FEDERAL COURT OF AUSTRALIA

CSV15 v Minister for Immigration and Border Protection [2018] FCA 699

ORDERS

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

COLLIER J:

The appeal

1    This is an appeal from the decision of the Federal Circuit Court dated 20 February 2017, dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Protection (Class XA) visa.

2    The ground of appeal relied on by the appellant was not argued before the primary Judge. As such, the appellant requires leave, which the Minister opposes.

3    At the oral hearing on 21 August 2017, the appellant requested an adjournment to obtain legal advice and to have a lawyer study her case. That request for an adjournment was refused because the appellant had already had sufficient opportunity to seek legal advice and there was no indication before the Court that there would be any benefit to the Court or the progress of the matter by adjourning the hearing.

Background

4    The appellant is a citizen of India who first came to Australia on 9 November 2008. At that time, the appellant held a Student (Class TU) (Subclass 573) visa. The appellant’s husband at that time accompanied her as a dependent. The appellant left Australia on 19 June 2011 and returned on 11 July 2011 on a Student (Class TU) (Subclass 572) visa, which was cancelled in 2012 after the appellant withdrew from her course.

5    The appellant then applied for a Skilled (Temporary) (Subclass 485) visa in 2012, which was refused by a delegate of the Minister and also by the then Migration Review Tribunal. The appellant sought Ministerial intervention, but this was declined on 20 February 2014.

6    The appellant lodged her application for the visa the subject of these proceedings on 25 March 2014. A delegate of the Minister refused her application on 2 September 2014 after attending an interview with the delegate.

7    The appellant applied to the Tribunal for review of the delegate’s decision on 18 September 2014 and attended a hearing on 17 September 2015. The Tribunal affirmed the delegate’s refusal of the appellant’s visa application on 7 August 2015.

8    Before the Tribunal, the appellant claimed that she left India because her father was a strict Sikh and that she had disagreements with her father because she does not adhere or respect Sikhism. Before leaving India, the appellant entered into a love marriage, but was later divorced, and later entered into a de facto relationship with a Sikh male from a different caste. As a result, the appellant claimed that she will be subject to emotional abuse by her father and that she would be killed if she returned to India. The appellant claimed that she would be an outcast and would receive no support from her relatives or the community. She also stated that she would not survive in India because she suffered from depression and was suicidal.

9    The Tribunal considered that there were significant inconsistencies in the appellant’s evidence and made adverse findings as to her credibility. The Tribunal accepted that the appellant had a preference for Western culture and did not adhere to Sikhism; that her father, who was a strict Sikh, disagreed with her lifestyle choices and views; and that the appellant would likely have a tense and argumentative relationship with her father. However, the Tribunal also noted that the appellant’s father had supported her financially when she applied for her student visa, even after knowing about her first love marriage, and found that this was inconsistent with the appellant’s claims that her father would kill or seriously harm her.

10    The Tribunal also considered country information that acknowledged that there was still a stigma surrounding divorce in India but which did not contain any reports of divorced women being attacked in the area of the appellant’s home community in India.

11    Ultimately, the Tribunal concluded that the appellant did not satisfy either refugee or complementary protection criteria, contained in ss 36(2)(a) and (aa) of the Migration Act 1958 (Cth) (the Act). Although the appellant could be the subject of rejection and disapproval on her return to India, this was not “serious harm” for the purposes of the relevant protection criteria. The Tribunal also did not accept that the appellant would face a real risk of harm based on being a member of a social group, being women in India.

Federal Circuit Court proceedings

12    In the Federal Circuit Court, the appellant relied on the following statement in her application:

…

I get decision from Administrative Appeals Tribunal. Am not really happy with the decision. Because I explain everything and I give all proff. My story is very sad. My Dad and my relatives don’t like me. Since I grow up. Because I take my own decision which one no one like. Specialy my Dad. He don’t like me. He won’t want to see my face. Even when my past away I did not went to India to my Mum last time. Because my Dad said won’t com. If you will come to India it will be very bad for you. I really afraid to go. I took so many decision about my life and my life style – which one am not alow to take. I have some. I got many against my family and relatives which they never accept. Then I had divorced. And again I meet someone fallen in love with. Some one and I marry again to Inter Cast Boy which is really bad disrespect for my Dad and relatives.

This is my life. I want to spend my life with my own way. And according to these are significant. I really want to stay in Australia … Because I know very well if I return to India I will be kill by my father and relatives. Or may be meantly disturb. I can’t survive with all depression.

I really request you please help me to spend my life with happiness because I really don’t want to kill by some one like animals. I hope you will be there about my life. (My decision). Please change my decision according to my circumstances.

…

(Errors in original.)

13    The Federal Circuit Court dismissed the application for review of the Tribunal’s decision. The primary Judge was satisfied that the Tribunal had considered all aspects of the appellant’s evidence and had properly considered the appellant’s claims regarding her mental health and the relevant country information. The primary Judge also found that the Tribunal had correctly outlined the relevant refugee and complementary protection criteria. Her Honour observed that the appellant was simply unhappy with the Tribunal’s decision and was seeking impermissible merits review. No jurisdictional error on the part of the Tribunal was identified.

The grounds of appeal

14    The appellant has included the following ground in her notice of appeal:

1.    The Federal Circuit Court fell into error, in that it failed to find that the Tribunal had committed error by:

a.    Failing to put to me for comment certain ‘country information’ it relied upon to conclude that I did not face harm in India of being a woman (at para [56]); and

b.    By arriving incorrectly at the conclusion that the impact on my mental health of return to India ‘does not involve the conduct of another person or persons’ and therefore ‘does not constitute serious or significant harm’ (at para 55]).

15    As I have already noted, the appellant requires leave to rely on these grounds because they were not put before the Federal Circuit Court. The Minister opposes such leave being granted because prospects of success are poor.

