BDS15 v Minister for Immigration and Border Protection
[2017] FCA 251
•24 February 2017
FEDERAL COURT OF AUSTRALIA
BDS15 v Minister for Immigration and Border Protection
[2017] FCA 251
Appeal from: BDS15 v Minister for Immigration and Border Protection [2016] FCCA 2311 File number: NSD 1708 of 2016 Judge: RARES J Date of judgment: 24 February 2017 Legislation: Migration Act 1958 (Cth) ss 36, 65
Federal Circuit Court Rules 2001 r 44.12
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Jackamarra v Krakouer (1998) 195 CLR 516
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
Reg. v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087
Date of hearing: 17 and 24 February 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 43 Solicitor for the Applicants: Mr B Nazer of Byron & Associates Solicitor for the First Respondent: Mr J Pinder of Minter Ellison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1708 of 2016 BETWEEN: BDS15
First Applicant
BDT15
Second Applicant
BDU15
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
24 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal be dismissed.
2.The first and second applicants pay the first respondent’s costs.
3.The names of the person swearing the affidavit filed 22 February 2017 and the names in paragraphs 2 and 3 not be published on the ground that to do so would contravene s 91X of the Migration Act 1958 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an application for an extension of time and leave to appeal from a decision of the Federal Circuit Court to dismiss summarily, under r 44.12(1)(a) of the Federal Circuit Court Rules 2001, the applicants’ application for Constitutional writ relief in respect of the decision of the then Refuge Review Tribunal made on 26 May 2015 that affirmed the decision of the Minister’s delegate not to grant the applicants protection visas: BDS15 v Minister for Immigration and Border Protection [2016] FCCA 2311.
Background
The applicants are a wife, her husband and their child, who are all citizens of the Republic of India. They applied for protection visas in December 2013. The delegate refused that application on 30 May 2014. They applied to the Tribunal for a review of that decision.
The substantive claims for protection were those of the wife. She was a Sikh who was born and worked in the Punjab. She claimed that she was a member of the scheduled castes, which included the lowest castes in the former Indian caste system. The wife claimed that she had suffered discrimination and harm, as a Sikh and a member of the scheduled castes, at the hands of Hindu police and rich Jat Sikhs.
She claimed that when she was at university she had contact with members of the All India Sikh Students Federation, and that she came to appreciate that the Federation was involved in terrorism, at which point she distanced herself from the persons in it whom she knew. She claimed that her father had to intervene to stop youth members of the Federation approaching her, and that in about 2006 he had been assaulted by unknown men on a street. She claimed that, as a result, the police arrested both her and her father for creating a public disturbance.
She claimed that in her work as a tutor she taught her students about Operation Blue Star and the killing of Sikhs by Hindus, and that her students became angry at hearing those stories. She claimed that, in about December 2007, she had been arrested and taken to a police station to identify some Sikh youths who had been detained on suspicion that they were terrorists, and that she had been shocked to find that some of them were her former students. She claimed that the police began beating up those students who then claimed that she was a member of the Federation. She claimed that the police did not believe her denials, and that, as it transpired, the students’ parents were Jat Sikhs who knew that she was a member of a scheduled caste. The wife claimed that the parents told the police that she had brainwashed their children and involved them with the Federation, and that, as a result, she was detained by the police for five months and subjected to severe sexual harassment by the police until her father secured her release by paying large bribes. She claimed that the police had threatened to kill her if she remained in India, and that when her father pleaded with them to pardon her, they suggested they would send her to Pakistan if she wanted. The wife claimed that, in order to avoid that fate, her father decided to save her from what she alleged were fanatical Hindu police officers by sending her to another country.
She claimed that her father arranged for her to be married to her husband in August 2008 and that her husband was planning to leave India. She claimed that her husband was also a member of the scheduled castes and understood her problems in that regard. The wife claimed that she obtained a visa within a few months and then fled the country with her husband to come here to live.
