FEDERAL COURT OF AUSTRALIA

CUK17 v Minister for Home Affairs [2019] FCA 835

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    There be no order as to costs against the third appellant.

3.    The first and second appellants are to file and serve any submissions on the question of costs on or before 4pm on 13 June 2019.

4.    In the event that the first and second appellants file submissions in accordance with order 3, the Minister is to file and serve any submissions in response on or before 4pm on 20 June 2019.

5.    In the event that no submissions are filed and served by the first and second appellants in accordance with order 3, the first and second appellants are to pay the costs of the first respondent as 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)

PERRY J:

1.    INTRODUCTION

1    The appellants appeal a decision of the Federal Circuit Court (FCC) dismissing their application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). By that decision, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister), to refuse to grant the appellants a Protection (Class XA) (Subclass 866) Visa (the visa).

2    While the appellants did not file written submissions, the first appellant made short oral submissions at the hearing of the appeal. He also confirmed at the hearing that he had received the Minister’s written submissions.

2.    BACKGROUND

2.1    The application for a protection visa and decision by the Minister’s delegate

3    The first appellant, the husband, is a citizen of India who last arrived in Australia in mid-2014 as the holder of a bridging visa. On 19 August 2016, the husband applied for a protection visa. The husband claimed to fear harm by reason of his actual and/or perceived association with the banned All India Sikh Student Federation (the AISSF), by reason of his religion as Sikh, and because of tensions between India and Pakistan, alleging that he and his family had been attacked on a number of occasions. The first appellant’s wife and son, who are the second and third appellants respectively, applied for protection visas as members of the husband’s family unit and did not advance any separate grounds for protection. The third appellant is a minor.

4    The application for the visa was refused by the delegate on 24 November 2016. Essentially, the delegate did not accept that the husband’s claims were credible and in any event the delegate considered that the country information did not indicate that the husband was at risk of persecution or significant harm. (I note that the term “country information” is generally used to refer to information about the situation in a country which derives from an independent government source or non-governmental organisation.)

2.2    The Tribunal’s decision affirming the delegate’s decision

5    The Tribunal affirmed the delegate’s decision on 16 May 2017. The Tribunal summarised the husband’s claims as identified in the statement accompanying his protection visa application in its reasons at [17] as follows:

•    [The applicant] was born into a conservative Sikh family in Punjab.

•    He was affiliated with the banned All India Sikh Student Federation (SSF).

•    His father was an activist of the Khalistan movement and believes in the independence of Khalistan.

•    The applicant’s family was known to the intelligence branch of the Punjab police.

•    He is aware of atrocities having been committed against Sikhs by the state and central government and he has been outspoken about it although he is not in favour of using force or any violent means to create the state of Khalistan.

•    The government authorities have followed the applicant’s movements and warned his father about the consequences. His father advised him to leave India to avoid detention.

•    Recently many of the followers have been detained by the security agency, and his father has warned him not to return to India.

•    The applicant fears that as an active member of the SSF, he will be at risk of detention, interrogation and torture if he returns to India.

6    The Tribunal did not accept that the husband’s claims were credible for a number of reasons. First, the Tribunal did not accept that the husband or his family had ever been associated with the AISSF or any other organisation supporting Khalistan. When questioned on these claims, the Tribunal considered that the husband was “vague and generalised in his description” and could not remember the name of the organisation until prompted by the Tribunal. The Tribunal found that it was implausible that the husband claimed to have been associated with an organisation for several years, that his parents were members of the organisation and wanted him to become a member, that his father is still being attacked due to his association with the organisation, and that these are the reasons the husband fears returning to India, yet could not remember the name of the organisation. The Tribunal also found that the husband’s evidence about the attacks which he claimed to have personally suffered were vague and that the husband’s evidence about those attacks allegedly against his father were vague and evasive. The Tribunal also found that the fact that the husband had returned to India twice, including after being attacked personally, contributed to its findings that the husband’s claims lacked credibility, as did the husband’s delay of more than 7 years in applying for a protection visa after first arriving in Australia. As a result, the Tribunal did not accept that the husband had been associated with the AISSF or been attacked in India due to any association with it.

