FEDERAL COURT OF AUSTRALIA

CIC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 110

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The application for leave to appeal is dismissed.

3.    The first and second applicants are to pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    This is an application for leave to appeal from the orders made by a judge of the Federal Circuit Court of Australia, the primary judge, on 30 September 2019 dismissing, with costs, an application in a case dated 22 July 2019.

2    The application in a case was for reinstatement of the three applicants’ application, filed on 13 June 2019, for judicial review of the decision of the Administrative Appeals Tribunal. The decision of the Tribunal was made on 22 May 2019, affirming the decision of the delegate not to grant the applicants protection visas.

3    The grounds stated in the application for leave to appeal are as follows:

1.    The Tribunal failed to assess applicant’s claims and failed to consider an integer of the applicants’ claim or failed to give genuine and realistic consideration of the applicants claim for a protection visa.

Particulars

A.    The applicant in his claim articulated in form 866 noted that he would face harm due to his intention of seeking justice for the death of his father.

B.    The Tribunal failed to asses applicant’s perceived political opinion supporting the Congress party due to his father's political opinion.

2.    The Tribunal invited the applicant’s wife for a hearing but failed to take evidence from her.

4    The grounds stated in the draft notice of appeal are in the same terms.

5    The background and chronology of events are set out in the reasons for judgment of the primary judge, as follows.

6    The first applicant is an Indian national born in Haryana, India, in 1988, and he is a Sikh. His wife, the second applicant, was born in Haryana in 1983 and their son, the third applicant, was born in 2013. All three applicants are nationals of India.

7    The first applicant claimed to fear harm from a Mr Singh who he claimed was his father’s political enemy, and a well-known politician, and leader of the Indian National Lok Dal (INLD) political party in the first applicant’s area. The first applicant claimed his father was also a leader of the INLD but after his father became aware that Mr Singh was involved in corrupt practices, his father left the INLD, and joined the Congress Party. Mr Singh regarded the first applicant’s father as his political enemy because his father was popular with local farmers. Mr Singh threatened his father and his family, and so his father advised the first applicant to go to another country. The first applicant travelled to the United Kingdom from 3 December 2009 until 2 March 2010. He then returned to India.

8    The first applicant’s father was killed in a car accident on 25 November 2009, just before the first applicant left to go to the United Kingdom. The first applicant suspected Mr Singh had something to do with that accident and his family reported their suspicions to the police, but Mr Singh avoided criminal prosecution because of “political connections and influence”. The first applicant continued to “pursue justice” for his father’s death, and said that Mr Singh threatened and intimidated him in an attempt to coerce him to withdraw the charges, but the first applicant did not do so.

9    The first and second applicants travelled to the United Kingdom on 22 December 2012 and returned to India on 29 April 2013.

10    After returning to India, the first applicant resumed working as a farmer and in November 2014 he was involved in an accident that reminded him of his father’s accident, so he left India, he said, to save his life.

11    The first applicant claimed that he would be killed if he returned to India. He could not get effective state protection from the police because of Mr Singh’s political connections, and he could not relocate within India as Mr Singh had political connections throughout the country.

12    On 31 December 2014, the applicants arrived in Australia by plane under a visitor visa – tourist stream.

13    On 10 February 2015, the first applicant applied for a protection (class XA) subclass 866 visa. The first applicant made protection claims, and the second and third applicants applied for protection visas as members of the first applicant’s family unit, not making protection claims of their own.

14    On 11 March 2016, the first applicant attended a protection visa interview before a delegate at the offices of the Department. The applicants had the assistance of their authorised representative.

15    By decision dated 18 March 2016, the delegate refused to grant the applicants protection visas.

16    On 21 April 2016, the applicants applied to the Tribunal for review of the delegate’s decision. Before the Tribunal, as before the delegate, the applicants were assisted by a registered migration agent.

