WZATV v Minister for Immigration
[2016] FCCA 2019
•18 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATV v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2019 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – Indian citizen – sexual offences in Australia – alleged denial of procedural fairness by alleged failure to consider integer of claim or alleged failure to take into account a relevant consideration by reason of conviction for sexual offences in Australia and psychological harm if returned to India – alleged error in country information – allegation that Refugee Review Tribunal not “foresightful” – alleged error concerning future conduct of authorities in India – whether jurisdictional error concerning finding about placement on sex offenders’ register in India and consequences of involuntary removal from Australia – effect upon applicant’s safety in India of breach of privacy by release of personal data – effect of Indian Government’s position on sex offenders – writs issued. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5(3)(b) Evidence Act 1995 (Cth), s.56(2) Federal Circuit Court Rules 2001 (Cth), r.12.03 Migration Act 1958 (Cth), Part 7, Division 4, ss.65, 91R, 417, 474, 476, 501 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Cases cited: Anderson v Minister for Immigration & Multicultural Affairs [2000] FCA 1730 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Curragh Queensland Mining Limited v Daniel & Ors (1992) 34 FCR 212 |
| Applicant: | WZATV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 62 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 14 August 2014 |
| Date of Last Submission: | 14 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 18 August 2016 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent be changed to “Administrative Appeals Tribunal”.
That a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal made on 30 January 2014.
That a writ of mandamus issue requiring the Administrative Appeals Tribunal to re-hear the application for review made by the applicant on 24 July 2013 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 62 of 2014
| WZATV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 30 January 2014. The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”, at the time of the Delegate’s Decision the Minister for Immigration, Multicultural Affairs & Citizenship) to refuse, under s.65 of the Migration Act, to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
The Tribunal Decision is at CB 314-338.
Factual and procedural background
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of India who arrived in Australia in April 2009 on a Skilled – Independent subclass 136 visa (“Skilled Visa”): CB 316 at [16];
b)the applicant’s wife, step-daughter and son arrived in Australia in May 2009: CB 316 at [16];
c)in January 2011 the applicant was convicted of indecently dealing with and sexually assaulting a minor in his care and was sentenced to three years imprisonment: CB 317 at [17];
d)the applicant’s Skilled Visa was subsequently cancelled under s.501 of the Migration Act on 27 September 2011 (“Cancellation Decision”): CB 317 at [17];
e)the applicant unsuccessfully sought review of the Cancellation Decision by the Administrative Appeals Tribunal (as then constituted): Applicant 4264 of 2011 v Minister for Immigration & Citizenship [2011] AATA 920 (“Applicant 4264 of 2011”), which affirmed the Cancellation Decision: CB 317 at [17] and CB 78-135;
f)the applicant was released from prison on 20 January 2013, but immediately detained as an unlawful non-citizen and was put into immigration detention: CB 317 at [17];
g)the applicant applied for a Protection Visa on 26 February 2013, claiming persecution if he returned to India, arising from his Christian religion and his membership of a particular social group, namely, convicted child sexual offenders: CB 317 at [17] and CB 1-99;
h)on 17 July 2013 the Delegate refused to grant the applicant a Protection Visa: CB 317 at [17] and the Delegate’s Decision at CB 238-252;
i)the applicant sought review of the Delegate’s Decision and a hearing was held by the Tribunal on 19 September 2013 (“Tribunal Hearing”) at which the applicant was assisted by an interpreter, and represented by his registered migration agent: CB 315 at [3]; and
j)on 30 January 2014 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 314 and CB 323 at [57].
The Court notes that in Applicant in WAD 230/2014 v Minister for Immigration & Border Protection (No. 2) [2015] FCA 705; (2015) 148 ALD 117 (“WAD 230/2014”) that the decision of the then Administrative Appeals Tribunal in Applicant 4264 of 2011 referred to at [3(e)] above was set aside by the Federal Court, and the matter remitted to the Tribunal for further consideration: WAD 230/2014 at [83] per Gilmour J.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)accepted that “sexual offenders”, “criminally convicted sexual offenders”, “convicted child sexual offenders”, or any combination thereof, constituted particular social groups in India, and that the applicant was a member of such group: CB 317 at [18];
b)rejected the applicant’s claim that his wife and step-daughter would reveal his convictions to their family, and noted that:
i)a considerable period of time had passed since the applicant was imprisoned for his offences and neither his wife nor his step-daughter had disclosed to their family members the actions of the applicant;
ii)the applicant had given evidence that his wife continued to support him;
iii)the applicant’s step-daughter was in foster care and there was no evidence that she intended to travel to India soon as contended by the applicant; and
iv)the applicant’s belief that his wife and step-daughter would reveal his convictions was speculative,
and so the Tribunal found that the chances of harm in this regard were remote: CB 317-318 at [19]-[26];
c)in relation to the applicant’s submission that he would be at risk because of his existing criminal record which would result in him being detained and harmed if returned to India, and that this was particularly so if he was placed on the Indian Government’s online sex offenders’ register (“Sex Offenders’ Register”), and that his involuntary removal from Australia would alert the authorities to his convictions:
i)noted that it had put to the applicant that the country information informed that the Indian Sex Offenders’ Register was limited to those people convicted in Delhi, and that the applicant responded that evidence would be fabricated against him and he would be placed on the Sex Offender’s Register, and he would then be at risk from his step-daughter’s family and vigilante groups;
ii)did not accept, having regard to the country information, that the applicant would be placed on the Sex Offenders’ Register;
iii)accepted that the fact of the applicant’s deportation may lead to the applicant’s convictions becoming known to the Indian High Commission in Australia or the Indian authorities at the airport, but did not accept that this information would be passed around through all levels of the government in India and to the local police; and
iv)rejected as speculative the applicant’s claim that evidence would be fabricated against him by the police: CB 318-321 at [27]-[42]; and
d)accepted that the applicant is a practising Christian, but noted country information that:
i)there is generally peaceful co-existence between religious groups, although communal violence (mainly between Hindus and Muslins) does occur at times; and
ii)there was a large Christian population in the area the applicant would most likely return to, and whilst there were isolated and sporadic incidents of anti-Christian harassment the applicant was not at risk of suffering harm because of his Christian religion: CB 321 at [43]-[45].
