FEDERAL COURT OF AUSTRALIA

DBC17 v Minister for Immigration and Border Protection [2020] FCA 570

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of India. He appeals from an order of the Federal Circuit Court of Australia (FCCA) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal: see DBC17 v Minister for Immigration & Anor [2019] FCCA 1913. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a protection visa.

2    The appeal should be dismissed for the reasons given below.

THE TRIBUNAL’S DECISION

3    To be eligible for the grant of the visa, it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

4    A person will satisfy the Refugee Criterion if the person is a non-citizen in Australia in respect of whom Australia has protection obligations because he or she is a refugee within the meaning of s 5H of the Act. It relevantly provides:

5H Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;

5    Section 5J of the Act relevantly provides that, for the purposes of s 5H, a person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

…

6    A person will satisfy the Complimentary Protection Criterion if the person is (Act, s 36(2)):

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

7    The appellant is a person of the Hindu faith. In support of his application for the protection visa he claimed that in 2000 he had married a woman who he later learned was a follower of the Dera Saccha Sauda (DSS) religious sect. He claimed that he had travelled to Australia to study with his wife but that they had now separated and that his wife’s family and other DSS followers believed he had brought a bad name to their family and to their religion. The appellant claimed that the DSS followers had accused him of attempting to convert his wife to the Hindu religion, and then leaving her when she refused to be converted. He claimed that DSS members were an “uneducated bunch of fanatics and can go to any extent to harm me”. He further claimed that the authorities in India would not protect him from the DSS because money could buy favours there.

8    In his evidence before the Tribunal, the appellant said that he first learned that his wife was an adherent of the DSS in 2008 and that they had come to Australia shortly afterward. He said that they had separated in 2016 and that he did not know where she now was. He told the Tribunal that his parents in India had received a threatening call from his former wife’s family telling them that his life was in danger because he had ruined her life. The appellant also said that members of the Hindu community did not approve of his marriage to a DSS follower, that they had tried to make him separate from his wife and that he feared that members of the Hindu community would kill him.

9    The Tribunal accepted that the appellant had married his wife in 2000 and indicated a preparedness to accept that they had separated in May 2016. The Tribunal went on to say that the appellant had provided vague and inconsistent information in support of his claims. It did not accept that the appellant’s wife was a follower of DSS or related religious sects, including because the appellant had not provided any evidence to corroborate that aspect of his claims. The Tribunal found it “difficult to accept” that the appellant had only become aware that his wife was an adherent of DSS in about 2008. The Tribunal said that the appellant had not provided evidence in support of his claim that his wife was a member of DSS, adding that the appellant had not provided any statements from members of his family in India.

10    In relation to the appellant’s claim to fear persecution by members of the Hindu community, the Tribunal said:

48.    The Tribunal finds it concerning that throughout the hearing the applicant claimed that he feared he would be killed by members of the Hindu community because he was married to a DSS supporter and that was the main reason he fled to Australia.

49.    When asked to explain what threats he received in India he was only able to refer to a telephone call. He could not provide evidence about what words were spoken during the call or when the call was made. He did not know the identity of the caller and speculated the caller was from the Hindu community because ‘only Hindu people would do this’. The Tribunal also finds the applicant’s claims that his parents received information that ‘some people’ in India wanted to kill him vague and difficult to accept. The Tribunal finds the evidence about the threats in India vague and lacking in credibility. The Tribunal raised these concerns with the applicant at the hearing. Having considered the applicant’s evidence the Tribunal does not accept he received any threats in India or since he has arrived in Australia.

11    The Tribunal found it “concerning” that the appellant had not mentioned during the hearing that he feared harm from his wife’s family who were DSS supporters until he was prompted by the Tribunal.

12    The Tribunal had regard to the appellant’s migration history. It found that the appellant had arrived in April 2008 as the holder of a student visa and that he had been granted a further student visa in March 2011. Shortly before that visa expired, the appellant had applied for a Skilled Graduate (Subclass 485) visa. When that application was refused, the appellant made an unsuccessful application for review in the Migration Review Tribunal (MRT) and then an unsuccessful application for judicial review of the decision of the MRT before the FCCA. The appellant then applied for Ministerial intervention, which had also been unsuccessful. He was granted a bridging visa on departure grounds in April 2016 and applied for the protection visa in the following month. Since his arrival in Australia in 2008 the appellant had returned to India in 2010 and again in 2012.

