BLV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-09-27|Before: Goodman J

The appeal be dismissed.
The appellant pay the first respondent's costs fixed in the amount of $4,000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The appellant is a citizen of India who arrived in Australia in December 2012 as the holder of a tourist visa. On 11 April 2014, he lodged an application for a protection visa. 2 On 19 December 2014, a delegate of the first respondent made a decision under s 65 of the Migration Act 1958 (Cth) to refuse the appellant a visa. On 12 January 2015, the appellant lodged an application for review of that decision by the Administrative Appeals Tribunal. That application was heard on 5 May 2016. On 30 May 2016, following the receipt of further documentary evidence from the appellant, the Tribunal affirmed the delegate's decision and published its Reasons for doing so. 3 On 17 June 2016, the appellant filed an application for judicial review of the Tribunal's decision with the then Federal Circuit Court of Australia. On 26 November 2019, the primary judge dismissed that application with costs and provided oral reasons. On 9 December 2019, the appellant filed a Notice of Appeal with this Court against the orders made by the primary judge. On 24 January 2020, the primary judge published his written reasons for judgment: BLV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3421 (J). These reasons address the appellant's appeal to this Court.

The appellant's claims for protection 4 The appellant's claims for protection were set out in his visa application and are reproduced (without alteration) below: I belong to a Sikh family in India and my family is a supporter of Congress Party. Congress Party comprises of all the educated people and works for the betterment and prosperous future of people of Punjab. In 2007, during the elections I supported Congress Party as I had a big group of friends who also supported congress and run a campaign for the Party. I was approached many times by Akai dal Party leaders and they tried to influence me to leave Congress and join them. But I refused, as they were not the right people to work with and support. I always heard and saw them manipulating things for their own benefits. In 2007, Alkali Dal won the elections and came into power. They tried to get all the supporters of congress in trouble. I was one of the unlucky ones. They always had grudges with me. After few days of election, the workers of Akali Dal Party attacked me and I saved my life somehow. This was not only the instance when they attacked mc. There were other instances as well. They always followed me and tried to humiliate me whenever they found a chance. Due to continuing political turmoil and degraded treatment from ruling Party, my life was always difficult. Here was a stigma attached to me, wherein I was considered as a criminal and looked down upon. They fabricated a false attempt to murder case against me. I tried my best to tell the authorities that I am innocent and this is all a conspiracy. But no one believed as they were acting under the orders of the ruling Party. The ruling Party was doing this to water down my reputation. The Akali Dal Party not only fabricated a false against me but also harassed and humiliated me in the society. I was disturbed mentally and morally. I was fed up of the miserable life and then I decided to leave India. I came to Australia on a tourist visa in December 2012. They started harassing my family after I came here. They forcibly entered my house many times to look for me. My parents have asked me not to enter India ever, as the supporters would kill me. They have warned my parents many times that they will kill me when they find me. Even the authorities are with them. I did not even dream of this life. I never knew that just being a supporter of a Party would be that troublesome. I am extremely tensed and depressed about my life. I am unable to return to India due to persecution. I fear that if I go back I would either be killed or put in the jail. I am unwilling to go back to India due to the fear of my personal safety. I would be subject of humiliation and inhuman treatment. The opposition Party want to make me scapegoat so that no one else can ever raise a voice against them or can support the congress Party. I will certainly be at risk of being killed or exposed to inhuman and degrading treatment.

