FEDERAL COURT OF AUSTRALIA

FMW17 v Minister for Home Affairs [2019] FCA 1316

ORDERS

THE COURT ORDERS THAT:

    The appeal be dismissed.

    The first and second appellants pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The appellants have appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing their application for judicial review of a decision of the Immigration Assessment Authority (“IAA”). The IAA affirmed the decision of a delegate of the Minister not to grant the appellants protection visas.

2    The first and second appellants are citizens of India. The first appellant’s application for his protection visa was primarily based on claimed persecution for reason of actual or imputed political opinion and claims relating to fear of harm from his step-father-in-law, who did not approve of his marriage to the second appellant, who is of a higher caste. The second appellant’s application for protection was based on her claim that her life has been threatened by her step-father since her marriage to someone of a lower caste. She also claimed protection due to her husband’s political activism in India. The third and fourth appellants are the dependent children of the first and second appellants and both were born in Australia.

3    The IAA did not consider that the first and second appellants were credible witnesses and did not accept a great deal of their evidence. The appellants relied on various events in support of their claims for protection which were summarised by the IAA in the decision record of 27 July 2018 as follows:

[Appellant] 1

34.    [Appellant] 1’s claims can be summarised as follows:

•    He is an Indian citizen of Tamil ethnicity, though both his parents were born in Sri Lanka.

•    He is of Thotttinayaka caste and his wife, [appellant] 2 is of Kavar Nayakar caste, which is a higher caste.

•    He was forced to leave India due to his association with Vidudhalai Ciruthaigal political party (VCPP) and his inter-caste marriage.

•    In 2010 he joined the VCPP, which is the only party for Untouchables. There was a lot of conflict between the VCCP and an opposition group, of higher castes, called the ADMK in the area.

•    There was an attack at his law college between castes which resulted in 2 people dying and 15 or 16 admitted to hospital. The [appellant] and his friend visited the injured in hospital. Police had done nothing to stop the attack, so the [appellant] and his friend, [V], made a police complaint. The ADMK contacted the police to see if any of the parents had made complaints. None had, but the police told ADMK the [appellant] and [V] had made a complaint.

•    In May 2011 [V] was killed by the ADMK. The [appellant] knows it was ADMK as they confessed 10 days later to police. After three months police released them with no penalty and covered up the murder because [V] was an ‘untouchable’.

•    So the [appellant] made a complaint to the police because he was aware that ADMK had decided to come and kill him. The [appellant] called a meeting of the VCPP and informed the public of the incident and murder. The ADMK were concerned VCPP were going to come to power and decided the [appellant] needed to be killed. They monitored and spied on him. So in July 2011 the [appellant] left the VCPP.

•    The ADMK found out [appellant] 1 was studying in college and created problems. In September 2011 a friend called him to come to a specific location. He thought he was going to help him fix a punctured tyre but when he got there no one was there. Suddenly a group of ADMK member arrived in a van and started beating him. They beat him with an iron rod till his ears bled and left him as they thought he had died. He was taken by ambulance to a public hospital, but they would not admit him. The [appellant] was not sure why as he was unconscious at the time. His family took him to a private hospital.

•    VCPP members told him ADMK members would come after him again and he should leave the country. So he ceased his study half through the semester and went into hiding. He was not involved with the VCPP since September 2011 as his life was more important than assisting the party. He left his district and went into hiding at Udumalaipettai.

•    Then he went to Coimbatore where he met his wife. He had a relationship with his future wife without her parents’ knowledge as he was from a different caste and they had arranged for her to marry someone else. They were against their marriage. When his wife was told she would have to marry someone else, she left and came to live with [appellant] 1 and they married on 31 May 2012.

•    Because his parents were originally from Sri Lanka, the wife’s parents considered him to be lower caste than she. When they eloped, the wife’s stepfather threatened to come to the house and kill him. So [appellants] 1 and 2 moved from the family home to hide. The wife’s stepfather came to the home, when he was not there, and told a neighbour that he was going to kill him as they wanted their daughter back.

•    The wife’s stepfather belonged to a powerful political party, the DMK. The wife’s mother and step-father had killed her father and so he was afraid they would do anything to him and they could find him anywhere as the stepfather was powerful. They lived in hiding for 7 months. They were 2 months pregnant when they left by boat.

•    His wife’s stepfather had lodged many cases against him with the police in relation to his eloping. The police asked his neighbours to inform him to attend the police station in relation to the allegations, but he did not as he was legally married and in hiding.

•    He could not seek assistance from the police as he had sought assistance 2 or 3 times but they would not help as was untouchable. His political party could not assist as the ADMK governed the area. He could not seek help from his family as they would have become involved in the threats.

•    On 31 January 2014 the Australian Government released his personal information on the internet. The ADMK found out his details and that he was in immigration detention. They went to his mother’s home at 8 pm that night and smashed everything, threatened her and broke her hand and bashed his brother. They were abusing his mother for not telling them that he had left and said wherever he was they would find and kill him. When he was in immigration detention camp the family skyped him and showed him over his house and everything was smashed.