13    The Tribunal said that the appellant’s conduct in delaying the protection visa application until May 2016 was inconsistent with his claim to have left India in 2008 because of fears of persecution at the hands of DSS followers. The Tribunal continued (at [52]):

The Tribunal also finds it inconsistent that the applicant would claim he feared persecution in India but would return to India in October 2010 and May 2012. The Tribunal found the applicant’s claims that he did not face harm from his community when he returned to India because they thought he had separated from his wife unconvincing and inconsistent with his claim that he feared harm from DSS supporters.

14    The Tribunal concluded (at[53]):

The Tribunal has had regard to the applicant’s evidence and the country information and is not satisfied that there is a real chance that the applicant will face serious harm from his ex-wife’s family, members of the DSS religion and/or members of Hindu his community if he returns to India in the reasonably foreseeable future. The Tribunal finds that the applicant’s fear of harm because of his Hindu religious beliefs and/or because of his ex-wife’s DSS religion and/or because of his imputed political opinion as Hindu who is opposed to the DSS religion is not well-founded.

JUDICIAL REVIEW

15    In the proceedings before the primary judge, the onus was on the appellant to show that the Tribunal’s decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

16    The appellant was self-represented in those proceedings, as he is before this Court. His grounds of review were cast in terms that for the most part extracted portions of the Tribunal’s reasons. The grounds concluded with two substantive contentions. The first related to the Tribunal’s conclusion that there was no corroborative evidence of the threats that had been made to the appellant. The appellant contended that the threats had been made by telephone and not in writing and so he could not produce corroborative evidence of them. Second, the appellant contended that the Tribunal had no proper basis for rejecting his claim that his former wife and her family were DSS followers. He said that the Tribunal did not have “any substantial ground” for its conclusion in that regard. He complained that the Tribunal had not contacted his former wife to ask her directly. The grounds of review also included a statement that the Tribunal had made “numerous errors” in its decision. The errors were not particularised.

17    The primary judge said that the manner in which the grounds of review had been drafted presented difficulties in the performance of his task on judicial review. His Honour nonetheless proceeded on the basis that the appellant had intended to assert that the Tribunal’s decision was “legally unreasonable in some way, either on the basis that it is intellectually flawed or otherwise subject to criticism on the basis that it is capricious or in some other way not a proper exercise of the jurisdiction conferred” on the Tribunal (at [49]).

18    The primary judge discussed at some length the principles to be applied when determining whether a decision made pursuant to a statute is affected by legal unreasonableness, including in relation to findings of fact. His Honour identified the following aspects of the Tribunal’s decision as providing an intelligible basis for its rejection of the appellant’s claims (at [57]):

•    country information did not indicate members of the DSS and Hindus generally would be concerned about the applicant’s alleged situation, in India;

•    it was implausible the applicant would come to Australia in 2000 and only after having exhausted his other visa options would then make a claim for protection;

•    it was implausible that the applicant would have only discovered his wife was an adherent of DSS in 2008;

•    the absence of corroborating evidence, in respect of the applicant’s claims, was significant;

•    it found the applicant’s claims regarding having received threatening phone calls to be vague.

19    These findings, his Honour said, were open to the Tribunal to make.

20    The primary judge went on to summarise the complaints the appellant had made about the adverse credibility findings that had been made against him and the associated complaint that the Tribunal had not contacted his former wife to make enquiries of her. His Honour said (at [64]):

It fell to the applicant to present his case as he saw fit. The Tribunal was not under any duty to present his case for him or to make inquiries on his behalf. As such, the Tribunal was entitled to place the weight it wished on the absence of corroborative evidence. Having noted this lacuna in the applicant’s case, it was not the [Tribunal’s] function to attempt to find evidence to fill it.

21    The primary judge recognised that “in certain confined circumstances, the failure by a decision maker not to ask an obvious question” may constitute jurisdictional error (at [67]): see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25]. However, the primary judge said that the appellant had been formally advised to present his evidence, and the wife’s evidence “were not matters which the Tribunal itself could readily ascertain”. Whilst the Tribunal had an inquisitorial function that did not impose upon it “a general duty to undertake its own inquiries in addition to information provided to it by the applicant”: SZIAI at [1].

