CVD19 v Minister for Immigration, Citizenship and Multicultural Affairs

B. The appellant's claims for protection 6 The appellant's claims for protection were conveniently summarised by the primary judge at J[2]: The applicant is a citizen of India born in May 1984. He first arrived in Australia in May 2015 as the holder of a Business Visitor visa. On 10 August 2015, he applied for a protection visa. In support of his application, the applicant claimed, inter alia, that: a) in July 2005, the applicant was engaged in a fight with a Hindu Ikyavedi (HI) activist (Prasad) about the applicant having damaged a HI flag. After the fight, Prasad threatened that HI members would kill the applicant. He was then told by a friend that HI members had weapons, were looking for him, and were throwing stones at his house. The police also came looking for the applicant. Four or five days later, he surrendered to the police and was bailed. The applicant was found innocent of charges laid against him in 2007; b) two months later, the applicant was hurt when he was returning from a wedding. Prasad was present and threatened the applicant. The applicant made a complaint to the police, and he suffered difficulties. He then left India; c) later in 2008, he returned to India, but was harmed by HI members again. He was not harmed for another two years, but in 2011, Prasad again harmed him and his passport was taken; d) the applicant was married in July 2011. After this, he and his brother were again harmed by HI members. He was then living in Mumbai for a period of time and returned to Kerala, where he lived without issue between November 2012 and December 2013. In the new year, the applicant was attacked by Hindu persons. He returned to Mumbai, but was again harmed. He then returned to Kerala in July 2014, but was again attacked by HI and was hospitalised. The applicant then went to Japan, after his wife had given birth. He sought asylum in Japan, but was not allowed to enter the country; and e) the applicant then travelled to Australia. After his arrival, the Bharatiya Janata Party (BJP) killed an 8 year old child in Kerala.

C. The Tribunal's decision 7 The Tribunal provided methodical, detailed and comprehensive reasons for its decision. However, for present purposes, it is sufficient to set out the primary judge's summary of the Tribunal's reasoning (at J[4] to [11]): [4] The Tribunal commenced its reasons by summarising the relevant background, the applicant's claims, and the evidence before it. It also observed that there was a s.438 Migration Act 1958 (Cth) (Migration Act) certificate before it, but that the certificate was not valid and that the documents covered by it were not relevant to the review. [5] The Tribunal held concerns about the applicant's claims and evidence which "raise[d] serious doubts about his credibility". It was not satisfied that he gave a "full and frank" account of his activities in Kerala. The Tribunal found that his account of the harm he suffered from Hindu activists was "improvised ... and lacking credibility". The Tribunal also considered that the applicant's conduct and experiences after 2007 raised credibility concerns. The Tribunal explained that it had "significant doubts" about the truthfulness of the applicant's claims and his need for protection. [6] The Tribunal did not accept that the applicant was involved in the 2005 flag incident, or that he or his family were subject to threats and violence as a result. It did not accept that the applicant was subject to threats or intimidation from Prasad, or other Hindus, from July 2004 to March 2007. It accepted that the applicant had been charged with inciting unrest in 2005, but found that he was acquitted in 2007 when the key witness stated that it was a case of mistaken identity. [7] In light of credibility concerns it held about the applicant's claims, the Tribunal did not accept that Prasad had stopped the applicant shortly after his acquittal, physically harmed the applicant and had taken his passport and documents. It also did not accept that the applicant reported this incident to the police, or that Prasad caused the applicant difficulties before he left for Malaysia and South Korea. It further did not accept that the applicant travelled to Malaysia and South Korea in response to any genuine fear of harm. In relation to the applicant's claim to have been harmed in July 2008, the Tribunal did not accept that this had occurred, and did not accept that Prasad, or anyone connected to him, had an adverse interest in the applicant at this time. [8] The Tribunal did not accept that, in May 2011, Hindu activists pulled the applicant and his brother over, assaulted them, and stole their passports. It did not accept that HI members broke the applicant's car windows in July 2011, or that his move to Mumbai, in 2012, was because he feared harm from HI in Kerala. It further did not accept that the applicant had been assaulted in Kerala in July 2014. [9] The Tribunal summarised its findings at [99]-[103]. It explained that it had accepted the applicant's claim to be Muslim and to have faced criminal charges in 2007 for inciting unrest, but that it had concluded that the charges were a case of mistaken identity, with no further consequences. The Tribunal rejected all the applicant's other claims of past harm, and also did not accept that, since he had arrived in Australia, BJP party members in India had been looking for him. [10] The Tribunal concluded that the applicant did not face a real chance of serious harm from his 2007 trial and acquittal. It also found that the applicant was not of any adverse interest to Prasad or Hindu activists, including after 2007. It accepted that the applicant may have suffered in the past some degree of discrimination as a Muslim in India but did not accept that this amounted to persecution. [11] The Tribunal concluded that the applicant did not satisfy s.36(2)(a) of the Migration Act. In reliance on its earlier findings, the Tribunal also did not accept that the applicant met s.36(2)(aa) of the Migration Act. The Tribunal thus affirmed the delegate's decision.

