FEDERAL COURT OF AUSTRALIA

DNB16 v Minister for Immigration and Border Protection [2018] FCA 1953

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’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

(Revised from transcript)

O’CALLAGHAN J:

1    These reasons for judgment were delivered ex tempore at the hearing on 28 November 2018 and accompany the orders set out above.

2    This is an appeal from orders of a judge of the Federal Circuit Court of Australia (the primary judge) made on 30 May 2018, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 26 October 2016. That decision affirmed a decision of the delegate of the first respondent (the Minister), to refuse the appellant a protection visa.

3    The appellant is a citizen of India. She is from the state of Punjab and came to Australia in 2009 as the holder of a student visa.

4    In December 2013, the appellant and her husband (from whom she is now separated) applied for a protection visa. That application was withdrawn in June 2014. In July 2014, the appellant lodged another application for a protection visa. In her application, the appellant claimed to fear harm from money lenders in India who had loaned money to her and to her family. Among other things, the appellant claimed, in her written statement that accompanied her application for a protection visa as follows:

My father tried to obtain a loan from the bank, but did not succeed, as bank wanted some kind of security before granting the mortgage. Left with no alternative, he took loan from the private lenders, a practice which is quite prevalent in India. He worked very hard and succeeded to return the major chunk of loan, but the private lenders, taking advantage of the situation, had applied high interest rate and penalties and started pressurising my father to pay back a hefty amount.

As my father was not able to do that, thus the lenders and their henchmen started threatening my father and us, along with my sister, of dire consequences. They came to my father’s house three-four times and told him that they will kill him and both his daughters if the money was not returned. My sister was so terrorised by them that she has become a psychotic patient and is getting psychiatric treatment. My father has been hiding at an undisclosed place so as to save his life. I am also very scared and certain that if I go back I will be significantly harmed by lenders and their men.

5    On 3 December 2015, a delegate of the Minister refused to grant to the appellant a protection visa. On 22 December 2015, the appellant applied for a review of the delegate’s decision by the Tribunal. On 8 August 2016, the appellant made a request (the FOI request) for access to documents under the Freedom of Information Act 1982 (Cth) for access to documents held by the Department of Immigration and Border Protection (the Department). Later that month, the appellant requested that the hearing before the Tribunal scheduled to take place on 9 September 2016 be adjourned until after the appellant had received the documents sought by the FOI request.

6    On 6 October 2016, in response to the appellant’s FOI request, the department file was released to her in the form of a compact disc (CD). The appellant contacted the Department that day to inform it that she could not access the CD that had been given to her.

7    In any event, in the meantime, the appellant’s request for an adjournment had been granted, and the hearing at the Tribunal occurred on 11 October 2016. That hearing was conducted by the Tribunal in circumstances where the appellant attended with the assistance of an interpreter, as she does in this proceeding in this court.

8    On 26 October 2016, the Tribunal affirmed the delegate’s decision not to grant a protection visa. In its reasons, the Tribunal recorded the fact that at the hearing the appellant confirmed that she made her application on the basis that she met the complementary protection criteria under the Migration Act 1958 (Cth) (the Migration Act). The appellant confirmed that she did not claim to meet the refugee criteria under the Migration Act. The Tribunal, in its reasons, set out the appellant’s claims that she feared harm because money lenders were targeting her father and his daughters for unpaid loans.

9    The Tribunal found that the claim that the appellant’s father was targeted because he owed money amounted to a fear of persecution for a personal reason, not a Convention-based reason. Further, the Tribunal found that there was no claim of a discriminatory or systemic withholding of state protection for a Convention reason in this case. In any event, the Tribunal did not accept the appellant’s claim that she faced a real chance of serious harm from money lenders in India. The Tribunal found the appellant had exaggerated and fabricated her claims about that matter for the purpose of remaining in Australia.

10    The Tribunal gave three principal reasons for its conclusion that the appellant had exaggerated and fabricated her claims which, in substance, were as follows:

(1)    First, the Tribunal found that the appellant had only sought protection once she had exhausted all other options. The Tribunal found that the appellant’s explanation for the delay, namely, that she had only become aware of the seriousness of threats faced by her family more recently, lacked credibility.

