BQC15 v Minister for Immigration and Border Protection

Background 5 The applicant is a citizen of India who first arrived in Australia in April 2007 as the holder of a Student visa. His last substantive visa, a Subclass VC 485 (Temporary) Skilled Graduate visa, ceased on 3 November 2012. He applied for a Protection visa on 16 December 2013, and attended a Department interview on 27 June 2014. His application was refused on 15 July 2014. On 8 August 2014, he applied to the Tribunal for review of that decision. He appeared before the Tribunal on 1 July 2015. The Tribunal affirmed the delegate's decision on 10 July 2015. 6 In summary, the applicant claimed that he was a Muslim from Viramgam, in the state of Gujarat. In 2002, he banded with a group of Muslims to protect himself and his family during anti-Muslim riots in Gujarat. He had continued to live in India without incident until 2007, when he left for Australia. However, in 2013, on one of his trips back to India, he had been followed by suspicious people while shopping and threatened. He fears that, should he return to India, he will be killed by anti-Muslim groups including the Virat Hindustan Sangam (VHS), Rashtriya Swayamsevak Sangh (RSS), and Shiva Sena and Bajarang Dal.

The Tribunal's decision 7 The Tribunal referred to extensive country information regarding the status of Muslims as a minority group in India, the 2002 Gujarat riots, communal violence in Gujarat, and the central government's approach to religious tensions. 8 It accepted that the applicant was involved in defending his town against attackers during the 2002 Gujarat riots. However, it had significant concerns with key aspects of his claims because: (a) the applicant had given inconsistent evidence as to threats from attackers during the 2002 Gujarat riots; (b) he had given inconsistent evidence about being threatened by anti-Muslim personnel during his trip to India in 2013; and (c) his account of being threatened in 2013 by anti-Muslim personnel who had identified him in the riots of 2002 was implausible. 9 Accordingly the Tribunal was not satisfied that the applicant had been truthful in relation to his claims of being threatened in 2013 as a result of his involvement in the 2002 riots. Nor was it satisfied that the applicant was specifically threatened during those riots. 10 The Tribunal acknowledged that independent evidence indicated that religious and communal violence is an ongoing recurrence in India and that in Gujarat State there are not infrequent occurrences of communal violence. It also accepted that elements of the Bharatiya Janata Party (BJP) inflame religious tensions although the prevalence of this had not changed significantly as between the Modi government and previous governments. Indeed, it noted that Prime Minister Modi had made a number of statements promoting religious tolerance. 11 While the Tribunal accepted that the applicant is a Muslim, it did not accept that he had a profile that would result in him facing a real chance of serious harm on the grounds of religion or that independent information established that Muslims in general faced a real chance of serious harm. The Tribunal noted that the applicant lived in India without incident from 2003 to 2007, and that his family had lived without difficulty since 2002. The Tribunal also noted that there had been no reports of communal violence in Viramgam since 2003. While accepting that there were reports by some groups that the Gujarat government was failing to arrest those responsible for the 2002 riots, it did not consider that this created any risk of harm to the applicant. It was not satisfied that the applicant faced a real chance of serious harm by reason of being a Muslim, living in Viramgam. Nor was it satisfied that the election of the BJP in India has increased his risk profile. 12 For the reasons given, the Tribunal was not satisfied the applicant had a well-founded fear of persecution by reason of his religion, or any other conventional reason, as a result of his participation in the 2002 riots, threats from anti-Muslim personnel, the actions of the BJP government, religious tensions and violence generally, or for any other reason. Nor was it satisfied he faced a real risk of significant harm.

