CLE16 v Minister for Immigration
[2019] FCCA 1828
•1 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLE16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1828 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to consider a claim about the general security situation in India – whether the claim was made out. |
| Case cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 |
| First Applicant: | CLE16 |
| Second Applicant: | CLF16 |
| Third Applicant: | CLG16, BY HIS LITIGATION GUARDIAN, THE FIRST APPLICANT |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1878 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 10 April 2019 |
| Date of last submission: | 10 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 1 July 2019 |
REPRESENTATION
| Advocate for the applicants: | In person |
| Solicitors for the applicants: | None |
| Counsel for the first respondent: | Nicholas Swan |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Mills Oakley |
ORDERS
The application filed on 2 September 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1878 of 2016
| CLE16 |
First applicant
And
| CLF16 |
Second applicant
And
| CLG16, BY HIS LITIGATION GUARDIAN, THE FIRST APPLICANT |
Third applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.
The first applicant is the husband of the second applicant and they are the parents of the third applicant. The first applicant was appointed as the litigation guardian for the third applicant. The applicants are citizens of India.
The matter was listed for final hearing on 31 January 2019. On that occasion, the applicants sought an adjournment on the basis that their solicitor, Carina Ford, had withdrawn from the record on 20 December 2018, and, with the Christmas break, the applicants had been unable to obtain further legal assistance.
The matter was adjourned until 10 April 2019, to enable the applicants to obtain legal assistance. In addition, as the applicants raised an issue which required the transcript of the Tribunal hearing to be placed before the court, the Minister was ordered to file the transcript of the Tribunal hearing. Costs were reserved.
The final hearing proceeded on 10 April 2019. The applicants had not been able to obtain legal assistance. The transcript of the Tribunal hearing was exhibited to an affidavit affirmed by Sophie Caroline Roberts on 22 February 2019. The second applicant indicated to the court that she did not wish to make submissions, and preferred to remain outside the courtroom to look after her young child, the third applicant.
The applicants’ claims
The first and second applicants’ claims in their protection visa applications were summarised in the first respondent’s submissions filed on 16 January 2019 as follows:
2.The First Applicant, born November 1982, and the Second Applicant, born June 1987 (CB 2), are married and are citizens of India (CB 2; 13-14; 29; 105). They first arrived in Australia in 2008 as the holders of student visas and applied for the Visa on 4 December 2014. The Third Applicant is the son of the first and Second Applicants.
3.In support of their application for the Visa, the Applicants raised the following matters (CB 52-55):
a.In India, there is a social notion of “Khap” which forbids one person from marrying another with the same surname. The First and Second Applicants’ parents participated in the Khap notion;
b.The First Applicant eloped with the Second Applicant, who had a similar surname. They had tried to satisfy their parents about the relationship, but the parents disapproved. The Applicants married against their wishes;
c.As a result of the marriage, the First Applicant was threatened by the Second Applicant’s grandfather and cousins, and was on one occasion attacked and hospitalised;
d.The First Applicant fears that if he and his wife returned to India they would be harmed, because “they” have “constantly…been trying to locate us and kill us”. The Second Applicant’s grandfather also refused to give them the “heritage property share”.
The delegate’s decision
The delegate’s decision was dated 18 May 2015. The delegate noted that:
a)the applicants did not attend the interview to which they were invited;
b)the first applicant was granted a student visa on 30 May 2008, and the second applicant was his dependent spouse;
c)the first and second applicants had not held substantive visas since their student visas ceased on 7 November 2011;
d)they remained in Australia unlawfully until they lodged their protection visa applications on 5 December 2014;
e)the applicants’ claims regarding the Khap system were vague and lacking in detail and unsupported by documentary evidence; and
f)the first and second applicants did not apply for protection for six and half years after arriving in Australia.
The delegate did not accept the applicants’ claims as credible or genuine.
Additional claims made at the Tribunal hearing
At the hearing before the Tribunal, the first applicant also raised new claims, being:
a.the security situation in India was the same as it was in the 1980s and 1990s, but with more threats; and
b.that he was the son of a pro-Khalistan supporter.