17    On 2 April 2019, the Tribunal invited the applicants to attend a hearing scheduled for 24 April 2019. All three applicants attended the hearing on that date to give evidence and present arguments, but only the first applicant gave evidence. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

18    On 22 May 2019 the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas.

19    As stated by the primary judge at [18]:

The Tribunal affirmed the Delegate’s decision on the basis of adverse credibility findings supported by identified inconsistencies in the First Applicant’s claims, and evidence. In summary, the Tribunal found that the First Applicant:

(a)    gave inconsistent evidence in his visitor visa application, and his Visa application about whether he had a daughter in India (at [30], [33], [50], [56]; and [69]);

(b)    gave the Department a non-genuine document (namely, the certificate [of business registration]) with his visitor visa application (at [34], [51], [57], and [70]);

(c)    gave inconsistent evidence about when he was allegedly first threatened by Mr Singh (at [42], [52], and [71]);

(d)    gave evidence about his belief that Mr Singh had orchestrated his father's death that was “vague and speculative”, and was inconsistent with the date that his father was allegedly killed (at [37] and [72]);

(e)    was inconsistent about whether his mother or father told him to travel to the UK, why he travelled to the UK, and his failure to seek protection in the UK in the period December 2009 to March 2010, which cast serious doubt on his claims for protection (at [46]-[47], and [73]);

(f)    would have sought protection in the UK when he visited there between December 2012 and April 2013 if his claims were true and he genuinely feared harm in India (at [74]); and

(g)    had not provided any evidence to support his claim that he had returned to India to seek justice for his father, and the Tribunal found this was a “spurious claim” made to justify his return to India (at [74]-[75]).

20    On 13 June 2019, the applicants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. The sealed application, on its face, expressly stated that the application was listed for a “First Court Date on 4 July 2019 at 9.30 am before a Registrar at Law Courts Building, Queens Square, Sydney.”

21    The grounds of review in the substantive application for judicial review contained the same two grounds as I have set out at [3] above.

22    The applicants failed to attend the scheduled first court date on 4 July 2019. On that date, the applicants’ judicial review application was dismissed by a Registrar of the Court under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), due to the non-appearance of any of the applicants.

23    On 22 July 2019, the first applicant filed an application in a case to set aside the orders made by the Registrar. That application, referred to as an application seeking reinstatement of the judicial review application, was supported by an affidavit dated 22 July 2019.

24    The matter came before the primary judge on 23 September 2019 when her Honour made orders for a short timetable.

25    The matter was heard on 30 September 2019 with judgment given on the same day. The first applicant appeared before the primary judge unrepresented, but with an interpreter in Punjabi and English. The primary judge noted that the first applicant was supported in Court by another gentleman who sat in the well of the Court.

26    The primary judge considered whether there was a reasonable excuse for the applicants’ absence at the hearing on 4 July 2019 when the proceeding was struck out and whether the first applicant had a reasonably arguable prospect of success on the substantive application.

27    The primary judge noted the contents of a medical certificate in respect of the second applicant but which was limited to the day of the hearing before her Honour, 30 September 2019. Also, that certificate did not contain evidence of any condition that the second applicant may have had.

28    The first applicant said that he did not have any time to prepare any material before the Federal Circuit Court but the primary judge noted that the first applicant did not explain his failure to comply with the Court’s orders requiring him to prepare his material by 27 September 2019.

29    After outlining the evidence given by the first applicant as to the reason for his earlier non-attendance, the primary judge found, at [55], that it was unconvincing and inconsistent, and her Honour did not accept that the first applicant was not aware of the first court date from the face of the sealed application.

30    The primary judge then turned to the grounds of review. As to ground 2, the primary judge drew the first applicant’s attention to the following statement by the Tribunal, at [54]:

The Tribunal asked the applicant if he had any other evidence to give. He indicated he had nothing else to tell the Tribunal. It asked if he wanted the Tribunal to talk to his wife. He indicated she had nothing to do with it and the Tribunal did not need to talk to her.

31    The first applicant replied that he could not remember what happened as it was a long time ago.

32    As to ground 1, the first applicant’s submissions to the primary judge were as to the merits of his substantive application. He said that he told his story to the Tribunal, that the Tribunal did not give proper consideration to his claims, and that the Tribunal did not believe him.

33    As I have said, the primary judge said she was not persuaded that the first applicant was not aware of the first court date. In the circumstances however, the primary judge made her decision having regard to the prospects of ground 1 and ground 2 of the substantive application.

34    As to particular A of ground 1, the primary judge said, at [64], that the Tribunal expressly considered and rejected the first applicant’s claim to fear harm from Mr Singh. The Tribunal found that the first applicant had not provided any evidence of the claimed charges against Mr Singh, and also found that, if the first applicant had pursued justice against Mr Singh as claimed for two and a half years, was beaten by Mr Singh, and in 2009 his father had died in suspicious circumstances, then he would have sought protection in the United Kingdom when he visited there for the second time (during the period from December 2012 to April 2013). At [74]-[75] of its decision, the Tribunal found there was no evidence to support the claim that the first applicant returned to India in April 2013 to seek justice for his father’s death. The Tribunal did not accept that the first applicant returned to India in April 2013 for the reasons he had given, and it was of the view his return to India demonstrated he was not fearful.

