SZVWT v Minister for Immigration

[2016] FCCA 2917

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWT & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2917

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of protection visas – principal applicant accused of rape in Australia and fearing harm in India as a result – applicant’s fears found not to be well-founded – whether the Tribunal erred in considering the particular social group to which the applicant belonged considered – whether there was a lack of procedural fairness in dealing with supportive letters relied on by the applicant considered – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), ss.36, 54, 91R, 422B, 424A, 425

Cases cited:
Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473
Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Dranichnikov v Minister for Immigration [2003] HCA 26; 77 ALJR 1088; 197 ALR 389
Minister for Immigration v WZARH [2015] HCA 40; (2015) 256 CLR 326
Minister for Immigration v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
NAOA v Minister for Immigration [2004] FCAFC 241
NAVK v Minister for Immigration [2004] FCA 1695
Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319
SZBYR v Minister for Immigration (2007) 81 ALJR 1190
SZSHK v Minister for Immigration (2013) 138 ALD 26

First Applicant: SZVWT

Second Applicant: SZVWU

Third Applicant SZVWV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3567 of 2014

Judgment of: Judge Driver

Hearing date: 11 November 2016

Delivered at: Sydney

Delivered on: 16 December 2016

REPRESENTATION

Counsel for the Applicants: Ms S Palaniappan

Solicitors for the Applicants: Holding Redlich

Counsel for the Respondents: Mr B D Kaplan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 26 November 2014 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3567 of 2014

SZVWT

First Applicant

SZVWU

Second Applicant

SZVWV

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. There are three applicants in this case who are a husband, his wife and their child.  The first applicant sought a protection visa on account of his fear of harm in India in consequence of his being accused of rape in Queensland.  The secondary applicants claimed protection as members of the first applicant’s family group.  A delegate of the Minister refused protection visas and the applicants sought review before the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The Tribunal affirmed the delegate’s decision on 26 November 2014 and the applicants now seek judicial review of that decision. 

2. The following statement of background facts is derived from the submissions of the applicants filed on 26 September 2016.

3. The first applicant (applicant) is a citizen of India and was born on 16 December 1987[1].  The second applicant was born in India on 15 April 1980[2].  The first applicant arrived in Australia on 10 June 2009 with the second applicant on the second applicant’s Student (Vocational Education and Training Sector), Temporary visa[3].  The third applicant was born in Australia on 8 July 2011[4].

   [1] Court Book (CB) 1, 5, 17

   [2] CB 1, 32

   [3] CB 152

   [4] CB 1, 5

4. On 13 March 2013, the applicants lodged an application for protection (Class XA) visas under the Migration Act 1958 (Cth) (Migration Act)[5].  The application was accompanied by a statutory declaration of the first applicant[6].  The second and third applicants applied as members of the same family unit as the first applicant[7].

   [5] CB 1-31

   [6] CB 3-4

   [7] CB 32-45

5. The first applicant’s claimed fear of harm arose due to events which had occurred since he had left India and arrived in Australia, and he sought protection as a refugee sur place, stemming from the fact that in February 2012, the applicant was charged with rape in Queensland and imprisoned without bail between 10 February 2012 and 8 November 2012[8].  

   [8] CB 155

6. The applicants’ solicitor’s submission in support of the application dated 12 March 2013 stated that the applicant would, as a result of the accusation that he committed rape, “suffer from substantive disgrace and shame every day from his religion community Sikh”, and set out his claims for protection as follows[9]:

   [The applicant] and his family claim for protection based on the convention grounds of:

   a.Membership to a Particular Social group within the society.

   b.Person belonging to ‘Sikh’ religion who has been falsely accused of a shameful crime cannot return to his village and will be subject to discrimination by his own religious members.

   [9] CB 2

7. In the statutory declaration the first applicant stated under the heading “Religious Background” as follows[10]:

   2. I belong to Sikh religion

   3.Members of Sikh religion respect the elder and women.  We believe in purity of body, mind and soul.

   4. Those who commit or are accused of committing shameful crime, or behave immorally will lose reputation and respect in the community, and they will be condemned and completely isolated by the society.

   [10] CB 3

8. The first applicant then claimed that the villagers in India “may even act aggressively in the name of religion”[11]. 

   [11] CB 4

9. The first applicant’s religion in the protection visa application form was listed as “Sihk” (sic)[12].  Further, a letter dated 25 January 2013 from a “Psychoanalytic Psychotherapist and Psychologist”, Julie Le Franc, stated as follows[13]:

   [The first applicant] was brought up in a family that belonged to the Sikh Religion.  Their religion is very strict; they abstain from intoxicants like alcohol, drugs and tobacco, the spouses are to be physically faithful to one another, superstitions and rituals are to be observed and they avoid bragging, gossip or lying or slander and abhor premarital or extramarital sexual relations.