Judicial Review Application – amended and further amended
On 12 May 2014 the applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”). A further Amended Judicial Review Application was tendered by the applicant without objection at the hearing on 14 August 2014 (“Further Amended Judicial Review Application”). The grounds of the Further Amended Judicial Review Application are interwoven with the particulars, which are more like submissions, but extracted and transcribed verbatim the grounds (which will be referred to as grounds 1 through to 7) are as follows:
1. The Tribunal Member (TM) denied procedural fairness or committed an error of law or failed to discharge its duty of review by failing to consider an integer of the claims and/or by failing to take into account relevant consideration.
2. The Tribunal erred in making its decision in paragraph 111.
3. The Tribunal was not “Foresightful”.
4. The Tribunal denied procedural fairness or committed an error of law or failed to discharge its duty of review by failing to consider an integer of the claims and/or by failing to take into account relevant considerations and/or failed to have regard to matters it was required to have regard to.
5. The Tribunal erred in making a finding of fact that the authorities in India are not organised in passing the information from one department to another.
6. The Tribunal made jurisdiction error in making a finding of fact that when I return to India, I will not be placed on the sex offenders register.
7. The Tribunal did not consider my involuntary removal will make the authorities in India aware of my offences and it will lead me to be detained and I will be place in the register.
The applicant also referred to other matters under the heading “Additional Information” in the Further Amended Judicial Review Application, namely:
a)a privacy or data breach in relation to the applicant’s personal information and how it may affect the applicant’s safety in India (“ground 8”);
b)the new Indian government’s stand against presumed sex offenders (“ground 9”); and
c)a sur place claim, based on (a) and (b) (“ground 10”).
These additional grounds will be referred to hereunder as grounds 8, 9 and 10 respectively.
Applicant’s affidavits
The applicant filed an affidavit sworn 6 March 2014 (“Applicant’s First Affidavit”), but the Applicant’s First Affidavit did no more than attach the Tribunal’s Notification of Decision letter dated 3 February 2014 and a copy of the Tribunal Decision.
The applicant also lodged an affidavit sworn 31 March 2014, which does not appear to have been accepted for filing, but which, in any event, simply annexes a letter addressed to the Registrar of the Court and which sets out submissions in relation to the various claims made, including what are now grounds 8, 9 and 10 in the Further Amended Judicial Review Application, and a request for pro-bono legal assistance pursuant to the Federal Circuit Court Rules 2001 (Cth). A referral certificate for pro-bono legal assistance was issued pursuant to r.12.03 of the FCC Rules by a Judge of this Court on 7 April 2014. The applicant was advised on 14 May 2014 by a Registrar of this Court that that request had been “unsuccessful” and that unless he was able to obtain representation through his own means or through some other scheme he would have to represent himself before the Court.
The applicant swore what was styled as a supplementary affidavit on 12 May 2014 (“Applicant’s Supplementary Affidavit”) which annexed various documents said to be:
a)website articles showing the public taking the law into their own hands in India: Applicant’s Supplementary Affidavit at [2] and Annexure A;
b)an article showing police in India thrashing an accused in public: Applicant’s Supplementary Affidavit at [3] and Annexure B;
c)a copy of comments and opinions made by readers of the website articles concerning the public taking the law into their own hands in India: Applicant’s Supplementary Affidavit at [4] and Annexure C;
d)a copy of a website article stating that one of the Indian states was placing its criminal database online: Applicant’s Supplementary Affidavit at [5] and Annexure D;
e)a copy of a website article stating that Indian citizens committing crimes abroad can be tried in India: Applicant’s Supplementary Affidavit at [6] and Annexure E;
f)a copy of a website article detailing police communication and collaboration between stations, police communications technology, reasons for a state-wide or national search by police and interstate arrests in India: Applicant’s Supplementary Affidavit at [7] and Annexure F;
g)a copy of a website article in relation to the treatment by Indian authorities of Indian citizens who are deported to India from other countries who are suspected of having requested refugee status whilst abroad: Applicant’s Supplementary Affidavit at [8] and Annexure G;
h)a copy of a website article stating that Delhi police had put sex offenders photos online: Applicant’s Supplementary Affidavit at [9] and Annexure H;
i)a copy of the Department of Immigration and Border Protection (“Department”) circular concerning unauthorised access to personal information consequent upon the privacy or data breach: Applicant’s Supplementary Affidavit at [10] and Annexure I; and
j)a copy of website articles concerning the privacy or data breach in relation to the personal information of asylum seekers by the Department: Applicant’s Supplementary Affidavit at [11] and Annexure J.
The Minister objected to the admissibility of the Applicant’s Supplementary Affidavit, and in particular, the annexures thereto. The Court has examined the annexures and it appears that:
a)none of the annexures were put before the Tribunal, but the content of Annexure H, being an article from the Hindustan Times, is if not identical, then substantially similar, to an article from the Indian Express cited at CB 334 at [113]-[115] and footnote 21;
b)three of the five articles in Annexure A, and Annexures B and C, post-date the Tribunal Hearing or the Tribunal Decision;
c)in relation to Annexure E which is a press article concerning a judgment of the Supreme Court of India in relation to a particular section of what appears to be a particular, but otherwise unidentified, criminal code in operation in part of India, that is not relevant to the applicant’s particular circumstances;
d)Annexure J, which consists of media commentary upon the consequences of the privacy and data breach in relation to the personal information of asylum seekers which was released by the Department, is not relevant in light of the finding below concerning grounds 8 and 10; and
e)Annexure I is a copy of a letter from the Secretary of the Department concerning the privacy and data breach, and explaining the extent of the breach. Annexure I is relevant to the determination of the issue raised by ground 8 as it indicates the extent and nature of the privacy and data breach which is the subject of grounds 8, and in part, 10.
In the circumstances, Annexures A to H inclusive and Annexure J are irrelevant, and therefore inadmissible before the Court: Evidence Act 1995 (Cth), s.56(2), and therefore paragraphs 2 to 9 inclusive and paragraph 11 of the Applicant’s Supplementary Affidavit will be struck out, together with Annexures A to H inclusive and Annexure J.
Consideration
Jurisdictional error required
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne (“Plaintiff S157/2002”). The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).
