BUP16 & Ors v Minister for Immigration & Anor
[2017] FCCA 1782
•3 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUP16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1782 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of Administrative Appeals Tribunal’s decision to proceed to determine application before it in the absence of the first applicant – decision of AAT to proceed did not lack an intelligible justification and was not irrational or legally unreasonable in the circumstances – Tribunal decision not otherwise affected by jurisdictional error – application for judicial review dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Migration Regulations 1994 (Cth) |
| Cases cited: AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 1 SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 |
| First Applicant: | BUP16 |
| Second Applicant: | BUT16 |
| Third Applicant: | BUU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1839 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 2 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 August 2017 |
REPRESENTATION
| The First and Second Applicants appeared in person. The Third Applicant appeared through the First Applicant as his Litigation Guardian. |
| Counsel for the Respondents: | Ms S He |
| Solicitors for the Respondents: | DLA Piper |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 15 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1839 of 2016
| BUP16 |
First Applicant
| BUT16 |
Second Applicant
| BUU16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The First Applicant in this proceeding is a male citizen of India aged 41 years, having been born on 10 May 1976, and is the Litigation Guardian of the Third Applicant for the purposes of this proceeding.
The Second Applicant is a female citizen of India, is the wife of the First Applicant and is aged 27 years, having been born on 13 December 1989.
The Third Applicant is a male citizen of India, is the son of the First and Second Applicants and is aged 5 years, having been born on 3 November 2011.
By Application filed in this Court on 15 July 2016 they (collectively the Applicants) seek to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal dated 17 June 2016 (Tribunal) which affirmed the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 18 December 2014 refusing to grant to them Protection (Class XA) visas (Protection visas).
It is convenient at this point to note that the First Applicant did not appear at the Tribunal hearing held on 8 June 2016. Only the Second and Third Applicants appeared at the Tribunal hearing and the Tribunal decided pursuant to s.426A of the Migration Act 1958 (Cth) (Act) to proceed with the hearing in the absence of the First Applicant in the circumstances more fully appearing below.
The Applicants arrived in Australia on 11 February 2014 with the evidence establishing that the First and Second Applicants each held a Visitor (Subclass 600) visa. The Applicants lodged their application for Protection visas on 14 April 2014. The First Applicant indicated that he spoke, read and wrote in both Hindi and English. He also indicated that in the course of his life he had made three visits to London, two visits to Switzerland and a single visit to France.
Claims for Protection
The Second and Third Applicants made no claims for protection in their own right independent from the claims of the First Applicant.
The substance of the First Applicant’s claims for protection were that as a Muslim he feared harm in India from Hindu extremist groups, mainly the Shivesena group. He had left India “due to the constant threat and assault from the Hindu extremist groups like Shivesena and such other similar groups targeting Muslims”. He claimed to have been attacked a few times by Hindu extremist groups and that the intention of these groups was to harass the non-Hindu community in India by mainly targeting business people like himself. He claimed to have been “bodily harmed and mistreated and looted” and suffered threats of extortion. He claimed to fear that if he went back to India his family and he would be harmed in different ways including bodily harm, possibilities of kidnap of family members and even his family members and himself being killed. He claimed that it would be highly risky to go back to India because the Indian authorities would not protect him as they had not provided security in the past and there was no guarantee of security in the future.
Grounds for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7]:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of the Delegate
None of the Applicants attended at the scheduled interview with the Delegate on 17 December 2014 in the following circumstances.
On 4 November 2014 the Applicants were invited to attend an interview with the Delegate on 25 November 2014 at 11am.
Because the Third Applicant had foot and mouth disease by letter dated 25 November 2014 the Delegate rescheduled the interview to Wednesday, 17 December 2014 at 1pm. The Applicants did not attend the rescheduled interview and have not provided any reason for their non-attendance.
In her Decision Record of 18 December 2014 the Delegate found that she was unable to assess the credibility of the First Applicant on his claims as he did not attend the interview and that she was also unable to obtain further essential details regarding his refugee claims for protection. As she was unable to test his assertions she was unable to be satisfied as to the veracity of his claims for protection and accordingly she refused to grant a Protection visa to any of the Applicants.
Tribunal Hearing and Decision Record
The Applicants applied to the Tribunal on 15 January 2015 for review of the Delegate’s decision.
