BDS15 v Minister for Immigration

[2016] FCCA 2311

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDS15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2311

Catchwords:
MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) – whether applicants raised an arguable case for the relief they seek – no arguable case – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Cases cited:

Re Refugee Review Tribunal and Another; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

First Applicant: BDS15

Second Applicant: BDT15

Third Applicant: BDU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1738 of 2015

Judgment of: Judge Manousaridis

Hearing date: 2 September 2016

Delivered at: Sydney

Delivered on: 9 September 2016

REPRESENTATION

The applicant appeared in person and on behalf of the second and third applicants assisted by an interpreter

Solicitors for the Respondents: Mr D McLaren of Minter Ellison

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1738 of 2015

BDS15

First Applicant

BDT15

Second Applicant

BDU15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for review be dismissed, because the application does not raise an arguable case for the relief it seeks. The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visa).

2. The application for a Protection visa was made by the first applicant (applicant), and her husband and infant child. The applicant’s husband and child joined in the application as members of the family unit of which the applicant was a member.

Claims for protection

1. In a statement that formed part of the applicant’s application for a Protection visa,[1] the applicant claimed to fear harm in India in connection with her suspected involvement with the All India Sikh Students Federation (AISSF), because she is a Sikh, and because she is a member of one of the Scheduled Castes.

   [1] CB42-51

2. According to that statement, the applicant was born in the Punjab district of India as a member of a Scheduled Caste. As a university student, the applicant was introduced by fellow Sikh students to the AISSF. After learning about the history, geography and politics of the atrocities committed by the Hindu nationalist movements and hearing the stories told by the AISSF members, the applicant wished to learn more about the Sikhs rights to a separate state and religious beliefs, which had been rejected by Hindu fundamentalists. The applicant began to attend AISSF meetings, and she soon received calls soliciting her to join the AISSF. While the applicant was willing to support the group, she ceased her involvement with AISFF after she realised it was involved in terrorism.

3. In around 2007, the applicant’s father was assaulted by unknown men while trying to stop members of the group approaching the applicant. Both the applicant and her father were arrested for creating a public disturbance. The applicant and her father, however refused to mention the AISSF for fear of being assaulted again and implicated with the group.

4. After completing her studies, the applicant began giving private tuition in Hindi language, history, geography, and politics. Many of the applicant’s students were Jat Sikhs whose parents were willing to overlook the applicant’s caste to ensure that their children received good marks. The applicant taught her students about the atrocities perpetrated against Sikh’s and women in Indian society, including the history of the Golden Temple Attack and Operation Blue Start, emphasising that the youth should come forward to stop the atrocities.

5. In around December 2007 the applicant was arrested and taken to the police station to identify youths thought to be terrorists. When the youths were brought out of the cells, the applicant was shocked to find they were her ex-students. The police officers began beating the youths, who then identified the applicant as a member of the AISSF. Despite rejecting the allegation and explaining that she was a teacher and not involved in the AISSF, the police remanded the applicant. The youths’ parents, who were Jat Sikhs and knew about the applicant’s Scheduled Caste background, arrived and told the police that the applicant had brainwashed their children, who after being taught about the history of discrimination against Sikhs by the applicant, involved them with the AISSF. The youths were released, but the applicant was remanded in custody for five months.

6. During her detention, the applicant was sexually harassed by the police, and was released only after the applicant’s father paid large bribes to the police, and on the condition that the applicant be sent out of the country. The police threatened they would kill both the applicant and her father if they attempted to publicise the harassment they had suffered. The applicant’s father pleaded with the police to permit the applicant to remain in India, to which the police threatened to send the applicant to Pakistan. Fearful of the threat, the applicant’s father arranged for the applicant to marry the second applicant, who was already planning to leave India for higher studies in August 2008. During this period the police continued to visit the applicant’s family home, asking whether the applicant had left the country. The applicant’s father was forced to pay more bribes until the applicant was able to obtain a visa and left the country with the second applicant.

