BDN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1962

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1962   

File number(s):

ADG 89 of 2018

Judgment of:

JUDGE VASTA

Date of judgment:

21 July 2021

Catchwords:

MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed

Legislation:

 Migration Act 1958 (Cth) s 424

Family Law Act 1975 (Cth) s 121

Cases cited:

 N/A  

Number of paragraphs:

41

Date of last submission/s:

21 July 2021

Date of hearing:

21 July 2021

Place:

Brisbane

Counsel for the Applicants:

First Applicant appearing in person

Counsel for the First Respondent:

Mr Chan

ORDERS

ADG 89 of 2018

BETWEEN:

BDN18

First Applicant

BDO18

Second Applicant

BDP18 (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	21 JULY 2021

THE COURT ORDERS:

1.That the Application filed 9 March 2018 is dismissed.

2.That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

3.That the First Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex Tempore)

JUDGE VASTA

1. On 15 February 2018, the Administrative Appeals Tribunal (“the AAT/Tribunal”) affirmed a decision not to grant the applicants’ protection visas.  On 9 March 2018, the Applicants asked this Court to review that decision.  There are actually four Applicants.  They are known by the pseudonyms BDN18, BDO18, BDP18 and BDQ18.  They are the husband and father, his wife and mother, his son and his daughter, respectively. 

2. At the outset of this hearing, the Court must apologise to the Applicants for the inordinate delay in actually hearing this matter. The Applicants told me during the course of this hearing that they have been in Australia for nearly seven years.  I think it is actually closer to six years, but they have been waiting three and a half of those years for this Court to actually give them a hearing.  The Court must apologise for this delay because it means that the Applicants have been in limbo for far too long.

3. Whilst all of the Applicants are making a claim for protection, they all rise and fall upon the claims that are made by the First Applicant, BDN18.  For that reason, I will refer, during the course of this judgment, to the Applicant BDN18.

4. The background to the matter is that the applicants are supporters or followers of Dera Sacha Sauda – DSS – religion.  The Applicants are members of the Majahabi Sikh caste.  On 7 April 2015, the four Applicants came to Australia on visitor visas.  Those visas were valid for three months, that is, until 7 July.  They did not return on 7 July and therefore became unlawful non-citizens.  They made the present protection visa application on 15 July 2015.

5. The Applicant claimed that being a staunch follower of DSS meant that he was regarded as a member of the lower rung of society in India.  He said that he is a member of the Dalit community which is traditionally regarded as the untouchable caste.  He said that in the Punjab area where he lived, there was major conflict between the orthodox Sikh community and those who were followers of DSS.  The Applicant claimed that the orthodox Sikh community were the ruling class, whereas people who followed DSS were aligned with the opposition parties.

6. The Applicant described a number of conflicts that he experienced with people who were opposed to DSS.  He said on 27 July 2009, he and several other DSS followers were attacked at a religious gathering.  He said that one of the DSS followers, a person called Lily Kumar, was killed by a gunshot during that attack.  He said that two days afterwards, he was protesting against the atrocities of the ruling Sikh groups and the non-action of the State Government.  He said that he was one of 800 DSS followers who were arrested and illegally jailed.  He said on 24 November 2012, a group of Sikhs attacked his home.  They damaged many vehicles belonging to himself and his DSS friends. 

7. On 12 December 2014, the Applicant and other DSS followers were attacked by Sikhs with weapons while they were having a religious gathering at the Applicant’s home.  The Applicant said that he was mistreated by the Sikhs when he resisted what they were doing.  He said that two days later, he and other DSS supporters organised a peaceful demonstration.  He said that he was attacked by a Sikh mob and badly beaten.  He said that at midnight that night, his house was surrounded by Sikhs and he and his family were threatened.  He said that it was only with the timely intervention of his neighbours that he and his family were saved.

8. He said on another occasion, he was threatened by Sikh factions and his house was surrounded.  He said this was caused because he put up a banner in support of a film of the DSS leader, a person called Baba Gurmeet Ram Rahim.  He said that his mother was at his home by herself at this time and she was maltreated by these Sikh persons.  He said that the police cannot help him because the Sikh community is backed by the ruling political party.  He said that he cannot move because of employment constraints and due to the imminent danger of his life.  He said that he had to stay at a relative’s home in Delhi before it was that he came to Australia.