•    The [appellant’s] mother and elder brother tell him the ADMK are still monitoring the house and spying on his family to see if he returns.

•    He fears harm from the ADMK and his wife’s family.

•    He could not move or relocate because he did not have people to assist him, any money or speak any other language, than Tamil, which was only spoken in Tamil Nadu, so could not communicate if he moved. It is unsafe for an Untouchable to relocate anywhere and the ADMK and his wife’s family would find him. The authorities will not assist him because he of lower caste and because of his wife’s family’s claims made against him as the stepfather is politically powerful.

•    At interview [appellant] 1 claimed [appellant] 2’s stepfather vowed to kill him and any child of [appellant] 2 and he would then force her to marry someone of his own caste.

[Appellant] 2

•    Initially [appellant] 2 raised no claims or fear of harm in her arrival interview of July 2013.

•    Later the [appellant] claimed she was Kavar Nayakar caste, which is higher than her husband’s caste. She was forced to leave India because her mother and stepfather did not like her marriage because her husband was an untouchable and she was told to leave him or they would kill him. Her husband had to hide from her family.

•    When she left India, she was two months pregnant and her stepfather told her to abort the baby and if she did not, he would kill her. The stepfather beat her with a cane 8 times and called her at all hours to threaten to kill her and the family.

•    She left India because of her husband’s political activism. He was a member of the Viduthalia Chiruthalgal Katchi. He participated in protest marches and he was targeted as a result. Prior to their marriage her husband’s friend, from the same party, was murdered due to his political involvement and police covered up the murder. Around the same time her husband was attacked with an iron bar. He was unconscious for three days and had to receive blood transfusions. After the attack he was scared and he left Virunakagar and came to Coimbatore where they met.

•    Her husband went to police two or three times to seek help but they ignored his request as he is an untouchable.

•    If she is forced to return to India, her stepfather will kill her and her son. Her husband will be killed by his political enemies as people from the ADMK party have told her husband’s parent that they will kill him.

•    Because of the immigration data breach, her stepfather found out she was in Australia and he beat her mother so badly, she was hospitalised and they almost had to cut out her womb. He also cut her sister’s face with a blade. Also the political parties know that they have fled India and this is why they went to her mother in law’s home and broke her arm.

•    They cannot move to another part of India as people will know that her husband is an untouchable and moving will not solve the problem.

(Errors in original.)

4    The IAA made the following key findings:

(a)    it did not accept the first appellant had been jailed for two days, that he and his friend V made police complaints against an opposition group of higher castes called the ADMK, or that the ADMK threatened them or harmed them;

(b)    it did not accept that the first appellant was attacked by members of the ADMK in September 2011;

(c)    it did not accept the first appellant was in hiding from September 2011;

(d)    it accepted the first appellant may have done volunteer work putting up posters, but did not accept he had been interested in politics or that he had any involvement in politics after September 2011;

(e)    it did not accept the second appellant’s father was murdered as she claimed in her protection interview;

(f)    it found the appellants belonged to the same caste but accepted the first, third and fourth appellants were of a lower subcaste than the second appellant;

(g)    it did not accept the second appellant’s parents disapproved of her marriage or that she was harmed by her step-father for reason of her marriage;

(h)    it did not accept the appellants were in hiding from the second appellant’s step-father or family;

(i)    it found the appellants had fabricated their claims regarding the data breach;

(j)    it did not accept the first appellant had actually converted to Islam, as was claimed, or that country information supported a conclusion he would face harm for that reason;

(k)    it did not accept the first appellant would face socio-economic discrimination having regard to his education, language skills and employment history; and

(l)    it did not accept the first appellant would face harm on account of the data breach or because of his involvement in a photograph with a particular banner asserted to have been published in the data breach.

5    For these reasons, and having regard to country information, the IAA rejected the appellants’ claims and found that they did not meet the requirements of the definition of refugee in sub-s 5H(1) of the Migration Act 1958 (Cth) (“the Act”).

6    For the same reasons, the IAA found the appellants would not face a real risk of significant harm. The IAA also found that any discrimination on account of the inter-caste marriage or gender would not amount to significant harm. The IAA accordingly found that the appellants did not satisfy the complementary protection criterion under s 36(2)(aa) of the Act.

7    In the FCC , the appellants relied on three grounds of review as follows:

1.    I could find all my documents is good.

2.    I believe my case.

3.    I am very hard I can win case.

8    These grounds did not raise any error capable of founding jurisdictional error on the part of the IAA. Rather, as framed, the grounds were simply expressing disagreement with the IAA’s adverse credibility findings.