The First Applicant did not attend the scheduled hearing before the Tribunal on 8 June 2016 to give evidence and present arguments in the circumstances described below. The Second and Third Applicants did appear and the hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
By letter dated 11 May 2016 the Tribunal had written to the Applicants to invite them to attend a hearing before the Tribunal on 8 June 2016 at 12 noon because, as the letter stated, the Tribunal was unable to make a favourable decision on the material then before it. This letter enclosed a Response to Hearing Invitation and both documents were sent to the email address provided in the Applicants’ application for review.
The Applicants did not respond to the invitation to attend the hearing before the Tribunal and did not complete and return the Response to Hearing Invitation.
On 1 June 2016 the Tribunal sent a SMS text hearing reminder to the First Applicant’s mobile telephone number given in the application for review. There was no response from the Applicants.
Then on 7 June 2016 the Tribunal sent another SMS text hearing reminder of the scheduled hearing to the First Applicant’s mobile number and there was again no response.
At the hearing before the Tribunal on 8 June 2016 only the Second and Third Applicants appeared and the Second Applicant informed the Tribunal that the First Applicant had become ill that morning. No medical evidence was submitted to the Tribunal in relation to the First Applicant’s asserted illness.
In these circumstances the Tribunal told the Second Applicant that if the First Applicant still wished to attend to give evidence then medical evidence should be provided to the Tribunal including the reason that the First Applicant had been unable to attend the hearing. The Tribunal advised the Second Applicant that it would consider any such information and any request for an adjournment and further advised that if no material had been received by 5pm on 10 June 2016 the Tribunal would proceed to determine the matter on the material before it without taking steps to convene a further hearing.
After the conclusion of the Tribunal hearing on 8 June 2016 the Tribunal at 2.35pm emailed a letter to the First Applicant which stated in substance as follows:
[BUP16] did not attend the hearing today at 12:00pm. If [BUP16] wishes to give evidence and present arguments to the Tribunal and it is requested that the Tribunal adjourn his matter it is requested that medical evidence be provided that [BUP16] was unable attend the hearing.
As advised at the hearing, it is requested that any further material be submitted to the Tribunal by close of business on 10 June 2016.
In the event that no further information is received, or a satisfactory explanation for his non-attendance is not provided the Tribunal may make a decision on the material before it without taking further action to enable the applicant to appear before it.
There was no response to this letter of 8 June 2016 and there was no application for any further hearing.
In these circumstances the Tribunal pursuant to s.426A(1A)(a) decided to make a decision on the review without taking any further action to allow or enable the First Applicant to appear before it. It was implicit in the Tribunal’s decision to make a decision pursuant to s.426A that it was satisfied that the First Applicant had been invited to the Tribunal hearing on 8 June 2016 under s.425 of the Act in accordance with the requirements of s.425A. In my view the Tribunal was correct in considering that there had been compliance with s.425 and s.425A. This is so for the following reasons:-
a)the letter dated 11 May 2016 inviting the Applicants to a hearing before the Tribunal advised them of the date, time and location of the hearing as required by s.425A(1);
b)that letter of invitation was sent to the Applicants by a method specified under s.441A as required by s.425A(2). The invitation letter was transmitted by email sent to the last email address provided to the Tribunal by the Applicants in connection with the review, namely the email address that was provided in the review application form: s.441A(5)(b) and (d);
c)as required by s.425A(3), the notice period for the hearing was at least a period prescribed by the Migration Regulations 1994 (Cth). Regulation 4.35D(3)(b)(i) prescribed a period of 14 days after the applicants were taken to have received notice of the invitation. The Applicants were taken to have received the document at the end of the day on which the document was transmitted, namely 11 May 2016 (s.441C(5)). The hearing was listed for 8 June 2016, which was 28 days from the date of the invitation; and
d)finally, the hearing invitation advised the Applicants of the effect of s.426A, as required by s.425A(4).
e)the failure of the First Applicant to attend the hearing in circumstances where he was taken to have been validly invited to attend a hearing enlivened the Tribunal’s discretionary powers under s.426A. Pursuant to s.426A(1A) the Tribunal had the power either to make a decision on the review without taking any further action to enable the First Applicant to appear before it (section 426A(1A)(a)), or to dismiss the application without any further consideration of the application (s.426A(1A)(b)). The Tribunal opted for the former course in its decision of the 17 June 2016.