9. The Tribunal looked at all of these claims.  The Tribunal questioned the Applicant as to why he feared returning to India.  He said that the DSS leader, Gurmeet Ram Rahim Singh, had been arrested and imprisoned for 20 years in August 2017.  He said that the DSS followers of Mr Singh were labelled as traitors and if he returns to India, he will be arrested and jailed as a traitor too. 

10. The Tribunal had country information which confirmed that there were violent protests, during which 30 people were killed across India, in response to the criminal conviction of Mr Singh.  Notwithstanding that this incident occurred whilst the Applicant was in Australia, the Applicant maintained that the allegations against Mr Singh were false and that is why he would be labelled a traitor if he returned to India.

11. The Tribunal then asked him to tell them about times when he himself had been attacked.  He said that on 24 November 2012, he was travelling with a group to another place and he was attacked, but he and the group managed to escape.  The Tribunal prompted him to give them further information about this incident and he said that the Sikhs threw bricks and stones at the group’s cars and broke windows, but they were still able to escape.  The Tribunal noted that according to the protection visa application, the Applicant had claimed that on that particular date he was attacked at his home and not while he was travelling. 

12. The second incident that the Applicant told the Tribunal about he said occurred on 12 December 2014 and that he was travelling to Karna about 30 kilometres from his home.  He said that he was attacked by Sikhs who had swords and sharp weapons, that he was injured and that he has a scar on his back because of this particular incident.  He said that he went to the police but the police did nothing because they are biased towards other religions and he did not have any medical report to support his claims.

13. The Tribunal pointed out to the Applicant that in the written application the Applicant said that this attack occurred at a religious gathering, which was organised at his home.  The Applicant then said that his home was attacked on another occasion but his mother-in-law was the only person at home and it occurred at midnight.  The Tribunal prompted the Applicant again and asked if there was any incident which provoked that attack but the Applicant was unable to respond. 

14. The Tribunal asked if there were any other incidents and the Applicant said that he had heard people wanted to kill him and that is why he went to Delhi and made arrangements to travel to Australia.   The Tribunal again prompted the Applicant and asked him if he had experienced any other conflicts in India due to his religious belief and the Applicant said there was another incident that occurred on 27 July 2009 in which Lilly Singh was killed.  The Tribunal asked the Applicant to expand on what he said happened and the Applicant said that he was illegally arrested and kept in jail for one night. 

15. The Tribunal asked if he could provide anything further about the person who was killed and the Applicant said that he didn’t know much about him but then changed his evidence and said that the person’s name was not Lilly Singh but was actually Lilly Kumar.   The Tribunal then pointed to some media reports that confirmed that a person called Lilly Kumar was shot dead after he attended Court in relation to an attempted murder trial. 

16. The Tribunal noted that the circumstances surrounding the death of Lilly Kumar were specific and the Tribunal was surprised that the Applicant did not know those details of Mr Kumar’s role in the DSS or the circumstances of his death.  The Tribunal referred the Applicant to his statement about putting up a banner promoting a film made by Gurmeet Ram Rahim Singh.   The Tribunal asked the Applicant if he knew what the name of the film was and noted that the Applicant had difficulty answering the question but after some hesitation said that the film was called Love Charger.

17. The Tribunal then showed the Applicant media reports which confirmed there were protests in India related to the release of a film by Mr Singh called MSG (“The Messenger of God”).  The Tribunal told the Applicant it was concerned that he did not know details about a film that was relevant to his religion and that he was promoting at his home in India at the time he claims the home was attacked.  The Tribunal said to the Applicant that the Tribunal was concerned that the Applicant did not know details about a film which was relevant to his religion and that he said that he was promoting at his home, which was the reason that the home was attacked.

18. The Tribunal then looked at quite a deal of country information.  The reports that the Tribunal had noted that there was popularity among the persons among the lower cast of DSS.  The reports spoke of the popularity of DSS among the lower casts of persons living in Punjab.  These same reports said because of the popularity of the DSS guru Mr Singh was often courted by leaders of major political parties in the Punjab.  When this was put to the Applicant the Applicant replied that this only occurred during election times. 

19. The other material from the Department for Foreign Affairs and Trade was that ordinary followers of DSS are not targeted for harm by opponents of DSS.  The reports noted that there was no particular violence involving the DSS group since 2007 and that whilst DSS activists had been targeted in the past, they had also been participants in violence.  The Tribunal noted that there was information about violent clashes after the conviction of Mr Singh on rape charges but that much of that violence was perpetrated by DSS supporters responding to the actual conviction and sentencing. 

