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[2021] FCA 926
Federal Court of Australia
2021-08-06
Stewart J
Original judgment source is linked above.
Introduction 1 The applicant is a 30-something year old citizen of India and a follower of the Sikh faith. He is from near the city of Amritsar in the state of Punjab where the splendid Sikh Golden Temple, or Harmandir Sahib, is located. 2 The Golden Temple is well-known at least in part because in June 1984 the Indian government ordered the army to eject the Sikh separatist leader Jarnail Singh Bhindranwale and his followers from the Golden Temple where they had holed-up. The offensive was known as Operation Blue Star. The army bombarded the Golden Temple complex inflicting great damage and killing many people. In retaliation, two of the then-Prime Minister Indira Gandhi's Sikh bodyguards assassinated her in October 1984. That led to further conflagration and deaths. That conflict forms the historical backdrop to the present proceeding. 3 The applicant first arrived in Australia in May 2009 as a dependent on his now former-wife's student visa. The applicant was granted student visas in subsequent years. 4 The applicant was refused a Regional Employer Nomination (subclass 187) visa in October 2017. He became an unlawful non-citizen when his bridging visa expired in September 2018. In January 2020, he was remanded in custody on criminal charges. He then applied for the protection visa that is the subject of this proceeding. The criminal charges were quickly finalised and the applicant was transferred to immigration detention where he remains. 5 The applicant's claims for protection were as follows: (1) His father was killed in 1991 because of his high profile in the community and the significant disruption in Punjab that existed in the aftermath of the Operation Blue Star attack on the Golden Temple in 1984. (2) When the applicant was in high school, he started making inquiries with the police about what had happened to his father, and the police harassed and threatened him as a result. (3) The applicant's extended family were affluent and influential and were affiliated with the Akali Dal Party. He believed that these family members were the people who had been causing problems for him and his immediate family with the authorities. (4) The applicant also claimed that one of the prison guards in Australia was linked to a criminal group, had a high profile and was linked to the Punjab Police network. The applicant claimed that the guard had created a false case against him in India. 6 On 5 March 2020, a delegate of the Minister refused to grant the applicant a protection visa. The delegate "seriously question[ed] the authenticity of the applicant's claims and the level of harm feared by the applicant overall" in circumstances where the applicant had returned to India multiple times since his initial arrival in Australia. The applicant's 11-year delay in applying for a protection visa was also a matter of concern to the delegate. The delegate ultimately concluded that the applicant would have sought asylum much earlier if he had a genuine fear of persecution. 7 On 27 March 2020, the applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision. The applicant subsequently attended a hearing of the Tribunal with the assistance of his representative and an interpreter. On 30 June 2020, the Tribunal affirmed the decision under review. 8 The Tribunal summarised relevant country information before it concerning Operation Blue Star in the 1980s and the situation for Sikhs after that time. It ultimately concluded that there was no evidence to indicate that the fractious situation between the State of India and the Sikh population in Punjab continued much into or past the 1990s. 9 The Tribunal recorded its questioning of the applicant at the hearing about why a pro-Sikh party, the Akali Dal Party, would have his father killed in circumstances where the applicant's father was a Sikh, and also why the applicant believed that the Akali Dal and Congress Party worked together in this regard given that country information indicates that the two parties opposed each other. The Tribunal found that the applicant's evidence on this topic was "confused, implausible and fanciful". It concluded that the applicant had invented his claims about the Akali Dal Party and distant relatives having had an involvement in his father's death. 10 The Tribunal accepted that the applicant's father was opposed to Operation Blue Star and that he disappeared in July 1991. However, the Tribunal did not accept that the applicant or his middle brother were tortured by the police. The Tribunal also did not accept the applicant's claims that he was framed by the Indian police prior to his departure in 2009 as claimed in circumstances where he repeatedly and voluntarily returned to his family who remained in Punjab. It also did not accept that the applicant ever investigated his father's death nor that he repeatedly questioned the police about it. It did not accept that he was threatened or intimidated because he was his late father's eldest son. 11 The Tribunal ultimately found that the applicant's visa application was disingenuous in circumstances where he did not apply for protection until long after his first arrival in Australia, returned many times to India, and then only applied when he was detained and potentially placed on a removable pathway. 12 In August 2020, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. The application contained four grounds, namely: (1) Ignoring materials the decision-maker was required to look at; (2) Not adopting a fair process in making the decision; (3) Reaching a decision that is unreasonable; and (4) Incorrectly interpreting or applying the law. 13 The application was heard by the primary judge on 26 November 2020. His Honour dismissed the application with costs for reasons given in an ex tempore judgment delivered at the conclusion of the hearing.
The present proceeding 14 The applicant applies for an extension of time in which to appeal from the judgment of the Circuit Court. He also seeks leave to argue a ground of jurisdictional error by the Tribunal which was not argued before the Circuit Court. 15 Matters relevant to whether an extension of time should be granted include the length of the delay, the explanation for the delay, the merits of the substantive application, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension of time is granted and any relevant public interest considerations: Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at 520-522 and 542-543; AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129 at [3]. 16 The period of delay in the present case is 34 days. The applicant was in immigration detention during that time and self-evidently found it difficult to get assistance in filing an appeal. He made efforts to file the appeal within the requisite time period, there having been communications between him and the registry of the Court on that subject in that time period. Rather than dealing in any more detail at this stage with the applicant's explanation for the delay and any questions of prejudice, I propose to move directly to consider the merits of the prospective appeal.