There was never any response by the Applicants to the post-Tribunal hearing letter from the Tribunal of 8 June 2016 and no further materials were ever submitted by the Applicants to the Tribunal and the Tribunal then proceeded to hand down its decision on 17 June 2016.
In [14] of its Decision Record the Tribunal set out the First Applicant’s claims for protection and from [23]-[32] it assessed those claims as best it could in the absence of the First Applicant. The Tribunal noted at [25] that the Second Applicant advised the Tribunal at the hearing that she did not have any claims for protection separate from those of the First Applicant and that she only vaguely knew what had happened to the First Applicant and had not thoroughly read through his claims for protection. She confirmed on behalf of the Third Applicant that he also did not have any claims separate from those of the First Applicant.
At [26] the Tribunal stated as follows:-
In the material filed with the Department the primary applicant has only set out very briefly his claims. The Tribunal has considered the primary applicant's claim that he was under constant threat of assault, attacked, threatened, mistreated, looted, extorted and harmed a few times by Hindu extremist groups including the Shivsena. It has also considered his claim that he was unable to lodge complaints about his attackers and that he fears harm if he was to return to India from these groups on the basis of his Muslim religion. However as the primary applicant did not attend the hearing the Tribunal did not have the opportunity to explore the details of any specific instances of harm to be satisfied as to the credibility of the primary applicant and his claims. He has also provided no evidence to support these claims or details as to when such incidents are alleged to have occurred, where they occurred and in what circumstances. The Tribunal has no particular evidence as to what harm, threats, mistreatment, extortion or looting he actually suffered. In his application the primary applicant has set out that he travelled overseas on several occasions however he has not provided any dates of this travel or details of the purpose such that Tribunal can assess whether it is supportive of his claims. He also claimed that his family would be at risk if they returned to India, from kidnapping or killing but as indicated has provided no real or specific details in support of his claims to fear harm on the basis of his religion or the actions of Hindu extremist groups. The primary applicant has submitted no independent or country information in support of his claim of targeting, threats, extortion and personal harm. There is no information as to what steps he had taken, if any to obtain security from the authorities in India. Despite the delegate refusing the original claim for protection, and the applicants’ being put on notice that a favourable decision could not be made on the material before the Tribunal, the primary applicant did not attend the hearing, provide additional material or provide any further information following the scheduled hearing on 8 June 2016.
It will be seen that the Tribunal considered that it was hampered in discharging its responsibility of factually investigating the First Applicant’s claims because of his failure to appear at the Tribunal hearing and to provide supporting materials. It did not act unreasonably or irrationally in holding that view. It was for the First Applicant to establish to the satisfaction of the Tribunal that he satisfied the relevant Protection visa criteria. As the Full Court of the Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 comprised of French, Emmett and Dowsett JJ stated at [5]:
In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
At [27]-[28] of its Decision Record, the Tribunal referred to country information, including a DFAT Country report for India dated 15 July 2015 and noted that there were over 138 million people in India identified as Muslims being 13.4% of the total population. In the result at [28] the Tribunal recorded that it was not satisfied on the material and information before it that the First Applicant had suffered harm in the past in India or that there was a real chance that he would suffer serious harm if he returned to India either now or in the reasonably foreseeable future on the basis of his claim that he was at risk of harm because he was a Muslim or that he had previously been targeted by the Shivesena group or other extremist Hindu groups.
At [29] of its Decision Record the Tribunal recorded that it was not satisfied on the currently available information that the First Applicant had a well-founded fear of persecution on the basis of his claims or that the First Applicant was a refugee.
At [30] the Tribunal found that the First Applicant did not satisfy the complementary protection criterion pursuant to s.36(2)(aa) of the Act because it was not satisfied that there were substantial grounds for believing that he would suffer significant harm if he returned to India due to his Muslim religion or because he would be targeted by Hindu extremist groups or the Shivesena group or that he would suffer significant harm in India for any other reason.
At [31] of its Decision Record the Tribunal recorded evidence given by the Second Applicant at the Tribunal hearing to the effect that the claims of the Second and Third Applicants rested solely on the claims of the First Applicant. The Second Applicant told the Tribunal that neither she nor the Third Applicant had suffered any harm in India nor had she suffered from official or societal discrimination and she confirmed that she had not been targeted, threatened, extorted or harmed in the past in India by extremist groups such as the Shivesena group. In the result the Tribunal was not satisfied that Australia owed protection obligations to the Second and Third Applicants, either under the Refugees Convention criterion or the complementary protection criterion, and it affirmed the decision of the Delegate not to grant Protection visas to the Applicants.