D. The application to the primary judge 8 Before the primary judge, the appellant advanced the following three grounds of judicial review (as written): 1. The Tribunal constructively failed to exercise its jurisdiction. 2. Adverse credibility finding. 3. The Tribunal had failed to investigate the claim. 9 The primary judge dismissed each of these grounds (J[15] to [19]).

E. The proposed grounds of appeal 10 The appellant does not call in aid of his appeal any of the grounds upon which he relied before the primary judge. Instead, he propounds the following grounds of appeal (as written): 1. The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The Hon. Judge ignored the Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to India under current BJP government. 3. The Hon Judge did not consider the second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. Particular: The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act. 4. The Federal Judge failed to consider that the Tribunal had no jurisdiction because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act. 5. The learned judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

The need for leave to rely upon the grounds of appeal 11 As the appellant seeks to raise, as grounds of appeal, alleged errors by the Tribunal that were not the subject of the application for review before the primary judge, he requires the leave of the Court: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11] (Siopis, Flick and Katzmann JJ). 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] to [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] per Kiefel, Weinberg and Stone JJ, and Francuziak at 335 [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). 12 I turn now to consider the merits of the proposed grounds of appeal.

The grounds of appeal generally 13 As is apparent, the grounds of appeal are in a "template" form. Importantly, they provide no identification of the part(s) of the decision of the Tribunal or the primary judge which are contended to be erroneous; and no other form of meaningful particularisation. The failure to particularise such a ground is itself a sufficient basis to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] (Perram, Derrington and Stewart JJ). Nevertheless, in recognition of the fact that the appellant is unrepresented and in deference to the submissions provided by the Minister, I address below further points specific to individual proposed grounds of appeal.

First proposed ground of appeal 14 By his first proposed ground of appeal the appellant contends that the primary judge failed to consider that the Tribunal: (1) acted in a manifestly unreasonable way when dealing with the appellant's claim; and (2) ignored the aspect of persecution and harm in terms of s 91R of the Migration Act 1958 (Cth). 15 As to (1), the appellant has not identified how his claim was dealt with unreasonably by the Tribunal. As to (2), s 91R of the Act was not in force at the time that the Tribunal made its decision, having been repealed with effect from December 2014 by dint of the Migration and Maritime Powers Legislation Amendment Act (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). Prior to its repeal, s 91R provided: 91R Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(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 physical 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 the 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. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 16 The Minister, quite fairly, has treated this ground as if it were a contention that the Tribunal failed to consider the appellant's protection claims in accordance with s 36 of the Act. 17 However, this ground must fail. The Tribunal carefully addressed the criteria specified in s 36 of the Act. This is sufficiently evident from the primary judge's summary of the Tribunal's reasoning (see [7] above). It is beyond doubt when regard is had to the Tribunal's detailed reasons.

