FEDERAL COURT OF AUSTRALIA
QUD 542 of 2019
Date of judgment:
PRACTICE AND PROCEDURE – new ground raised for the first time – limited merit to proposed ground – leave to rely upon new ground refused – appeal dismissed
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Solicitor for the First Respondent:
Mr J Kyranis of Sparke Helmore Lawyers
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
27 February 2020
THE COURT ORDERS THAT:
2. The appeal is dismissed.
3. The appellant is to pay the first respondent’s costs of the appeal, to be fixed in the amount of $3,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) made on 12 August 2019, in which the appellant sought judicial review of a decision of the Administrative Appeals Tribunal (The Tribunal) made on 3 July 2018. The Tribunal had affirmed a decision made by a delegate of the Minister for Immigration on 17 March 2017, to refuse to grant the appellant a Protection (Class XA) (Subclass 866) Visa (protection visa).
2 The appellant filed the appeal to this court on 30 August 2019. The grounds of appeal are vague and lacking particulars. They are as follows:
Grounds of appeal
1. The Federal Circuit Court Judge erred in not finding that the Tribunal and Delegate of the Minister had not dealt with a key component of my claims that that my life will be in danger on my return to India.
2. The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.
3 There is no merit in either of these grounds and for the reasons that follow, the appeal is dismissed.
4 The appellant is a citizen of India, of Sikh faith. He arrived in Australia on 15 May 2016 on a Tourist (Class FA) (Subclass 600) Visa, granted on 5 May 2016. That visa expired on 4 August 2016. On 3 August 2016, he applied for a protection visa.
5 His claims for protection were set out in a statement accompanying his application. In summary, he claimed as follows:
(1) While he was completing his school certificate, he became affiliated with the banned All India Sikh Student Federation (SSF). He was motivated by the prospect of a separate state of Khalistan, and he was outspoken about the atrocities committed against Sikhs.
(2) In January 2016, he was arrested by the local police. He was interrogated by the Punjab Intelligence Branch and tortured. After six hours he was released with strict conditions.
(3) After his release his father restricted his movement. He only had contact with other SSF members via telephone. He was not deterred by the interrogation and pursued his SSF work. He organised youth mini-meetings and distributed leaflets.
(4) In February 2016, he attended a confidential meeting at a friend’s farmhouse. Whilst that was occurring the house was surrounded by police. Six of the members were arrested, although the appellant escaped. The police searched for him, and visited his house twice. His father bribed the local police to prevent him being arrested.
(5) His father paid money to delete his name from a “stop list” so that he could depart India to come to Australia.
(6) Since his arrival in Australia, he was told that the Punjab police have organised a new task force to combat the current growing conflict. They have started to arrest those people with previous records. If he goes back to India he will be arrested and perhaps killed by undercover agents.
6 On 23 February 2017, the appellant attended an interview with a delegate of the minister. The delegate refused to grant the protection visa on 17 March 2017.
7 The appellant applied to the Tribunal for a review of that decision on 12 April 2017. On 18 June 2018, the appellant attended a hearing at the Tribunal, assisted by an interpreter at which he gave evidence in support of his claim. The appellant also gave the Tribunal further documentary evidence at the hearing.
The decision of the Tribunal
8 By decision made on 3 July 2018, the Tribunal affirmed the delegate’s decision. The Tribunal did not accept any of the appellant’s claims, and consequently determined that he did not meet the refugee criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), or the complementary protection criteria in s 36(2)(aa) of the Act. The Tribunal’s reasons are considered in more detail below.
The decision of the FCC
9 The appellant filed an application for a review of the Tribunal’s decision in the FCC on 31 July 2018. The grounds relied on were as follows:
Grounds of application
1. The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to India [sic.] for being involved with AISSF.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
3. The Tribunal has failed to investigate applicant’s claim, specifically the grounds of persecution in India.
10 In very brief terms, the FCC found that the appellant had failed to establish jurisdictional error on the part of the Tribunal, and dismissed the application. This was on the basis that:
(1) The Tribunal carefully considered all matters of relevance placed before it;
(2) The decision could not be considered legally unreasonable, illogical or irrational; and
(3) The Tribunal did not fail to make an obvious inquiry about a critical fact.
