FEDERAL COURT OF AUSTRALIA

ESK18 v Minister for Home Affairs [2019] FCA 935

ORDERS

THE COURT ORDERS THAT:

1.    Application for an extension of time dismissed.

2.    The applicant is to pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant seeks an extension of time and leave to appeal from a decision of the Federal Circuit Court of Australia: ESK18 v Minister for Home Affairs [2018] FCCA 3432. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the Minister to refuse a protection visa.

Background

2    The applicant is a citizen of India who arrived in Australia on 27 April 2008 on a student visa. That visa was renewed in 2009 and ceased on 28 February 2011, making him an unlawful non-citizen from that date.

3    The applicant married an Australian citizen on 29 November 2010. On 10 November 2011 he lodged an application for a partner visa, which was refused by the Minister's delegate. On 22 January 2015 that decision was overturned by the then Migration Review Tribunal. The application for a partner visa was remitted to the Department for reconsideration, but was refused on character grounds as the applicant had by that time been convicted on a number of offences.

4    The decision to refuse the partner visa application was affirmed by a differently constituted Tribunal on 29 August 2017. The applicant sought judicial review of that decision in the Federal Circuit Court, but those proceedings have since been discontinued.

5    On 11 April 2018 the applicant lodged an application for a protection visa. This application was refused by the delegate on 28 May 2018.

6    The applicant sought review of the delegate's decision in the Tribunal. On 8 August 2018 the Tribunal affirmed the delegate's decision.

7    The applicant sought judicial review of the Tribunal's decision in the Federal Circuit Court. On 26 November 2018 the primary judge dismissed the application pursuant to s 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (a show cause hearing).

8    Any appeal to this Court should have been filed by 11 December 2018. On 17 January 2019 the applicant filed his application in this Court seeking an extension of time and leave to appeal from the decision of the primary judge.

Leave to appeal

9    A dismissal of an application at a show cause hearing is interlocutory. Under s 24(1A) of the Federal Court of Australia Act 1976 (Cth), an appeal from such interlocutory orders and judgment requires leave from the Court.

10    The Court has a discretion as to whether to grant leave to appeal from an interlocutory judgment, but generally leave will not be granted unless the decision in question is attended with sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Minogue v Williams [2000] FCA 125 at [19]. Leave will more readily be granted where, as here, the interlocutory decision effectively determines a substantive right: Decor Corporation at 400; Minogue v Williams at [19].

Extension of time

11    In considering whether to grant an extension of time to seek leave to appeal under r 35.14 of the Federal Court Rules 2011 (Cth), the Court will be guided by the principles governing an extension of time under r 36.05: Mehmood v Attorney-General (Cth) [2013] FCA 406. The Court will be guided by the following factors: the length and explanation for the delay, any prejudice that the respondent might suffer due to delay and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (Wilcox J); and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospect of success, an extension of time, even for only a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J).

12    The application for an extension of time was filed just over a month after the expiration of the 14 day period in which an application for leave to appeal should be lodged. This delay is not excessive, but nor is it insignificant.

13    In his affidavit in support of an extension, the applicant states that his application was originally rejected as it was attested by a doctor at his detention facility due to the unavailability of a Justice of the Peace. The applicant was then transferred to a different detention centre and the time limit expired before he could re-submit his application. Based on his oral submissions, it does seem that the applicant had some difficulty instituting proceedings in this Court, taking into account his movement between detention centres and a difficulty finding a Justice of the Peace to witness his affidavit over the Christmas period. I accept that an explanation for the delay has been provided, but consider that in any event the more persuasive and determinative factor in this case is whether the proposed appeal has any prospect of success.