20. When assessing the credibility of the claims of the Applicant, the Tribunal was mindful of the difficulties that someone in the position of the Applicant would face.  The Tribunal said that they found aspects of the Applicant’s evidence to be vague and lacking in detail.  The Tribunal noted that the Applicant had to be prompted throughout the hearing to recall the claims he had made.  The Tribunal also found that the Applicant provided evidence orally to the hearing which was inconsistent with his written claims. 

21. The Tribunal did not accept that the Applicant or members of his family in India are followers of DSS.  The Tribunal did not accept that the Applicant was politically active in India.  The Tribunal did not accept that the Applicant took part in protest activity at any time in India or that he came to the attention of Indian authorities and was arrested and illegally jailed.   The Tribunal did not accept that the Applicant was attacked by Sikhs with weapons and injured at any time because he was a DSS supporter.  The Tribunal did not accept that the Applicant along with other DSS supporters were attacked during religious gatherings at his home and did not accept that the Applicant’s home was targeted by Sikh extremists because he was promoting a movie.  The Tribunal did not accept that if the Applicant returns to India, he would be called a traitor or face sedition charges because of his connection with DSS and Mr Singh.

22. The Tribunal said that they were not satisfied that there was a real chance that the Applicant would face serious harm if he returned to India because he was a follower of DSS or because he spoke out against the Indian Government.  The Tribunal found that any fear of persecution the Applicant had because of this was not well founded.  The Tribunal did not accept that there was a real chance that the Applicant, his wife or the two children would face serious harm if they returned to India because of religious beliefs or imputed political opinion.

23. The Tribunal then looked at whether the Applicants, being members of the Dalit community and Majahabi Sikhs, would face harm upon return to India.  The Tribunal looked at quite a deal of country information as to what is the situation with persons from that particular group in India.  The Tribunal came to the conclusion that they were not satisfied that there was a real chance that the Applicants would face serious harm in India because they are members of a scheduled caste.  The Tribunal found that the Applicants’ fear of persecution because of that was not well founded.  I should add that the Tribunal looked at the situation of all four Applicants when making this finding and not just the situation of the primary Applicant.

24. The Tribunal then looked at the complementary protection criteria.  After looking at the situation of the Applicants and looking at all of the country information, the Tribunal found that there were no substantial grounds for believing that if the Applicants went back to India, there was a real risk that they would suffer significant harm.  For those reasons, the Tribunal affirmed the decision not to grant any of the Applicants a protection visa.

25. The application before the Court had three grounds of review.  The Applicants who appeared before me today unrepresented but with an interpreter assisting, BDN18 and BDO18, could not speak further about these grounds.  It would seem to me that someone else has actually written those grounds for the Applicants as they displayed little knowledge of what was contained in those grounds.  When the Court asked the Applicants about certain aspects of the grounds, the Applicants displayed very little knowledge as to what the grounds actually meant.  Nevertheless, these grounds are before the Court and the Court must address them.

26. The first ground is that:

    1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(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 applicants upon their return to India especially in view of the latest circumstances after conviction of Dera sect.

27. The ground is somewhat misconstrued itself because there was no conviction of Dera Sect, there was a conviction of Mr Singh who was a guru of the DSS.  But even more pronounced than this is that the Tribunal made a finding that the Applicants were not members of DSS and so therefore they would not face any risk to life or fear of significant harm because of their membership of DSS or any connection to Mr Singh.  The Tribunal could hardly misconstrue the risk and fear of significant harm because of a particular circumstance if they have found that the particular circumstance does not exist in the first place.  For this reason, this first ground fails.

28. The Second ground is that:

    2.The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure that the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

29. The problem with this ground is that the obligations under s 424A of the Migration Act 1958 (Cth) (“the Act”) did not exist in this particular case. The information that would engage this section is information that is not specifically about the Applicant or another person and is just about a class of persons of which the other person is a member, such as country information, or information that the applicant himself gave for the application for review, such as what he said to the tribunal and what he put in his written statement, or information that he gave during the process, such as the claims made in the visa application form. The tribunal actually went further than it needed to because it constantly prompted the applicant to provide more information and it showed the applicant where there were inconsistencies and why those inconsistencies concerned the tribunal. There was no breach or non-compliance of section 424A or AA. Therefore, ground 2 fails.

30. Ground 3 is as follows:

    The tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Act.