35    The Tribunal did not accept that the first applicant sought state protection in India which was not provided.

36    As to particular B of ground 1, the primary judge held, at [66], that the first applicant did not claim to fear harm on the basis of any imputed political opinion but his claims relied solely on a fear of harm arising from his father’s rivalry with Mr Singh.

37    At [68], the primary judge found that the Tribunal rejected the first applicant’s claims on the basis of comprehensive adverse credibility findings. The Tribunal also was not satisfied that the first applicant was a person who had a well-founded fear of persecution or that there was a real chance of persecution for any of the reasons set out in the Migration Act relating to all areas of India.

38    At [69], the primary judge held that the Tribunal’s global findings in relation to the first applicant’s father’s political opinion (namely, that the Tribunal was not satisfied that his father had been a member of INLD and that Mr Singh considered the father to be his political enemy when he left the INLD) and that the first applicant had fabricated these claims, and that the first applicant did not face a real chance of harm “for any of the reasons set out in the Act” subsumed any claim that the first applicant would be imputed with a pro-Congress Party political opinion.

39    The primary judge held ground 2 was contrary to the facts. The Tribunal had asked the first applicant if he wanted the Tribunal to talk to the second applicant. The first applicant responded “[s]he had nothing to do with it”, and the Tribunal did not need to talk to her.

40    The primary judge held that ground 1 had no reasonable prospects and would fail, that ground 2 would fail and that neither ground of review was arguable.

41    It followed that the application in a case should be dismissed, with costs.

42    The applicants filed no written submissions. In oral submissions, the first applicant, on behalf of all the applicants, submitted that he did not receive any correspondence and that was why he did not attend the first court date on 4 July 2019: he did not have any knowledge of it. He also submitted he only received a week to prepare, that week being between 23 September and 30 September 2019. When specifically asked by the Court, the first applicant put no submissions as to why there was reason to doubt the conclusions of the primary judge as to the prospects of the applicants’ substantive application for judicial review.

43    The first respondent, having reviewed the reasons for judgment of the primary judge, submitted that in determining whether leave to appeal should be granted the relevant considerations for the Court were: whether, in all the circumstances, the decision at first instance was attended by sufficient doubt to warrant its reconsideration by the Court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

44    The first respondent submitted that the grounds contained in the application for leave to appeal and the draft notice of appeal failed to establish any doubt as to the primary judge’s decision. The applicants had made no attempt to engage with or address the primary judge’s order and reasons, which was properly the subject of the proposed appeal, and the proposed grounds failed to identify any error on the part of the primary judge in the exercise of the primary judge’s discretion to consider whether to reinstate the proceeding.

45    In relation to particular A of the applicants’ ground 1, the first respondent submitted, the primary judge (at [64]) correctly noted that the Tribunal (at [74]-[75]) had expressly considered but did not accept the first applicant’s claim that he returned to India in 2013 to seek justice for his father’s death. The Tribunal found the first applicant’s failure to seek protection in the United Kingdom when he visited there from December 2012 to April 2013 cast serious doubt on his claims for protection and that his explanation for not seeking protection was “highly unpersuasive” (at [74]). It also found there was no evidence to support the first applicant’s claim that he returned to India to seek justice for his father and found this was a “spurious claim” made to justify his voluntary return to India (at [74]). The first respondent submitted the Tribunal’s findings were open on the available materials for the reasons it gave and there was no proper basis for the applicants to contend that the Tribunal overlooked this claim.

46    In relation to particular B of ground 1, the first respondent submitted that the primary judge (at [66]-[69]) held that the first applicant had never expressly claimed to fear harm on the basis of his political opinion and no such claim arose on the materials. The primary judge also considered the Tribunal’s findings (at [77]-[78]) about the father’s political opinion. No error was revealed in this approach, the first respondent submitted, and particular B of ground 1 lacked merit.

47    In relation to ground 2, the first respondent submitted the primary judge found that the allegation that the Tribunal failed to take evidence from the second applicant at the hearing was contrary to the facts.