Protection claim before the Tribunal

14    The applicant claimed to face harm if returned to India on three inter-related bases.

15    First, the applicant claims to fear persecution by his two paternal uncles who, he says, will kill him to prevent him from inheriting his late father's land, which they have occupied for their own use. The applicant states that the land in question is still in his father's name. He claims his father sent him to Australia in 2008 to move him away from a property dispute between his father and uncles over the land. He claims that his father was murdered by poison by his uncles in 2011, who bribed the police and a local politician to not investigate the murder. He claims that if he returned to India, his uncles will try to kill him to preserve their possession of the land, and that he will be unable to avail himself of state protection because of having a negative profile arising from his criminal background and his inter-religious marriage.

16    Second, the applicant claims to fear persecution from family members in India for reasons of his 'inter-religious' marriage between himself, a Sikh, and his Australian Christian wife. He claims that his defiance of traditional religious expectations in his family and broader Sikh Indian society will lead to him and/or his wife being seriously harmed.

17    Third, the applicant committed a number of criminal offences in Australia relating to sexual harassment, sexual assault and domestic violence. The applicant provided the Tribunal with evidence of his having been named in an SBS News article in Australia, and later in a Punjab newspaper in India, in connection with his criminal record and failed partner visa application. He claims that because Punjabis live all over India and may have read the articles, he will face persecution as part of a 'particular social group' in India comprised of 'former felons' or 'former sex offenders'. He claims to fear having a bad reputation as a 'blight on the community' and that religious organisations in India are capable of torturing and killing him over his criminal record.

The Tribunal's findings

18    The Tribunal accepted that the applicant was a Sikh from Punjab state.

Land dispute claim

19    As regards the land dispute, the Tribunal accepted that the applicant was the heir to his father's land and that his uncles are utilising the land in his absence, but rejected the claim that the applicant's father was murdered or that the uncles had misappropriated the land. It rejected the claim that the applicant's uncles had co-opted police or politicians. The Tribunal concluded that it did not consider his claim as to the land dispute to be at all truthful.

20    It reached that finding having had the opportunity to ask questions of the applicant and having examined his responses, as summarised mainly in the following part of its reasons:

41.    [The applicant] said that his father sent him to Australia in 2008 purely to move him away from a dispute that he was having with his two younger brothers over the land. He said that one or both of the brothers murdered his father in 2011. I asked him how his father died and he said his father was poisoned. I asked him if this cause of death appeared in any medical report and he said it did. I asked if the death was then treated as a murder and he said it was not because the police were being bribed by the uncles, who also sold and bought good relations with a local politician. He said these bribes also bought police support for his uncles' side in the dispute. [The applicant] provided only verbal evidence in support of his claims about his uncles having occupied the land, having poisoned his father and having bribed police and politicians.

42.    [The applicant] appeared clearly uninterested in asserting, confirming or contesting ownership and use of the land. By seeking to remain in Australia he struck me as being essentially desirous of letting sleeping dogs lie, as it were, and letting his uncles do what they like with the land. Whether he returned to India as an Indian national or Australian resident or citizen did not, apparently, make any difference to him: he appeared in his evidence to be resigned to his uncles taking over the land.

43.    I therefore asked [the applicant] if he thought he could write to his uncles, say, through his lawyer, and assure them that they could continue to use the land, or even have it for themselves, as long as they let him be. In response, he said his mother had tried to talk to them and remind them that he is the legal owner. I am not satisfied that he answered the question on its point.

Criminal record claim

21    As to the claims regarding his criminal record, the Tribunal characterised the claim as one that the applicant claimed to be persecuted for being part of a social group characterised as former felons, or former sex-offenders. The Tribunal accepted that the applicant had provided it with evidence of having been named in Australia in the SBS News article that was translated in or adapted in a Punjabi newspaper in India in 2017. The Tribunal put to the applicant that his claims on this point were similarly baldly speculative, and stated that he did not elaborate or detail his claim in response. The Tribunal stated that he did not provide any support for his claim that he would be re-prosecuted for the charges he faced in Australia, notwithstanding that s 300 of the Indian Penal Code expressly proscribes against police charging and courts trying people a second time in relation to offences already tried to conclusion abroad, save to claim that he might be re-prosecuted because of bribery of the police by his uncles.