The Federal Circuit Court proceedings 13 The proceeding in the Federal Circuit Court was commenced by way of a 'show cause' application, filed on 11 August 2015 pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). The application contained three unparticularised grounds, which were set out in full in the reasons for judgment of the Court below: (1) I was threatened in 2013 and any inconsistencies in my evidence are a result of the fear and risk of harm returning back to India. (2) I reserve my right to provide a transcript to support my claim because during the interview I was confused because of the 2002 events and the latest event of 2013. (3) The Tribunal Member misunderstood my fear of persecution based on the evidence before him as well as my oral evidence. 14 At the hearing the applicant read an affidavit of Mr Toufic Laba Sarkis, annexing a transcript of the Tribunal hearing. The matters raised by the applicant in oral submission, and the consideration of those matters by the primary judge are set out at [12]-[17] of the reasons for judgment as follows: 12. The applicant sought to establish several propositions. The first was that the transcript reveals misunderstanding by the Tribunal in relation to the threat that the applicant claimed was made to him in 2002. The Tribunal reasoned that the applicant's written statement provided with his visa application had been untruthful in relation to that threat because the applicant had retreated from it in his oral evidence. The applicant sought to demonstrate that there was a misunderstanding about that purported retreat. On my reading of the transcript, in particular at page 12, there was no such misunderstanding. The applicant, in effect, conceded to the Tribunal at the hearing that the threat made was not made in the way claimed in his written statement. 13. Secondly, the applicant sought to demonstrate that the Tribunal should have made some further enquiry in relation to his statement that nothing happened to him between 2002 and when he came to Australia in 2007. The transcript records that the applicant gave simple answers in the negative to the Tribunal's questions as to whether anything happened to him over that period. The applicant's evidence was clear on its face and there was no obligation on the Tribunal to make further enquiries. 14. Thirdly, the applicant sought to assert some problem or difficulty with the Tribunal's reasons concerning its adverse credibility finding in relation to the claimed threat in the marketplace in 2013. The applicant said that he did not understand the Tribunal's reasoning. In my opinion, that reasoning is perfectly straightforward. The Tribunal was simply unwilling to accept that after a lengthy period in which nothing adverse happened to the applicant, someone would out of the blue, 11 years after the riots in 2002, single the applicant out for further threats arising from those riots. The Tribunal found the claim highly implausible. Its conclusion was open to it on the material before it. 15. In other respects, the applicant's written and oral submissions take issue with the merits of the Tribunal's decision. 16. The applicant asserted that he was under a disability at the time of the Tribunal hearing due to depression. The applicant conceded that there was no medical diagnosis of the depression, although he said that he informed the Tribunal of the claim of depression and the transcript confirms that. However, the transcript also confirms that the applicant was given a break from the hearing when requested and the Tribunal took into account at [41] of its reasons that the applicant, like any person giving evidence in a stressful situation, might have been prone to some errors, although the Tribunal was not willing to accept that inconsistencies in the applicant's claims or evidence could be explained by that. 17. In oral submissions the applicant also asserted that the Tribunal had erred in not putting to him problems as between his evidence to the Tribunal and the evidence he gave to the Minister's delegate. That is not consistent with the Tribunal's reasons at [40]. 15 The primary judge then considered the grounds in turn.

Ground 1 16 Ground 1 complained that the applicant 'was threatened in 2013 and any inconsistencies in [his] evidence were a result of the fear and risk of harm of returning back to India'. The primary judge found that this complaint rose 'no higher than a challenge to the factual findings of the Tribunal, and (could not) sustain a finding of jurisdictional error'.

Ground 2 17 Ground 2 did not identify any jurisdictional error, but simply stated that the applicant reserved his 'right to provide a transcript' which he claimed would 'support my claim because during the interview I was confused because of the 2002 events and the latest event of 2013'. The primary judge found at [21]. Insofar as the applicant's claimed confusion is concerned, the Tribunal did not accept that this state provided a satisfactory explanation for the inconsistencies in his evidence. This finding was open to it for the reasons it gave.

Ground 3 18 Ground 3 complained that the Tribunal had misunderstood his claims to fear persecution and misunderstood his evidence. His Honour found that there was no evidence to support the allegation that the Tribunal had misunderstood the applicant's claims or evidence. Ground 3 was rejected. 19 The primary judge thus concluded that the application failed to raise an arguable case of jurisdictional error by the Tribunal and dismissed the application pursuant to r 44.12(1)(a) of the Rules with costs.