Ground 1
Applicant’s claims and submissions
The applicant says that:
a)the Tribunal failed to consider an integer of his claim being the consequences faced by the applicant if he answers a question about his past criminal convictions in any employment or visa application;
b)the Tribunal will commit a jurisdictional error if the Tribunal overlooks an important matter going to the core of the Tribunal’s function: citing Anderson v Minister for Immigration & Multicultural Affairs [2000] FCA 1730 at [20]-[22] per RD Nicholson, Madgwick and Finkelstein JJ. What is important depends upon the way the applicant’s case is put and the material relied upon; and
c)if the Tribunal does not consider crucial material going to an “integer of the claim”, then the Tribunal fails to perform an imperative duty and thereby commits a jurisdictional error: citing SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625 [24]-[30] per Madgwick and Conti JJ, and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”).
Minister’s submissions
The Minister submits that:
a)at no time did the applicant make a claim that he would be at risk by disclosing his conviction in the context of an employment or visa application;
b)the Tribunal made no findings in relation to this because the claim was not before it;
c)the claim now made was not an integer of the applicant’s claim; and
d)the Tribunal was not obliged to embark upon a process of broad speculation regarding possible ways the applicant’s criminal history may come to light.
Consideration – ground 1
In Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) the High Court found error founding relief under s.75(v) of the Constitution in circumstances where:
a)the Refugee Review Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence: Dranichnikov at [23] per Gummow and Callinan JJ;
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice: Dranichnikov at [24]-[25] per Gummow and Callinan JJ; and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction: Dranichnikov at [24]-[25] and [32] per Gummow and Callinan JJ.
In Dranichnikov the High Court said that failures of the type identified above entitled a court to exercise the discretion to grant relief (under s.75(v) of the Constitution): Dranichnikov at [33]-[34] per Gummow and Callinan JJ.
In Htun at [42] per Allsop J the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision-maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim: Htun at [42] per Allsop J.
The claims made are “definitional with respect to the very question which comes before the relevant decision-maker”: Li v Minister for Immigration & Citizenship [2008] FCA 902 at [22] per Jessup J.
What is required of the decision-maker was described in practical terms in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2006] FMCA 1454 (“MZXIV (No. 2)”) where the Federal Magistrates Court spoke of the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”: MZXIV (No. 2) at [44] per Riley FM and of “a specific consideration of the claim”: MZXIV (No. 2) at [45] per Riley FM.
The failure to expressly deal with a claim must however also be considered in the context of what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ (“WAEE”), namely that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
In M51 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 887 (“M51”) the Federal Court was dealing with a claim by a Sri Lanka Tamil who said that he had been involved in humanitarian work raising funds for various Tamil groups in Sri Lanka. One of the bases for his alleged well-founded fear of persecution was that two of his associates who were involved in humanitarian work had recently been killed in Sri Lanka. After being taken for interrogation by security personnel they were found dead near a rail track in a Colombo suburb: M51 at [4] and [15] per Ryan J. The applicant’s humanitarian work had principally been conducted overseas, and for five years prior to 1999 in and out of the Seychelles, but with returns to Sri Lanka: M51 at [6], [7] and [8] per Ryan J.
In M51 the Federal Court was persuaded that the Tribunal had made no finding of fact regarding the alleged murder of the applicant’s colleagues, and that the conclusion to be drawn from that omission was that it did not regard this matter as material: M51 at [17] per Ryan J citing Yusuf at [5] per Gleeson CJ and [35] per Gaudron J. Where there was specific evidence concerning the deaths bearing directly on the issue of whether an applicant’s fear was well-founded, that evidence comprised a component integer of the applicant’s claim, and a failure to regard it as material raises an inference that the Tribunal did not ask itself the right question or had an erroneous understanding of what constitutes a well-founded fear of persecution: M51 at [18] per Ryan J citing Htun ALR at [42] per Allsop J and Yusuf at [75] per McHugh, Gummow and Hayne JJ.
In MZXBP v Minister for Immigration & Anor [2007] FMCA 77 (“MZXBP”) the applicant contended that the Tribunal had failed to deal with his claim that his friend was murdered in circumstances where the friend had a similar role and profile to the applicant within the United National Party (“UNP”) in Sri Lanka, and where the friend was associated with him because he had helped the friend after he was beaten by attackers on one occasion: MZXBP at [12] per O’Dwyer FM. There was no dispute that “during the conduct of the hearing, the question of the applicant’s friend was raised.”: MZXBP at [13] per O’Dwyer FM. In the Tribunal’s “Findings and Reasons” the matter of the friend who was killed was not considered, and no finding was made in relation to this part of the applicant’s evidence: MZXBP at [13] per O’Dwyer FM. Evidence was led at the hearing to support the claim, including photographs of the funeral of his friend, and a more recent news item in a Sri Lankan paper reporting the killing of an organiser of the UNP: MZXBP at [15] per O’Dwyer FM. The Federal Magistrates Court observed at [19]-[20] per O’Dwyer FM that:
19. … it was a material and significant aspect of the applicant’s case that his profile and his involvement with the UNP was similar to that of his deceased friend. It was important and material for the Tribunal to evaluate the significance of his friend and the circumstances of his friend’s death in the context of the case as put by the applicant for a protection visa.
20. It is not simply enough to refer to the friend in the “Claims and Evidence” section of the decision and not in the “Findings and Reasons” section where I consider that it was encumbered [sic] upon the Tribunal to make an appropriate finding.
More recently, in SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205 (“SZSRQ”) this Court found that there was jurisdictional error where there was a failure by the former Refugee Review Tribunal to consider an applicant’s claim based upon membership of a particular Muslim sect which had fled Pakistan: SZSRQ at [66] per Judge Manousaridis. Significantly, the Court observed in SZSRQ at [62] per Judge Manousaridis that:
62. In my opinion, the applicant made the claim he feared persecution on the ground he was a member of a particular social group of Shi’a Muslims who have fled Pakistan. That claim was before the delegate; and it was before the Tribunal. The applicant engaged in no conduct, or made no omission, that could have led the Tribunal reasonably to apprehend that the applicant intended to abandon that claim. It was not open to the Tribunal to assume the applicant abandoned the claim only because he said nothing about it to the Tribunal. Before the Tribunal could reasonably have concluded that the applicant had abandoned this claim, the Tribunal ought to have specifically asked the applicant whether he still relied on the claim.
Two questions arise from the law, which require determination on the facts, namely:
a)was the relevant claim actually made and clearly articulated, or clearly discernible from the claim made; and
b)was the claim identified and considered by the Tribunal?