22    When asked by the Tribunal as to whether he could move to somewhere in India away from his family, the applicant claimed that 'religious organisations' would harm him because of his criminal record and that would be the case no matter where he relocated in India.

23    The Tribunal was not satisfied that the applicant would be remembered to any significant degree in India, nor that it would lead to his being subject to a bad reputation, or serious or significant harm. The Tribunal rejected both the applicant's claim that he might be re-prosecuted because of bribery of the police by his uncles and the claim that he would be subjected to harm or torture by religious organisations. It found such claims to be baldly speculative and baseless.

Intermarriage claim

24    As to the intermarriage claim, the Tribunal took into account various reports from 2010 to 2014 of honour killings committed in India, including a 2010 article that singled out the Punjab state for mention, but also noted that the Indian government was preparing to amend the Penal Code to include a definition of honour killing in order to better enforce penalties against such actions.

25    The Tribunal found that the applicant's situation was different to that of typical honour killings in India because his wife was not a member of any caste. It noted that the applicant had adduced no evidence that his family objects to his marriage or posed a threat to his life or that of his wife. The Tribunal noted that notwithstanding the applicant's claim that his mother was 'boycotting' him over his non-traditional marriage, the applicant informed it that his mother has been arguing his side of the land dispute in Punjab, demonstrating that he maintained constructive contact with her.

26    The Tribunal referred to country information in some detail, including that provided by the applicant. Based on the country information, the Tribunal concluded that the phenomenon of honour killings was not systemic in Punjab or the rest of India, but that instances are evidently isolated to individual families and their prejudices. The Tribunal took into account that the applicant's family had sent him away to a western country indefinitely, and also noted an absence of any evidence to support the applicant's claims to the effect that his family intends to harm him or his wife.

27    Further, the Tribunal considered there was effective state protection for inter-religious couples who fear harm, whilst acknowledging that there have been examples where protection has failed in some specific cases to protect spouses around the clock from being harmed.

28    The Tribunal concluded that the applicant's claims to fear harm were 'baldly speculative and, in some respects, contrary to other facts he has provided about his family'. It considered his evidence inconsistent and unreliable, and was not satisfied that the applicant or his wife face a real chance of being persecuted for this reason. Having reached that conclusion about his wife, the Tribunal also was not satisfied that the applicant faces a real chance of being persecuted as a consequence of mistreatment of his wife.

Tribunal's conclusion

29    Consequently, the Tribunal was not satisfied that the applicant met the requirements of a refugee under s 5H(1) of the Migration Act 1958 (Cth) and was not eligible for protection under s 36(2)(a).

30    For similar reasons, it concluded that it was not satisfied that there were grounds to believe that as a consequence of being removed from Australia there is a real risk that the applicant will suffer significant harm. Accordingly, the applicant did not meet the requirements of the complementary protection assessment under s 36(2)(aa).

31    It therefore affirmed the decision not to grant the applicant a protection visa.

Before the Federal Circuit Court

32    The applicant raised eight grounds of review before the Federal Circuit Court. To the extent they are relevant to this appeal, they comprised claims to fear harm because of each of the land dispute, his criminal record and his intermarriage by way of marriage to a Christian, as detailed before the Tribunal.

33    The primary judge rejected the applicant's claims of unreasonableness on the part of the Tribunal in the manner in which it assessed his claims. The primary judge noted that the Tribunal's decision was squarely based on its finding that the applicant's claims were contradictory, not supported by probative evidence and amounted to bare speculation, and were also based on its examination of country information. He found no error in the Tribunal's consideration of complementary protection, finding no error in the manner in which it adopted its factual findings in respect of the Refugee Convention criteria.