THE tribunal's decision 5 The Tribunal identified that its task was to review the delegate's decision made under s 65 of the Act to refuse to grant the visa sought by the appellant. It identified that the relevant law to be applied was s 36 of the Act and associated definitional sections and that it had to consider whether the criteria for the grant of a protection visa under that section had been satisfied. 6 The Tribunal expressed its conclusions at paragraphs [60] to [63] of the Reasons: 60. The Tribunal after considering the applicant's claims both individually and cumulatively does not accept on the basis of the evidence and materials and information before it that the applicant faces a real chance of serious harm for a Convention based reason if he returned to India either now or in the reasonably foreseeable future. The Tribunal does not accept, based on its assessment of the evidence, that if the applicant returned to India either now or in the reasonably foreseeable future and continued to be involved in the operation of a minibus business that he would face a real chance of serious harm on the basis of his claims. The Tribunal also does not accept that the applicant if he returned to India would face a real chance of serious harm either now or in the reasonably foreseeable future on the basis of his claimed support for the Ram Rahim religious organisation on the basis that that organisation supports the Congress-Party. As indicated the applicant gave no detailed evidence about this claim other then (sic) in practical terms to link it to his claim to fear harm on the basis of his support for the Congress Party. 61. The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that he faces a real risk of significant harm. The Tribunal has considered the applicant's claims and the evidence and available and relevant country information in relation to the applicant's claims. The Tribunal has considered the definition of significant harm contained in the Act as well as the relevant definitions contained in s.5 (1) of the Act. The Tribunal has referred to the applicant's claims and to its assessment of the evidence and its assessment of the applicant's credibility. The Tribunal has considered the applicant's claims that he faced difficulties in conducting his minibus business and that it was particularly difficult in 2008. The Tribunal has considered that claim and has also referred to the delay by the applicant in selling some of the buses. He told the Tribunal he sold several of the buses in 2013 and 2014 when he was in Australia. The delay in the sale of the buses does not indicate or suggest to the Tribunal that the business difficulties that the applicant may have had in conducting his minibus business was as significant as the applicant had claimed. The Tribunal after considering the evidence does not accept that the applicant faces a real risk of significant harm if he returned to India and conducted a minibus business or that he would face a real risk of significant harm on the basis of his claimed support for the Ram Rahim religious organisation or because of his claimed support for the Congress Party. For the same reasons that have been considered and discussed elsewhere in these reasons the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there is a real risk that he would be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to (e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, or pain or suffering, whether physical or mental, intentionally inflicted on the person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature, such as that would meet the definition of cruel and inhuman treatment or punishment in the Act. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer such harm is to meet the definition of degrading treatment or punishment in the Act which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is also not satisfied that there are substantial grounds for believing that that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty… Overall Summary 62. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a). 63. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has Considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). 7 Prior to reaching those conclusions, the Tribunal set out at paragraphs [8] to [47] of its Reasons the claims and evidence before it (including its views as to that evidence) and at paragraphs [48] to [59] of its Reasons its findings with respect to those claims and that evidence. 8 Critically, the Tribunal: (1) found that: (a) the appellant's engagement in support of the Indian National Congress Party was "low level" and "functional"; (b) he occupied no office of the Congress Party and had not been a candidate; and (c) he had a non-existent to low political profile (Reasons [26], [30], [46], [51], [53]); and (2) did not accept that: (a) the appellant had carried out any significant political activities for the Congress Party as he had claimed (Reasons [55]); (b) the appellant was attacked in August 2008 because of his support for the Congress Party, that his brother was injured, that the appellant and his wife were threatened with harm, or that the appellant's buses were attacked because he supported the Congress Party (Reasons [56]); (c) the appellant was falsely accused of serious charges in around August 2008 by members and supporters of the Akali Dal Party and that occurred because of his support and involvement with the Congress Party (Reasons [57]); (d) the appellant was charged, as he had claimed, by Indian police in relation to those claims because of his involvement and support for the Congress Party (Reasons [57]); (e) members and supporters of the Akali Dal Party had come to the appellant's home looking for him since he has been in Australia or that they made threats to his father about him since he has been in Australia; or that his wife and son had to relocate from the family home because of any difficulties caused by the appellant's claimed support for the Congress Party (Reasons [57]); (f) the appellant faced any risk of harm on the basis of his claimed support for the Ram Rahim religious organisation which he said was an organisation which supported the Congress Party (Reasons [57]); (g) the appellant faced any incidents of harm from members and supporters of the Akali Dal Party because of his support for the Congress Party (Reasons [55]); or (h) the difficulties faced by the appellant in his mini-bus business were caused by the appellant's political opinion in terms of his claimed support for the Congress Party, as opposed to normal competition for business (Reasons [53], [56]). 9 An integral part of the Tribunal's reasoning was that, after considering the totality of the appellant's claims and his evidence and available and relevant country information, the Tribunal did not accept that the appellant was a credible witness (Reasons [49], [52], [59]). Supporting that conclusion were the Tribunal's frequent criticisms of the appellant's evidence in support of elements of his claim, including that such evidence was: "very general in nature" and lacking in detail (Reasons [51] to [53], [55], [57], [60]); "vague" (Reasons [26], [30], [46], [54]); "vague and confusing" (Reasons [28]); "very vague" (Reasons [28] to [29]); "vague and unconvincing" or "unconvincing and vague" (Reasons [32] to [33], [36], [54]); "unconvincing" (Reasons [53] to [54]); "inconsistent and vague" or "vague and inconsistent" (Reasons [46], [52], [54] to [55]); "inconsistent" or "not consistent" (Reasons [32], [46], [50], [51], [56], [58]); or the subject of "significant variations" (Reasons [50]). The Tribunal also referred to the failure of the appellant to respond to or engage with concerns raised by the Tribunal during the hearing about his evidence (Reasons [46]). It is not necessary for the purposes of these reasons for judgment to descend into the detail of these findings by the Tribunal as to the appellant's credibility.