At the time of the Tribunal Decision s.91R(1) of the Migration Act provided that the persecution claim must involve serious harm to the applicant and systematic and discriminatory conduct, with serious harm defined in s.91R(2) to include “significant economic hardship that threatens the person’s capacity to subsist” and the “denial of a capacity to earn a livelihood of any kind such that it threatens the person’s capacity to subsist”.
In the Tribunal Decision at CB 316 at [11] the Tribunal says that in “assessing the applicant’s claims” it “has taken into account the information in the Department’s files relating to the applicant, application for the Protection visa, records of his interview with the delegate and the delegate’s decision” and “further information provided to the Department including the applicant’s criminal record, documents in relation to his sentencing, documents in relation to his application to the Administrative Appeals Tribunal and its decision” plus other documentation in relation to the cancelation of the applicant’s visa and a psychologist’s report. The Tribunal further observes that it “has also taken into account the statements, submissions, country information and all other evidence provided by his agent on his behalf, as well as the independent country information set out at Attachment “B” and the information referred to in the delegate’s decision regarding current conditions in India as relevant to the application.”
It is important to observe that the Tribunal says that it has taken into account:
a)the Delegate’s Decision; and
b)Applicant 4264 of 2011, a copy of which appears in CB at 89-135.
The Court notes that in the submissions to the Tribunal by the applicant’s representative no claim was made in relation to issues of vocational hardship arising from the applicant’s return to India, or to the specific relevant portions of either Applicant 4264 of 2011 or the Delegate’s Decision. That, however, is not necessarily material as to whether or not there was a claim made or a claim arising out of the relevant materials: WAEE at [47] per French, Sackville and Healy JJ; Htun at [42] per Allsop J, especially in circumstances where the Tribunal says that it has had regard to Applicant 4264 of 2011 and the Delegate’s Decision.
The applicant points to the fact that on 22 February 2013 he made claims, prior to the Delegate’s Decision in a letter addressed to the Department as follows:
a)that returning to India “would create a tremendous hardship economically, socially and vocationally. The social stigma attached to my misdemeanour is very high and I will be an outright reject among my relatives and in the social reintegration. I’ll be treated like an outcaste, my family and our kids will be treated similarly and therefore out future will be prejudiced. Not just one but three lives will be severely disadvantaged and punished”: CB 209; and
b)that returning to India would mean that the applicant “will lose all opportunities to be a decent provider for my wife and son”: CB 210; and
c)that if the applicant were to be “expelled from Australia this will cause in severe dislocation of my family and will create tremendous economic, social and emotional hardships”: CB 210 (transcribed verbatim).
The above claims were set out verbatim in the Delegate’s Decision: CB 242-243, but the Delegate did not expressly, or seemingly at all, deal with the question of harm arising from vocational or employment issues in the Delegate’s Decision: CB 246-247.
In Applicant 4264 of 2011 the then Administrative Appeals Tribunal referred to a statement of the applicant tendered in evidence in those proceedings dated 7 November 2011: Applicant 4264 of 2011 at [11] per Hotop DP: CB 98, in which the applicant sets out claims in identical terms to those which were then subsequently set out in the 22 February 2013 letter which was before the Delegate, and precedes those claims by observing that he will, if returned to India “definitely be receiving prejudicial treatment from my relatives, society and the bureaucracy”: Applicant 4264 of 2011 at [11] per Hotop DP; CB 102. Significantly, the then Administrative Appeals Tribunal went on to make findings, and although the relevant finding is quite general, the Tribunal accepted that “the applicant would be likely to suffer economic, social and vocational hardship if he were returned to India”: Applicant 4264 of 2011 at [84] per Hotop DP; CB 132. The then Administrative Appeals Tribunal went on to further observe that as a consequence of the applicant’s removal from Australia, the applicant’s wife and his son would also be deprived of “financial support that the applicant would otherwise be expected to provide”: Applicant 4264 of 2011 at [85] per Hotop DP; CB 133.
The Court notes that there is no particular evidence that the applicant specifically raised before the Tribunal, either at the Tribunal Hearing or otherwise, the suggestion that he might have to disclose his criminal record as a consequence of making an application for employment in India. Having regard to the authorities, the Court is of the view that that is, however, immaterial. There was a claim of vocational hardship made in the event that the applicant was required to return to India, and the background context to that claim was that he had a criminal conviction in Australia. Had the Tribunal explored the claim which was made, which it appears it did not, and the Tribunal turned its mind to the issue of vocational hardship for the applicant upon return to India, it would have had to have addressed the question of whether the applicant’s criminal conviction might have to be disclosed to any employer who made such an enquiry, or would have had to have been disclosed on any application for employment where a question as to criminal convictions was asked.
Although the Tribunal said that it had taken into account the matters raised in the Delegate’s Decision and in Applicant 4264 of 2011, as well as in the February 2013 letter which preceded the Delegate’s Decision, the Tribunal has failed to discern that the applicant did make a claim in relation to vocational hardship were he to return to India, and the failure to discern or identify that claim, clearly made before both the Delegate and the then Administrative Appeals Tribunal in the proceedings leading to the then Administrative Appeals Tribunal decision in Applicant 4264 of 2011, resulted in the Tribunal failing to consider this claim made by the applicant.
In all of the above circumstances, the Court is of the view that ground 1 has been made out, and that jurisdictional error has been established in the Tribunal Decision by reason of a failure to consider the vocational hardship claim made by the applicant.
Ground 2
This ground relates to the Tribunal Decision at [111] where the Tribunal stated that:
Hindi is the most prominent of (currently) twenty-two officially recognised languages in India, spoken by approximately 400 million people mainly in northern India in the States of Delhi, Haryana, Uttar Pradesh, Rajasthan, Punjab, Madhya Pradesh, Bihar, Jharkland, Chhattisgharh, Maharashtra, and Himachal Pradesh. English is recognised as an “associate” official language to Hindi and used by an estimated 4% of the population or 35 million people (in the mid 1990s). It is predominantly used by educated and professional groups, the media, and in administrative contexts.
Applicant’s claims and submissions
The applicant says that:
a)he is not well educated and not professionally qualified, but rather a skilled worker who if he wishes to obtain a reputable job or a job with a multinational company in India, he will have to have very good English skills, and will be asked about his previous work history and his criminal convictions, which will lead to putting his life in danger; and
b)he will suffer hardship vocationally;
c)he only speaks Tamil and English so he cannot relocate to any other part of India and will have to stay in Tamil Nadu and face persecution.