7. After arriving in Australia, the second applicant assured the applicant that he would complete his education and obtain permanent residence status. The applicant agreed not to lodge an application for protection at this time because the second applicant wished to visit his family in India, and the applicant had been told that they would be unable to do so if they sought protection.  

8. In October 2011 the second applicant’s mother became ill and requested that the applicant be sent back to India to care for her. The applicant was reluctant to do so, but the second applicant insisted. After arriving in India the applicant stayed with her parents-in-law, where she was later joined by the second applicant. During her visit neighbours began asking the applicant’s parents-in-law why they were childless. The applicant’s mother-in-law insisted that she and the second applicant visit religious institutions and shrines so that the applicant could conceive. Despite being afraid to leave the house, the applicant complied, and she and the second applicant visited the Golden Temple. During their visit, the applicant was recognised by former students, to whom she refused to speak, explaining to their parents, who were also present, that she was married and no longer teaching. The applicant was then asked by the parents how she had obtained her release from detention. The applicant became nervous, and insisted the second applicant take her home immediately so to avoid any further conversation.

9. When they returned to the applicant’s parents-in-law’s home, the applicant told the second applicant it was dangerous for her to remain in India, as Jat Sikhs were in contact with each other. The second applicant did not take her request seriously, and insisted that the applicant remain permanently with his mother while he returned to Australia. After hearing of the second applicant’s request, the applicant’s father ordered that the applicant return to Australia immediately because he had been questioned by police about the applicant’s whereabouts and forced to disclose the applicant’s parents-in-law’s address. The applicant and second applicant went into hiding before the police could reach the house, and left India for Australia shortly thereafter.

10. After the applicants arrived in Australia, the applicant learned that her father had been beaten by police, who threatened to kill him and the applicant if they found the applicant in India. The applicant fears that if she returns to India, Hindu police officers will take her away, harass her, and sell her to rich Muslim men who would take her to Pakistan. The applicant believes that these police officers are determined to wipe out the Sikh race, and that they are targeting the applicant because they are fearful that she will try to bring them to justice by publicising the atrocities that she has faced in their hands.

Tribunal’s decision

1. The Tribunal did not accept the applicant’s claims to be true, or that the applicant had given truthful evidence, or that the applicant has any fear of harm if she returns to India, or that the applicant experienced harm in India before she came to Australia. The Tribunal relied on a number of matters.

2. First, the Tribunal found the applicant’s account of her introduction to and involvement with the AISSF to be inconsistent with available country information.[2] The Tribunal relied on information that indicated that while the AISSF was banned following the Operation Blue Star attack on the Golden Temple in 1984, and that some of its leaders were arrested and killed, there have been no further reports of attacks on AISSF members since the 1990’s. The Tribunal noted that the ban on the AISSF had been lifted in 1985, that the organisation now operates openly campaigning on a range of Sikh issues and is able to do so without suffering any harm, and that while it is unlawful to promote secession from the Indian state, authorities do not target ordinary Sikhs who express non-violent support for an independent Sikh state. In response to that information, the applicant claimed that “these matters are not reported as the media are prevented from doing so”, and that the world “knows nothing about what happens, particularly in small remote village such as hers”.[3]

   [2] CB191, [17]

   [3] CB191, [18]

3. Second, the Tribunal found that applicant’s claimed harm and fear of being harmed due to her being a Sikh to be inconsistent with available country information. The Tribunal relied on information that indicates that Sikhs are a majority in Punjab and constitute 60% of the population, that the Chief Minister since 2007 is a Sikh, as is the majority of the ministry, that the Prime Minister of India during the period of time the applicant claims to have been harmed and at the time of her return to India was a Sikh, and that the Director General of the police and other senior ranks of the police in Punjab are Sikhs.[4]

   [4] CB191, [19]

4. Third, the Tribunal did not accept as plausible the applicant’s account of being detained for a period of five months on suspicion of being involved with AISSF.[5] On the applicant’s own evidence, she was never a member of the AISSF, she resisted AISSF’s entreaties for her to join the group, she was not involved in any political activity agitating for the achievement of an independent Sikh state, either non-violently or violently, at any point during her time in India, nor was she involved in any illegal activities. The applicant’s involvement with the AISSF was limited to an association with AISSF members and attending meetings whilst at university, and teaching students about the injustices suffered by Sikhs which with her influence may have lead students to join the AISSF at a later time. On this basis, the Tribunal concluded that the applicant’s claimed detention on grounds of AISSF involvement was implausible.