22    As to the Tribunal’s credibility findings more generally, the primary judge said:

76.    In this particular case, the finding regarding the applicant’s credibility was made within a framework of other facts, which cannot be subject to factual challenge because they are uncontroversial. Namely, the applicant had launched his claim for protection many years after his initial legal arrival in Australia and only after his other avenues to remain in this country had been exhausted; and it was his position that he had been unaware of his wife’s relationship with the DSS for a significant period.

77.    These factors led the Tribunal to have considerable doubts about the applicant’s credibility. In my view, these were legitimate aspects of the Tribunal’s fact finding jurisdiction and cannot be impugned as being irrational or illogical in nature. Essentially, it appears to me that the finding, by the Tribunal, that the applicant’s evidence was not credible, rested on conclusions, which were rationally and logically reached.

23    The primary judge concluded by saying that the un-particularised nature of the assertions of jurisdictional error was a sufficient basis in and of itself to dismiss the originating application (at [78]):

Overall and in conclusion, the applicant has made un-particularised and general assertions of jurisdictional error. He has not, in my view, been able to specify, with clarity, what is the jurisdictional error of what he complains, other than he believes the decision is unfair to him and therefore wrong. As indicated above, a failure to particularise a ground of review is sufficient basis for it to be dismissed.

THIS APPEAL

24    The appellant’s grounds of appeal before this Court are expressed as follows:

1.    I am the Applicant and I am authorised to make this affidavit

2.    There is jurisdictional error in judgment.

3.    Respected judge of Federal circuit court mentioned in paragraph 58 of decision that ‘The applicant may disagree with the findings. However in my view, they were open to Tribunal to make. A decision maker confronted with similar scenario could logically make the findings’.

The whole issue is that Tribunal made its finding based on wrong facts. It considered many things which were untrue without any evidence. Tribunal member stated my wife is not follower of DSS. How can tribunal member make such statement without any evidence. Which act in law gives power to member to make assumption on something which suits to his logic. Law works on constitution. It does not give any authority to decision maker to make assumptions on an individual without any proof/evidence. I have mentioned my reasons in Federal circuit court appeal. I want to Federal court Hon Judge to consider those points as well as part of appeal. There is clearly jurdictional error in decision.

25    The appellant has not had the assistance of a lawyer in the preparation of his grounds of appeal. It is appropriate to proceed on the basis that the appellant asserts appealable error on the part of the primary judge in rejecting the grounds for judicial review as they were advanced in the proceedings below. The Minister does not oppose that course.

26    In oral submissions, the appellant repeated assertions that he made in the proceedings below, particularly in relation to his inability to furnish documentary evidence to corroborate his claims that telephone threats had been made against him. He submitted that it was not possible to furnish documentary proof that his wife was a member of the DSS.

27    It is true that the Tribunal referred to the lack of corroborative evidence as a reason (albeit not the only reason) for rejecting the appellant’s claims. However, the Tribunal did not proceed on the basis that documentary corroborative evidence was necessary. Rather, the Tribunal remarked on the absence of any statements from members of the appellant’s family who might confirm the factual basis of the claims the appellant had made. The “lack of evidence” to which the Tribunal referred is otherwise to be understood as a lack of evidence from the appellant himself. As the Tribunal said, the appellant had not been able to say what words had been said in the threatening call, nor could he give evidence as to when the call was made.

28    The lack of corroborative evidence was not the only matter upon which the Tribunal relied in rejecting the appellant’s claims. As the primary judge observed, with respect correctly, the Tribunal made adverse credibility findings against the appellant based on the numerous matters summarised earlier in these reasons. As the primary judge said, there was a logical and intelligible basis for the Tribunal’s findings, including its adverse findings respecting the appellant’s credibility.

29    The appellant has not shown appealable error in the reasoning of the primary judge. The poorly cast grounds for judicial review were properly interpreted beneficially in favour of the appellant. They were correctly decided on their merits for the reasons the learned judge gave.

30    I will accordingly dismiss the appeal.

Associate:

Dated:    1 May 2020