Appeal to this Court
11 The appellant filed a notice of appeal to this Court on 30 August 2019 and the grounds relied on are set out above. He appeared on the appeal with the assistance of an interpreter. He was asked about the nature of his claims and provided an opportunity to explain why he perceived that there were errors in the reasons of the Tribunal and the FCC. Unfortunately, he was not able to identify any such errors. His main concern appeared to be that the Tribunal did not fully appreciate the extent to which Sikhs in India were agitating for a separate state of Khalistan.
12 The first ground of appeal concerns the Tribunal and the delegate’s purported failure to take into account a relevant consideration, namely that the appellant’s life will be in danger on his return to India. This error was not alleged before the FCC, therefore leave is required to agitate this ground on appeal: Han v Minister for Home Affairs  FCA 311 at  – .
13 The appellant did not apply for leave but the Court should treat the matter as if it were such an application. The Minister opposes the granting of leave on the basis that the proposed ground has no merit.
14 In determining whether to grant leave to raise a new ground of appeal, the Court has regard to the general principles identified in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598 – 599  – :
46 In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at - and .
47 In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:
“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”
48 The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.
Merits of the proposed ground
15 The proposed Ground 1 of the appeal asserts that the Tribunal did not consider a key component of the appellant’s claim, namely that his life would be at risk if he were to return to India. There are no particulars of that ground and it is an unusual allegation in circumstances where the central issue of the Tribunal’s decision was whether the appellant’s life would be in danger on his return to India. This is the quintessential matter for consider under ss 36(2)(a) and 36(2)(aa) of the Act.
The Tribunal properly considered the appellant’s claims under s 36(2)(a)
16 The Tribunal carefully considered, and rejected, the applicant’s claim that he fears harm or death upon returning to India (see paragraph  of the Tribunal’s decision). Primarily it doubted the veracity, credibility and plausibility of his claims as they were presented. This conclusion was open to the Tribunal on the basis of the evidence before it.
17 Firstly, there was a delay of almost three months between the appellant arriving in Australia and his application for a protection visa. Although the Tribunal incorrectly stated the length of the delay as “nearly one year” (at ), this does not deny the relevance of this consideration in assessing the genuineness, or depth, of the appellant’s fear of persecution: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 349.
18 Second, the appellant applied for a protection visa one day prior to the expiration of his tourist visa. This logically caused the Tribunal to suspect that the applicant applied for a protection visa because he had no other visa options and that his claims were fabricated to satisfy the protection visa criteria (at ). Although the appellant claimed the delay occurred because he did not know about protection visas (at ), it was open to the Tribunal to reject that claim as the appellant maintained that he came to Australia expressly for the purpose of seeking protection.
19 Third, the Tribunal found that the appellant appeared evasive in answering questions during the hearing held on 18 June 2018, had provided a substantial amount of inconsistent information to the delegate and to the Tribunal, and that much of the evidence provided by him was either very vague or inconsistent with his claims (at  and ). This was open to the Tribunal given:
(1) The appellant’s evidence as to the date of the commencement of his alleged involvement with the SSD was inconsistent. In his written statement he claimed that he was sixteen at the time, and, in his oral evidence, he claimed he was fourteen (at  and ).
(2) The appellant did not appear to understand the basic tenets of the SSF or what it did (at ), and could only vaguely articulate his purported involvement with it. Further, the account that he gave to the delegate, that he was not involved with the SSF and did not know of the organisation at all (at ), was substantially different from the account given to the Tribunal, that he was “with” the SSF (at  and ).
(3) The appellant did not appear to be genuinely motivated by the prospect of a separate state of Khalistan as he had no idea why a separate state was required, what any conflict was about, or where the state of Khalistan might be located (at  and ). Despite the appellant submitting that the Tribunal did not understand the issue, it is plain that it did. The difficulty for the appellant is that the Tribunal found that he had no real interest in that matter. He had little or no understanding of the issue.
(4) The appellant raised an additional claim during the Tribunal hearing to the effect that he was a supporter of the Shiromani Akali Dal Party. The appellant produced a letter purportedly from the party’s office secretary that stated in order for the appellant to avoid future problems, he had left India. The appellant did not appear to have any knowledge of what the letter said, or the claims that it made (at - and ).
(5) The appellant provided inconsistent accounts of the identities of the people he claimed to have threatened him: he told the Tribunal the police threatened to kill him (at ), while he told the delegate it was not the police (at ); he told the Tribunal that “lots of people” had threatened him (at ), while he told the delegate that three or four people had threatened him (at ).
