Consideration
17 At the hearing, the appellant reiterated her personal situation with her father, whom the appellant described as very strict. The appellant outlined the situation of women in India, especially those who sought higher education, who were divorced, or who entered into love marriage or inter-caste marriages. She also stated that she had not returned to India when her mother passed away because of her family's disapproval of her. The appellant claimed that she would be killed or would commit suicide if she returned to India.
18 These submissions, however, did not address her grounds of appeal. Further, they amounted to a request for the Court to overturn the factual findings of the Tribunal, or engage in merits review, which this Court is not permitted to do in an appeal from a judicial review application.
19 In order to grant leave for the appellant to rely on fresh grounds on appeal, it must be expedient in the interests of justice for those fresh grounds to be raised: VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46], [48]. Whether it is in the interests of justice to grant leave depends on the strength of the grounds on which the appellant seeks to rely: BTM15 v Minister for Immigration and Border Protection [2016] FCA 888 at [21].
20 As to ground 1(a), namely the alleged failure on the part of the Tribunal to put to the appellant the country information it relied upon to conclude that the appellant did not face harm in India on account of being a woman, the Minister submitted, in summary:
The manner in which the Tribunal dealt with the claims raised by the appellant in relation to whether she would face harm as a woman in India was orthodox.
The Tribunal was not required to put the country information to the appellant for comment because it fell within s 424A(3)(a) of the Act.
21 Section 424A(1)(a) of the Act provides that the Tribunal must:
… give the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal would be the reason, or part of the reason, for affirming the decision that is under review …
22 However, s 424A(1)(a) is subject to s 424A(3)(a) of the Act, which provides:
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant is a member
…
23 It has been established by numerous authorities that country information falls within s 424A(3)(a) and is therefore excluded from information required to be put to the appellant under s 424A(1) of the Act. In Minister for Immigration, Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572, Merkel and Hely JJ observed:
… we are also of the view that the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it: see VHAP at [14].
(Emphasis added.)
24 The effect of s 424A(3)(a) is to require greater specificity before information must be given to the appellant under s 424A(1). In the same case, Beaumont J found at [70]:
…subs (3)(a) would have a purposive meaning which would preclude, as Parliament must have intended, a possible argument that reference to a class would be taken as a reference to all individuals falling within in.
(Original emphasis.)
25 The approach of NAMW was adopted by the Full Court in WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44]-[46], and subsequently in QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[31], VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16], and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [2].
26 The country information referred to by the Tribunal in this case contained general statements about the position of women in India. It was not about the appellant specifically, but concerned a class of persons. Accordingly, the primary Judge in this case did not err in finding that the Tribunal was not required to put the country information to the appellant as it was excluded from being subject to the requirement in s 424A(1) by operation of s 424A(3)(a). The approach of the Tribunal to the country information in the appellant's case was, as the Minister submits, orthodox.
27 As to ground 1(b), concerning whether the impact of the appellant's mental health constituted serious or significant harm for the purposes of satisfying a criterion in ss 36(2)(a) or (aa) of the Act, the Minister submitted that the Tribunal was correct in its finding that it would not constitute serious or significant harm on the basis that it did not involve the conduct of another person or persons, or a third party.
28 At the relevant time, s 36(2)(a) of the Act provided that the criterion for a protection visa under the Act was that the applicant for the visa must be "… a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The term "refugee" in art 1A(2) of the Convention relating to the Status of Refugees 1951 (the Convention), as amended by the Protocol relating to the Status of Refugees 1967 (the Protocol), applies to any person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
29 Section 91R of the Act (now repealed) at the relevant time qualified the definition of "refugee" under the Convention as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1(A)(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens that person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
…
(Original emphasis.)
30 The appellant does not claim that her depression would be the result of persecution by other persons, or that it would be the result of her race, religion, nationality, membership of a particular social group or political opinion such that the appellant would be a person in respect of whom Australia has obligations in accordance with the definition in the Convention. Further, the concepts of "persecution" and serious harm as detailed in s 91R of the Act indicated that the concern of Parliament is with acts perpetrated by others which cause the non-citizen to suffer harm. So much was also clear from s 91R(1)(c), which required systematic and discriminatory conduct. And although it is a non-exhaustive list of what constitutes "serious harm", s 91R(2) of the Act included a list of actions that could be perpetrated against the non-citizen by another person.
31 Section 36(2)(a) is thus concerned with persecution of the non-citizen by other persons for Convention reasons, and it is not directed to whether a person suffers from an illness. Accordingly, the appellant's claim that she would suffer depression upon her return to India did not address s 36(2)(a).
32 Section 36(2)(aa) of the Act specifies the complementary protection criterion, namely that a criterion for a protection visa is that the person is:
a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm …
33 Relevantly, pursuant to s 36(2A) of the Act a non-citizen will suffer "significant harm" if:
(a) the non-citizen will be arbitrarily deprived of his or her life;
(b) the death penalty will be carried out on the non-citizen;
(c) the non-citizen will be subjected to torture;
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
34 This definition is framed in terms of harm suffered by a non-citizen because of the acts of other persons. Like s 36(2)(a), s 36(2A) does not encompass the harm the appellant claims she will suffer from depression if she returned to India, just as it does not cover the harm that a person would suffer as the result of any other illness arising on the return to the receiving country.
35 In my view the Tribunal gave adequate consideration to the appellant's claims regarding her depression, as well as to a letter provided by the appellant's de facto partner expressing concerns for the appellant's mental health. The Tribunal was correct in its finding that the appellant's risk of depression upon returning to India did not satisfy the requirements of ss 36(2)(a) or (aa) of the Act.
36 The grounds on which the appellant seeks to rely do not have any reasonable prospects of success.
37 It is appropriate to dismiss the appeal with costs.
We certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.