Minister’s submissions
The Minister submits that:
a)this ground is misconceived, and says that the Tribunal Decision CB 334 at [111] is simply a statement of the country information relied on by the Tribunal;
b)the Tribunal Decision at CB 316 at [11] states it had “taken into account the statements, submissions, country information and all other evidence provided by his agent on his behalf, as well as the independent country information set out in Attachment “B” and the information referred to in the Delegate’s Decision regarding current conditions in India as relevant to the application”;
c)Attachment “B” to the Tribunal Decision is entitled “Independent Country Information” and appears in the Tribunal Decision at CB 331-338 at [98]-[130];
d)the Tribunal Decision at CB 334 at [111] cites the source of the country information therein referred to;
e)the choice and assessment of country information is a factual matter for the Tribunal: SZEUZ v Minister for Immigration & Multicultural Affairs [2006] FMCA 1032 at [7] per Driver FM (“SZEUZ”);
f)there is no error evident from the Tribunal citing country information; and
g)the applicant is seeking to advance an argument he did not raise at the Tribunal Hearing and is impermissibly seeking to persuade this Court that a different conclusion ought to have been reached by the Tribunal.
Consideration – ground 2
The Tribunal Decision at CB 334 at [111] is a single paragraph which is under a heading “Languages in India” which appears at the bottom of CB 333. As such, the information at CB 334 at [111] is simply a statement of fact based on country information, and as such incapable of giving rise to jurisdictional error. The choice of country information, and the factual findings arising from that country information, are matters for the Tribunal as the finder of fact: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ (“NAHI”); SZEUZ at [7] per Driver FM. Further, the submissions in support of ground 2 take the matter no further as they do not actually assert jurisdictional error by the Tribunal. Rather, they are in the form of submissions which seek to have this Court engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). Insofar as a claim may have been made in relation to the applicant having to disclose criminal convictions in order to obtain employment if returned to India, that matter is addressed under ground 1 above: see [35] above.
In the above circumstances, ground 2 is not made out and does not establish any jurisdictional error in the Tribunal Decision.
Ground 3
Applicant’s claims and submissions
The applicant says that:
a)the Tribunal did not seriously consider whether upon his return to India, his wife and step-daughter will be forced by their family to disclose the reasons for the separation of the applicant (deported to India) and his wife and step-daughter (remaining in Australia): see CB 318 at [25];
b)the evidence was that the applicant’s family would be forced to tell relatives in India why he had been deported;
c)the applicant’s wife has not disclosed his conviction and imprisonment to family in India because they would take revenge on the applicant, and that during visits by the wife to the applicant in immigration detention calls have been made to family in India so that they think that the applicant and his wife are still together;
d)if he is deported to India that his wife will be solely responsible for her daughter and their son and she will be forced to tell family members in India about his deportation, and that his step-daughter will inform upon him if she returns to India at the end of the year, and that he will therefore be placed on the Sex Offenders’ Register;
e)if his conviction is disclosed his elderly parents will lose their respect and dignity within the Indian cultural tradition; and
f)referred to MZXSA v Minister for Immigration & Anor [2008] FMCA 1685 at [67] per Burnett FM in relation to the real chance test, and the question of whether or not any relevant uncertainty had to be addressed by the Tribunal in relation to its state of satisfaction as to whether or not an applicant ought or not be granted a visa.
Minister’s submissions
The Minister submits that:
a)ground 3 is a complaint about the ultimate conclusion reached by the Tribunal, and an attempt by the applicant to re-agitate the merits of the claim and to press additional arguments not advanced before the Tribunal;
b)disagreement with the Tribunal’s findings of fact does not support a contention that the Tribunal failed to consider the evidence properly or fairly: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J;
c)the Tribunal carefully considered the applicant’s claims in respect of whether he was at risk of harm from the family of his wife and step-daughter at [19] to [26], and reached conclusions as to whether the applicant’s wife’s family would become aware of his convictions which were clearly open to it;
d)the applicant’s attempt to apply Curragh Queensland Mining Limited v Daniel & Ors (1992) 34 FCR 212 (“Curragh”) to the Tribunal Decision at CB 318 at [24] which states:
The Tribunal considers that it is speculation by the applicant as to whether or not his wife or step-daughter will disclose the nature of his offences in the future. In nearly four years, neither has passed on to family members details of the applicant’s convictions or offences. The Tribunal also considers it speculation by the applicant that his step-daughter intends to travel to India soon. The applicant has given no indication as to when “soon” is to be and the Tribunal is unable to determine whether it is likely to occur in the reasonably foreseeable future …
is misconceived;
e)the Tribunal’s findings were not based on “no evidence”, and were based on:
i)the applicant’s own evidence in respect of the conduct of his wife and step-daughter since his conviction;
ii)the fact that over a four year period the applicant’s wife and step-daughter had not advised their family of the conviction; and
iii)the fact that the applicant had not provided any evidence as to any intention to so advise their family or any evidence relating to any intention by his step-daughter to travel to India, and in that regard refers to Applicant A103 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 584 (“A103”) where at [23] per Mansfield J the Federal Court said:
I do not accept that there was no evidence upon which the Tribunal could have expressed that view. It was not obliged to accept every factual claim the applicant made unless there were direct contradictory evidence. It was required to form a view about what the applicant had experienced in the past. It was entitled to form that view, having regard to how the applicant presented when giving evidence and in the context of the view it took about his overall reliability as a witness.
f)the applicant presented no evidence to the Tribunal in relation to the claim that his wife and step-daughter would reveal his conviction to his their family, and:
i)as the Tribunal noted, this claim was completely at odds with their conduct over the preceding four years; and
ii)the Tribunal was not obliged to accept the applicant’s unsupported assertion in that regard,
so that the Tribunal’s findings were clearly open on the evidence, and no error is made out.