Tribunal’s reasons
The Minister summarised the Tribunal’s reasons for decision in his written submissions filed on 16 January 2019 as follows:
8.The Tribunal … identified a number of concerns it had regarding the credibility of the Applicants’ claims and evidence (CB 146-147 [64]-[73]), including the Applicants’ delay in seeking protection in Australia (at [65]), the First Applicants’ failure to commence study in Australia (while on a student visa) (at [66]), inconsistent evidence about the Applicants’ marriage (at [67]), and the First Applicant’s lack of profile as a pro-Khalistan protestor (at [72]). The Tribunal also discussed country information it had considered in making its decision (CB 147- 149 [74]-[90]).
9.The Tribunal found that the Applicants’ claims were not credible or genuine (CB 149 [92]). It considered that the Applicants’ migration history was not suggestive of persons who held a genuine fear for their safety, and it did not accept the Applicants’ explanation for that delay (CB 149-150 [93]). The Tribunal was also concerned by inconsistency between the Applicants’ initial written claims and their evidence at hearing, including that they at first claimed to have eloped and married in secret, but later claimed to have held a wedding for fifty guests, including close family members (CB 150 [94]).
10.The Tribunal was also concerned that the Applicants’ claims to fear harm on account of their marriage were “vague and lack[ing] detail”, including that the Applicants were unable to explain why the Khap system was against their marriage, or why only some of their family members were against it (CB 150 [95]). The Tribunal did not accept that there was “any logical explanation” for the Applicants’ claim to fear harm on account of the Khap system, and thus did not accept that their marriage went against it. The Tribunal accordingly did not accept that the Applicants would face any harm on account of their marriage, or that the Second Applicant’s grandfather had harmed the First Applicant because of the marriage (CB 150 [96]-[98]). The Tribunal also did not accept that the Second Applicant’s grandfather would harm the Applicants on account of an alleged family property dispute (CB 150-151 [98]-[100]).
11.The Tribunal considered that the First Applicant’s claim to fear harm on account of his father’s involvement in the pro-Khalistan movement lacked credibility. It observed that the Applicants’ evidence in relation to this claim lacked detail (including an inability to even name the movement that his father was involved in, or details of his death), that the First Applicant had not been targeted for this reason when previously living in India, and that a very significant period of time had passed since his father’s death such that no link would now be drawn between the First Applicant and his father’s political interests. The Tribunal considered that there was nothing before it to support the claim that the First Applicant’s father was a pro-Khalistan supporter or that the First Applicant would be harmed for this reason (CB 151 [101]).
12.The Tribunal also did not accept that the Second Applicant’s grandfather refused to give the Applicants a property share, or that this would amount to serious or significant harm, or that the Third Applicant would be exposed to pollution in India to a greater degree than any other person, or that this would amount to serious or significant harm (CB 151 [102]-[103]).
Ground of review
At the final hearing of the application on 10 April 2019, the first applicant told the court that the applicants no longer had any difficulty with their family arising from the Khap issue. In addition, at the hearing on 10 April 2019, the applicants withdrew the second ground of review set out in their application filed on 2 September 2016 (“the application”).
The remaining ground of review in the application is:
The Tribunal failed to consider a claim made by the Applicant.
Particulars
1.At [26] the Tribunal referred to the Applicant making claims regarding recent issues in India, protests against the government, and that the “security situation is similar to that which India was living through in the 80s and 90s but with more threats”. The Applicant’s evidence regarding the situation in India amounted to a claim regarding the general security situation and risk of generalised violence.
2.The Tribunal considered the County Information in relation to the security situation in India, but did not make any findings regarding the risk to the Applicant.
In relation to this issue, when summarising the first applicant’s oral evidence to the Tribunal, the Tribunal said in paragraph 26 of its reasons for decision that:
The applicant referred to recent issues in India and stated that someone burnt a holy book and now people are protesting against the government. He stated that the security situation is similar to that which India was living through in the 80s and 90s but with more threats.
The Tribunal set out in its reasons for decision country information relating to the security situation in India as follows:
INDEPENDENT COUNTRY INFORMATION
74.The Tribunal has had regard to the Department of Foreign Affairs and Trade Country Information report 15 July 2015, India. The following information has been sourced from this report and has been considered by the Tribunal.