31. There is no particularity to this ground at all, but it would seem to me that the tribunal correctly identified the applicant’s claims and correctly identified the applicable law.  It seems to me that the tribunal did apply the law to the facts as they found it and that those findings were open on the evidence. 

32. When the applicant appeared before me with the aid of the interpreter, I asked the applicant what the error he said that the tribunal actually made.  He said to me, as well as many other things, that the tribunal kept asking him for proof, but the applicant said that he did not have proof and could not have proof and this was not fair on him.  It seems to me that this complaint that is made actually fits in with what is the basis of ground 3, namely, that the factual findings that led to the reasonable satisfaction of the tribunal simply should not have been made. 

33. The applicant said to me on a number of occasions that, “The tribunal did not want anything other than proof and kept asking us for proof, but we simply do not have the proof.”  He said in India, proof is not given to lower caste persons.  When his wife, the applicant BDO18, spoke to me, she said that, “India is not like Australia.  In Australia, proof is given to anyone.  If you go to the shop, you are given a receipt.  This proves that you bought something at the shop.”  And she said that her children were small and that she had a choice, that they could have stayed around trying to gather proof or they could have put their energy into saving their children.  They chose to save their children.

1. In effect, the applicants were saying that they experienced the matters that they spoke of to the tribunal and they could not have any proof more than this.  The problem for the applicants is that whilst it is that the tribunal may have wanted proof, the applicants did actually provide some proof in that they gave to the tribunal the media reports surrounding the riots that occurred after the conviction of DSS guru Mr Singh. 

2. When asked for proof of the fact that they were members of the DSS, the applicants could only rely upon what they were saying to the tribunal.  The applicants contend that the tribunal was asking for proof that they were members of the DSS, but they could not give them any independent proof.  But it was not that they could not provide any independent proof that caused the tribunal to not be satisfied; it was because the applicants were simply not consistent with what it was that they were saying to the tribunal. 

3. For example, the circumstances surrounding the killing of Lilly Kumar were matters that the tribunal would have expected that the applicants would know about, but they were very vague about what happened.  Similarly, the applicant said that he put a banner on his house promoting a movie about DSS made by Mr Singh, yet he could not even tell the tribunal what the name of the movie was. 

4. Those two incidents undermined the claim that the applicants had made.  And whilst the applicants may not have been able to provide independent proof, if their stories had been logically consistent, the tribunal would not have been able to come to the conclusion that it did.  The situation is that the tribunal made conclusions that were open to it.  For those reasons, ground 3 of the application also fails.

5. The other submissions that were made by the applicants were a plea for sympathy.  The applicants constantly said to me during the course of the hearing that their children’s lives were at stake.  The applicant BDP18 told me that he saw things in India where they were attacked and that he does not want to go back.  He said that his sister and himself do not want to go back there and suffer stress and depression.  The applicant BDQ18 said to me that she came here to have a better future, that she does not want to see people dying in front of her eyes again and she does not want her parents to be victims again.  She said that she wants to be successful in life and that this cannot happen if she went back to India.

6. The mother and wife BDO18 said to me that she wanted her children’s future to be secure, that the children know that they will not be safe in India.  She said that they were and she was worried about the children and what they would do because they have been in Australia now for so long.  She said to me that she wanted to be given the justice that she was not given in India and that she wants a fair and proper hearing.  As heart wrenching as those pleas where, they can have no place in the deliberations of this Court. 

7. The court must only look at whether there has been a jurisdictional error in the manner in which the tribunal has made their decision.  It would be obvious to anyone that life in Australia is better than life anywhere else in the world.  But the question that the tribunal had to answer was whether the applicants had satisfied the criteria for a protection visa.  If they did not satisfy that criteria, then the tribunal simply could not give them a protection visa. 

8. Similarly, unless there is a jurisdictional error that has been proven to my satisfaction, I cannot remit the matter back to the AAT.  This is despite how sympathetic I am to the plight that the four applicants now find themselves in.  A judge must apply the law without prejudice or sympathy and a judge cannot simply make something up so that the judge might feel that they have come to a more palatable decision rather than the decision that is proper according to law.  So despite my feelings of sympathy, my duty is clear.  There has been no jurisdictional error illustrated by the applicants and this application must be dismissed.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       24 August 2021

SCHEDULE OF PARTIES

ADG 89 of 2018
Applicants
Second Applicant:	BDO18
Third Applicant:	BDP18
Fourth Applicant:	BDQ18