The wife claimed that in 2011 her husband’s mother had told him to send her back to India to care for the mother-in-law because of her ill health and that, although reluctant to do so, she did return because she could not refuse her husband. She claimed that she did so even though she was still fearful of the police. She claimed that she and her husband returned to India and that they went to visit the Golden Temple where they met people, including some of her former students, some who were Jat Sikhs. She claimed that the Jat Sikhs asked her how she had managed to obtain her release from the police after she had been arrested. She claimed to have become nervous and insisted that her husband take her home immediately. She claimed that, after this, her father ordered her to return to Australia, but that the police obtained her in-laws’ address from her father by threatening him. She claimed that before the police reached the house, she and her husband fled to a friend’s house, where they hid until they were able to come back to Australia. She claimed that after her return here, her father had told her that he had been beaten by the police, who had threatened to kill him if they found her in India, and that Sikh women from a scheduled caste could not live in India because they faced harassment from fanatical Hindu police officers.
The proceedings in the Tribunal
The Tribunal noted that the wife had not attended an interview with the delegate and had not contacted the Minister’s Department to explain her failure to do so. It summarised the substantive issue in the review as being whether the wife would suffer significant harm in India because of her suspected involvement with the Federation, her being a Sikh or a member of one of the scheduled castes. The Tribunal considered those claims as if they raised a Refugees Convention basis for the claimed harm, because it could be seen to have arisen from either her real or imputed political opinion, her Sikh religion or ethnicity or her membership of a particular social group that could be defined as women who were members of a scheduled caste in the Indian state of Punjab.
The Tribunal found that it had strong doubts as to the credibility of the wife’s claims. It put to her a number of items of country information in response to some of her asserted claims, including country information that indicated that Sikhs were not targeted for harm in the Punjab and, indeed, were in the majority in that State, consisting of 60% of its population. It put to her country information that the Punjabi Chief Minister since 2007 was a Sikh, as was the Deputy Chief Minister, a great majority of the State ministry, as well as the Prime Minister of India during the time she claimed to have been harmed and at the time of her return to India in 2011. The Tribunal also put to the wife that the Director-General of Police in the Punjab and the Senior Superintendent of Police in her home district were both Sikhs, as were the vast majority of police in the Punjab. The Tribunal recorded the applicant’s response to those observations as, in summary, that:
such factors did not make any difference and they had not prevented the persecution of Sikhs at the time of the persecution during Operation Blue Star and following the assassination of Prime Minister Indira Ghandi.
The Tribunal found that it was not satisfied that it was at all plausible that the wife had been arrested and detained for five months in December 2007 on suspicion of some involvement in the Federation. It found that there was no documentary support for that claim and found far-fetched her explanation at the hearing that no records had been kept because she was a member of the scheduled castes. It did not accept her claims to have been arrested, detained and subjected to sexual harassment, that she had been sought by the police after she returned to India in December 2011 or that her husband and she had to go into hiding at that time. It did not accept she had been harmed by the police or was wanted by them because of any suspected involvement with the Federation while she was in India or that she was at any risk of any future harm as a result of that. The Tribunal said that that conclusion was reinforced by the fact that the wife had decided to return to India in October 2011, notwithstanding the harm that she claimed to have suffered after being detained at the end of 2007 prior to her asserted forced departure.
It also found that another factor casting doubt on her credibility to fear harm in India was that she had delayed seeking protection here until December 2013, more than five years after she first arrived in this country. She had claimed that she had been unaware that protection was available here. However, the Tribunal was not satisfied about her explanation. It also noted that, despite her original claims to fear harm at the hands of members of the Federation and that, originally, her father had had to intervene to protect her from being assaulted by some youths apparently associated with it, at the hearing before the Tribunal she said that she did not fear any harm at the hands of members of the Federation.