Security situation in India
75.“Because of its size and diversity, the security situation in India can vary significantly over time and from place to place. Civil unrest, including violent rioting, is common and persistent. The causes of violent unrest in India are many, and include: rivalries between different religious, social and ethnic communities, including between castes; rural insurgencies motivated by ideology; competition between India and Pakistan (particularly along the Line of Control); and tensions within communities over issues such as land ownership and marriage-related disputes. Many instances of civil unrest in India are the result of multiple causes.
76.The numbers of those killed in terrorist attacks in India have fluctuated from year to year. In 2014, the Institute for Economics and Peace’s Global Terrorism Index ranked India as the sixth worst country affected by terrorism worldwide. In addition to these insurgencies, India has experienced numerous recent terrorist attacks by Islamist militant groups, many of whom have been linked to Pakistan. For example, Lashkar-e-Taiba militants with Pakistani links attacked a number of targets in Mumbai during November 2008, killing 164 people.
77.Crime rates across India vary. Homicide rates in India are comparable with other South Asian countries (3.5 per 100,000 people). Violent crimes against women occur frequently. Notwithstanding the number of incidents mentioned in absolute terms the sheer size and diversity of India means most Indians live their lives with a relatively low risk of violence.
However, the Tribunal did not specifically deal with the security situation in India in the section of its decision headed, Findings and Reasons.
The applicants’ submissions
The applicants did not make any submissions about the ground of review at the hearing before this court. The first applicant only said that there would be a referendum in 2020 regarding Khalistan, and, last year, someone was given a life sentence for holding a copy of the referendum. The court is not able to take into account evidence of this sort that was not before the Tribunal.
The Minister’s submissions
The Minister set out his response to the applicant’s ground of review in his outline of submissions filed on 16 January 2019 as follows:
15.This ground alleges that the Tribunal “failed to consider a claim made by the Applicant[s]”, being a claim “regarding the general security situation and risk of generalised violence” in India. That “claim” is said to have arisen from evidence given by the First Applicant at the Tribunal’s hearing, which the Tribunal referred to at [26] of its reasons, that “the security situation is similar to that which India was living through in the 80s and 90s but with more threats”.
16.However, this ground proceeds on a misreading of the Tribunal’s reasons and takes the First Applicant’s evidence out of context. When those reasons, and the evidence, are read in context and as a whole, it is plain that no claim as to the “general security situation” and “generalised violence” in India was made. Accordingly, this ground cannot succeed.
17.One matter that was discussed during the Applicants’ oral evidence at the Tribunal’s hearing was the First Applicant’s father. The Tribunal referred, at [21] and [43]-[44], to the First Applicant’s evidence that his father was a pro-Khalistan freedom fighter who was opposed to Indian government policies and who had been actively involved in political gatherings and clashes with the Indian government. He had been arrested and killed by the authorities in 1984, after an “antigovernment clash” (at [21]). Significantly, the First Applicant claimed to the Tribunal that the “Indian government is problematic” (at [25]), that “because of his father… he will also be targeted” (emphasis added) (at [25]) and that the Indian government “wants him” (and had been visiting his family home in India looking for him) (at [47]), that “the same families are being targeted again” by the authorities (emphasis added) (at [50]), and that some of his father’s family members had been beaten and killed in 1988 or 1991 by the authorities (at [48]-[49]). See also at [72], where the Applicant again explained, in response to the Tribunal’s questioning, that the authorities had during the 1990s harmed pro-Khalistan activists (such as his father) and their families, and that he feared now being targeted because of his father’s activities. The Second Applicant also gave evidence that the First Applicant’s father was a pro-Khalistan “fighter” who had been killed during a police protest (at [61]), and that the First Applicant’s family were still involved in pro-Khalistan protests (at [62]).