(2)    Secondly, the Tribunal found that the appellant’s evidence regarding her family situation was inconsistent, and, as a result, the affidavits upon which the appellant had relied on from her father and his friend, Mr Kumar, were given little weight.

(3)    Thirdly, the Tribunal found that there had been no adverse action taken against anyone in the appellant’s family for at least two and a half years, if at all.

These reasons are set out in paragraphs [20]-[22] of the Tribunal’s reasons.

11    Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution should she return to India now or in the foreseeable future, and that she did not, therefore, meet the criteria in s 36(2)(a) of the Migration Act.

12    Further, the Tribunal was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, that there was a real risk that she would suffer significant harm. The Tribunal, therefore, concluded that Australia did not owe any protection obligations to the appellant, and accordingly, affirmed the delegate’s decision not to grant a protection visa.

13    The appellant then sought judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia, claiming that the Tribunal had committed jurisdictional error. The application for review contained eight separate grounds, but because of the degree of overlap between the various separately enumerated grounds, the primary judge considered the grounds in four groups, because, properly analysed, they raised four separate issues.

14    The first ground asserted jurisdictional error by challenging the Tribunal’s findings as to the complementary protection obligations. The primary judge found that this ground, in substance, sought impermissible merits review, because it amounted to no more than a complaint that the Tribunal did not accept her evidence.

15    The second, third and eighth grounds concerned the appellant’s claim that the Tribunal member was biased. The primary judge rejected that claim because there was no evidence about that question, only the assertion of it by the appellant.

16    The fourth, fifth, sixth and seventh grounds alleged breaches of procedural fairness obligations by the Tribunal, founded on the notion that she had not been given an opportunity to present her case. The primary judge found that none of the procedural fairness obligations identified by the appellant was relevant to the proceedings before the Tribunal.

17    The second ground and part of the sixth ground claimed that the appellant was denied procedural fairness because the Tribunal had not given her hard copies of all the documents that she had requested in her FOI request. The primary judge held that no jurisdictional error could be maintained on that basis because, among other things, the Tribunal was not the subject of the request and that, in any event, the information that she had requested from the Department had been provided to her in the form of the CD.

18    The primary judge, accordingly, dismissed the appellant’s application for judicial review, with costs.

19    On 19 June 2018, the appellant appealed to this court. The notice of appeal contains eight grounds of appeal. Although the appellant was given the opportunity to file written submissions, she did not do so.

20    At the hearing, I asked the appellant if she wished to say anything in support of her appeal by way of submission. Through her interpreter, the appellant said, in substance, as follows:

(1)    First, there was an FOI request. The appellant said that she had requested hard copies of the document in her request but, instead, had been given a CD. She said that she did not have the money to enable her to print documents or otherwise access the CD, and she could not do so at a library either. The appellant said that she is entitled to hard copies, and if she had had hard copies, that would have been to her advantage to present her case.

(2)    Secondly, the appellant said that there was a “problem with the AAT member”. She said “I heard from many people that she was not impartial to hear my case.” The appellant added that she did not intend any disrespect in saying so.

(3)    Thirdly, the appellant said that “there was a big problem with the money we took from the lender. My sister is at home because she is mentally sick, and we are unable to repay the money.” The appellant also said that her father is in hiding from the lenders and that she presented her case on the basis of material given to the Tribunal. She said that if she goes back to Punjab, “it will not be that easy”, contrary to what the Tribunal alleged. She also said that her father had made several complaints to the police but that they never registered them.

(4)    The appellant said that if one watches the media, one can see that there are many people in Punjab threatened by money lenders. She repeated her claim that money lenders have threatened her family members and that all of them would be killed. She said that happens frequently and that there is no protection from the police.

(5)    The appellant also asserted that her father had told her that the situation was bad in Punjab, and that she would be kidnapped if she went back there. The appellant also said that the Tribunal had made no inquiries about any of the information provided by her. She also said that she has distant relatives who borrowed money who were killed.