The Tribunal accepted that the wife and her husband were from one of the scheduled castes, but it was not satisfied that she had ever suffered harm from the police, other authorities or anyone else while she was in India. It noted that although she claimed that her father worked only as a labourer on construction sites, she had received a total of 18 years of formal education, in the course of which she had obtained three university degrees, had been employed as a private tutor and teacher before her marriage, and that one of her siblings had received a similar advanced education, holding a Masters degree, and another had been a chartered accountant for some years.
The Tribunal found that the scheduled castes were not a small or isolated minority, but instead made up some 30% of the total Sikh population. While it accepted that the wife may have been employed by Jat Sikhs as a tutor to their children, the Tribunal was not satisfied that the balance of her claims in that respect were credible. It found to be implausible her claim that she taught her students about the persecution of Sikhs and Operation Blue Star or that these were matters that, but for her teaching, had been unknown among Sikhs in the Punjab. It was not satisfied that the parents of the children she tutored or taught brought about her arrest or had acted to keep her in detention. It found implausible her associated claim that when she visited the Golden Temple on her return visit to India in 2011 to 2012, she happened to meet not only her former students but also their parents, who had then posed questions about how she had been released years before from detention and, subsequently, alerted the police to her return, who then commenced a search for her.
The Tribunal found that it was comprehensively not satisfied that the wife had ever suffered serious harm in India because of her membership of a particular social group consisting of women who were members of the scheduled castes in the Punjab or that that group was ever subjected to harm, or that she would be at any risk by reason of that membership were she to return to India. It also did not accept that she had ever been harmed in the past as a Sikh, or that there was any information before it that there was a real chance that she would be in the future. It found that in light of all the information before it, it was not satisfied that the wife had ever suffered harm in India because of a real or imputed political opinion as a person who was involved with the Federation, or that she had ever been harmed as a Sikh or because of her membership of a particular social group consisting of women from a scheduled caste in the Punjab.
Accordingly, the Tribunal rejected her claim to protection under the Refugees Convention. It found that, having come to the conclusions to which I have referred, under s 36(2)(a) of the Migration Act 1958 (Cth). It also was not satisfied that the wife met the alternative criteria for complementary protection in s 36(2)(aa). It was not satisfied that she faced harm of any kind in India because of her political opinion, the fact that she was a Sikh or a Sikh woman belonging to any of the scheduled castes, and it found that there was no basis on which Australia owed her complementary protection obligations. As a result, the Tribunal affirmed the delegate’s decision.
The proceedings before the Federal Circuit Court
The applicants commenced proceedings in the Federal Circuit Court. Their application raised two grounds for review namely, that the Tribunal, first, did not make its decision in accordance with law because it did not consider the totality of the wife’s circumstances as a Sikh, a woman and a person with political opinions from the scheduled castes, and secondly, was wrong to find that she had not been persecuted because she had a higher education.
On 16 July 2015, a registrar made the usual orders for preparing the matter for a hearing, fixed for 2 September 2016 (that is, over 13 months hence), to show cause under r 44.12 that the application raised an arguable case for the relief claimed. One of the orders that the registrar made required the applicants to file all evidence on which they relied by 10 September 2015, including that any evidence of the Tribunal hearing be presented as a transcript verified by affidavit. The orders provided that a tape recording of the Tribunal hearing would not be received without leave of the Court.
In the event, the applicants filed nothing in support of their application pursuant to the orders of the registrar or otherwise.
The wife appeared in person to argue her case before his Honour on 2 September 2016. The wife was not then represented. The trial judge explained to her the limited bases on which the Court could exercise its power to review the Tribunal’s findings. The wife repeated, through the interpreter, to his Honour that because she was not a lawyer, she did not know how to present her case properly, either before the Tribunal or the Court.
His Honour identified that the true complaint which the wife made in her oral submissions was that the Tribunal had put to her, perhaps firmly, country information for her comments, where that information appeared to cast doubt on her claims, and that when the Tribunal asked her questions, she was unable to deal with them as well as she might have, had she been legally represented.