18.Accordingly, as the Tribunal correctly identified (CB 149 [92]), a claim advanced by the Applicants was that the First Applicant feared being targeted and harmed by the Indian government on account of being the son of a pro-Khalistan political activist, in particular because the Indian authorities had in the past targeted pro-Khalistan activists (including his father and his cousins), and the authorities were “again” targeting the same families (see especially [25], [47]-[48], [50], [73]). The Tribunal’s reasons must be read as a whole and in context: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]-[45]. In the context of the First Applicant’s claim about his father, his statement, at [26], that “the security situation is similar to that which India was living through in the 80s or 90s but with more threats” is simply put as an explanation of why the First Applicant feared harm from the authorities – ie. because he would be targeted on account of his father’s past political activism and, like in the “80s or 90s” (being when the Applicant’s father and cousins had been killed – see [21], [48], [73]), the Indian government was again harming or killing persons involved in or connected to pro-Khalistan activists and fighters. This claim was dealt with, and rejected, at [101 and [104] – see [21], below. The statement recorded at [26] was not a generalised statement, or claim, about “generalised violence” in India.
19.Furthermore, the Applicants’ written claims for protection (at CB 52-55) made no reference to, or claim about, the “general security situation” and “generalised violence” in India. The Second Applicant’s evidence to the Tribunal also did not make any reference to, or claim to fear harm from, the “general security situation” and “generalised violence” in India (but (as noted above) did re-iterate the First Applicant’s evidence about his father’s political activities and death at the hands of the authorities) (at [61]-[62]). These two matters underscore that, contrary to the allegation in this ground, the Applicants’ alleged fear was not the general security situation in India but rather a particular fear of being targeted because of the First Applicant’s father’s past activities.
20.Accordingly, seen in context, it is apparent that what was stated by the First Applicant and recorded by the Tribunal at [26] was not a separate “claim”, or a “substantial, clearly articulated argument relying on established facts” (cf. Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24]), or otherwise a submission of substance (cf. SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at [78]-[81]) that the First Applicant claimed to fear harm from the “general security situation” or “generalised violence” in India. There is no obligation on the Tribunal to consider a claim not made: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2003) 144 FCR 1 at [62].
21.Finally, the Tribunal did consider (at [101] and [104]) the First Applicant’s claim that he would be targeted because of his father’s past activities, but rejected it because the claim lacked credibility and because there was nothing before the Tribunal to support the assertion that the First Applicant’s father was a pro-Khalistan supporter (and hence that the First Applicant would be profiled and targeted for that reason). The Tribunal’s findings were sufficiently broad to reject the entirety of the Applicants’ claims arising from the First Applicant’s father: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].
22.No failure to consider a claim is shown and the ground must fail.
In other words, the Minister argued that the claim that the security situation in India was the same as it was in the 1980s and 1990s except with more threats was part and parcel of the first applicant’s claim that he was at risk because his father was a pro-Khalistan freedom fighter. The Tribunal did deal with the claims about the first applicant’s father, finding that they lacked credibility.
The Tribunal’s summary of the hearing
In paragraph 25 of its reasons for decision, which occurs in the Tribunal’s summary of the hearing before it, the Tribunal noted that:
The applicant stated that the Indian government is problematic. He stated that because of his father he worried that he will also be targeted. He stated that they target anyone. Even journalists are thrown in jail.
The Tribunal then set out paragraph 26, which is set out above and which contained the claim about the security situation. The Tribunal then set out the discussion about the Khap claim and returned to the question of the applicant’s father as follows:
43.The Tribunal asked the applicant about his father. He stated that his father was involved in khalistan and he was a freedom fighter. The Tribunal asked the applicant the name of the organisation or political party his father was involved in. He claimed that he doesn’t know the name of the political group, he surmised the Khalistan taskforce. He said he could find out but he was little at that time so doesn’t know.
44.The applicant stated that when he was approximately 12 years of age, on 10 November there was a gathering of 7 million people who were demanding freedom of a man called Surinda Singh who was a journalist. The applicant stated that his father was the most active. His father was called Baldev Singh.
45.The Tribunal expressed its concern about the applicant’s claims and their relevance given he could not recall the name of the political party his father was a member of and he was unable to provide any detail about the claimed events or draw any relevance to why he would be profiled and targeted. The Tribunal explained to the applicant that his fears must be well founded.
46.The applicant stated that he will need to call someone who is in Punjabi to get more details as the clash was in the news.