21    Counsel for the Minister, Mr Cleary, relied on his written submissions and made brief oral submissions in support of them. The appellant’s eight grounds of appeal are quite lengthy, but counsel, quite correctly and fairly to the appellant, submitted that the gist of the grounds is as follows:

(1)    Grounds 1 and 2 both contend in substance that the appellant was denied procedural fairness inasmuch as she had specifically asked for hard photocopies of the documents which the Minister and the Tribunal held on their file.

(2)    Ground 3 contends that the Tribunal fell into jurisdictional error because it did not consider or discuss the appellant’s main ground and claims in relation to the attacks on the appellant’s family by the “goons” and the money lenders, as set out in the affidavits of Mr Singh and Mr Kumar.

(3)    Ground 4 contends that the Tribunal fell into legal error by failing to consider or discuss the specific allegations made by Mr Kumar that the money lenders came to his house with guns and other weapons and threatened the appellant’s father and sisters.

(4)    Grounds 5-8 contend that the Tribunal committed a jurisdictional error by not allowing the application of the appellant that the appellant had clearly demonstrated an apprehended bias by the member of the Tribunal.

22    I turn now to consider those grounds of appeal which, as I say, were quite correctly and fairly reduced to the propositions that Mr Cleary contended for.

23    First, as to ground 1, the primary judge was correct to find that there was no statutory requirement or obligation on the Tribunal obliging it to provide to the appellant hard copies of the documents that the appellant had requested from the Department, and which she had, in any event, been given in the form of a CD. As the primary judge correctly pointed out, in any event, the Tribunal was not the subject of the FOI request; the Department was. It follows that grounds 1 and 2 must therefore fail.

24    As for ground 3, and quite apart from anything else, it is simply not true to assert that the primary judge did not consider or discuss the appellant’s main ground and claims in relation to attacks by the goons and the money lenders. In fact, the Tribunal dealt in detail with the appellant’s main claims in relation to those matters. I refer, without setting them out, in particular to paragraphs [13]-[14] of the Tribunal’s decision. Further, and in any event, the role of the primary judge was to review the Tribunal’s decisions for jurisdictional error and not to carry out a merits review of the appellant’s claims. To have done that would have been impermissible. It follows that ground 3 must fail.

25    As for ground 4, again, it is simply not true to say that the primary judge failed to consider the specific allegations made by the appellant’s father and by his friend. The fact of the matter is that the Tribunal considered those allegations in detail. Again, I refer to, without setting out, paragraph [14] of the Tribunal’s reasons in particular. In any event, the Tribunal found that the appellant had exaggerated or fabricated her circumstances. Accordingly, the Tribunal did not accept, because the Tribunal did not believe what the appellant had said, that she faced a real chance of serious harm from aggrieved money lenders if she were to return Punjab.

26    I have referred to those reasons earlier, but they are contained at paragraphs [20]-[22] of the Tribunal’s reasons. The finding by the Tribunal that the appellant was not a truthful witness and the rejection of her claims based on her credit was indisputably a finding that was available and open on the evidence before the Tribunal, and there is no basis in this court to challenge those credit findings. It follows that ground 4 must fail.

27    Grounds 5 to 8 all concern the same claim that the primary judge was wrong to reject the claim made by the appellant before the Tribunal that the Tribunal member should recuse herself on the grounds of apprehended bias. This ground must be rejected, and emphatically so. As the primary judge correctly pointed out, allegations of this type must be distinctly made and clearly proved. Here, there is not a scintilla of evidence to support the claim. Accordingly, the primary judge and the Tribunal were correct to reject it. It follows that grounds 5, 6, 7 and 8, all of which make the same point about bias, must fail.

28    For all those reasons, the primary judge correctly found that the application for judicial review should be dismissed with costs. The primary judge’s decision discloses no appellable error, and it follows that this appeal must be dismissed. Accordingly, I order:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs, to be agreed or assessed.

Associate:

Dated:    28 November 2018