The trial judge found that that was not a ground in the application, and that even if it were, it raised no arguable case of jurisdictional error, based on what Gleeson CJ, Gaudron and Gummow JJ had held in Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425 at 435 [30]-[31]. His Honour also found that the facts that the wife was not a lawyer or did not have a lawyer’s skills, did not raise an arguable case that the Tribunal made a jurisdictional error. He found that there was no suggestion that she had asked the Tribunal that she be legally represented or that the Tribunal had refused any such a request. He found that the first ground was not arguable because it was open to the Tribunal to reject the wife’s claims for the reasons it gave.
His Honour also found that the second ground for review did not raise an arguable claim for relief and that, while the Tribunal had referred to her educational qualifications, that was only as one of a number of matters on which it relied for concluding that the wife did not have a well-founded fear of persecution because she was a member of a scheduled caste. He said that it was beyond argument that that finding and the Tribunal’s reliance on her siblings’ success in achieving educational and professional success were relevant to whether she had a well-founded fear of persecution or, I might add, significant harm.
Accordingly, his Honour found that there was no arguable basis on which the applicants’ case could succeed were it to proceed to a full hearing, and dismissed it with costs.
This application
The applicants commenced these proceedings almost two weeks out of time. The wife did not realise that she had to seek leave to appeal, as his Honour had summarily dismissed the proceedings below. The Minister accepted that if there were an arguable case raised as to why the applicants might succeed, were an appeal to proceed, he suffered no prejudice. However, he contended that there was no such arguable case.
When the application for an extension of time came on for hearing last week before me, the applicants were represented by their solicitor, who had been instructed only the day before. I granted a one week adjournment and made directions for any further evidence or submissions on which the applicants or Minister wished to rely, and made the application returnable today.
In their solicitor’s written submissions, the applicants relied on three grounds to show that they had an arguable case to review the Tribunal’s decision, namely that:
(1)the Tribunal had exhibited apprehended bias by repeatedly expressing in its reasons for its decision that it had strong doubts about, or did not accept, or was not satisfied of, matters, such as to suggest, to a fair-minded lay observer, that the Tribunal might not appear to have been impartial in its consideration of the applicants’ claims;
(2)the Tribunal had failed to consider relevant material, namely the wife’s side of the story, but rather took into account irrelevant material; and
(3)the Tribunal inflexibly applied a policy of relying solely on country information rather than using that information as a guide to arrive at its decision.
The applicants argued that the wife had not been given sufficient time by the Tribunal to give her evidence and that whenever she put forward a claim, it met her with a retort that country information contradicted it. They argued that the wife could not verbalise her experience properly and was misunderstood by the Tribunal. They submitted that because of the applicants’ severe financial difficulties, they had not been able to present their case properly to the Tribunal.
Consideration
An application for an extension of time in which to file an appeal challenges a respondent’s vested right to retain the benefit of the judgment from which the appeal is sought, as Brennan CJ and McHugh J explained in Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [4], see also at 539-543 [66] per Kirby J. The Court deals with such applications in the way that each of their Honours said had been adopted by Lord Denning MR in Reg. v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091E‑F, namely:
We often like to know the outline of the case. If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly. If it appears to be a flimsy case and weak on the merits, we may not extend the time. We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time. (emphasis added)
In addition, the criteria for granting leave to appeal are that the applicant must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
A fair reading of the Tribunal’s decision record does not reveal any basis on which a fair-minded or properly informed lay observer might well infer that the Tribunal might have prejudged the applicants’ case: Ex Parte H 179 ALR at 434-435 [28], 435 [32]; see too Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at 236-237 [39]-[42] per Rares and Jagot JJ.
In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 the High Court discussed the concept of pre-judgment by an administrative decision maker in the position of the Tribunal. Hayne J said that such a decision maker is expected to build up expertise in matters such as country information and that (205 CLR at 563 [180]):
Often information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment.