   [5] CB192, [20]

5. It followed that the Tribunal did not accept that the applicant was arrested, detained and subjected to harassment by police as claimed; that the applicant’s father paid a bribe for her release on the condition that she leave India; that the applicant and her father were threatened with death if they revealed what had taken place; that the police threatened to take the applicant to Pakistan; that to remove her from the threat of harm by police the applicant’s father arranged for her to marry the second applicant who had planned to come to Australia; or that it was in these circumstances that the applicant left India. The Tribunal also did not accept that the applicant was sought by police on her return to India in 2011; that the applicant and the second applicant were forced into hiding to avoid arrest during that trip; or that the applicant’s father was beaten after she returned to Australia.[6]

   [6] CB192-193, [21]-[22]

6. Fourth, the Tribunal considered the applicant’s decision to return to India in October 2011 and remain there for four months to be inconsistent with her claimed fear of harm.[7] The Tribunal put this inconsistency to the applicant, to which the applicant asserted that she was directed to return by the second applicant, that she was grateful to him for marrying her and removing her to Australia, that it is part of her culture that wives obey their husbands, and that in any case her father had assured her that it was safe to return. The Tribunal considered these factors, but concluded that it was not satisfied that a person who had escaped being killed by the police, or was in imminent danger of being killed or sold into sexual servitude to Muslims would voluntarily return to the same area of India and remain there for a period of time.

   [7] CB193, [23]

7. Fifth, the Tribunal considered the applicant’s five year delay in applying for a Protection visa to undermine the credibility of her claimed fear of harm.[8] The Tribunal did not accept the applicant’s explanation for the delay, namely that she first was unaware that protection could be provided, that the second applicant believed applying would prevent them from visiting his parent’s in India, and that they hoped after four or five years the situation would improve. The Tribunal also noted that after the applicant’s return from India in February 2012, the applicant waited 21 months before lodging her application.

   [8] CB193, [24]

8. Sixth, while the Tribunal accepted that the applicant is from one of the Scheduled castes in Punjab, the Tribunal did not accept that either the applicant or her family have suffered discriminatory harm because of their caste status. The Tribunal relied on a number of matters. These included the applicant’s having obtained 18 years of formal education including three university degrees, and the applicant’s siblings having received similarly advanced educations. The Tribunal noted that the information before it indicated that the Scheduled Castes are not a small or isolated minority, but rather make up 30% of the total Sikh population.[9]

   [9] CB193-194, [27]

9. Seventh, while the Tribunal accepted that the applicant may have been employed by Jat Sikhs to tutor their children the Tribunal did not accept the balance of the applicant’s claims to be credible. In particular, the Tribunal did not accept that the applicant taught her students about the persecution of Sikhs and Operation Blue Start, or that these were, but for the applicant’s intervention, matters which were unknown among Sikhs in Punjab; that the parents of her students paid for the applicant’s arrest and detention; and that during her return visit to India the applicant met both former students and their parents at the Golden Temple.

10. The Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations pursuant to section s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). 

Grounds of application

1. The applicant’s application for review contains two grounds. The first is:

   The Tribunal did not make its decision in accordance with law. The Tribunal did not consider the total of my circumstances. I am Sikh, a woman, with political opinions and from the scheduled castes.

2. In relation to this ground, the applicant, who is not legally represented, made extensive submissions. The submissions, however, did not address the ground. The applicant detailed the circumstances surrounding her decision to leave India, and that she is scared to return because circumstances in India are worse.