Grounds of Attack on Tribunal Decision in this Court
The Grounds in the Application filed in this Court on 15 July 2016 are as follows:
1.The Second Respondent committed jurisdictional error by failing to comply with mandatory provisions of the Act, being division 4 of part 7 of the Act.
The Tribunal's decision was fundamentally influence (sic) by not receiving evidence from me at hearing. In the Tribunal's reasons for decision the Tribunal mentions the negative impact on its decision of not having had the opportunity to obtain further information at hearing.
2.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 applicant upon his returns to India.
3.The Tribunal failed to consider an integer of the Applicant' s claim, in failing to consider whether or not a Muslim minority (regardless of their specific claims of affiliation or past persecution) in India was at risk of harm from Hindu extremist groups, and not able to access effective protection.
4.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 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.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
Consideration
Ground 1
I take this Ground as contending that the Tribunal exercised its power under s.426A of the Act legally unreasonably and that it thereby failed to comply with its procedural fairness obligations by failing to receive oral evidence from the First Applicant at the Tribunal hearing. I note that the exercise of a discretionary power of a kind given by s.426A of the Act to the Tribunal is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Under s.427(1)(b) of the Act, the Tribunal has the power to adjourn a review from time to time. Further, the Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”.
However, these discretionary powers to adjourn a hearing, to proceed with a hearing, and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review relevant decisions and to give the relevant applicant a meaningful opportunity or a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.425 of the Act.
The first thing to be said is that whilst the failure of a Court or a tribunal to adjourn a matter may constitute a failure to allow a party the opportunity of properly presenting his or her case, as Deane J said in Sullivan v Department of Transport (1971) 20 ALR 323 at 343:
… In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.
The appointed Tribunal hearing date of 8 June 2016 was, in the words of Hill J in Machmud v Minister for Immigration and Multicultural Affairs (2001) 66 ALD 98 at 102 [14] “one of the most important appointments in [his] life”. The First Applicant was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason. As Barker J in Ponugoti v Minister for Immigration and Border Protection (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the Migration Review Tribunal:
What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.
In my view, in the circumstances of this case there is nothing that could be characterised as legally unreasonable in the way the Tribunal exercised its discretion under s.426A to proceed to make a decision on the application for review in the absence of the First Applicant and its decision to proceed did not lack an “evident and intelligible justification”. I so find for the following reasons:
a)none of the Applicants had attended at the interview scheduled to take place with the Delegate on 17 December 2014 and this was noted by the Tribunal at [15] of its Decision Record. Further, they had not submitted to the Delegate any material supportive of their application for Protection visas for consideration by the Delegate prior to that scheduled interview. They never sought to explain or justify their failure to appear at the scheduled interview before the Delegate;
b)no supporting materials were ever submitted by the Applicants to the Tribunal either at the time of their application for review or subsequently;
c)the letter of invitation dated 11 May 2016 to the Tribunal hearing scheduled for 8 June 2016 complied with the requirements of s.425 and 425A of the Act and specifically advised that if the Applicants did not attend the scheduled hearing the Tribunal might make a decision on the review without taking any further action to allow or enable them to appear before it. Further, the Response to Hearing Invitation was never completed and returned to the Tribunal. Accordingly, this case bears no similarity to cases where, from the objective facts constituting the course of conduct between the Tribunal and an applicant, the Tribunal ought to have considered the applicant’s non-appearance as out of character and a departure from his or her previous pattern of conduct: see, for example, Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 per Mortimer J; AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 1 per North ACJ and MZALO v Minister for Immigration and Border Protection (2016) 70 AAR 495 per Mortimer J. On the contrary, here the First Applicant’s conduct in not appearing before the Tribunal was consistent with his earlier failure to take part in an interview with the Delegate and he had not completed and returned the Response to Hearing Invitation form, which if he had, might have evinced to the Tribunal that he had a real, close and vital interest in the review process being conducted by the Tribunal;
d)the Tribunal forwarded SMS text hearing reminders to the First Applicant’s mobile phone on 1 June 2016 and 7 June 2016 to which there was no response (see [18]-[19] above);
e)no medical evidence confirmatory of the inability of the First Applicant to attend and meaningfully participate in the Tribunal hearing was given to the Tribunal either on the day of the Tribunal hearing on 8 June 2016 or at any time thereafter;
f)the First Applicant failed to avail himself of the opportunity afforded him by the letter of 8 June 2016 to provide such medical evidence and apply for an adjournment or provide further material to the Tribunal by the close of business on 10 June 2016.