48    The first respondent submitted that the primary judge correctly identified the legal principles relevant to the Court’s power for reinstatement. Her Honour considered in detail the first applicant’s oral evidence about his reasons for not attending the first court date but did not accept that the first applicant was not aware of the first court date. The first respondent submitted the matters to which the primary judge had regard in dismissing the reinstatement application were relevant to her Honour’s exercise of discretion under r 16.05(2)(a) of the Federal Circuit Court Rules, and it had not been suggested otherwise.

49    Further, the first respondent submitted, as the power reposed in the primary judge by r 16.05(2)(a) was a discretionary one, an appeal to this Court attracted the principles stated in House v The King (1936) 55 CLR 499 at 504-505 regarding the exercise of a judicial discretion.

50    The first respondent submitted the applicants had not demonstrated that there was sufficient doubt as to the correctness of the judgment below. No error or miscarriage of the primary judge’s exercise of discretion in dismissing the reinstatement application had been identified or was apparent. The application for leave to appeal should be refused with costs, the first respondent submitted.

51    In my opinion the decision of the primary judge is not attended by sufficient doubt so as to warrant the grant of leave to appeal.

52    The first applicant has not begun to show that the primary judge was in error in concluding that the substantive application had no reasonably arguable prospects of success so as to warrant reinstatement.

53    As found by the primary judge at [68], the Tribunal, at [77]-[78], made comprehensive adverse credibility findings, as follows:

Considered overall the Tribunal has serious doubts about the reliability of the applicant’s evidence. For the reasons discussed above it is not satisfied he is a credible witness. Accordingly it does not accept he was threatened or attacked in May 2012, or in October 2012, or in July 2014 or on 12 November 2014 or at any other time. Nor is it satisfied his father had been a member of the INLD and that when he left Mr Singh then considered his father a political enemy. It has formed the view the applicant has fabricated these claims.

Overall the Tribunal is not satisfied that the applicant was harmed or threatened by Mr Singh or his followers. It is not satisfied that his father was killed in an accident possibly orchestrated by Mr Singh and his gang. It has formed the view that the applicant has manufactured these claims in an effort to achieve his desired migration outcome. It is not satisfied the applicant is of any interest to Mr Singh or any other person in India. Accordingly it is not satisfied the applicant genuinely fears serious harm if he returns to India in the foreseeable future. It is not satisfied the applicant is a person who has a well-founded fear of persecution. Nor is it satisfied there is a real chance of persecution for any of the reasons set out in the Act relating to all areas of India.

54    Accordingly, the Tribunal was not satisfied the first applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Migration Act.

55    In relation to the complementary protection criteria, the Tribunal said, at [81]-[82]:

As indicated above, the Tribunal is not satisfied the applicant is a reliable witness and it does not accept his claims about threats and harm. While the applicant has claimed that he has been threatened, attacked and beaten in the past, and that he has ongoing pain associated with the beating, the Tribunal is not satisfied the applicant has provided reliable evidence to support those claims. The Tribunal has not accepted the applicant’s claims that he will be harmed in the future by Mr Singh or his followers. The applicant has indicated that he has depression, nervousness and mental confusion. He has not provided any medical evidence in support of those claims. The Tribunal notes he and his wife have been able to secure paid employment in Australia. It also notes from his own evidence that he has previously worked as a farmer in India and that he still has farmland in the [XXXX] village. He has also run a business in India. On the basis of this evidence the Tribunal is satisfied the applicant will be able to secure employment in India such that he and the family will be able to subsist.

On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

56    The applicants have not begun to show that those findings were affected by judicially reviewable error.

57    The applicants’ oral submissions went to part only of what was decided by the primary judge, being the questions whether the first applicant had notice of the court date on 4 July 2019 and whether the first applicant had time to prepare. These issues were dealt with by the primary judge particularly at [59] and [49] respectively of her Honour’s reasons and nothing was put to give rise to a reason to doubt those aspects of the judgment. I should emphasise that the primary judge’s findings on the lack of legal merit in the applicants’ substantive claims were independent of these findings of her Honour. As I have noted, no submissions were put by the applicants in relation to the findings of the primary judge that the substantive application had no reasonably arguable prospects of success so as to warrant reinstatement.

58    For the reasons I refuse the application for leave to appeal, with costs.

Associate:

Dated:    11 February 2020