3. After the applicant completed this part of her submissions, I explained to the applicant the nature of the jurisdiction this Court exercises in relation to decisions of the Tribunal. I then asked her which of the applicant’s circumstances she claimed the Tribunal did not consider. The applicant said that the Tribunal “was actually not ready to listen to my arguments properly”, and that was because “[w]henever I said something they . . . came up with the country information and they said that according to the country information that Sikhs were actually safe in that country”.[10] The applicant also said she had “a feeling that the tribunal member had already made up his mind and so I was not given actually the proper opportunity to present my case”.[11] When I explored with the applicant why she said she felt she had not been given a proper opportunity to present her case, the applicant said she felt the Tribunal “was testing my claims or you could say they were cross-examining me”.[12] This part of my exchange with the applicant ended as follows:[13]

   [10] T8.15

   [11] T8.35

   [12] T9.5

   [13] T9.25-35

   HIS HONOUR: But this is what I’m trying to understand from you, you were there at the tribunal, the tribunal asked you questions. Why do you say you didn’t have an opportunity to tell the tribunal what you wanted to tell the tribunal?

   INTERPRETER: Yes. I did try my best to answer those questions, yes, which were asked of me.

   HIS HONOUR: But you could have given other information if you wanted to[?]

   INTERPRETER: Yes. You are right but because I had no knowledge how to present my case properly, your Honour, because I am not a legal person. I have no knowledge of law.

4. When considered as a whole, the true complaint the applicant made in her submissions to me is that the Tribunal put, and perhaps firmly put, to the applicant country information for the applicant’s comments that cast doubts on the applicant’s claims, and that the Tribunal asked the applicant questions, and the applicant was unable to deal with the hearing as well as she might have, had she been legally qualified.

5. This is not a ground stated in the application. But even if it were, I would find it raises no arguable case of jurisdictional error by the Tribunal. First, the Tribunal commits no jurisdictional error only because it asked questions, and put matters to an applicant that are potentially adverse to the applicant’s case. That follows from what the High Court said in Re Refugee Review Tribunal and Another; Ex parte H:[14]

   Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

   Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.

   [14] [2001] HCA 28; (2001) 179 ALR 425 at [30]- [31]

1. Second, that the applicant is not a lawyer or does not have the skills of a lawyer affords no arguable case for claiming the Tribunal made any jurisdictional error. Nor is it arguable to claim that the applicant’s appearing before the Tribunal without a lawyer by itself resulted in the Tribunal making a jurisdictional error. There is no suggestion the applicant requested to the Tribunal that she be legally represented at the hearing, or that the Tribunal refused any such request.

2. As for the ground, as stated in the application, it is not arguable. I have described in some detail the claims the applicant made before the Tribunal, and the Tribunal’s reasons for rejecting those claims. It is beyond argument the Tribunal considered each of the applicant’s claims – that she held, or she would be imputed with holding, opinions associated with AISSF, that she was a Sikh, and that she formed part of a particular social group, namely, women who are members of a Scheduled caste in the Indian state of Punjab. It is also beyond argument that it was open to the Tribunal to reject the applicant’s claims for the reasons it gave.

3. The second ground of application is:

   The Tribunal was wrong to say that I was not persecuted because I had a higher education.

4. When this ground was interpreted to her, the applicant said that “something is not right [with the] way this ground number 2 is written”.[15] After further reflection, however, the applicant said the ground was correct. She submitted that anyone could face persecution, whether or not the person is highly qualified or not.

   [15] T10.5

5. Ground 2, and the submission the applicant made to me, do not raise an arguable case for relief. The Tribunal did refer to the applicant’s educational qualifications, but only as one of a number of matters on which the Tribunal relied for concluding the applicant did not have a well-founded fear of persecution because she was a member of a Scheduled Caste. It is beyond argument that it was reasonably open to the Tribunal to rely on the applicant’s, and the applicant’s siblings, educational qualifications as relevant to whether the applicant had such well-founded fear of persecution.

Disposition

1. I propose to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 9 September 2016