16    The appellant did not file written submissions in support of her grounds of appeal but made oral submissions at the hearing on 21 August 2017.

Consideration

17    At the hearing, the appellant reiterated her personal situation with her father, whom the appellant described as very strict. The appellant outlined the situation of women in India, especially those who sought higher education, who were divorced, or who entered into love marriage or inter-caste marriages. She also stated that she had not returned to India when her mother passed away because of her family’s disapproval of her. The appellant claimed that she would be killed or would commit suicide if she returned to India.

18    These submissions, however, did not address her grounds of appeal. Further, they amounted to a request for the Court to overturn the factual findings of the Tribunal, or engage in merits review, which this Court is not permitted to do in an appeal from a judicial review application.

19    In order to grant leave for the appellant to rely on fresh grounds on appeal, it must be expedient in the interests of justice for those fresh grounds to be raised: VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46], [48]. Whether it is in the interests of justice to grant leave depends on the strength of the grounds on which the appellant seeks to rely: BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [21].

20    As to ground 1(a), namely the alleged failure on the part of the Tribunal to put to the appellant the country information it relied upon to conclude that the appellant did not face harm in India on account of being a woman, the Minister submitted, in summary:

    The manner in which the Tribunal dealt with the claims raised by the appellant in relation to whether she would face harm as a woman in India was orthodox.

    The Tribunal was not required to put the country information to the appellant for comment because it fell within s 424A(3)(a) of the Act.

21    Section 424A(1)(a) of the Act provides that the Tribunal must:

… give the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal would be the reason, or part of the reason, for affirming the decision that is under review …

22    However, s 424A(1)(a) is subject to s 424A(3)(a) of the Act, which provides:

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant is a member

…

23    It has been established by numerous authorities that country information falls within s 424A(3)(a) and is therefore excluded from information required to be put to the appellant under s 424A(1) of the Act. In Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572, Merkel and Hely JJ observed:

… we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14].

(Emphasis added.)

24    The effect of s 424A(3)(a) is to require greater specificity before information must be given to the appellant under s 424A(1). In the same case, Beaumont J found at [70]:

…subs (3)(a) would have a purposive meaning which would preclude, as Parliament must have intended, a possible argument that reference to a class would be taken as a reference to all individuals falling within in.

(Original emphasis.)

25    The approach of NAMW was adopted by the Full Court in WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44]-[46], and subsequently in QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[31], VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16], and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [2].

26    The country information referred to by the Tribunal in this case contained general statements about the position of women in India. It was not about the appellant specifically, but concerned a class of persons. Accordingly, the primary Judge in this case did not err in finding that the Tribunal was not required to put the country information to the appellant as it was excluded from being subject to the requirement in s 424A(1) by operation of s 424A(3)(a). The approach of the Tribunal to the country information in the appellant’s case was, as the Minister submits, orthodox.

27    As to ground 1(b), concerning whether the impact of the appellant’s mental health constituted serious or significant harm for the purposes of satisfying a criterion in ss 36(2)(a) or (aa) of the Act, the Minister submitted that the Tribunal was correct in its finding that it would not constitute serious or significant harm on the basis that it did not involve the conduct of another person or persons, or a third party.

28    At the relevant time, s 36(2)(a) of the Act provided that the criterion for a protection visa under the Act was that the applicant for the visa must be “… a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.” The term “refugee” in art 1A(2) of the Convention relating to the Status of Refugees 1951 (the Convention), as amended by the Protocol relating to the Status of Refugees 1967 (the Protocol), applies to any person who:

Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

29    Section 91R of the Act (now repealed) at the relevant time qualified the definition of “refugee” under the Convention as follows:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1(A)(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens that person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

…

(Original emphasis.)

30    The appellant does not claim that her depression would be the result of persecution by other persons, or that it would be the result of her race, religion, nationality, membership of a particular social group or political opinion such that the appellant would be a person in respect of whom Australia has obligations in accordance with the definition in the Convention. Further, the concepts of “persecution” and serious harm as detailed in s 91R of the Act indicated that the concern of Parliament is with acts perpetrated by others which cause the non-citizen to suffer harm. So much was also clear from s 91R(1)(c), which required systematic and discriminatory conduct. And although it is a non-exhaustive list of what constitutes “serious harm”, s 91R(2) of the Act included a list of actions that could be perpetrated against the non-citizen by another person.

31    Section 36(2)(a) is thus concerned with persecution of the non-citizen by other persons for Convention reasons, and it is not directed to whether a person suffers from an illness. Accordingly, the appellant’s claim that she would suffer depression upon her return to India did not address s 36(2)(a).

32    Section 36(2)(aa) of the Act specifies the complementary protection criterion, namely that a criterion for a protection visa is that the person is:

a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …

33    Relevantly, pursuant to s 36(2A) of the Act a non-citizen will suffer “significant harm” if:

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

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

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

(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.

34    This definition is framed in terms of harm suffered by a non-citizen because of the acts of other persons. Like s 36(2)(a), s 36(2A) does not encompass the harm the appellant claims she will suffer from depression if she returned to India, just as it does not cover the harm that a person would suffer as the result of any other illness arising on the return to the receiving country.

35    In my view the Tribunal gave adequate consideration to the appellant’s claims regarding her depression, as well as to a letter provided by the appellant’s de facto partner expressing concerns for the appellant’s mental health. The Tribunal was correct in its finding that the appellant’s risk of depression upon returning to India did not satisfy the requirements of ss 36(2)(a) or (aa) of the Act.

36    The grounds on which the appellant seeks to rely do not have any reasonable prospects of success.

37    It is appropriate to dismiss the appeal with costs.

Associates:

Dated:    21 May 2018