Hayne J elaborated by explaining that at least four distinct elements required consideration in examining an assertion that a decision maker had prejudged an issue, or that there was a real likelihood that a reasonable observer might reach such a conclusion: Jia 205 CLR at 564 [185]. He said that an assertion of apprehended bias contains contentions that, first, the decision maker has an opinion on a relevant aspect of the matter in issue in the particular case, secondly, he or she will apply that opinion to that matter in the case, thirdly, he or she will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. Last, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
The question for decision by the Tribunal on an application to review a refusal by the Minister’s delegate to grant a protection visa is that posed in s 65(1) of the Act, namely, that if the Minister were satisfied that, relevantly, the criteria prescribed by the Act and the regulations for a protection visa had been met, he or she had to grant the visa, but if he or she were not so satisfied, had to refuse to grant it.
Accordingly, the task for an applicant is to satisfy the Minister, or person standing in his or her shoes, in this case, the Tribunal, that the applicant met the criteria for a protection visa: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274 per Brennan CJ, Toohey, McHugh and Gummow JJ. Moreover, in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], McHugh J said of findings by a Tribunal member that the prosecutor’s claim was “utterly implausible”:
… this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
In my opinion, a fair reading of the Tribunal’s decision record here demonstrates that that was the approach it took to making its decision. Contrary to the applicants’ argument, on a fair reading of the Tribunal’s decision through the perspective of the fair-minded lay observer, there does not appear to be any suggestion that the Tribunal had prejudged, or might reasonably be perceived to have put itself in the position where it might have prejudged, the wife’s evidence.
Rather, the Tribunal appears to have put country information to the wife during the course of the hearing, to which, as a matter of procedural fairness, she ought have had the opportunity to provide her answer in response for its consideration. The Tribunal appears to have done just that and to have considered her claims. For example, it considered far-fetched her claims to have been subjected to persecution in the Punjab by police at a time when the government of the Punjab was in the hands of a Sikh party, the chiefs of the police force, both in the State and in her home region, were Sikhs, the Prime Minister was Sikh and most of the Punjabi State Ministry had Sikh connections.
That finding was open to the Tribunal, as were all of its other findings as to its satisfaction or lack of satisfaction about the wife’s claims. Moreover, as Gleeson CJ, Gaudron and Gummow JJ said (Ex Parte H 179 ALR at 435 [30]):
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. (emphasis added)
There is no evidence on the material before me that there is any arguable case the Tribunal went beyond that function. Moreover, the applicants had an opportunity, albeit that they were not legally represented, to put before the trial judge their evidence, including about what happened in the Tribunal by way of a transcript. They did none of that. The explanation that they were not legally represented and lacked funds is an understandable one, but not one which gives rise to any ground for judicial review or for considering that his Honour made any error in his finding that there was no arguable case.
I dismiss the first suggested ground on which the applicants relied as being unarguably bad.
The second ground depended upon there being some material to show that the Tribunal had erroneously referred to country information or failed to listen to the wife’s side of the story that she presented.
In my opinion, there is no foundation for that argument at all. The Tribunal’s reasons clearly show that it considered her claims, put to her country information which suggested that those claims may have had problems and considered her response, before concluding that in the majority of, but not all, instances, it did not accept her evidence.
The third ground seemed to assert that the Tribunal was not entitled to rely on country information or had misused it. In my opinion, that ground is also unarguably bad. The Tribunal was entitled to rely on country information. There is nothing in the way in which the Tribunal’s reasoning was expressed or in its conclusions that suggests any basis on which an arguable jurisdictional error arises.
Conclusion
For these reasons, I am satisfied that the applicants’ application was devoid of merit and that his Honour was correct to have dismissed it summarily. There is no foundation for granting an extension of time. The application must be dismissed with costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 14 March 2017
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