Second proposed ground of appeal 18 By his second proposed ground of appeal, the appellant contends the primary judge ignored that the Tribunal "misconstrued the risk and fear of significant harm as set out in s36(2A)". This contention is of no merit in circumstances where the nature of the contended misconstruction has not been identified and where there is no misconstruction evident in the reasons of the Tribunal. At T[115] to [117], the Tribunal stated: 115. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to India. 116. The Tribunal takes into account the above findings of fact; its view of the applicant's future conduct; and country information about general conditions in India. It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to India. 117. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm: s.36(2)(aa). 19 In doing so, the Tribunal relied on the factual findings it had made in relation to its assessment under s 36(2)(a) of the Act, as it was entitled to do: see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] (Robertson J); BCX16 v Minister for Immigration and Border Protection [2019] FCA 465; (2019) 164 ALD 313 at 318 [23] (Charlesworth J). 20 The second part of the proposed second ground of appeal suggests that "[t]he Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns (sic) to India under current BJP government". The risks and fears faced by the appellant were a question of fact (rather than a question of construction) and that question of fact was dealt with thoroughly by the Tribunal in a manner which discloses no jurisdictional error. It is, of course, not part of this Court's role to review the factual findings made by the Tribunal outside of any relevant ground of jurisdictional error.

Third proposed ground of appeal 21 By his third proposed ground of appeal, the appellant contends that the primary judge did not consider that the Tribunal failed to comply with s 424A (read with s 424AA) of the Act. The appellant has not identified any particular information the Tribunal was required to invite the appellant to comment on or respond to. There is also no evidence making good the suggested failure to provide notice. This ground must also be rejected.

Fourth proposed ground of appeal 22 By his fourth proposed ground, the appellant contends that the primary judge failed to consider that the Tribunal had no jurisdiction because its "reasonable satisfaction" was not arrived at in accordance with the Act. The appellant has not identified a particular conclusion of "reasonable satisfaction" or indicated how it was not reached in accordance with the Act. Further, as noted above, the Tribunal's reasons demonstrate no error in its conclusion that it was not satisfied that the appellant met the requirements set down in s 36(2) of the Act. This ground must also fail.

Fifth proposed ground of appeal 23 The appellant's fifth proposed ground is a contention that the primary judge dismissed his case without considering the legal and factual errors in the Tribunal's decision. Again, this contention is expressed in the broadest of terms and without providing the detail required to assess whether the Tribunal erred. It may be that it goes no further than the first four grounds. If so, it fails for the reason set out with respect to those grounds. To the extent it is intended to raise points beyond the first four grounds of appeal it fails for want of specificity.

Conclusion on the question of leave 24 The absence of merit in all of the proposed grounds of appeal means that leave to rely upon those grounds should be refused. On that basis - and without reference to other factors that might otherwise have weighed in favour of a grant of leave: see EQV20 at [25], or against such a grant, see for example Francuziak at [14], [15], [18] and [19] - it follows that the appeal should be dismissed.

F. Other matters raised by the appellant 25 The appellant made oral submissions that addressed the merits of the Tribunal's decision, including the Tribunal's non-acceptance of his evidence, and the challenges he would face if he were to be returned to India. However, as I explained to the appellant, consideration of the merits of that decision is beyond the jurisdiction of this Court. The jurisdiction of the Court below on a judicial review (and thus this Court on appeal), is confined to deciding, 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) 273 CLR 506 at 520 to 521 ([29] to [30]) (Kiefel CJ, Gageler, Keane and Gleeson JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at 171 [27] (Beach, Thawley and Cheeseman JJ). 26 For that reason, and because the application for review must address the facts as at the time the decision under review was made (EGZ17 at 171 [28]), I also refused the appellant's request that he be allowed time to provide information correcting information that he had provided to the Tribunal.

G. Conclusion 27 The appeal should be dismissed with costs. I will make orders accordingly. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.