47.The Tribunal asked the applicant why he would be targeted in regards to his father’s political activities given he has been in Australia for 8 years and his father is no longer alive. The applicant stated that the government is filing cases and the police visit his family every year and they ask his mother where is your son (Applicant 1) and what is he doing. He doesn’t know what they want. They just visit his home. He stated that the government wants him and the demand for Khalistan is rising again.
48.Applicant 1 stated that his father has had two cousins who have been killed. He said another cousin is so unwell because has been so brutally beaten he can’t walk a step. They beat him in 1988 or 1991 but he claims he was little so he doesn’t know the details.
49.He has another uncle living in Kenya in order to protect himself. He has never returned to India.
The country information regarding Khalistan
The Tribunal summarised the country information about Khalistan as follows:
Khalistan
79. One of the points of difference among Sikh political parties is the extent to which they support the creation of an independent Sikh state known as ‘Khalistan’. The 1966 creation of the Punjabi-speaking Sikh majority state of Punjab went some way to addressing these demands. However, a number of other grievances persisted among the Sikh community and some pro-Khalistan groups and individuals continued to advocate armed struggle. During an internal struggle within the Sikh community in 1982, separatist leader Jarnail Singh Bhindranwale and his followers moved into the Golden Temple complex in Amritsar. In June 1984, the Indian Government ordered the army to eject Bhindranwale and his followers from the complex in an offensive known as ‘Operation Blue Star’.
80.The Golden Temple complex was bombarded by artillery, inflicting serious damage. Bhindranwale and many of his supporters were killed during the operation.
81.In retaliation for Operation Blue Star, two of Prime Minister Indira Gandhi’s Sikh bodyguards assassinated her at her home in New Delhi in October 1984. In the days that followed, mobs seeking revenge for the assassination attacked Sikh homes and businesses, including in New Delhi. Approximately 3,000 people, mostly Sikhs, were killed in the violence. Security forces carried out further operations to suppress Sikh separatism during the late 1980s, during which there were credible allegations of torture, extrajudicial killings and deaths in custody carried out by security forces. These operations and the successful conduct of state elections in the 1990s and 2000s helped to diminish support for armed struggle and separatism.
82.A number of official inquiries were undertaken following the 1984 riots, and charges have been brought against those suspected of instigating and being involved in the anti-Sikh violence. Former Minister of State for Home Affairs Mullappally Ramachandran said in April 2013 that 3,163 persons had been arrested, 650 cases registered and 442 persons convicted for their roles in the riots. However, there are continuing claims that many of those responsible for the 1984 riots have not been brought to account, and Sikh groups continue to advocate for courts to retry previously dismissed cases. Prosecutions continue against several of the accused, including a former Congress Union Minister, Jagdish Tytler.
83.Overall, DFAT assesses that Sikhs in contemporary India have no heightened risk of official or societal discrimination beyond that experienced by the broader community.
The Tribunal’s findings about the first applicant’s father
The Tribunal made findings about the applicant’s father at paragraph 101 of its reasons for decision, which is as follows:
Applicant 1 was unable to explain with detail or clarity his own father’s involvement in the pro Khalistan movement yet believed he would be profiled as the son of his father and as such be targeted by extremists. The lack of detail and explanation by applicant 1 or 2 does not support such claims. He was never targeted when previously in India and made mention of cousins who were harmed but this occurred in the 1990s. The Tribunal notes that the applicant at hearing claims police continue to ask his mother about his whereabouts even when he is in Australia. A significant period of time has passed and no correlation to the applicant’s father and his political interests could be drawn. Furthermore, the Tribunal would have expected Applicant 1 to be able to name the political group his father was a member of, his involvement and details of his death. The applicant was unable to recall this detail. There is nothing before the Tribunal to support the claims that applicant 1s father was a pro khalistan supporter and that Applicant 1 would therefore be profiled and targeted. The Tribunal finds that these claims lack credibility.