7    Furthermore, even giving the husband the benefit of the doubt and accepting that he may be a sympathiser with the Khalistan movement, the Tribunal found that country information did not support his claims to face a real chance of serious harm or significant harm if he returned to India. In its view, the country information indicated that the Khalistan movement was no longer active in India and, while sympathisers may be monitored by the authorities, there was no evidence of them being arrested, assaulted, or persecuted. The Tribunal also noted that the authorities do not target ordinary Sikhs who express non-violent support for the Khalistan. The Tribunal found that this country information was more persuasive than the husband’s claims that “everything is still going on, on the ground” and “Sikhs still have fears”.

8    The Tribunal concluded that:

57. When these factors are considered together with independent country information that the ban on AISSF was lifted in 1985 and as at 9 September 2013, there were no reports of attacks on members of AISSF by state or non-state actors in India since the 1990’s [sic] (when the applicant was not even a teenager), the Tribunal finds the applicant’s claim to fear harm on the basis of an association with the AISSF or any other organisation supporting the Khalistan movement, or that he has been attacked due to any such association, to be completely lacking in credibility.

9    As a result, the Tribunal found that the husband’s fear of persecution was not well-founded and therefore he was not a refugee as defined in s 5H of the Migration Act 1958 (Cth) (the Act) so as to meet the criterion for a protection visa in s 36(2)(a) of the Act. Equally and based on the same findings of fact, the Tribunal found that there were no substantial grounds for believing that there is a real risk that the husband will suffer significant harm if returned to India so as to satisfy the alternative criterion for a protection visa in s 36(2)(aa) of the Act (the “complementary protection criterion”).

2.3    The FCC’s decision

10    By their application for judicial review of the Tribunal’s decision in the FCC, the appellants identified the following grounds:

1.    The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns [sic] to India for being involved with AISSF.

2.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived [at] in accordance with the provisions of the Migration Act.

3.    The Tribunal has failed to investigate [the] applicant’s claim, specifically the grounds of persecution in India.

11    The primary judge dismissed each of these grounds.

12    First, with respect to ground 1, the primary judge noted that the ground was unparticularised and that, contrary to the assumption in ground 1, the Tribunal’s decision did not hinge upon any construction of the term “significant harm”. Rather, the primary judge held that the Tribunal found that there were no substantial grounds for believing that there was a real chance that the husband would suffer significant harm based upon its assessment of his credibility and country information (FCC reasons at [6]-[12]). The primary judge concluded with respect to ground 1 that the Tribunal “appropriately addressed the factual issues raised by the applicant. It did not fall into jurisdictional error by doing so. There is no merit in ground 1 of the application for review. This court is not entitled to conduct a merits review of the decision of the tribunal” (FCC reasons at [13]).

13    The primary judge also rejected ground 2 of the judicial review application finding that:

14.    Sections 36(2) and 65 of the Act require the Tribunal to reach a requisite level of satisfaction in respect of the relevant criteria before a visa can be granted. The Tribunal was not so satisfied, and refused to grant the visa. As referred to above, the Tribunal gave clear reasons as to why it did not accept that the applicant gave creditworthy evidence. No jurisdictional error has been demonstrated as claimed in ground 2 of the application for review.

14    Finally, with respect to ground 3 of the judicial review application, the FCC found that the appellants had made no suggestion before the Tribunal that it ought to undertake further inquiries and that there was no obvious inquiry that the Tribunal did not make which it ought to have made (FCC reasons at [15] (citing Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60])).

