the meaning of the cases referred to above (at [23] and [26]).

29    As Black CJ said (Whitlam J agreeing) in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (at 443):

…ordinarily, [it would] be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant.

30    In that case, like this case, “the applicant raised several issues, all of which were dealt with by the decision-maker”: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443. It was also true in that case that if the applicant “had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised … and to the material that was before the decision-maker on the issue of relocation [the decision-maker] was entitled to come to the conclusion that the [applicant] could reasonably be expected to relocate elsewhere in India”: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443. And so it is here.

Conclusion

31    For those reasons, the appeal must be allowed with costs.

Associate:

Dated:    4 October 2017