The draft notice of appeal 20 The draft Notice of Appeal asserts broadly that the Tribunal misunderstood the applicant's evidence and misapplied the law based on the country information. It also asserted that the adverse credibility findings were contrary to the evidence. 21 He filed an affidavit in support affirmed on 10 May 2016 where he stated that two important issues were overlooked by the primary judge: first, that his evidence was credible; second, that certain country information was not considered. 22 The application contains the following 4 proposed grounds of appeal: (1) I respect his Honour Judge Driver but do not agree with his judgment which adopted the decision of the Refugee Review Tribunal and the Tribunal should not make any adverse findings against my credibility because I informed the Tribunal of the claim of depression which was confirmed in the transcript. (2) There is no evidence before the Tribunal that I was not threatened in 2013 and the wrong and serious factual findings should lead to a finding of jurisdictional error. (3) The Tribunal's decision is not based on the evidence given and failed to accept my fear of persecution as in my submission before his Honour especially the undeniable fact that the government lawyer in point 8 clearly accepted that there were reports by some group that the Gujarat Government failed to arrest those responsible for the 2002 riots. The failure of the government to detain the troublemakers should lead the Tribunal and his Honour to accept that I was subjected to risk during 2003-2007 and what happened to me in 2013 should lead also to accept my subjective well-founded fear of persecution. (4) I believe that the Tribunal has no basis to conclude that what happened to me in 2013 is not credible. 23 The applicant did not file any written submissions within the time directed by Registrar Morgan being no later than 10 business days prior to this hearing. 24 Despite this he provided short written submissions at the hearing before me. These sought to impugn the factual findings made by the Tribunal. The challenge to the factual findings is the subject of grounds 3 and 4 to which I will shortly turn. 25 He also complained that the Tribunal erred in law by relying on independent information obtained by the Tribunal and failed to request the applicant's own information which could have been different to the information the Tribunal relied on. 26 The Tribunal considered this matter at [45] of its reasons as follows: 45. The applicant has claimed more generally that there is a risk of harm as a result of actions by anti-Muslim groups in India, and offered to provide social media references to threats and activities of them. The Tribunal indicated to the applicant that it had independent information that confirms that anti-Muslim groups perpetrate harm against other religions in India. It indicated, however, that the issue for the Tribunal is to consider whether the applicant himself faces a risk of harm. 27 No jurisdictional error is exposed by the way the Tribunal dealt with the applicant's offer to provide social media illustrations of threats. It was for the applicant to make out his claims as they affected him personally. The Tribunal, from independent information, acknowledged, as I have explained above, that communal and religious violence does occur in India including in Gujarat State. 28 I will now turn to the proposed grounds contained in the draft notice of appeal

Proposed ground 1 29 Proposed ground 1 concerns his Honour's consideration at [16] of his reasons of this issue. As his Honour noted, the transcript confirmed that the applicant had indeed made such a complaint; that no medical evidence of depression was tendered to support this claim; and that the Tribunal had duly noted and taken into account that appearing before the Tribunal was stressful, but that this did not explain or overcome the Tribunal's concerns with the inconsistencies in his evidence. 30 An applicant's mental state might affect his ability to give evidence to the Tribunal. However, this does not establish any jurisdictional error by the Tribunal. Procedural unfairness may be demonstrated if an applicant is unfit to give evidence: Minister for Immigration and Multicultural Affairs v SCAR (2003) 128 FCR 553, but following Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; such a claim of 'unfitness' requires that the applicant be unable to give evidence, present arguments and answer questions before the Tribunal, and not merely be unfit to some lesser degree: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[34]. There is no evidence that the applicant was unfit in this sense. Indeed, as the Minister submits, the Tribunal's account of the hearing, and the applicant's transcript, demonstrate that he was able to give evidence, present arguments and answer questions. The applicant has not established that he was unfit in the requisite sense to give evidence at the time of the Tribunal hearing. The complaint in proposed ground 1 is without merit.

Proposed ground 2 31 The applicant complains that there was no evidence that he was not threatened. This too lacks merit. The Tribunal does not have to possess rebutting evidence before holding that a particular assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348. 32 To the extent that this proposed ground seeks to challenge the factual findings of the Tribunal, this is not permissible. Neither jurisdictional error in the Tribunal's decision nor legal error in the reasons for judgment of the primary judge, are capable of being established.

Proposed grounds 3 and 4 33 Proposed grounds 3 and 4 amount also to an impermissible merits challenge. The Tribunal's findings were open to it for the reasons which it gave. A finding on credibility is the function of a primary decision-maker par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). 34 Here, these adverse findings by the Tribunal were cumulative, as I set out earlier in these reasons: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [69]). 35 No relevant legal error in the judgment below or jurisdictional error by the Tribunal has been identified nor are any evident on the papers before me. 36 The judgment below is not attended by sufficient doubt to warrant the Court exercising its discretion to grant the applicant leave to appeal.

Orders 37 The application for leave to appeal will be dismissed with costs. I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.