   [12] CB 18

   [13] CB 81

10. On 23 March 2013, the Minister’s Department acknowledged the receipt of a valid application[14].

    [14] CB 90-94

11. On 28 October 2013, the first applicant provided to the Department additional material including a newspaper article which made mention of his case, a National Police Certificate check of 27 May 2013, and a letter from his psychiatrist dated 19 October 2013[15].  He then sent further emails between 28 October 2013 and 1 November 2013 attaching more news articles[16]. On 6 November 2013, the first applicant emailed a psychologist’s report dated that same day[17].

    [15] CB 105-109

    [16] CB 110-138

    [17] CB 139-142

12. On 28 November 2013, a delegate of the Minister (delegate) refused the application.

13. Relevantly, in so doing, the delegate noted that the first applicant claimed that he belonged to the Sikh religion, and found that the first applicant was a member of the Sikh religion[18]. 

    [18] CB 155-156; 160

14. On 5 December 2013, the applicants applied to the Tribunal for review of the delegate’s decision.

15. On 4 March 2014, the applicants were invited by the Tribunal to give evidence to the Tribunal on 28 April 2014, with written submissions to be provided by 22 April 2014.

16. The applicants submitted further submissions to the Tribunal dated 22 April 2014, with a fax stamp of 23 April 2014.  Under the “Summary of Claims” section[19], it read:

    [The first applicant] believes he will be persecuted and mistreated on his return to India.  Hence, his fear and unwillingness to go back to India.  The reasons for his fears are outlined in [the first applicant’s] Statutory Declaration.

    [19] CB 198

17. While the submission at [19][20] states that the particular social group to which the first applicant claims to belong, is a group of persons who have been accused of the crime of rape, at [24], the submission states:

    In India and in particular amongst members of the Sikh faith it is common for persons who have been accused of committing the crime rape to be discriminated against and to be subject to acts of violence from the community, who take justice into their own hands.

    [20] CB 200

18. Further at [27][21] the submission states that:

    due to the culture and customs of Indians and members of the Sikh religion in particular, if forced to return to India, [the applicant] will continue to face persecution from the community as a member of his particular social group.

    [21] CB 201

19. The applicants appeared at the Tribunal hearing and presented further documents in support of their claims[22].  These included letters of support, including one letter from a head of the applicant’s home village (Home Village letter) which stated that “in Sikh religion people hate who spend even one day into prison but [the applicant] spend a long time into prison, he will be dishonoured by the Sikh community”[23].

    [22] CB 204-216

    [23] CB 207

20. Further documents were submitted on 21 May 2014, including a letter from a clinical psychologist who opined that the first applicant suffered from a major depressive disorder[24]; a letter from a speech pathologist relating to the third applicant[25]; newspaper articles from Australia and India; and further letters of support from various Punjabi and Sikh Associations around Australia.

    [24] CB 218

    [25] CB 220-222

21. The applicants submitted a final bundle of documents on 26 May 2014 which comprised of further statements and letters from various relevant Indian Associations[26]. 

    [26] CB 251-256

Tribunal decision

1. The Tribunal set out in full the first applicant’s statutory declaration at [12][27], including the paragraphs extracted above under the heading “Religious Background”.

   [27] CB 261

2. The Tribunal then set out the decision of the delegate and the key findings that were made[28].   The Tribunal next summarises the hearing before it, including the matters raised with the first applicant, and then the second applicant when she gave evidence[29].

   [28] CB 262 [16] – CB 265 [19]

   [29] CB 266 [24] – CB 267 [31]

3. The Tribunal noted that both the first and second applicants had given evidence that the first applicant’s imprisonment had caused the third applicant to suffer developmental problems, but that “[t]he Tribunal had noted [to the applicant] that no information about this matter had been placed before the department or the Tribunal”[30].

   [30] CB 267 [32]

4. The Tribunal then described that the first applicant’s claim as one where he “claim[ed] to fear persecution because he is a person who has been accused of rape”, and that pursuant to the “available country information…there did not appear to be any general targeting of people facing accusations of rape”[31].

   [31] CB 267 [33]

5. The Tribunal then noted that “evidence would need to be produced to substantiate that there was a real chance” that the applicants would be discriminated against if they were to return to India[32].

   [32] CB 268 [35]

6. The Tribunal turned to then discussing the material the applicants submitted after the hearing.  With regards to the newspaper reports, the Tribunal noted that all the articles from India appeared after the Tribunal hearing[33].   The Tribunal then found in relation to the letters provided, that a letter from a Mr L[34] was like the Home Village letter and was “simply a form letter, most likely composed by either [the first applicant] or [the second applicant], and place[d] no weight on either letter or their contents”[35].  It reached the same conclusion in relation to the remainder of the letters the applicant had provided from India[36].

   [33] CB 269 [38]

   [34] The name has been anonymised

   [35] CB 270 [42]

   [36] CB 270 [44]

7. The Tribunal next considered country information and found that “[t]here was much less reporting…of violence against the accused perpetrators of rape”[37].