34    The applicant also claimed before the primary judge that he should have legal representation. The primary judge refused his request for pro bono legal assistance having considered the claims, that there were no apprent arguable case of error and having regard to the nature of the show cause hearing. The primary judge considered it would only be if some arguable case of error was disclosed that a referral for legal assistance might be considered for any final hearing.

Grounds of appeal

35    The applicant's draft grounds of appeal provide for nine grounds. Some are properly understood as statements of the relief sought, rather than grounds of appeal. Those that comprise grounds can be viewed collectively as reiterations of the applicant's claims to fear harm because of the land dispute, his criminal record in Australia and his marriage to an Australian Christian woman. In the hearing before me, the applicant reiterated and confirmed that those were the matters he wished to raise on an appeal. Allowing some latitude for the fact that the applicant is self-represented, the hearing proceeded on the basis that the complaint was to be properly understood as a complaint that the primary judge failed to uphold the grounds of review insofar as they related to those matters.

Request for adjournment

36    Shortly before the first hearing date, the applicant by email requested an adjournment on medical grounds, saying in effect that due to his mental health, he was not in a position to make his submissions properly before me. The applicant attended the first hearing by video link (the matter was at that time listed for hearing in the Sydney registry). I explained at that hearing that the Court would require a medical certificate to support any adjournment on that basis and that it would be necessary that such certificate address why any medical condition prevented him from participating effectively in a court hearing. I granted the applicant an adjournment on that date in order to seek any medical certificate he wished to rely upon.

37    When the matter came on for hearing in Perth following the adjournment, the applicant appeared in person but did not have a medical certificate. He said that as he was in detention it was not something he could obtain without paying for it. However, he handed up a bundle of about ten International Health and Medical Services consultation reports, including reports of consultations with a primary nurse, special mental health nurses, a general practitioner, a psychologist and counsellor for the period from June 2017 to 6 June 2019. Those reports indicate that the applicant is being treated for symptoms of depression and detention fatigue, and that he has some stress related to this hearing. According to the mental health nurse, symptoms include deterioration in mood, sleep, motivation and concentration. A psychologist report of 3 May 2019 indicated that he presented with symptoms of depression and had a flat mood but was engaged and attentive, and was encouraged to consider cognitive behaviour therapy. During the hearing the applicant also informed me he had recently seen a psychiatrist and was receiving medication for depression.

38    Whilst acknowledging the stated symptoms and the apparent diagnosis of depression, I did not consider the medical reports provided to me rose to a level that would satisfy me that the applicant was unable to participate in the hearing before me or was unable to properly make his submissions on his proposed grounds of appeal or his application for an extension of time. To the contrary, the applicant struck me as intelligent, well-spoken and engaged during the hearing. He speaks fluent English and although an interpreter was available to him, he did not require his services. He was able to make detailed submissions relating to the need for an extension and each of the proposed appeal grounds. He was able to point to errors in a movement report that the Minister sought to rely upon, and reply to submissions made by the Minister particularly as to contact with his mother. At times he became understandably emotional for short periods but he declined a break before making reply submissions. I formed the view that there was no justification for any further adjournment.

Request for a pro bono referral

39    The applicant also submitted that he should have legal advice in order to pursue his application. Having regard to the principles discussed in, amongst other cases, ASW17 v Minister for Home Affairs [2018] FCA 1815 at [35]-[40], I did not consider it was an appropriate case for the Court to issue a referral certificate for pro bono assistance. In particular, the grounds are the same as those raised before the primary judge and the judge's reasons were clear. It was not apparent to me that I would receive any particular assistance from the input of a legal practitioner, having regard to the re-arguing of the same grounds on the appeal.

The applicant's submissions

40    In general, the applicant by his submissions sought impermissible merits review.

41    He wished to challenge the veracity of country information, saying that it does not reflect the real nature of corruption in India, and that it is possible to pay police to have people arrested. He said that it is possible for religious groups to find him wherever he is in the country, particularly as he must have an identification card on return to India.