(6) The appellant’s account of his arrest and torture in January 2016 was vague, and the appellant could not provide any detail about the incident (at -). For example, the appellant could not explain why he was detained for six hours as he claimed, he declined to elaborate beyond his bare assertion that he was tortured (at ), and he provided inconsistent evidence on whether conditions were imposed on his release (at ).
(7) The appellant’s account of the confidential meeting, and his escape from arrest in February 2016 was vague (at ). He did not provide any detail on what the meeting was about, or to where he escaped (at ).
(8) The appellant was able to leave India without any concerns or issues, and he was not stopped at security or immigration (at ).
20 These inconsistencies and insufficiencies were all put to the appellant by the Tribunal during the hearing. On the whole, the appellant was unable to provide any adequate explanation.
21 Finally, the appellant’s claims were inconsistent with the Country Information, especially in relation to the treatment of Sikhs in India (at ). Relevantly, DFAT assesses that Sikhs in Punjab have no higher risk of religious-based official or societal discrimination or violence than that faced by people from other religious groups (at ). Further, the overall security situation in the Punjab is “generally calm” and “generally regarded as peaceful” (at  and ). Importantly, the Tribunal considered that there is no general risk of ill-treatment on return to India solely on the basis of believing in the establishment of Khalistan (at ).
The Tribunal properly considered the appellant’s claims under s 36(2)(aa)
22 The Tribunal also considered whether the appellant would face ‘significant harm’ if he was removed from Australia to India, as required under the complementary protection provision of s 36(2)(aa) of the Act.
23 The Tribunal concluded that if the appellant had concerns about his security upon returning to India, the Country Information before the Tribunal indicated that India has an effective police and judiciary system which the appellant could access (at ), and that it would be reasonable for him to relocate to an area of the country where there would not be a real chance he will suffer serious harm (at ). These were both relevant considerations under s 36(2B) of the Act.
24 In the course of the appeal the appellant suggested that the Tribunal had not properly considered the present risk to Sikhs who believed in the establishment of a separate state of Khalistan. As Mr Kyranis for the Minister submitted, this issue was specifically considered by the Tribunal. As already outlined, the Tribunal referred to certain Country Information at paragraph , namely:
79. The Immigration and Refugee Board of Canada (IRBC) states that “the present situation in Punjab is generally regarded as peaceful” and that “the human rights situation for Sikhs in Punjab and India has improved to the extent that it can no longer be said that there is a general risk of ill-treatment on return solely on the basis of believing in the establishment of Khalistan”.
25 In reliance on that Country Information the Tribunal concluded that the security system for Sikhs in the Punjab is peaceful and that it is calm and safe for Sikhs to reside there. It said:
129. The Tribunal does not accept that any new task force has been organized to combat any growing conflict. Such a claim contradicts country information that the general security situation in Punjab is calm. Further, the IRBC states that “the present situation in Punjab is generally regarded as peaceful” and that. “the human rights situation for Sikhs in Punjab and India has improved to the extent that it can no longer be said that there is a general risk of ill-treatment on return solely on the basis of believing in the establishment of Khalistan”.
26 There was a full and proper consideration of this issue by the Tribunal and the FCC made no error in failing to detect any shortcoming by the Tribunal.
Conclusion on Ground 1
27 From the above it is patent that the Tribunal did in fact deal with the appellant’s claim that his life will be in danger were he to return to India. The suggestion that the Tribunal failed to consider the claim has no basis to it and must be rejected. It is wholly without merit and nothing the appellant said during the hearing altered that conclusion. It follows that leave to rely upon the new ground advanced in this Court ought to be refused.
28 The second ground of appeal alleges that the FCC did not consider the “legal and factual errors” contained in the Tribunal’s decision. The Minister submitted that this ground should be dismissed as the appellant has not identified the “legal and factual errors” allegedly made by the Tribunal which were said not to be considered by the primary judge.
29 It is true that no particulars of this ground have been provided and the appellant did not make any substantive submission in support of it.
30 There is nothing on the material available to this Court to suggest that the Tribunal failed to consider any relevant information, claim or integer of claim, or that the Tribunal took into consideration irrelevant information or material. The Tribunal’s findings were all reasonable, logical and based on probative evidence. As a result, the second ground must also fail.
31 The appellant has failed to demonstrate any error in the decision of the Tribunal. Leave to rely upon ground one is refused, and ground two must fail. Therefore it follows that the appeal must be dismissed. There is no reason why the applicant should not pay the Minister’s costs. I accept the Minister’s submission that it would be appropriate for this Court to fix the costs payable by the appellant in the amount of $3,000.