   [37] CB 271 [47]

8. The applicants’ representative’s written submissions of 22 April 2016 were considered next. The Tribunal first noted at [48][38] that the submissions stated that “he should be found to be a member of an identifiable social group comprising ‘persons who have been accused of the crime of rape’”, but then at [49] the Tribunal noted the representative’s submission that he claimed persecution “in particular amongst members of the Sikh faith…”.

   [38] CB 271

9. The Tribunal then, under the heading “Discussion of Claims” stated that “[t]he applicant claims that he fears persecution…because he is a member of the social group comprising ‘persons who have been accused of the crime of rape”[39]. The Tribunal then summarised the first applicant’s “specific claims” both before the Tribunal and the Department, and those raised at the hearing[40]:

   [39] CB 273 [54]

   [40] CB 273 [54]-[55]

   His specific claims to the Department and the Tribunal can be summarised as follows:

   ·The charges against him have been widely published in India and in Australia;

   ·Men accused of rape are subject to violence and social and other discrimination in India;

   ·His family in India have faced discrimination from their local community in India because of the charges against him;

   ·Because of the problems that they have faced and the money that they had to borrow to fund his defence his family have suffered harassment and threats in India and will no longer support him and his family if they return to India;

   ·He also had to borrow money from people in Australia to fund his bail applications and he is now being threatened by those people because he is unable to repay the money;

   ·Political opponents of his father may use their influence and power to have him arrested to discredit their family because of the charges against him;

   ·He has been telephoned by people in India and abused and insulted; and

   ·He fears that his wife and child will be targeted for violence because of their association with him, as the wife and child of an accused rapist, and that his son will be unable to go to school, play outdoors, purchase anything and will be humiliated and pressured by society.

   He also advanced the following claims at the hearing:

   ·He has suffered serious mental health issues because of the treatment he has received in Australia, particularly during his imprisonment; and

   ·His son has been developmentally delayed because of the stressful environment in which he has been raised in Australia.

10. The Tribunal then stated that it was prepared to accept that “persons who have been accused of the crime of rape” comprise a social group in India[41].

    [41] CB 274 [56]

11. At [57], the Tribunal set out its comments about “the evidence of the applicants that a person faces a real chance of persecution because of membership of this group[42]:

    [42] CB 274

    ·The material produced by [the applicant] allegedly from his family and various community leaders in India is unconvincing because in the Tribunal's view this material appears to have been drafted either by [the applicant] or his wife and cannot be regarded as independent;

    ·The material from the family and community leaders in India makes claims about the treatment of people accused of rape and their families which is simply not supported by the independent country information;

    ·The independent country information that is available to the Tribunal indicates that there have been a limited number of instances where men accused of rape in India have been targeted by the families and communities of the victims of the rape;

    ·The applicant told the Tribunal that the people who called him from India have said things such as 'other people go there to study, while you go there to chase girls'. While this may be unpleasant for the applicant, it does not amount, in the Tribunal's view, to a threat of persecution should he return to India;

    ·The Tribunal does not accept [the applicant’s] claims that threats have been made against his family in India because of the money borrowed to fund his defence and bail applications in Australia. The Tribunal notes that the statements from his brother and sister do not mention this matter, family members;

    ·[The applicant] claims that his case was widely reported in the Indian media yet was unable to produce any such reports other than a few reports dated after the Tribunal requested production of the reports at the hearing;

    ·The media reports produced after the hearing appeared to be based solely on information supplied to the media outlets by [the applicant] and [his wife];

    ·The media reports in any event indicated a level of support for the plight of [the applicant] and his family and did not support his claim that he was likely to face persecution; and

    ·The letters from the Australian Sikh and Indian communities again appear to be based on material supplied to them by [the applicant] and [his wife].  While they do provide some support for his claims that people accused of rape face social exclusion and other problems in India, no independent evidence is cited in any of these letters to support these contentions.

12. The Tribunal then stated at [58] that the[43]:

    Tribunal must not approach its task of merits review on the basis that it will not accept what an applicant for refugee status says unless there is some independent corroboration and that to do so would involve a gross error of law: Eshetu v MIMIEA & Anor (1997) 142 ALR 474. It is not the lack of independent corroboration of the applicant’s claims that concerns the Tribunal here, however, but the inconsistency of those claims with the independent evidence that is available.

    [43] at CB 275 [58]

13. At [65][44], the Tribunal found that the evidence did not establish that there was a real chance that the applicants would face serious harm at the hands of the first applicant’s family or their community should they return to India, and again noted that it did not accept the applicants’ and other’s evidence on these issues “given the problems discussed above with that evidence and the lack of support for the claims made from independent country information”. 

    [44] CB 275

14. The Tribunal next considered the first applicant’s mental illness[45].  At [71], the Tribunal accepted that “people who suffer depression” could be regarded as a particular social group for the purposes of the Convention, however, at [73], found that the applicant did not have a “well-founded fear of persecution in India for reason of his membership of a particular social group of people suffering from depression” on the basis that “no claims have been made by the applicant or by his representative either to the Department or during the course of this review” in that regard[46].