The prospective appeal 17 The applicant's proposed ground of appeal is expressed as follows: The Second Respondent (Tribunal) made a jurisdictional error by failing to consider evidence that there was a risk of harm to the Appellant from State actors in the present day. Particulars a. The letter from Paramjeet Khalra dated 18 February 2020 contained evidence that there was a risk of harm to the Appellant from State actors in the present day. b. The Tribunal overlooked or failed to engage in an active intellectual process with this evidence. 18 Although it is said that this is a new ground of review, on one view it might be thought that this ground falls within the broadly stated ground referred to in [12(1)] above. In any event, that question can be put to one side for now. 19 The applicant submits that the Court ought to draw the inference that the Tribunal overlooked or failed to actively engage with evidence, being particular evidence in the letter referred to in the particulars to the ground of appeal. The applicant submits that the letter is evidence that there is a risk of harm to the applicant from State actors in the present day. 20 The applicant submits that although the Tribunal referred to the letter, it never expressly addressed the letter as being evidence of present-day risk to the applicant if he returns to Punjab, which risk was relevant to the applicant's claim to fear harm as a member of his late father's family. 21 The letter in question gives some background to the disappearance of the applicant's father in 1991 and what it refers to as the extra-judicial killing by State security forces of 25,000 Sikhs in and following Operation Blue Star. Insofar as any present-day risk to the applicant is concerned if he were to return to Punjab the letter states: After [the applicant's father's] disappearance his family suffered a lot from police brutality and police used threats and intimidation to silence his family. To this day Indian government is repressing religious minorities and treats them as second class citizens. Till today any mention of [the applicant's late father's] disappearance is enough to warrant state's warth. … He won't be able to live normal life in his native village as conditions are getting worse under Hindu nationalist government. [sic] 22 The letter is referred to by the Tribunal in several places in its reasons, namely at [23], [24], [45] and [70]. There is therefore no basis to infer that the Tribunal overlooked the letter. The applicant's submission is, rather, that the Tribunal overlooked the letter as evidence of present-day risk. 23 The Tribunal dealt carefully and at length with the question of present-day risk. In that context, at [70], it discussed the letter. That discussion included the following: On the evidence before me, however, I give weight to the words of the witness who is patrol [sic, should be patron] of the Khalra Mission Organisation, being that [the applicant's] father was "one of thousands of unlucky Sikhs who were killed and disposed of by Indian Security forces." Independent evidence indicates that the 1980s and 1990s saw a lot of revenge killings with people in and out of uniform taking the law into their own hands. Significantly, I give weight to the lack of evidence of the conflict between Sikhs and [sic, should be in] the state in Punjab and India generally having continued much past the 1990s. In particular, I give weight to the evidence, cited earlier, to the effect that issues and political concerns in Punjab have moved well away from the old pro-Khalistan issue. I also give some weight to the evidence of [the applicant] who tended to say that what happened to his father was what "used to" happen. 24 The evidence that is said in that paragraph to have been "cited earlier" is at [38] of the Tribunal's reasons. There, a Department of Foreign Affairs and Trade Country Information Report on India is quoted at some length. That report, after citing the historical events surrounding the attack on the Golden Temple in 1984 and the subsequent conflagration that led to the death of approximately 3,000 people, mostly Sikhs, stated the following: Sources agree that, since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence. Sikhs who advocate for an independent 'Khalistan' may be subject to attention by authorities. DFAT assesses that Sikhs in India generally face a low level of official and societal violence and discrimination. 25 With reference to [70] of the Tribunal's reasons, quoted at [23] above, the applicant submits that the Tribunal's reference to there being a "lack of evidence" of the conflict having continued much past the 1990s must be understood as the Tribunal saying that there was no such evidence, rather than that there was insufficient such evidence. Since, on the applicant's submission, there was some evidence on that point, a statement of there being no evidence is itself evidence of the Tribunal having overlooked the evidence that was there, namely the identified statements in the letter. 26 In context, the reference to there being a lack of evidence on the point cannot be understood as being a statement that there was no evidence. That is because the Tribunal expressly referred to the letter in question in several places, including in the particular paragraph of its reasons in which the "lack of evidence" statement is made. Also, the Tribunal concluded (at [77]) that it did "not accept on the evidence overall that [the applicant] was threatened or intimidated for reasons of being his late father's eldest son." The verbs "threat" and "intimidate" are the very verbs used in the letter in question. By rejecting the evidence of threats and intimidation, the Tribunal was expressly rejecting the very evidence which the applicant submits that the Tribunal overlooked. 27 Thus, the Tribunal's statement that there was a "lack of evidence" with regard to the conflict of the past continuing in the present is to be understood as a statement that there was a lack of cogent evidence on that point. That is particularly so, as the Tribunal explained, in the light of the evidence that there was in support of a conclusion that the conflict in question has not continued much past the 1990s. 28 The approach of the Tribunal was to weigh-up the evidence relevant to the question of present-day risk. That clearly included what the patron of the Khalra Mission Organisation said in the letter. However, with reference to other evidence the Tribunal concluded, contrary to the bald statement in the letter, that the applicant does not face present-day risk in Punjab. The weighing up of that evidence was entirely a matter for the Tribunal. I am not satisfied that it overlooked the evidence that the applicant relies on. There is accordingly no basis for a conclusion that the Tribunal made any jurisdictional error. The prospect of successfully contending that it did is at best remote. 29 In the circumstances, the applicant's prospective ground of review, and hence appeal, has no merit. There is therefore no basis to grant him an extension of time to file an appeal. In the exercise of my discretion, his application should be dismissed.
Costs 30 There is no apparent basis upon which the Minister should not have the costs of the proceeding. The Minister has sought a lump sum costs order in the amount of $4,500 on the basis that that amount is significantly less than the amount that can be claimed in a Short Form Bill for an appeal involving a migration decision that is dismissed after hearing, namely $7,241 (Federal Court Rules 2011 (Cth) r 40.43, Sch 3 item 15). The applicant accepted that in the event that his application was dismissed, that would be an appropriate costs order. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.
DQO20
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs