FEDERAL COURT OF AUSTRALIA

CTU15 v Minister for Immigration and Border Protection [2017] FCA 1445

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 11 April 2017, dismissing the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal. On 20 November 2015, the Tribunal affirmed a decision of a delegate of the first respondent to refuse the appellants Protection (Class XA) visas.

2    The appellants are citizens of India. They are married to each other. They claim to fear harm on the basis of the first appellant’s past involvement with a Hindu organisation, Dera Sacha Sauda (DSS). The second appellant also claims to fear harm, on the basis of her status as a widow, if the first appellant were killed if they return to India.

3    The Tribunal found that the appellants were not credible witnesses, giving detailed reasons for that assessment. The Tribunal found that the appellants were not followers or members of DSS. The Tribunal also rejected their claims that the first appellant had attended DSS events and had otherwise been involved with DSS. It rejected their claims that he had been involved in clashes between DSS supporters and Sikhs, that he had been burnt by police, and that he is at risk of being killed if he returns to India. The Tribunal concluded that the appellants would not face any real chance of serious harm if they return to India. The Tribunal was not satisfied that they met any of the criteria in s 36(2) of the Migration Act 1958 (Cth).

4    Before the Federal Circuit Court, the appellants raised four grounds in their written application, but their case as argued was that the Tribunal had failed to consider and make findings upon the first appellant’s claims that:

(1)    he had sustained an injury to his leg as a result of being attacked by Sikhs in 2007;

(2)    he told the Tribunal that he was told it was not necessary to apply for a protection visa when he came to Australia on a student visa;

(3)    he told the Tribunal that his father had told him not to return to India due to ongoing clashes;

(4)    he had not been to India for eight years to see his daughter, who still lives there.

5    As to the first issue, the primary judge noted that the Tribunal had referred to the appellants’ claims that the first appellant’s leg had been injured in a clash with Sikhs, but did not make any specific finding upon that claim. The first appellant had offered to show the Tribunal member a mark, but the Tribunal member declined to see it.

6    The primary judge concluded:

38.    The Tribunal proceeded on the assumption that the applicant had a minor injury consistent with the version that he had given (as they noted it was the evidence in both paragraphs [70] and [85]). The existence of the injury was not rejected. In the context of this case that matter did not assume significance in their decision-making in light of the numerous significant matters referred to above that told strongly against his credibility and, unsurprisingly, led to the Tribunal rejecting his evidence.

39.    Having regard to the overall circumstances of this case and the particular reasoning of the Tribunal, whilst it would have been preferable for the Tribunal to make a specific finding about his injury, and, indeed, view the injury as he offered, I am ultimately not persuaded that it was a piece of evidence of such significance, in the sense discussed in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 or Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 as to result in a finding of jurisdictional error on the part of the Tribunal in this particular case.

7    The primary judge found that the appellants had not informed the Tribunal of the second and third matters described above. Accordingly, his Honour found that there was no error in the Tribunal’s failure to consider those matters.

8    The primary judge also held that the Tribunal had considered the first appellant’s evidence that he had not returned to India in eight years to see his daughter.

9    Before this Court, the appellants’ notice of appeal asserts that:

(1)    The judgment of the Federal Circuit Court of Australia was not decided according to law.

(2)    The judgment under review is affected by jurisdictional error.

10    The appellants have not filed any written submissions. At the hearing of the appeal, the first appellant represented himself and also represented the second appellant. The first appellant repeated his contentions made to the Tribunal that his leg had been injured when he was struck with a rod, and that he has not been able to go back to India because he fears for his life. He said that his daughter still lives in India and he wants to see her, but that his parents say that it is still dangerous and not safe to return.

11    When asked why he asserted that the Tribunal’s decision was wrong, he said that he had told the Tribunal about all the circumstances, including the pain in his leg. He said that the Tribunal did not pay attention to any of his requests or arguments.

12    I understand the first appellant to have put essentially the same arguments to this Court as were put to the Federal Circuit Court. His argument must be that the Federal Circuit Court erred by failing to find that the Tribunal fell into jurisdictional error by failing to consider, or make findings upon, the four matters he relied on before the Federal Circuit Court.

13    I am unable to discern any error in the judgment of the primary judge. The principal issue before his Honour was whether the Tribunal had made a jurisdictional error by failing to make a finding on the first appellant’s claim that his leg had been injured in a clash with Sikhs in 2017. I agree with his Honour’s reasons for finding that there was no such error. While a failure to consider a piece of evidence can amount to jurisdictional error, whether it does so depends upon the importance of the evidence to the exercise of the Tribunal’s function and, thus, to the seriousness of the error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70].

14    The fact that the first appellant could demonstrate he had a mark on his leg did not establish how he had acquired the mark. The Tribunal made otherwise comprehensive findings rejecting the credibility of the appellants’ evidence. The Tribunal’s consideration of the mark on the first appellant’s leg could not conceivably have affected its decision as to the appellants’ credibility. There was no jurisdictional error on the part of the Tribunal.

15    The other aspects of the primary judge’s judgment are also, in my opinion, correct.

16    For these reasons, the appeal must be dismissed with costs.

Associate:    

Dated:    4 December 2017