    [45] CB 276-277

    [46] CB 277 [72]

15. Finally, prior to concluding that the applicants did not satisfy the criterion set out in s.36(2)(a), the Tribunal considered the third applicant’s developmental delays noting that there was a report from a speech pathologist, and found that “no claims have been made that their access to treatment of services to address those problems in India would be prejudiced for a Convention reason”[47].

    [47] CB 277 [75]

16. The Tribunal next considered the complementary protection criteria under s.36(2)(aa) and concluded that because it had not accepted that there was a real chance the applicants would suffer significant harm, and because the “real risk” test imposed the same standard as the “real chance” test, that it followed that “the Tribunal [did] not accept that there [was] a real risk the applicant [would] suffer significant harm from his family or his local community…whether because of the charges laid against [him], the depression from which he suffers, or [the third applicant’s] developmental delay”[48].

    [48] CB 278 [77]

1. At [19] of his written submissions to the Tribunal dated 22 April 2014 (submissions to the Tribunal), the applicants’ then legal representatives said that “[t]he particular social group to which [the applicant] claims to belong, is a group of persons who have been accused of the crime of rape” and that “this is a particular social group distinguishable from the rest of the community.”  Paragraph 19 of those submissions is contained within a section entitled, “F. Convention Reason”.  Paragraphs 15-18 comprise the balance of that section.

2. At [37] of those submissions, the applicants’ then legal representatives said that “if [the applicant] is forced to return to India, he will be subjected to cruel, inhuman and degrading treatment due to his membership in his particular social group, namely being a person accused of the crime of rape.”

3. At [35] of its reasons[49], the Tribunal observed that the applicants’ representative submitted that it is “common for persons who have been accused of committing the crime rape to be discriminated against”.

   [49] CB 268

The present proceedings

1. These proceedings began with a judicial review application filed on 19 December 2014.  The applicants now rely upon an amended application filed on 26 September 2016.  There are three grounds in that application:

   1(a): The Tribunal failed to consider or to properly define the first applicant’s particular social group

   Particulars

   i. The Tribunal accepted that the first applicant was a member of the Sikh religion: [12]; [16]; [18]

   ii. The Tribunal noted that the first applicant’s claims were as set out in his statutory declaration: [12]

   iii. The Tribunal noted that the first applicant’s representative submitted to the Tribunal that “in particular amongst members of the Sikh faith it is common for persons who have been accused of committing the crime rape to be discriminated against and to be subject to acts of violence from the community, who take justice into their own hands”: [49]

   iv. The Tribunal considered the particular social group as “persons who have been accused of the crime of rape”: [54]

   v. The Tribunal committed jurisdictional error in failing to consider the particular social group “persons belonging to the Sikh religion who have been accused of the crime of rape”

   1(b):The Tribunal’s error in ground 1(a) amounted to a denial of natural justice.

   2: The Tribunal denied the applicants procedural fairness by failing to give the applicants an opportunity to respond to adverse findings about the letters on which they relied

   Particulars

   i. The Tribunal finding at [42] and [57] that the letters submitted by the applicants were “most likely composed by [the applicants]” was not put to the applicants.

   ii. The Tribunal’s rejection of that evidence at [42] and [44] on that basis amounted to a denial of procedural fairness.

   3: The Tribunal denied the applicants procedural fairness by failing to give the applicants an opportunity to respond to its finding that their claims were inconsistent with and not supported by independent evidence

   Particulars

   i. The Tribunal rejected evidence on the basis that it was not independently corroborated: [57]; [65]

   ii. This was not put to the applicants at the hearing or thereafter.

2. The third ground was abandoned at the trial of this matter on 11 November 2016.

3. I have before me as evidence the court book filed on 3 March 2015. 

4. Counsel for the applicants and the Minister both provided helpful pre-hearing submissions.  I was also assisted by oral submissions made by both counsel at the trial of the matter.

Consideration

Ground 1 – Did the Tribunal fail to consider or to properly define the first applicant’s particular social group?  Or was there a denial of procedural fairness?

Applicants’ contentions

1. As set out above, the first applicant’s claims in his original protection visa application and throughout the proceedings had been centred on his Sikh religion. The applicants’ solicitor’s letter which accompanied the protection visa application and which expressly set out the claim on that basis, formed part of the information in the application to which the delegate, and subsequently the Tribunal, was required to have regard, pursuant to ss.54(1) and 54(2)(b) of the Migration Act. Section 54 provides as follows:

   54     Minister must have regard to all information in application

   (1)  The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

   (2)  For the purposes of subsection (1), information is in an application if the information is:

   (a)     set out in the application; or

   (b)     in a document attached to the application when it is made; or

   (c)     given under section 55.