Consideration – ground 3
In arriving at its factual conclusion concerning the chance of the applicant being harmed by the actions of his wife or the step-daughter’s family members should he return to his home area in India either now or in the reasonably foreseeable future: CB 318 at [26], the Tribunal relied upon its earlier factual finding at CB 318 at [25] that it did not accept that the applicant’s wife or his step-daughter would be forced by their family to disclose the reasons for any separation in the event that the applicant had to return to India without them. The Tribunal’s finding on those matters was based upon evidence given to it by the applicant himself in relation to the conduct of both his wife and his step-daughter since he was convicted in January 2010, and most notably:
a)the fact that neither had disclosed the applicant’s actions to family members in India: CB 317 at [20] and
b)that the step-daughter had not disclosed to family members the applicant’s actions notwithstanding that she no longer resided with the applicant’s wife and her half-brother: CB 317 at [20], and in circumstances where she was in foster care and in communication with family members in India: CB 318 at [23].
It is well established that the Tribunal is not required to accept uncritically any or all claims made by an applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J.
In this case the Tribunal considered, sifted and weighed the available evidence, and on the basis of that evidence, reached a conclusion which was open to it upon inferences to be drawn from that evidence.
The Tribunal does not need to have rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALR 347; (1994) 34 ALD 347 at 348 per Heerey J (“Selvadurai”); Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13] per French J (“Mukto”). It is thus well established that the making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone. A mere disagreement with the weight being given to a particular claim or document is not jurisdictional error: NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419; (2006) 93 ALD 333 at [81] per Young J (Gyles and Stone JJ agreeing); SZNNK v Minister for Immigration & Citizenship [2009] FCA 1386 at [20] per McKerracher J. Where the findings made by the Tribunal as to fact and the consequent conclusion were open to be made, it is not the function of a Court exercising a power of judicial review to interfere with the Tribunal’s fact-finding. To do so would be to conduct a merits review, not a judicial review, and would be contrary to well established principles, regularly applied: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
For the reasons set out above this is not a “no evidence” case, and in that respect Curragh is plainly distinguishable.
Ground 3 cannot succeed as it simply invites the Court to engage in impermissible merits review: Wu Shan Liang.
Ground 3 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 4
Applicant’s claims and submissions
The applicant claims in this ground that the Tribunal did not consider the psychological harm he would suffer if he were to return to India. In relation to the issue of psychological harm the applicant referred to:
a)the importance of his aunt within his family, and the attitude of his aunt and family to his marriage to his wife, who is his cousin’s widow and therefore his aunt’s daughter-in-law, and the fact that the aunt and member of the family were “not happy” with the marriage;
b)that when this issue was raised before the Tribunal he told the Tribunal member that he would “go crazy” and also stated that he feared persecution from a high ranking police official and a lawyer who were his relatives in India; and
c)that he would lose his old friendships and relationships in India, and that he would have to live a secluded and hidden life because of his fear of persecution and coming to the attention of the authorities and vigilante groups.
Minister’s submissions
The Minister submits that:
a)the Tribunal did consider the applicant’s claim that he would suffer psychological harm, and stated that “[i]t was argued that the applicant faces a real chance of serious harm, including psychological harm, if he returns to India”: CB 316 at [15]; and
b)the psychological harm alleged by the applicant arises from his fear of persecution, a fear which the Tribunal found was not well-founded.
Consideration – ground 4
It is difficult to discern in the submissions made by the applicant to the Delegate or the Tribunal those matters to which he specifically adverts in his submissions in support of ground 4 as made to this Court. The determination of the issues is made more difficult by the fact that there is before the Court no transcript of either the hearing before the Delegate or before the Tribunal, and it is therefore not possible to discern precisely what particular matters were raised before them. Certainly, there is no reference in the Delegate’s Decision to the particular matters concerning the applicant’s marriage to his cousin’s widow and the effect upon his aunt and other relatives, or to his having relatives who are a high ranking police official and a lawyer in India, from whom he fears persecution.
At hearing, having put the arguments outlined at [52] above orally to the Court the following exchange occurred:
HIS HONOUR: But these are all arguments that were put to the tribunal, were they not?
THE INTERPRETER: All this matter I have raised in front of tribunal but tribunal failed to consider this information. In the reason for the rejection of my claim in grounds number 11 – no, in paragraph 11 – they have indicated that I have gone through all the outline submissions and verbal submission given by the applicant and also from the agent, and I come to this conclusion. But I am clearly saying if they have consider and if they’ve looked through thoroughly all my claims, they will definitely will not come to this conclusion.
HIS HONOUR: But that’s just disagreeing with the factual conclusions reached by the tribunal, isn’t it? That doesn’t identify the error for jurisdictional purposes in the tribunal decision. The long and the short of that is that what the applicant is saying is that he disagrees with the outcome that the tribunal has arrived at.
THE INTERPRETER: Yeah, that’s what I’m saying. The tribunal failed to consider the psychological harm that I would face if I would be back.
Transcript, pages 7 (lines 32-46) and 8 (lines 1-2). The reference to “THE INTERPRETER” in the above transcript should be read as referring to evidence given by “THE APPLICANT”.
A claim of psychological harm was also made in the 22 February 2013 letter to the Department written prior to the Delegate’s Decision, but the claim was made in very general terms.
At CB 316 at [11] reference is made to a report from a psychologist, a report prepared for the “specific purpose of psychological advice in relation to the potential deportation” of the applicant: CB 183 (“Psychological Report”). The Tribunal went on to observe that it was argued that the applicant faces a real chance of serious harm, including psychological harm, if he returned to India, and the Tribunal noted that he “fears being beaten and killed if he returns”: CB 316 at [15].
The Tribunal does not consider the issue of psychological harm under a separate heading, as it does with other claims.
Unlike the claim of vocational hardship under ground 1, the Tribunal does refer to the claim of psychological harm in the Tribunal Decision, and it is clear from the exchange in transcript that the applicant concedes that this matter was raised before the Tribunal and thoroughly ventilated. In the circumstances, there is, unlike in ground 1, not a complete failure to consider the claim or mention it in the Tribunal Decision, and the Court is of the view that this is a claim which was considered by the Tribunal and rejected, and its reasons for not accepting the claim of psychological harm form part of the generality of the reasoning in the Tribunal Decision: WAEE at [47] per French, Sackville and Healy JJ. This was, therefore, a claim which the Court considers, albeit not without reservation, was considered by the Tribunal and rejected.
In the circumstances, ground 4 is not made out, and does not establish jurisdictional error.
Ground 5
Applicant’s claims and submissions
The applicant complains about the Tribunal’s finding at CB 320 at [38] that it “does not accept that the authorities are sufficiently organised to pass on this information and finds that it is pure speculation by the applicant without any substantive basis to the claim”. The applicant set out in “response” to the Tribunal’s finding various country information from 2005 and 2013 reports of the Immigration and Refugee Board of Canada.