THE proceeding in the court below 10 The appellant's grounds of review in the Court below were set out by the primary judge at J[58]: 58. The grounds in the application are as follows: 1. I AM GENUINE PROTECTION VISA APPLICANT AS I HAVE WELLFOUND FEAR OF DEATH IF I RETURN BACK TO MY HOME COUNTRY. 2. I AM STILL A SUPPORTER OF CONGRESS PARTY WHICH IS THE MAIN REASON I REQUIRE PROTECTION FROM THE AKALI DAL POLITICAL PARTY WHICH IS STILL IN POWER IN PUNJAB. THEY HAVE TRIED TO MANIPULATE, TORTURE, ATTACK AND KILL ME ON MULTIPLE OCCASIONS AND THEY HAVE SUCCEEDED IN ATTACKING ME MORE THAN ONCE 3. THE HIGH LEVEL OF CORRUPTION ADDED TO THE INTOLERANCE FOR OTHER POLITICAL OPINIONS MAKES INDIA A VERY DANGEROUS PLACE FOR ME. I AM JUST ANOTHER PERSON TO THE POWERFUL POLITICAL PARTIES AND THEY WILL STOP AT NOTHING TO FINISH ME AND ALSO HAVE NO REGRET IN DOING IT 4. I HAVE BEEN UNDER GREAT STRESS AND DEPRESSION FROM THE CONSTANT THREAT OF RETURNING BACK TO MY HOME SITUATION WHICH MADE IT NEAR IMPOSSIBLE FOR ME TO ANSWER QUESTIONS ACCURATELY AND PHYSICALLY ATTEND INTERVIEWS. 5. MY BUSES WERE CONSTANTLY ATTACKED BECAUSE FIRSTLY, THE AKALI LEADERS WERE TARGETING ME AS A CONGRESS SUPPORTER. AND SECONDLY, THEY WANTED TO ELIMINATE ME AS I WAS COMPETING WITH THEM. BOTH THESE FACTORS COMBINED MADE ME UNDER MORE THREAT 6. IT IS VERY IMPORTANT TO KNOW THAT POLITICAL ATTACKS IN INDIA DO NOT DEPEND ONLY ON HOW HIGH OR LOW A PERSON IS IN THE PARTY. THE HATE IN AKALI DAL FOR CONGRESS PARTY IS SO MUCH THEY DON'T CARE WHAT LEVEL YOU STAND, THEY MUST HATE ANYONE WHO STAND UP AGAINST THEM. 7. THE AAT RESEARCH SHOWED THERE IS CORRUPTION. ATTACKS AND POLITICAL UNREST IN INDIA BUT STILL REFUSE ME PROTECTION VISA KNOWING MY HISTORY OF ATTACKS FROM OTHER POLITICAL PARTY. THEY ALSO KNOW ABOUT HUMAN RIGHT ABUSES MADE BY INDIAN POLICE SO THEY SHOULD KNOW I CAN NOT BE PROTECTED BY THIS CORRUPT POLICE. 8. I CAN NOT BE PROTECTED ANYWHERE IN INDIA AS THE POLITICAL PARTIES HAVE VERY FAR REACH AND ALSO OTHER PARTS OF INDIA DISCRIMINATE AGAINST THE SIKH COMMUNITY. 9. I APPLIED FOR PROTECTION VISA. IMMIGRATION CALLED ME FOR FIRST INTERVIEW THAT I COULD NOT ATTEND DUE TO HEAVY SICKNESS, WHICH I HAD A MEDICAL CERTIFICATE FOR. I DID NOT RECEIVE NOTIFICATION FOR SECOND INTERVIEW AND IMMIGRATION REFUSED MY CASE WITHOUT NOTIFYING ME EFFECTIVELY. I BELIEVE THIS IS VERY UNFAIR AND I DID NOT GET THE LAST OPPORTUNITY TO GIVE MY STATEMENT. 10. I APPLIED FOR AAT REVIEW AND MY APPLICATION WAS NOT ACCEPTED. I HAD GREAT EXPECTATION FROM ADMINISTRATIVE APPEALS TRIBUNAL BUT AAT DID NOT TAKE MY CIRCUMSTANCES IN TO CONSIDERATION AND JUST REFUSED MY APPLICATION AGAIN. 11 The primary judge considered those grounds, along with contentions that were made by the appellant in a written submission, at J[59] to [67]: 59. Paragraphs 1 to 9 are, in substance, a repetition of the applicant's claims and do not articulate any relevant error by the Tribunal. 60. Paragraph 10 asserts that the Tribunal did not take into account the applicant's circumstances. There is no circumstance identified which the Tribunal failed to take into account. The adverse findings were open to the Tribunal for the reasons given by the Tribunal. 61. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal made dispositive findings in respect of the applicant's claims which were open to it. Nothing in paragraphs 1 to 10 of the applicant's grounds identifies any jurisdictional error. 62. In relation to the applicant's written submissions, the Court accepts the four core contentions identified by Mr Burke on behalf of the first respondent able to be gleaned from those written submissions. 63. The first contention reflects disagreement with any adverse findings of fact. That, in substance, invites this Court to engage in impermissible merits review and does not identify and jurisdictional error. 64. The second contention is an assertion to the effect that there is no evidence before the Tribunal to find that the applicant's claims were not genuine. This contention misunderstands the obligation on the applicant pursuant to ,, 5AAA of the Act and that it is the responsibility of the applicant to provide sufficient evidence to establish the applicant's claims. 65. Further, it was open to the Tribunal to evaluate the credibility of the applicant's claims. It is apparent from the Tribunal's reasons that the Tribunal raised its concerns with the applicant's evidence in the course of the hearing. The Tribunal provided logical and rational reasons, as summarised above, for the adverse findings it made. The proposition that there is no evidence to support the same is misconceived. 66. The third contention appeared to be a disagreement with the Tribunal taking into account the delay in the applicant's application for protection. That was a logical and rational matter for the Tribunal to take into account. The applicant's disagreement with the same does not identify any jurisdictional error. 67. The fourth contention appears to be a disagreement by the applicant as to whether or not the conclusion by the Tribunal was reasonable. The fourth contention, at least in substance, reflects an assertion that the Tribunal's reasons were legally unreasonable in respect of the outcome. The Court has summarised the substance of the Tribunal's reasons identifying the applicant's claims and why the Tribunal rejected the same. This is not a case where it could be said that no reasonable Tribunal could make the adverse finding in terms of outcome under the 1951 Refugees Convention or in relation to complementary protection. The Tribunal's reasons provide an evident and intelligible justification for the adverse outcome.

The appeal to this court 12 The grounds of appeal to this Court as set out in the Notice of Appeal are reproduced (without alteration) below: 1. His Honour took the view of the Respondents. I do not agree with the Order of Judge Street. I am waiting for the full judgment to be able to argue my case. 2. The Tribunal as well as His Honour both misunderstood my circumstances and the fear of harm I suffered in India in the past and in the future. 3. My claim was not properly understood.