2. The first applicant’s statutory declaration which also formed part of the application stated under the “Religious Background” heading that he belonged to the Sikh religion, and it was in that context that he then stated “[t]hose who commit or are accused of committing shameful crime, or behave immorally will lose reputation and respect in the community, and they will be condemned and completely isolated by the society”.

3. The further written submissions of 22 April 2014 to the Tribunal expressly set out that the reasons for the first applicant’s fears were outlined in his statutory declaration, and noted later that it was “in particular amongst members of the Sikh faith” that those who had been accused of committing rape would be subject to acts of violence. 

4. The Tribunal in its decision, set out at [12] the entirety of the first applicant’s statutory declaration; noted at [16] that the Departmental decision record had noted that the applicant had stated in his protection visa application that “[h]e belongs to the Sikh religion”; and noted at [18] that the Department had accepted the applicant was a member of the Sikh religion. 

5. Additionally, at [49], the Tribunal expressly noted that the applicant’s representative’s submission of 22 April 2014 in relation to the claim pertaining to members of the Sikh faith.

6. The Tribunal proceeded, however, to consider the first applicant’s claims only in relation to the first applicant’s membership of the social group comprising “persons who have been accused of the crime of rape”[50].  When the Tribunal set out in summary the first applicant’s claim at [54]-[55] (reproduced above at [32]), it made no reference to his religion forming a fundamental part of his claim.

   [50] [54]

7. The applicants stress that, at no point in its decision does the Tribunal consider the first applicant’s feared persecution by reference to the “correct” particular social group, namely “persons belonging to the Sikh religion who have been accused of the crime of rape.” 

8. By so doing, the applicants contend that the Tribunal misunderstood the nature of its task and committed jurisdictional error[51].

   [51] Dranichnikov v Minister for Immigration [2003] HCA 26; 77 ALJR 1088; 197 ALR 389

9. In Appellant S395/2002 v Minister for Immigration[52], McHugh and Kirby JJ held that:

   [D]efining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution. Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group.

   [52] (2003) 216 CLR 473 at [31]

10. In NABE v Minister for Immigration (No 2)[53], the Full Federal Court held that a failure to consider an integer of a claim constitutes jurisdictional error. The Court stated at [63] that:

    It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. 

    [53] [2004] FCAFC 263; (2004) 144 FCR 1 at [63]

11. The applicants submit that, even if this Court is of the view that the first applicant did not expressly put this claim forward to the Tribunal, which is not accepted based on the above sequence of claims put by and on his behalf, it was clearly raised by the claims and evidence before the Tribunal[54]. 

    [54] NABE (2004) 144 FCR 1 at [63]

12. It is said to follow that all of the Tribunal’s findings which stem from the finding of an incorrect particular social group are therefore infected with jurisdictional error. 

13. The applicants contend, for example, that the Tribunal, when considering whether the first applicant faced a real chance of persecution, did so only by reference to the wrong group and, therefore, when considering the independent country information, did not consider country information pertaining to the first applicant’s actual particular social group. 

14. This is said to mean that the Tribunal’s finding (amongst others) that “[i]t is not the lack of independent corroboration of the applicant’s claims that concerns the Tribunal here, however, but the inconsistency of those claims with the independent evidence that is available” cannot stand, as it was made by reference to incorrect country information which related to persons accused of rape without reference to the Sikh religion – a fundamental integer of the first applicant’s claim.

15. In relation to the balance of this ground, the applicants submit that it is well-accepted that the failure to address one of the claimed bases for an applicant’s fear of persecution amounts to a denial of procedural fairness[55].

    [55] Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319 at [90] (per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Dranichnikov v Minister for Immigration [2003] HCA 26; 77 ALJR 1088; 197 ALR 389 at [23]; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [63]

Minister’s contentions

1. The Minister submits that there are three difficulties with ground 1(a).

2. First, contrary to the applicants’ submissions, the Minister submits that the applicant did not advance before the Tribunal the claim that he now seeks to advance.  While it is true that his representative referred to his Sikh religious beliefs in a letter enclosing his protection visa application[56], albeit in contradistinction to the particular social group claim identified immediately above it[57], the same representative, in the submissions to the Tribunal, said that the applicant’s claims for protection “are based on the Convention ground of membership of a particular social group” and that “[t]he particular social group to which [he] claims to belong is a group of persons who have been accused of the crime of rape”[58].  In circumstances where that was the clearest and most recent iteration of the applicant’s claims for protection, from which he did not resile at the hearing, the Tribunal was entitled to describe the particular social group to which the applicant claimed to belong as it did at [54][59], [56]-[57][60] and [68][61].  The principles articulated by Robertson, Griffiths and Perry JJ in SZSHK v Minister for Immigration[62], a complementary protection case, apply with equal force to the present case.

   [56] CB 2 [(b)]

   [57] CB 2 [(a)]

   [58] CB 200 [16], [19]

   [59] CB 273

   [60] CB 274

   [61] CB 276

   [62] (2013) 138 ALD 26 at [37]

3. The various references to the applicant’s community or members of the Sikh religion in his statutory declaration dated 12 March 2013[63] and submissions to the Tribunal[64], upon which the applicants rely are references to the actors of the feared persecution—the persons from whom the applicant feared serious harm. In the Minister’s submission, they do not add anything of substance to the characterisation of the applicant’s particular social group. There was, for example, no evidence before the Tribunal to support the notion that members of the applicant’s community or other Sikhs were not uncomfortable with “[t]hose [who are not Sikhs] who commit or are accused of committing shameful crime[s], or behav[ing] immorally”: CB 3 [4]. Nor did the applicant fear harm only at the hands of other Sikhs. In parts of his statutory declaration, he claimed that “[t]he public in India are inclined to execute people who have been charged with rape” and that “[i]n other parts of [his] country, people … insulted [him] because of [his] criminal record”[65].

   [63] CB 3 [4], [5], [12]

   [64] CB 199 [13], 201 [24], [27]

   [65] CB 4 [14]-[15]

4. For these reasons, contrary the applicants’ submissions, the claim now sought to be advanced by them is said not to arise “tolerably clearly”[66] from the material before the Tribunal.

   [66] NAVK v Minister for Immigration [2004] FCA 1695 at [15]-[16] per Allsop J (as his Honour then was)

5. Secondly, if, contrary to the Minister’s submissions, the claim as asserted by the applicants was raised, the Minister submits that it was considered.  The Tribunal was cognisant of the fact that the applicant claimed to be a member of the Sikh religion and that he may be harmed by other followers of that religion and assessed his claims on that basis.  The Tribunal:

   a)set out the applicant’s statutory declaration[67] and the delegate’s factual findings[68];

   b)considered letters from different sources, including members of the Sikh community[69];

   c)noted, at [49][70], the applicants’ submissions to the Tribunal that “[i]n India and in particular amongst members of the Sikh faith it is common for persons who have been accused of committing the crime of rape to be discriminated against and to be subject to acts of violence from the community, who take justice into their own hands”; 

   d)noted, at [50][71], that the applicants’ then representative was asked “to identify the evidence on which th[e] [applicants’] claims were based, particularly in relation to acts of persecution against the social group identified by him” (on the applicants’ case, Sikhs who have been accused of rape) and observed that “the available evidence did not appear to support these submissions”;

   e)noted, at [54][72], the claim that the applicant’s family in India “have faced discrimination from their local community in India because of the charges against him”;

   f)found, at [57][73] (final dot point), that the information provided by the Australian Sikh and Indian communities contained no independent evidence to support the contention that “people accused of rape face social exclusion and other problems in India”; and

   g)rejected the claim that the applicants faced a real chance of serious harm at the hands of members of their “community” (that is, on the applicants’ case, the Sikh community)[74].

   [67] CB 261-262 [12]

   [68] CB 264-265 [18]

   [69] CB 266 [23], 268 [36], 272-273 [51]-[53]

   [70] CB 271

   [71] CB 271

   [72] CB 273

   [73] CB 274

   [74] CB 275-276 [64]-[65], [67]

6. Thirdly, and in any event, even if the Tribunal’s findings at [56]-[68][75] related to the claim as articulated in the applicants’ written submissions to the Tribunal and not the claim as presently advanced, the Minister submits that they were sufficient to dispose of the latter.  The Tribunal’s findings, which pertained to “persons” who have been accused of the crime of rape, were couched at a level of greater generality and subsumed any specific findings that could have been made with respect to Sikhs accused of that crime[76].  These, more general findings were made by the Tribunal in a context where it was not ignorant of the alleged actors of the feared violence; it appreciated that the applicant was a Sikh and that he claimed to fear harm at the hands of, relevantly, other Sikhs.

   [75] CB 274-276

   [76] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 353 [91] per McHugh, Gummow and Hayne JJ; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ

7. The Minister submits, and I accept that, if the Court were to reject the applicants’ contention that the Tribunal failed to consider their particular social group claim and, thus, failed constructively to exercise its jurisdiction (that is, reject ground 1(a)), it follows that ground 1(b) must also be rejected.

Resolution

1. In this ground, the applicants assert that the Tribunal failed to have regard to a claim, namely, that the applicant feared persecution by reason of his membership of the particular social group comprising “persons belonging to the Sikh religion who have been accused of the crime of rape”, with the consequence that it failed constructively to exercise its jurisdiction (ground 1(a)) and denied them procedural fairness (ground 1(b)).