Minister’s submissions
The Minister submits that:
a)the Tribunal was not required to uncritically accept the applicant’s claims;
b)the applicant did not present any evidence which contradicts the Tribunal’s findings in respect of the findings at CB 320 at [38] and the findings made by the Tribunal were clearly open to it;
c)there was nothing in either the evidence presented by the applicant or the country information considered by the Tribunal which could lead to an inference that the authorities were organised in the manner suggested by the applicant; and
d)the Tribunal was not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant: Selvadurai at 348(i) per Heerey J; Mukto at [13] per French J.
Consideration – ground 5
It was for the applicant to put before the Tribunal such information, including country information, which the applicant considered might satisfy the Tribunal in relation to the applicant’s Protection Visa application. There is no indication that the 2005 and 2013 reports of the Immigration and Refugee Board of Canada that the applicant now refers to were in fact before the Tribunal, or before the Delegate. As the Court has already observed: see [41] above the choice of country information, and the factual findings arising from that country information, are matters for the Tribunal as finder of fact: NAHI at [11] per Gray, Tamberlin and Lander JJ. Further, there can be no jurisdictional error by the Tribunal in failing to have regard to country information which was not put before it by the applicant at the time the Tribunal was required to make a determination on the applicant’s Protection Visa application. That the applicant now puts such information before the Court in “response” to the Tribunal’s finding at CB 320 at [38] indicates that the applicant is inviting the Court to engage in impermissible merits review contrary to long established principles: Wu Shan Liang.
The applicant also referred to Curragh in his submissions in relation to this ground, but the passages cited are of no particular assistance, merely highlighting the fact that an administrative decision-maker might take one path rather than another and thereby arrive at a different conclusion: Curragh FCR at 220-221 per Black CJ (where the Full Court of the Federal Court was dealing with the particular provisions of s.5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)). In the circumstances, no assistance is to be derived from the applicant’s reference to Curragh.
In the circumstances, ground 5 is no more than a request to the Court to engage in impermissible merits review, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 6
Applicant’s claims and submissions
Ground 6 asserts jurisdictional error, but does so in relation to the “making [of] a finding of fact” in relation to whether or not the applicant will be placed on the Sex Offenders’ Register in India. The applicant refers to country information in the form of an ABC News report which says that the Sex Offenders’ Register “will expand to identify and locate every convicted and released sex offender in all of India”: Exhibit A “India should think twice about its sex offenders’ register: (a piece of country information which was before the Tribunal: CB 335 at footnote 23). The applicant submits that the above statement is confirmation that the Sex Offenders’ Register is a national project and all the sex offences in India will be on the Sex Offenders’ Register.
Minister’s submissions
The Minister submits that the Tribunal’s findings in the Tribunal Decision at CB 319-320 at [35]-[36] were based squarely on independent country information, set out at CB 334-335 at [112]-[118].
The Tribunal’s findings in relation to this ground are set out at CB 319-320 at [35]-[36] of the Tribunal Decision. The Tribunal:
a)accepted that the Indian Government had directed the National Crime Records Bureau (“NCRB”) to prepare a directory of all rape convicts in consultation with Delhi Police;
b)noted that this was part of a larger project to upload all crimes online; and
c)noted that the list is for those who are convicted of rape in Delhi, and is not a national list and does not include those convicted of rape outside of Delhi or overseas.
Consideration – ground 6
In the Court’s view the Tribunal gave very careful consideration to the issue of whether or not the applicant would be placed on the Sex Offenders’ Register. In relation to the country information the Tribunal noted:
a)events in December 2012 involving a national outcry following the gang rape of a 23 year old girl in Delhi following which the Indian Government announced that it would direct the NCRB to prepare a directory of offenders in consultation with the Delhi police, and which the Indian press described as the first step towards creating a national registry of this type: CB 334 at [112];
b)that a registry had been created for the territory of Delhi, and was available on the Delhi police website, and that it was part of a national project to be undertaken under the aegis of the NCRB, and in relation to which more records would be updated: CB 334 at [113]-[116]; and
c)the country information cited by the Tribunal also addresses the question of possible vigilante attacks, and that it was the rapist who would be shamed by reason of not being able to get a job, and being cut off from society: CB 334-335 at [117]. The Tribunal then observed as follows at CB 335 at [118] (footnote omitted):
No information was located indicating whether Indian nationals/residents convicted of sex offences in foreign jurisdictions will be placed on the register. A piece in the Australian Broadcasting Corporation states that “[t]he database will expand to identify and locate every convicted and released sex offender in all of India”. However, the NCRB is charged with collecting crime statistics for crimes committed in India.
The Tribunal’s rationale for determining that the applicant would not suffer harm because he would not be placed on the Sex Offenders’ Register is posited upon a series of findings, namely:
a)that the list is only for those people convicted in Delhi of sex offences against women;
b)that an offence in Australia would not result in the applicant being placed on the Sex Offenders’ Register, or the fabrication of evidence which would result in him being placed on the Sex Offenders’ Register; and
c)that a person who has committed an offence outside of India will not be placed on the Sex Offenders’ Register, which is restricted to those who are convicted of rape in Delhi, and is not a national list of those convicted of rape in other areas of India, or, critically “those convicted of sexual offences outside India”: CB 319-320 at [33]-[36] (the quote is from [36]).
Those conclusions need to be read in conjunction with the finding that the authorities in India are not sufficiently organised to pass on information through all levels of government to police in the applicant’s local area (which is Tamil Nadu): CB 320 at [38].
The applicant seeks to have the Court review the findings of fact made by the Tribunal as to the nature and extent of the Sex Offenders’ Register. The Tribunal’s conclusions were based on independent country information before it, including that information which the applicant now seeks to rely upon to essentially re-argue the matter. The applicant thereby seeks to have this Court substitute its view of the facts for that of the Tribunal. As has been noted above: see [41] above, the selection of, and weight to be given to, country information is a matter for the Tribunal: NAHI at [11] per Gray, Tamberlin and Lander JJ. In the circumstances set out above, and having regard to the country information which was before the Tribunal, the finding that the Tribunal made with respect to the Sex Offenders’ Register not being a national register, and, particularly, not being a register upon which offences committed outside of India would be entered, were findings open to the Tribunal, and not reviewable by this Court: Wu Shan Liang; NAHI.