Ground 1 13 The first and second sentences of the first ground of appeal simply express disagreement with the primary judge's decision, and do not raise a ground of appellable error. The third sentence of the first ground of appeal suggests the appellant was reserving his position to supplement his grounds of appeal in circumstances where he had yet to receive the primary judge's written reasons for judgement. However, the judgment of the primary judge was published on 24 January 2020 and the appellant has not sought to amend his Notice of Appeal in the light of that publication. 14 In so far as the third sentence might be construed as a complaint of appellable error, such a complaint is misconceived. No appellable error arises simply because the primary judge did not provide written reasons until after the time in which to lodge an appeal had expired. Further, as noted above, the appellant has been in receipt of those reasons for over two years and did not seek to amend his grounds of appeal during that time. In these circumstances, the appellant has suffered no injustice: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; (2021) 388 ALR 257 at [22], [37] and [38] (Steward J); Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 412 at [27] (Kenny J).

Grounds 2 and 3 15 The second and third grounds of appeal, benevolently construed, contend that the Tribunal and the primary judge misunderstood the appellant's claims for protection. 16 The appellant did not explain, in either his oral submissions or in the written submissions that he handed up at the hearing of the appeal, the nature of the misunderstanding. The complaint as made is vague and meaningless and thus incapable of establishing jurisdictional error: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J). 17 I otherwise do not discern any misunderstanding by the Tribunal. The Tribunal identified clearly the basis of the appellant's fear of harm, namely, his association with the Congress Party and then considered the evidence before it in detail as against the statutory criteria in s 36 of the Act. In doing so, it did not accept large parts of the claims made by the appellant and found that the statutory criteria were not satisfied.

Oral submissions 18 The appellant made oral submissions which did not address the grounds of appeal in his Notice of Appeal, but instead merely expressed disagreement with the Tribunal's decision, or which invited the Court to consider the underlying merits of that decision. Mere disagreement with the reasons of the Tribunal is not a basis for invalidating the decision: AZK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 331 at [34] (Perry J). Neither the Court below in undertaking judicial review of the Tribunal's decision, nor this Court on appeal has jurisdiction to review the merits of the Tribunal's decision. Rather, the task of the Court below on a judicial review application is to determine, by reference to the grounds of review advanced, whether the decision under review was made within the authority conferred by the statute upon the decision-maker: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [29]-[30] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [27] (Beach, Thawley and Cheeseman JJ). The role of this Court on appeal is to determine whether the Court below has erred in its task. 19 As part of his oral submissions, the appellant addressed the present position in India, as a reason why he would be in danger if he were to return to that country. However, the Court below, and this Court on appeal are unable to take into account events subsequent to the making of the decision under review: see EGZ17 at [28] to [29].

The appellant's written submissions on appeal 20 I turn now to consider the written submissions which the appellant handed up at the hearing of the appeal. Those submissions are reproduced (without alteration) below: 1. I fear harm by reason of belonging to a Sikh family who supported the Congress Party in Punjab as I refused to join Akal Dal Party (ADP) and as a person who supports Ram Rahim and as a businessman who suffered at the hand of ADP. 2. I believe that the Tribunal as well as His Honour failed to recognise the harm. 3. His Honour as well as the Tribunal failed to have a genuine intellectual engagement with my claim and both focused on assessment of credibility rather than assessing the risk of the real chance of harm. 4. The Tribunal failed to take into account country information as well as the loss of my business and the attack on my family and failed to consider the provided information as requested by the Tribunal. 5. The Tribunal and His Honour did not accept that the attack on my business and me constitute serious harm and failed to consider what will happen to me if I return to India. 6. The Tribunal has no reason to deny the harm from ADP members while accepting that I have faced difficulties yet failed to accept that whatever I confronted it was because of my support for the political Party Congress Party in Punjab. 7. I was politically involved and that was the reason why I face serious harm on the basis of my claimed support for the Congress Party as well as for the Ram Rahim religious organisation. 8. I continue to believe that my claim was not properly understood and the Tribunal not having a genuine intellectual engagement with my claim and evidence to fear harm if I return to India. (numbers inserted for ease of reference; emphasis added) 21 The text set out above which has not been emphasised are submissions which merely express disagreement with the Tribunal's decision, or which invite the Court to consider the underlying merits of that decision and need not be considered further. 