2. As originally framed, the applicants’ claims had at least two connections to the Refugees Convention; the first was the applicants’ Sikh religion and the second was the asserted particular social group of persons who are accused of the crime of rape.  The delegate’s decision[77] clearly dealt with both elements of the claims.  Indeed, the delegate also dealt with a claim of political opinion.  In relation to the religion claim, the delegate said[78]:

   The applicant claims to fear harm from other religious Sikh members because he has been ‘falsely accused of a shameful crime.” He claims that he “cannot return to his village” and he “will be subject to discrimination by his own religious members”. I am not satisfied that the claimed fear is based on the applicant’s religious views either actual or imputed. While it could be argued the accused act of rape is an offense to Sikh’s and against their faith, I consider rape to be offensive and against most religions as well as criminal in nature. I am not satisfied the Refugees Convention ground of religion is an essential and significant reason for the harm feared as required by subsection 91R(1)(a) of the Migration Act. (errors in original)

   [77] commencing at CB 150

   [78] CB 161

3. The delegate therefore rejected the proposition that there was any Convention nexus between the applicants’ religion and the claimed harm.

4. In pursuing their review before the Tribunal, the applicants must be taken to have put in issue the delegate’s findings, unless they clearly accepted them.  There was no acceptance of the delegate’s finding on the religion claim.  Indeed, the applicants’ submission to the Tribunal at CB 198-203 specifically addressed at several points the religion claim. 

5. That claim needed to be addressed by the Tribunal either as a separate claim or as part of the particular social group claim.  Nevertheless, while the Tribunal was plainly aware of the religion claim, it was not specifically addressed in the Tribunal’s reasons.  At [54] of its reasons the Tribunal only addresses the applicants’ claims in the context of the particular social group claim.  That would not, of itself, have given rise to any jurisdictional error if the implications of the applicants’ religion had been considered in the context of that claim.  At the very least, the Tribunal needed to consider and reach a view upon the delegate’s finding that the applicants’ religion had nothing to do with the applicant’s claimed fear of harm.  Unfortunately, the Tribunal’s reasons are silent on this point.  I cannot accept the Minister’s contention that the consideration of the religion claim is implicit in considering the risk of harm to the applicant should he return to his home area which is a Sikh community in Punjab.  The Tribunal found that the applicant would not be at risk of harm but relied upon country information that was general in nature and not specific to Punjab or the Sikh community.

6. I agree with the applicants’ submissions that the religion claim was specifically raised and needed to be considered, at least in the context of the particular social group claim.  It was not specifically considered and neither was it subsumed into the more general findings of the Tribunal, precisely because of that generality.  The Tribunal could not be satisfied that the applicant would not be at risk of serious or significant harm without considering the risk in Punjab in the Sikh community.  The findings made by the Tribunal were, however, general and based upon general country information. 

1. I conclude, that by failing to address the religion claim, at least in the context of the particular social group claim, the Tribunal fell into jurisdictional error.  The applicants should receive the relief they seek.

Ground 2 – did the Tribunal deny the applicants procedural fairness by failing to give them an opportunity to respond to adverse findings about letters upon which they relied?

Applicants’ contentions

1. The applicants contend as follows.  They put in a number of letters to the Tribunal in support of their claims at and after the Tribunal hearing, including the applicant’s Home Village letter set out at [23] of the Tribunal’s decision.  That letter in particular contained evidence critical to the first applicant’s claims, and focused on the first applicant’s claims as a member of the “correct” particular social group.

2. The Tribunal at [42] and [44] of its decision, however, stated that it had concerns about the origins of those letters on which the applicant relied and that it would place no weight on them.  Specifically, at [42], the Tribunal considered that the letter from Mr L put in after the hearing “was most likely composed by [the applicants]”, and on that basis, placed no weight on either letter, including the Home Village letter.

3. Though at [21] the Tribunal pointed out to the first applicant that three of the letters appeared to be unsigned earlier drafts of the fourth Home Village letter, the Tribunal at no stage informed the applicant upon receipt of the Mr L letter after the Tribunal hearing, that it proposed as a result to reject the contents of the Home Village letter.  

4. The applicants complain that the Tribunal did not give the applicant an opportunity to be heard on that issue, even by way of written submissions, before it made the adverse finding against the applicants.  This issue was critical to the decision as evidenced by the Tribunal’s summary of the evidence at [57] where it again stated that the “material appears to have been drafted either by [the applicant] or his wife” while at the same time finding that “[the letters] do provide some support for [the applicant’s claims] that people accused of rape face social exclusion and other problems in India”.

5. The applicants contend that this adverse conclusion should have been put by the Tribunal to the applicants before it decided on the issue, and the failure to do so amounts to a denial of procedural fairness and a jurisdictional error[79].

   [79] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2

6. Though the applicants, if told of the Tribunal’s view regarding the Home Village letter by reference to the Mr L letter put in by the applicants after the hearing, may have continued to have sought to rely on that latter letter, they are said to have lost the opportunity to make a decision about that issue either way.  “To explore those issues now would be to engage in a hypothetical inquiry”[80] and what is relevant is that the applicants were denied procedural fairness by not being advised of the Tribunal’s adverse views on this issue.

   [80] Minister for Immigration v WZARH [2015] HCA 40 at [68] (Gageler and Gordon JJ)

Minister’s contentions

1. The Minister’s short response to this ground is that clear particulars of any adverse information contained within these letters, or any concerns with respect to their origins, were not required to be disclosed to the applicants.