42    He raised concerns that he was prejudiced before the Tribunal because he was unable to provide copies of newspaper reports about him that had been circulated in India - but in fact the Tribunal said that it had received such copies and it accepted that there had been some publicity in India about the applicant. The Tribunal seemed to accept that these newspaper articles were published and understood the effect that the applicant alleged they would have if he returned to India.

43    The applicant also referred very generally to the issue of the safety of Christians generally in India. This does not seem to have been raised before the Tribunal as an issue separate to that of intermarriage and so no issue arises as to failure to properly consider it as a separate claim. The Tribunal was only obliged to consider clearly enunciated claims. A body such as the Tribunal must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [79]. However, that is not this case. There was no such clearly articulated claim and no such unarticulated claim arising squarely on the material before it.

44    It should be noted that the Tribunal addressed risk to the applicant's wife both in the context of the intermarriage claim and the effect on her if the applicant were to be re-prosecuted. The Tribunal did not accept that the applicant's wife would suffer relevant harm if she accompanied him to India.

45    The applicant also seemed concerned that the Tribunal had overstated his ability to communicate with his mother. I do not consider that concern is real. The Tribunal inferred that there was some form of 'constructive' contact, based on submissions made by the applicant to the effect that she apparently supported him in his claims relating to the land. The Tribunal clearly assumed that in order to have that information, some communication about his mother's attitude had been relayed to the applicant. Such an assumption is not unreasonable or illogical.

46    Otherwise, the applicant by his submissions sought to re-argue the claims about the land dispute and his father's death, the likelihood of being prosecuted or harmed because of his criminal convictions and the risk he asserts flows from his marriage to an Australian Christian who would be returning to India with him.

Consideration

47    Against that backdrop I have in any event reviewed the Tribunal's reasoning. I agree with the primary judge that no error is disclosed: the Tribunal understood the task it was required to undertake, and in fact undertook that task.

48    As to the land dispute, the Tribunal's rejection of the claim rested on credibility findings. The reasons for that credibility finding were disclosed, as discussed above. No error is disclosed by that reasoning pathway.

49    As to the concern about re-prosecution, that was addressed by the Tribunal both in the context of s 300 of the Penal Code and also more generally as to the applicant's profile and the prospect of him being subjected to punishment by 'religious organisations'. The Tribunal gave reasons as to why it was not satisfied there was a relevant risk to the applicant and why it found the claims baseless and speculative. In particular, it did not accept the publicity was such that the applicant would be remembered to any significant degree. Again, its reasoning was disclosed: having come to that view, the generalised claim of harm from religious organisations without further explanation or evidence was considered baseless. That is a view to which the Tribunal was entitled to come, having weighed and assessed the evidence before it. No error is disclosed.

50    As to the claim about risk from inter-religious marriage, the Tribunal was entitled to rely on the country information to which it had regard. The choice of country information is a factual matter for the Tribunal alone: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. This is not a case where the Tribunal ignored information provided by the applicant. To the contrary, it clearly read it and acknowledged the various articles in its reasons, but preferred to rely on the country information to the effect that honour killings were not systemic in Punjab or the rest of India, but that instances are evidently isolated to individual families and their prejudices. Having then formed the view on the evidence that it was unsatisfied of a risk to the applicant or his wife from the applicant's family, the Tribunal's conclusion was reasoned and no jurisdictional error is disclosed.

51    The applicant seeks to have the Court come to a different view about those matters, but that is not the role of this Court, as I explained to the applicant.

52    In the circumstances, I do not consider the proposed grounds of appeal have any reasonable prospect of success. A grant of leave to appeal would not be justified in those circumstances. Accordingly, it is not appropriate that there be any extension of time.

53    Accordingly, the application for an extension of time to seek leave to appeal from the decision of the primary judge is dismissed, and costs should follow the application in the usual way.

Associate:

Dated:    19 June 2019