3.    DETERMINATION OF THE APPEAL

3.1    The issues

15    The appellants identify the following grounds of appeal in their notice of appeal:

1. The Hon Judge 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 learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

(without alteration)

16    As the Minister submits, ground 1 of the notice of appeal asserts two errors: first, the Tribunal acted unreasonably in dealing with the husband’s claims (the first limb of ground 1); and secondly, the Tribunal ignored an aspect of his claims to fear persecution and harm (the second limb of ground 1). The Minister submitted that these errors were not raised in the FCC and therefore that leave to raise them was required and should be refused. However, in my view, the grounds of judicial review before the FCC were sufficiently general and broad to embrace both limbs of ground 1. Accordingly, in my view, leave is not required for the appellants to rely upon either limb of ground 1 of the notice of appeal.

3.2    Ground 1 of the notice of appeal

17    Turning to the first limb of ground 1 of the notice of appeal, the Tribunal’s reasons for decision demonstrate that it addressed the husband’s claims to fear persecution and harm and dismissed them for reasons that were rational, logical and based upon an assessment of the evidence which was open to the Tribunal. Specifically, the Tribunal found that the husband’s claims to fear harm were not credible given in particular that it regarded his evidence on crucial aspects of his claims as vague and implausible. Further and in any event, the Tribunal found that even if it accepted that the husband was a sympathiser with the Khalistan movement, his claim should be rejected on the separate and independent ground that the country information did not support a conclusion that he faced a real chance of serious harm or significant harm if he returned to India. The choice of country information was a matter for the Tribunal, as was the weight it gave to that information. I note in this regard that no country information to the contrary was relied upon by the appellants and that the Tribunal preferred the independent country information over the husband’s unsupported assertions about the situation on the ground in India. It follows that the appellants have not established that the Tribunal acted unreasonably in rejecting the husband’s claims, bearing in mind the stringent threshold which must be met in order to establish that a decision is legally unreasonable: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60] (the Court); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [11] (Kiefel CJ).

18    As to the second limb of ground 1, s 91R of the Act was repealed on 15 December 2014. As the decision of the Tribunal was made after that date on 16 May 2017, it would have been an error for the Tribunal to have applied that provision. Rather, the Tribunal was bound by the Act as amended and, in particular, to determine whether the husband had a well-founded fear of persecution as defined in s 5J of the Act as the Tribunal found at [9] of its reasons. The Tribunal in fact considered the husband’s claims to fear persecution and harm, applying that statutory definition, and therefore did not fall into error by reason of any failure to do so as alleged in ground 1.

3.3    Ground 2 of the notice of appeal

19    Ground 2 of the notice of appeal fails to identify any errors of fact or law made by the Tribunal which it is said the FCC failed to consider. In any event, the primary judge did in fact consider the errors alleged by the appellants in their application for judicial review, as is apparent from my earlier summary of the primary judge’s decision. No error is apparent in the primary judge’s rejection of those alleged errors.

3.4    Matters raised in oral submissions and the limited scope of the Court’s jurisdiction on judicial review

20    Finally, in his oral submissions on the appeal, the husband repeated certain of his claims to fear harm if returned to India and sought to explain the reasons why he had delayed for 7 years in applying for the protection visa. However, these are factual matters which this Court and the FCC do not have jurisdiction to consider. The jurisdiction of the FCC is confined to deciding whether the Tribunal’s decision was made lawfully under the Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error.  This Court in turn must decide whether the FCC wrongly held that there was no jurisdictional error.  The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellants’ visa application must be assessed under the Act, if it misunderstood their claims to fear harm if returned, or if it failed to hear and determine their applications in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). 

21    It follows that neither this Court nor the FCC has jurisdiction to grant the appellants a visa, to consider whether they satisfy the criteria for the grant of protection visas, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the FCC agrees with the Tribunal’s decision is not, therefore, a basis for the Court to interfere with the Tribunal’s decision, even if another decision-maker might have taken a different view of the evidence and reached a different decision.

4.    CONCLUSION

22    For these reasons, the appeal must be dismissed.

23    As to the question of costs, the husband requested the opportunity to make submissions on the question of costs. In the circumstances, the appellants were given that opportunity, with the caveat that if no such submissions were filed within two weeks of the hearing date, the first and second appellants were to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    3 June 2019