9    The FCC’s reasons record that, in support of the grounds, the first and second appellants, who appeared for themselves, took issue with the adverse credit findings by the IAA, asserting that they had told the truth. The primary judge found that nothing said by either appellant from the bar table identified any jurisdictional error. The primary judge also found that the IAA’s adverse credibility findings were open on the material before the IAA and did not lack an evident and intelligible justification.

10    Although not the subject of any challenge, the FCC did consider whether there was legal error in the decision of the IAA not to consider “new information” on which the appellants had sought to rely and concluded that the IAA had not misconstrued or misapplied the provisions of s 473DD of the Act in determining whether there were exceptional circumstances to justify considering the new information.

11    The notice of appeal raises two grounds of appeal:

1.     The Hon. Judge failed to consider that the IAA 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 IAA 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 IAA.

12    Ground 1 is a new ground not agitated before the primary judge which does not adequately identify an arguable appealable error by the FCC. Rather, it simply amounts to an assertion by the appellants that they disagree with the IAA’s decision. Ground 2 is an unparticularised assertion and in the absence of particularisation the ground is meaningless. Strictly this ground also was not raised in the court below but it can be read as raising the same or similar ground to that which was relied on below.

13    It was apparent from the oral submissions of the appellants that they were concerned with the way in which the IAA had disbelieved their claims, asserting they had told the truth and that police reports which they had provided to the IAA to substantiate their claims had not been taken into account.

14    The role of this Court on appeal is to determine whether there was appealable error affecting the decision of the primary judge. The task of the primary judge was to determine whether any jurisdictional error affected the decision of the IAA. The FCC correctly rejected the appellants’ case insofar as the appellants sought to persuade the FCC that the appellants should have been believed by the IAA. Findings of fact relating to the appellants’ claims were for the IAA to make and cannot be reviewed by the Court unless there was an error in the decision making process which went to the IAA’s jurisdiction. The oral submissions of the appellants did not point to such error.

15    Further, the reasons of the IAA reveal that the conclusions reached by the IAA were reasonably open on the evidence before it and neither the IAA’s reasons nor the FCC decision disclose any error that goes to jurisdiction. The IAA provided comprehensive and detailed reasons for rejecting many of the claims of the appellants and the findings cannot be said to be illogical or irrational. For example, in concluding that the first appellant had fabricated his claims that he and his friend V made police complaints against an opposition group of higher castes called the ADMK or that the ADMK threatened them or harmed them, the Tribunal’s reasoning was that:

(a)    the first appellant’s account was vague in that it did not provide details of when or where the incident took place, how many people were involved, how the appellant came to know about the clash, who the people were who were killed or injured, or the reaction of the college, police, students or aftermath;

(b)    it was difficult to believe that only he and his friend V would make a police complaint as there was no indication that either of them were involved in the clash or that they knew any of the people involved and it was difficult to believe that no complaint was made by the college or friends or relatives of the persons killed, attacked and hospitalised and that it fell only to the appellant and his friend to make a complaint for investigation;

(c)    the claim that ADMK would enquire of police about whether relatives of the injured made complaints lacked credibility as this would have revealed themselves and put them at risk of arrest;

(d)    the appellant’s account of V’s death was inconsistent and lacked details and credibility; and

(e)    the appellant’s claim that police covered up V’s death and so the appellant made a police complaint did not make sense, on the basis that if the police sided with ADMK and covered up V’s death then there would have been little point in making a police complaint about that to the same police.

16    With respect to the various other claims that were disbelieved, the IAA similarly went through and identified significant inconsistencies and deficiencies, causing the IAA to conclude that the claims were not credible. The FCC was correct to find no jurisdictional error affecting the IAA’s decision with respect to the adverse credit findings.

17    The other point of substance raised by the appellants in their oral submissions concerned the failure of the IAA to have regard to the police reports referred to in [13] above. The IAA’s reasons record at [7]–[32] that the IAA invited the appellants to an interview to address credibility issues and the IAA was provided with additional documents, some of which the IAA considered and some of which the IAA did not consider. The additional documents not considered by the IAA included the police reports (referred to as “First Information Reports”), court documents, photos and a letter. The IAA’s reasons record that the IAA did not take those documents into account because they constituted “new information” and the “new information” did not satisfy the preconditions of s 473DD of the Act. Section 473DD prescribes:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

18    In each instance, the IAA addressed the requirements under ss 473DD(a) and (b) and gave detailed and considered reasons as to why the IAA was not satisfied that the requirements were met. I agree with the primary judge that there is no discernible legal error in the IAA’s consideration of whether the preconditions in s 473DD were satisfied.

19    It was also raised by the first appellant that the IAA did not consider the reasons why certain claims were not raised sooner by the second appellant, but the reasons of the IAA at [10]–[11] indicate that the IAA did accept those claims as new information and took them into account. The fact that the appellants disagree with the decision does not demonstrate legal error.

20    Accordingly the appeal should be dismissed.

Associate:    

Dated:    21 August 2019

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