The structure of the Tribunal’s reasons
From the structure of the Tribunal’s reasons, it appears that the Tribunal perceived the claims about the general security situation and the first applicant’s father as separate issues. That is because the Tribunal had an entirely separate section with a separate heading, in its summary of the country information, for the security situation in India and for Khalistan. In addition, the Tribunal’s summary of the first applicant’s claims about the security situation and Khalistan were in separate paragraphs, that were separated by many other paragraphs which dealt with entirely unrelated issues. That is, the claim about the security situation was recorded at paragraph 26 of the Tribunal’s reasons for decision, paragraphs 27 to 42 dealt with family issues, and paragraphs 43 to 50 dealt with Khalistan issues.
The Minister disputed that the Tribunal dealt with the security issues separately from the Khalistan issues, arguing that the reference in paragraph 75 of the Tribunal’s reasons to ethnic communities, covers the Khalistan issue. That seems to be a stretch, given that the question of whether Sikhs are a distinct ethnic group is a contested issue. However, the Tribunal also referred in paragraph 75 of its reasons for decision to religious rivalries, which would clearly include the Khalistan issue, which concerns Sikh separatism. However, if the Tribunal was thinking of the Khalistan issue at that point in its reasoning, I daresay it would have said so.
The transcript of the Tribunal hearing
Notwithstanding the structure of the Tribunal’s reasons for decision, the Minister maintained that the applicants did not make a separate claim relating to the security situation in India, being a claim that was separate from the Khalistan issue. For that argument, the Minister relied on the affidavit affirmed by Sophie Caroline Roberts on 22 February 2019 which annexes the transcript of the Tribunal hearing on 30 November 2015.
The Minister particularly relied on the following passages from the transcript of the Tribunal hearing:
a.at page 8:
[MEMBER]:What did your father do before he died?
[APPLICANT]: Before he died? My father died because of - he was with the - he was working with an organisation that was - that was - I can't tell you - he was murdered.
…
[MEMBER]: What sort of farming did he grow?
[APPLICANT]: The vegetable and after that there was a clash between in Punjab that is terrorism things happen like people were demanding for something like their - like their - there was a - there was a thing happened in [1980s] - in '90s in (indistinct) there was a nuclear attack and after that in that thousands of people died and a few people get up against the government because that was not fair, government shouldn't do like that to kill innocent peoples and my father was with those peoples who oppose the government and they - and the government arrest him and murder him. They didn't get him in the court, they just catch him and they kill him. In 1984 there was a nuclear attack on Sikh golden temple and there thousands of people - - - (emphasis added)
b.at page 9:
[APPLICANT]: Yes, he was working but in the - in the last years he was protesting, he was opposing government's policy and - and then police catch him and they didn't find any case and they just murder him.
c.at pages 11 to 12:
[MEMBER]:Is there anything that you want to change in your application or is everything accurate?
[APPLICANT]: Actually nowadays these things are happening in Punjab as well. The things the government is doing the same things like they’re doing before and I want to add that thing because – because of my father they can target me because some of the journalists they – they threw them in the gaol and some other who were outside from the India they’re targeting their relatives, yes their people are again protesting against the government and these things what – what has happened in 80s and 90s they see the same situation like that now. I have more threats. (emphasis added)
[MEMBER]: Who threatens you? Who threatens you?
[APPLICANT]: Like my wife’s family, her grandfather, her uncle and there’s other things happening there like people are against the government, they are raising their voice against the government.
d.at page 13:
[APPLICANT]: But they're threatening me over the caste, yes because -
[MEMBER]:Okay, but you were telling me about - I just need you to be very specific about your claim (indistinct) what you're afraid of and who is threatening you and why they are threatening you. …
…
e.at page 27:
[MEMBER]:Could you tell me about what you were saying about your concern regarding politics in India and your father's involvement please?
[APPLICANT]: Sorry?
[MEMBER]: Could you tell me about - you said at the beginning of the hearing that you were concerned - you were fearful of returning to India, (1) because of your wife, your wife's family but also because you fear that you will be targeted because your father was politically involved.
[APPLICANT]: Yes.
…
[APPLICANT]: Yes, he was a freedom fighter you can say because some people are demanding a different country, some people are demanding a different country that is called Khalistan.
f.at page 28:
[APPLICANT]: No, sorry, not 70, 7 million people who were demanding for Khalistan again.