22 The text set out above which has been emphasised arguably raise grounds for judicial review. However, none of these grounds were raised below, with the consequence that these grounds cannot be pursued on appeal, save with the leave of the Court: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11]. The Minister opposes leave being granted. The exercise of the Court's discretion to grant such leave is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As the Full Court (Katzmann, Banks-Smith and Rofe JJ) explained in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34]-[37], the predominant consideration is the interests of justice: see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] (Kiefel, Weinberg and Stone JJ) and Francuziak at [11]. In considering the interests of justice, the merits of the proposed new grounds are an important consideration (Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ)), as is the adequacy of any explanation for the ground not having been raised below (VUAX at [48]). As the Full Court in VUAX explained at 598-599 [48], where there is no adequate explanation for the failure to take the point before the primary judge, and the point seems to be of doubtful merit, leave should generally be refused. No explanation has been provided for the failure to take these points before the primary judge. For the reasons set out below, none of the putative grounds in the written submissions has merit. 23 The contention in paragraph 3 of the written submissions that ""the Tribunal failed to have a genuine intellectual engagement with my claim and … focused on assessment of credibility rather than assessing the risk of the real chance of harm" is baseless. As noted above, the Tribunal identified and engaged with the appellant's claim in some detail. The assessment of the appellant's credibility was an integral part of the assessment of whether the appellant would face a real risk of harm if he were to return to India. 24 The appellant has not explained how the Tribunal did not engage genuinely and intellectually with his claims for protection. In the absence of particulars and when considered in the context of the balance of the appellant's submissions, the complaint, properly understood, simply reflects his emphatic disagreement with the Tribunal's adverse findings and is not a basis for finding jurisdictional error: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 175 [34]. 25 The contention in paragraph 4 of the written submissions that "[t]he Tribunal failed to take into account country information as well as the loss of my business and the attack on my family and failed to consider the provided information as requested by the Tribunal" is plainly wrong. The Reasons record that the Tribunal considered: country information (Reasons [50], referring to [39], [44] and [46]; [52]; [61]); the claimed loss of the appellant's business (Reasons [27], [53], [61]); the claimed attack on the appellant's family (Reasons [12], [19], [25], [46], [56]); and the information provided by the appellant to the Tribunal after the hearing (Reasons [51] and [52]). 26 The contention in paragraph 5 of the written submissions that "[t]he Tribunal … failed to consider what will happen to me if I return to India" is also contrary to the Reasons. Most, if not all, of the Reasons was directed to this issue. As set out above, having considered this question at some length the Tribunal decided that the appellant had not satisfied the criteria set out in s 36 of the Act. 27 The contention in paragraph 6 of the written submissions that "[t]he Tribunal has no reason to deny the harm from ADP members" appears to contend that the conclusions reached by the Tribunal and set out at paragraphs [8(2)(c), (e), (f) and (g)] were legally unreasonable. There is no basis for such a contention. The Tribunal considered at some length the appellant's claims concerning the Akali Dal Party, but did not accept those claims. The conclusions reached by the Tribunal were open to the Tribunal on the evidence before it, as the primary judge noted. Any claim that the Tribunal's conclusion was not legally reasonable is without merit. 28 The contention in paragraph 8 of the written submissions that "my claim was not properly understood" must fail for the reasons set out above at [16]. The contention in the same paragraph that "the Tribunal not having a genuine intellectual engagement with my claim and evidence to fear harm if I return to India" must fail for the reasons set out above at [24]. 29 As none of the putative grounds raised by the written submissions has merit and there is no explanation for these points not being raised before the primary judge, leave to rely upon such grounds is refused.

Conclusion 30 For the above reasons, the appeal should be dismissed. The appellant should pay the first respondent's costs of the appeal. The first respondent seeks a lump sum costs order in the sum of $4,000. The Court's discretion with respect to costs is broad and includes the making of a lump sum order for costs. Such an order is appropriate given that: it will save the parties the time and costs of a taxation process; the costs appear to be proportionate to the complexity of the issues raised in the proceeding; and the amount sought is less than the amount that could be claimed in a short form bill for an appeal involving a migration decision that is dismissed after hearing ($7,241 as set out in the Federal Court Rules 2011 (Cth), Schedule 3, Item 15). I will make orders accordingly. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (16)