g)no evidence has been tendered in this Court confirmatory of the First Applicant’s inability to attend and meaningfully participate in the Tribunal hearing. The First Applicant had filed his own affidavit affirmed on 15 July 2016 in support of his Application which merely stated in [1]:-
I was denied justice not giving me opportunity to present my case before the Tribunal. I was ill and I could not attend the hearing.
Accordingly, when on 15 August 2016 this matter was set down for final hearing on 2 November 2016 I stated in Court as follows to the First Applicant:
HIS HONOUR: All right. Well, now, I just want to say this: it’s not my role to advise you, but the male applicant in this matter did not turn up at the tribunal hearing, alleging sickness, and the tribunal then appears to have given a further short opportunity for the male applicant to make submissions, and it seems to be a ground of application that the tribunal was wrong to proceed without further input from the male applicant. In those circumstances, it is likely that evidence establishing that his medical condition rendered him incapable of effectively, and meaningfully, taking part in the tribunal would be necessary, and appropriate, for his application for a judicial review in this court. Mr Interpreter, notwithstanding that they didn’t need an interpreter, as I understand it you have in fact interpreted what I just said to them.
THE INTERPRETER: Yes, I did, just to make sure they understand everything.
HIS HONOUR: Thank you very much. All right. Well, that’s all I need to say, I think, about that. So I’ve made those orders by consent. Is there anything else the applicants want to say to me?
THE INTERPRETER: Nothing further.
No medical evidence explaining the First Applicant’s failure to attend the Tribunal hearing was filed or provided.
Accordingly, I do not consider that the Tribunal’s decision to proceed to make a decision on the review pursuant to s.426A was unreasonable as a matter of law or was arbitrary, capricious, without common sense or plainly unjust and I consider that there was an intelligible justification for the Tribunal deciding to proceed. The Tribunal had a “genuinely free discretion” and “decisional freedom” to proceed under s.426A and its decision in that regard did not fall outside the range of possible, acceptable outcomes: see Wigney J in Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at 650 [52].
Accordingly, Ground 1 fails to establish jurisdictional error or procedural unfairness.
Ground 2
This Ground in my view seeks no more than impermissible merits review of the Tribunal’s decision and fails to identify any jurisdictional error on the part of the Tribunal.
Section 36(2A) of the Act sets out “significant harm” for the purposes of the complementary protection criterion under s.36(2)(aa). The Tribunal at [8] of its Decision Record specifically referred to the complementary protection criterion and the fact that if an applicant did not meet the Refugees Convention criterion a Protection visa might still be granted if an applicant satisfied the complementary protection criterion. Then at [30] the Tribunal considered whether or not the First Applicant satisfied the complementary protection criterion but found that it was not satisfied that the First Applicant would suffer significant harm for any reason if he returned to India. At [31] the Tribunal considered whether or not the Second and Third Applicants satisfied either of the Refugees Convention criterion or the complementary protection criterion but found that they did not.
In my view Ground 2 also fails.
Ground 3
This Ground likewise fails. The Tribunal at [26]-[28] and [30] expressly considered the position of Muslims in India and had regard to the DFAT Country report for India dated 15 July 2015 in this respect.
Ground 4
In my view the Tribunal did not breach s.424A of the Act. It considered the Applicants’ claims based on those of the First Applicant and it considered relevant country information which is excluded from the force of s.424A(1) by s.424A(3)(a). There is no obligation on the Tribunal to give to the Applicants its subjective appraisals, thought processes or determinations or identify conclusions arrived at by the Tribunal in weighing up the evidence it was considering: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 [18].
Ground 4 also fails.
Conclusion
The Applicants have failed to establish that the decision of the Tribunal was affected by jurisdictional error or procedural unfairness and the Application filed in this Court on 15 July 2016 is to be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 3 August 2017
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