…
[MEMBER]:Why would you be targeted if you return to India?
…
[MEMBER]:…What did he do in terms of his activism?
g.at page 29:
[APPLICANT]: Because they want to - they want to - government want target those peoples who were involved in that and they are filing the cases, they're filing the cases against them and the police visit every - every year to my family. My mother they're asking the police.
h.at page 30:
[MEMBER]:If your father was in fact a freedom fighter I can understand why the police might have an interest in him or the government might have an interest in him, but you have not had any involvement and you've been living in Australia for eight years.
…
[APPLICANT]: Because before it was okay and from last year there are again moments inactive, like one of Khalistan target force he catch in Singapore a couple of years ago and the demand of Khalistan is again rising up. Because if you say I'm not doing nothing, my father's cousin he wasn't involved in any activity and they kill him as well. My father's two cousins they kill him because of my father was their cousin, and one of my father's cousin he's in bed, he can't get up because of the-they're- they're (indistinct) him properly, he can't walk even one step. And my- my uncle - - -
[MEMBER]: When did they beat him?
[APPLICANT]:In 1988, I think 1990, 91, I don’t know because I was little and one of my uncle he’s not living in there as well, from last 13 years he’s living in Kenya. (emphasis added)
i.at page 31:
[MEMBER]:Is there anything else that you would like to say to me in regards to your claim?
…
[APPLICANT]: Look the demand of the Khalistan is raising up now and government is targeting the same families who were involved in that Khalistan movement.
The claims made at the hearing
The only references in the transcript of the Tribunal hearing to the 1980s and 1990s are set out above in bold.
The first reference, to a nuclear attack, at page 8, seems to be a reference to the bombing of the Golden Temple in Amritsar. The first applicant claimed in that passage that his father was one of those who opposed the government, and suffered as a result, although the Tribunal did not believe that. This was not a claim about the security situation in India generally, but a claim about what happened to Sikhs who opposed the government in the 1980s and 1990s.
The second reference, at pages 11 to 12, which the Tribunal appears to have attempted to summarise in paragraph 26 of its reasons for decision, refers to the first applicant’s father, and, implicitly, his anti-government actions, being the cause for the applicant to be targeted, and then to claims that things are like what happened in the 1980s and 1990s, but with more threats. This is not a claim about the security situation generally in India. It is a claim that the applicant will be targeted because of his connection to his father, just as people were targeted in the 1980s and 1990s because of Khalistan protests.
The third reference, at page 30, to the first applicant’s father’s cousin, refers to the first applicant’s father’s relatives being killed or maimed because of the first applicant’s father’s pro-Khalistan activities. This is not a claim about the general security situation in India.
All in all, it seems to me that the Tribunal overstated the first applicant’s claims when it said in paragraph 26 of its reasons that the applicant said that:
He stated that the security situation is similar to that which India was living through in the 80s and 90s but with more threats.
One way or another, I consider that the first applicant did not raise a claim about the general security situation in India, notwithstanding that the Tribunal included a section on that topic in its summary of relevant country information.
Did the issue arise on the materials?
Even though the first applicant did not raise the issue of the general security situation in India himself, the Tribunal would have been obliged to consider that issue if it clearly arose from the materials. In this regard, the Minister relied on AYY17 v Minister for Immigration and Border Protection [2018] FCAFC89 at [18], where Collier, McKerracher and Banks-Smith JJ said:
It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
·The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
·These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
…A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
The material before the Tribunal in relation to the general security situation in India was contained in paragraphs 75 to 77 of the Tribunal’s reasons for decision, which are set out above. The Tribunal’s consideration of this issue concluded by saying that most Indians live their lives with a relatively low risk of violence. This can be understood as meaning that the applicants do not face a real risk of serious or significant harm for reasons of the general security situation in India. As such, the issue did not clearly arise on the materials, and the Tribunal was not obliged to say any more about it. The ground is not made out.
Conclusion
As the applicants’ sole ground of review has not been made out, the application will be dismissed with costs. As the costs of 31 January 2019 were reserved, I will hear the parties on the question of costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 1 July 2019
0
11
0