In the above circumstances, ground 6 is not made out and does not establish any jurisdictional error in the Tribunal Decision.
Ground 7
Applicant’s claims and submissions
The applicant says that the Tribunal did not consider that his involuntary removal from Australia would make the authorities in India aware of his offences in Australia, and would therefore not lead to his being detained or his name being placed on the Sex Offenders’ Register, and that the Tribunal “did not take this matter seriously”. The applicant alleges that there was no supporting evidence for the Tribunal determining that it did not accept the applicant’s claims that the Indian High Commission in Australia or the Indian authorities at the airport who may question the applicant, either in Australia or upon his arrival on return to India, would pass the information on through all the levels of government to the police in his local area (of Tamil Nadu). Thereafter, the applicant makes various submissions, by reference to some country information which was before the Tribunal, and some country information which was not before the Tribunal, which is said to be in “response” to the Tribunal’s finding at CB 320 at [38].
Minister’s submissions
The Minister submits that:
a)this ground is simply an attempt by the applicant to re-agitate the merits of his claim;
b)the Tribunal expressly considered the claim that the applicant’s involuntary removal may bring his conviction to the attention of the Indian High Commission in Australia or the Indian authorities at the airport: CB 320 at [38];
c)the Tribunal found that the authorities would not circulate this information through all levels of government and to the police; and
d)there was no error in the Tribunal reaching this conclusion, particularly in the absence of any evidence to the contrary, and the applicant does nothing more than assert that a different conclusion should have been reached.
Consideration – ground 7
It was incumbent upon the applicant to put before the Tribunal such information as he saw fit in order to endeavour to persuade the Tribunal to the relevant state of satisfaction to warrant the grant of his Protection Visa application. Further, it is not the role of this Court to engage in merits review by reference to country information which the applicant could have put before the Tribunal, but did not, or country information which has arisen since the Tribunal Decision, or by re-engaging with country information which the Tribunal considered and upon which it made factual determinations in relation to in the Tribunal Decision.
In relation to this ground the Tribunal set out information concerning the nature of the police and military services in India, and their level of functionality, and the capacity of Indian authorities (in particular the police) to locate persons in different jurisdictions within India, and further noted that information regarding a person’s criminal history in Australia was not a requirement of the Indian travel application process for a returnee from Australia to India: CB 335-338 at [119]-[130].
In the circumstances, and given the matters otherwise referred to in relation to ground 6 above: see [69]-[72] above, the finding made by the Tribunal that the Indian authorities are not sufficiently organised to pass on any information received by them, and the further finding that an assertion that they are sufficiently organised to do so was pure speculation without any substantive basis and not supported by any independent evidence: CB 320 at [38], were findings that were open to the Tribunal on the independent country information available to it. In the circumstances, for this Court to uphold this ground of the Further Amended Judicial Review Application would require the Court to engage in impermissible merits review: Wu Shan Liang; NAHI.
In the above circumstances, ground 7 is not made out and does not establish any jurisdictional error in the Tribunal Decision.
Ground 8
Applicant’s claims and submissions
Certain of the applicant’s personal details were unintentionally released by the Department in February 2014. The information included the applicant’s name, date of birth, nationality, gender, details about the applicant’s detention (when detained, reason and where) and if other family members are in detention, but did not include the applicant’s address (or any former address), phone numbers or any other contact information and did not include information about the protection claims actually made: Applicant’s Supplementary Affidavit, Attachment I.
The applicant asserts that the information has been accessed in a number of countries, including India, and that the Indian police and governmental authorities may have read his person information, and be aware of his criminal convictions.
Minister’s submissions
The Minister submitted that:
a)the issue of the processes available to applicants following the unauthorised release of personal information was considered in SZTXY Minister for Immigration & Border Protection: [2014] FCCA 841;
b)any claims which may arise from the disclosure of personal information were not before the Tribunal; and
c)the applicant can request that the Minister exercise his power under s.417 of the Migration Act in relation to any claims arising from this new circumstance, but that does not have any relevance to the matters which arise before the Court in this proceeding.
Consideration – ground 8
The claim with respect to unauthorised access to the applicant’s personal information was not a claim made by the applicant before the Tribunal on the materials available to the Court. As such, the claim now made is not one which is judicially reviewable by this Court, and for reasons explained above, this Court cannot consider it independently. In that respect, there can be no jurisdictional error in the Tribunal Decision with respect to the unauthorised access to the applicant’s personal information, and there is otherwise no matter presently within the Court’s judicial review migration jurisdiction: Migration Act, ss.474 and 476.
There are, as the Minister’s submissions suggest, other avenues available for any claims that the applicant may have to make in respect of the unauthorised access to his personal information. Whether the applicant pursues, or can now pursue, those avenues is another matter: see Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29, and more recently in this Court SZTVA v Minister for Immigration & Anor [2016] FCCA 2005 at [22]-[27] per Judge Manousaridis.
Ground 8 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 9
There is nothing in ground 9, nor in the brief submissions supporting it, which was not considered by the Tribunal in relation to what are grounds 5-7 above. For the same reasons as set out in relation to grounds 5-7, ground 9 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 10
Because ground 10 is based upon grounds 8 and 9, and those grounds are not made out and do not establish jurisdictional error in the Tribunal Decision, ground 10 is not made out. In any event, ground 10 appears to be an assertion of a claim, rather than an application for judicial review of a merits review by the Tribunal in its capacity as an administrative decision-maker. This Court’s jurisdiction is only limited to matters of judicial review, not the determination of a claim seemingly now made for the first time: Migration Act, ss.474 and 476.
In the circumstances, ground 10 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Conclusions and orders
The Court has concluded that:
a)jurisdictional error has been established in the Tribunal Decision in relation to ground 1 of the Further Amended Judicial Review Application; and
b)no jurisdictional error has been established in the Tribunal Decision in relation to the other grounds of the Further Amended Judicial Review Application.
It follows from the conclusion that jurisdictional error has been established in relation to ground 1 of the Further Amended Judicial Review Application that prerogative relief ought to be granted to the applicant. There will therefore be orders that a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal (now the Tribunal) made on 30 January 2014, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant on 24 July 2013.
The Court will also order that name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 18 August 2016
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