2. The former is so by reason of s.424A(3)(b) of the Migration Act, the letters being documents that the applicants “gave for the purpose of the application for review”. In any case, the letters, as the applicants say in their submissions, did not contain information adverse to the applicants’ claims for protection.

3. The latter is so because any concerns, doubts or proposed conclusions with respect to the letters do not comprise “information” for the purposes of s.424A(1).[81]

   [81] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1196 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ

4. In the Minister’s submission, it should be noted that the cases upon which the applicants have relied in their submissions[82] concerned the application of the natural justice hearing rule at common law. The principles articulated in those cases are said to be inapposite in cases, such as the present, which engage s.422B(1) of the Migration Act.

   [82] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 and Minister for Immigration v WZARH (2015) 256 CLR 326

Resolution

1. In this ground, the applicants contend that the Tribunal denied them procedural fairness “by failing to give [them] an opportunity to respond to adverse findings about the letters on which they relied”.  As the applicants say in their submissions, these were letters that they “put in … to the Tribunal in support of their claims at and after the hearing”.

2. It was established at the hearing before me that the applicants’ contentions are based upon s.425 of the Migration Act, and not s.424A. The Minister contends that nevertheless no error arises in this case by reference to the authority of NAOA v Minister for Immigration[83] where the Court said:

   It is submitted for the appellant that, since Driver FM was prepared to draw an inference that the Tribunal did not put its concerns about the appellant’s documents and apply NARV in the light of that inference, his Honour should also have drawn an inference that the Tribunal did not raise the country information concerning document fraud with the appellant and apply NARV accordingly. On this basis alone, counsel for the appellant submits, the reasoning of Ryan and Finkelstein JJ in NARV is indistinguishable, and accordingly, the appeal should be allowed.

   We cannot accept this submission, for several reasons.  For one thing, as the respondent submitted, the appellant’s case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this ‘appeared’ to be the case ‘from the record of the [Tribunal] decision’. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.

   [83] [2004] FCAFC 241 at [20]-[21]

3. In the present case, the Tribunal’s adverse conclusions are set out at [42]-[44] where the Tribunal said:

   The Tribunal notes that the first paragraph of this letter is almost identical, including the same spelling mistakes, as the letter purportedly from [the applicant’s home] village that is set out above.  The Tribunal has already set out its concerns as to the origins of that letter, and finds it impossible to believe that [‘Mr L’], who has provided no contact details for proper address, has independently composed this letter of support.  The Tribunal considers that this letter, like that purportedly from [the applicant’s home] village, is simply a form letter, most likely composed by either [the applicant] or [the second applicant], and places no weight on either letter or their contents.

   Similarly, the other letter from village leaders produced to the Tribunal contain the same first paragraph of this letter, including the same spelling mistakes as the letters discussed above.  The letter from the Head of gram Panchayat Bagga Khan states that:

   … I will say that everyone will know about his criminal history, whether he is guilty or innocent but he will find it hard to survive in such society where he cannot face to anyone, people will be dishonoured him, abused him, he will be alone in our narrow minded society.  I think it will be better that he should stay in Australia for his prosperous future for him and his family.

   The Tribunal has the same concerns about these letters as it does about the others discussed above.  None of them provide an address or any contact details for the purported writers, and the letters are clearly based on the same information as the letter purportedly from [the applicant’s home] village.  Again the Tribunal places no weight on these letters or their contents.

4. In my opinion, whether the issue is raised in the context of s.425 or s.424A, there was no error by the Tribunal. First, I accept the Minister’s contention that no obligation of disclosure arose pursuant to s.424A as the information in issue had been provided by the applicant for the purposes of the review. Accordingly, s.424A(3)(b) of the Migration Act applied.

5. Further, on the state of the evidence, no breach of s.425 has been established. Assuming for the purposes of the argument, that the credibility of the letters was an issue in the review (as opposed to the more general question of the credibility of the applicants’ claims, which was clearly in issue) then there is no evidence that the issue was not raised at the Tribunal hearing. Some letters were provided to the Tribunal at the Tribunal hearing and there was some discussion at the hearing about them. It is plain from the Tribunal’s decision record that the Tribunal had expressed concerns over credibility issues, including in relation to the documentary material then available. It is reasonable to suppose that the additional letters were provided after the Tribunal hearing in an attempt to address the Tribunal’s concerns. In the absence of a transcript of the Tribunal hearing, I cannot say in what detail the issue was discussed at the hearing but, on the state of the evidence, I am unable to conclude that the Tribunal did not put the applicants on notice of any dispositive issues in the review of which they were not already aware.

6. This ground fails.

Conclusion

1. The applicants have established that the Tribunal fell into jurisdictional error in relation to the first ground in their application.  I will order that the Tribunal decision be quashed and that the Tribunal redetermine the review application according to law.

2. I will hear the parties as to costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 16 December 2016