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[2021] FCA 1308
Federal Court of Australia
2021-10-28
Nicholas J
Original judgment source is linked above.
Background 1 Before me is an appeal from a decision of the Federal Circuit Court of Australia of 15 February 2021 dismissing an application for judicial review of a decision of the second respondent (the Tribunal) of 16 October 2020. By that decision the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) ("the Act"). 2 The Tribunal was satisfied that the appellant is an Indian citizen and his protection claims were assessed by it on the basis that India is the appellant's receiving country. The Tribunal found that the appellant is of Sikh ethnicity and religion, and speaks, reads and writes English, Punjabi and Hindi. It also found that the appellant's mother, father and sister reside in India. It also found that the appellant resided in Kurukshetra in Haryana from 1994 until 2014 when he left to travel to Australia. 3 The appellant's case before the Tribunal was that if he were to return to India he would be killed by the family of his roommate who committed suicide. According to the appellant, his roommate committed suicide the day before they were scheduled to appear in court after being charged by the police with possessing inappropriate material. The family of the deceased roommate communicated various threats directed at the appellant to his parents in India and said that the appellant would be killed if he were to return. 4 The delegate refused to grant the appellant a protection visa on the basis that although there was a risk of significant harm to the appellant in his home area in India, that risk was not present in other parts of India, and it would be reasonable for the appellant to relocate to another part of India. 5 The Tribunal was satisfied that members of the deceased roommate's family believed that the appellant had some involvement in his death. It was also satisfied that there had been intimidating and threatening approaches made to the appellant's family in India by a person associated with the deceased roommate's family seeking information as to the appellant's whereabouts and threatening him with harm should he be located. 6 The Tribunal said that it agreed with the assessment of the delegate that the appellant faces a real chance of serious or significant harm from the family of the deceased roommate or individuals associated with them who believe that the appellant is somehow responsible for his roommate's death. 7 The Tribunal noted in its reasons at [34]: As with the delegate, the key issues for the Tribunal's consideration and decision is whether the real chance of serious harm applies to all parts of India (for the purpose of the refugee criterion) and, if not, whether it would be reasonable for the applicant to relocate to a different part of India to avoid the real risk of significant harm (for the purpose of the complementary protection criterion). 8 These issues were determined against the appellant. The Tribunal was satisfied it would be reasonable for the appellant to relocate if he were to return to India and that he would not face a real chance of serious harm in all parts of India. 9 The appellant's notice of appeal contains four grounds of appeal. In his written submission, grounds 2, 3 and 4 were abandoned leaving only ground 1 which is in the following terms: The Court erred in finding there was no error of law in the Second Respondent's failure to have regard to the Appellant's individual characteristics in assessing his protection claim. 10 Of the various matters relied upon by the appellant before the primary judge, relevant to this appeal is the submission that the Tribunal failed to take into account the appellant's individual circumstances or individual characteristics in assessing whether the appellant would be persecuted in all areas of India. 11 The primary judge rejected this submission at [31]-[32] of his reasons: [31] It is apparent from the Tribunal's reasons that the Tribunal expressly referred to the applicant's individual circumstances and individual characteristics as referred to above. There was no particular claim that was advanced that required the Tribunal to make further express reference to the applicant's individual characteristics. There is no basis to find that the Tribunal failed to have a genuine intellectual engagement with the applicant's claims and evidence in relation to whether the real chance of persecution to the applicant related to all areas of India. [32] Further, it is apparent that the Tribunal took into account the massive size of the geographic area of India, its enormous population and the many large cities, which were logical and rational matters open to the Tribunal to take into account and support the adverse findings made. No jurisdictional error as alleged in Ground 1 is made out. 12 On appeal, the appellant submitted that the Tribunal failed to consider the appellant's Sikh ethnicity and religion in the context of relocation. I will return to consider this submission in more detail shortly. Before doing that, I should refer to what the Tribunal said when considering whether the appellant met the refugee criterion under s 36(2)(a) when read in light of s 5J(1)(c) of the Act, namely whether the appellant faced a real chance of persecution in all parts of India. The Tribunal said at [44]: Considering all of the evidence including that of the applicant, the Tribunal is not satisfied that the applicant would be located by [the deceased roommate's] family in a large city in India, given the geographical size and enormous population of India. The Tribunal is not satisfied that the political connections of [the deceased roommate's] family extend to obtaining information from police/authorities in either local or other parts of India as to the location of the applicant in terms of information he may need to provide for residence purposes. 13 In the context of considering complementary protection under s 36(2)(aa) of the Act and the appellant's relocation options, the Tribunal also said in relation to the appellant's circumstances at [48]-[61]: [48] In terms of relocation options under this criterion, there is taken not to be a real risk that the applicant will suffer significant harm if it would be reasonable for him to relocate to an area of the country where there is not a real risk of significant harm. Reasonableness must be determined in the sense of what is practicable. [49] Thus, the Tribunal needs to consider whether it would be reasonable for the applicant to relocate. As indicated, the delegate provided the applicant to give reasons as to why it would not be reasonable for him to relocate, particularly to a big city such as Delhi or Mumbai. [50] As discussed with the applicant in the hearing, the DFAT assessment in relation to relocation in India assesses that there are a wide range of viable internal relocation options in India to those seeking to escape localised harm. It is noted that these options may be more limited for individuals depending on their personal circumstances. [51] As discussed with the applicant in the hearing, the circumstances of the applicant would not seem to suggest significant impediments to his ability to relocate to a large city in India. The applicant has referred to language difficulties, but he speaks Hindi, Punjabi and English. He has completed secondary education and tertiary studies, including a Diploma of Management, an Advanced Diploma of Management, a Certificate IV in Marketing, a Diploma of Marketing and a partially completed a Bachelor of Business, which would enhance employment opportunities. In addition, the applicant's family in India would appear to have resources to support the applicant, given their financial support of him during his studies in Australia. The support of the applicant's family would be available to seek to overcome practical hurdles in the applicant relocating to another area within India. Further, the fact of the applicant travelling to Australia at the age of 19, a new and foreign country where he has lived for over six years, would suggest a resilience and independence of the applicant to make a life of his own, apart from his family. [52] As indicated in the DFAT assessment, India is a multilingual and multi-ethnic nation. Specific independent information cited by the delegate refers to Sikhism being a religion practised in Mumbai. The delegate's decision also cites independent information indicating that Sikhs living in states outside Punjab would not be prevented from accessing employment or housing on the basis of their religion, particularly if they are skilled and educated. [53] The applicant has indicated that relocation hurdles would include him not having an identity card in the local language or a birth certificate indicating that he was born in the area. As put to the applicant in the hearing, the Tribunal, in the absence of independent information, and noting the DFAT indication of widespread internal movement in India, does not consider that these are actual or practical hurdles to relocation. [54] The applicant also referred to difficulties renting housing. The applicant has provided a media report indicating difficulties for Muslims renting houses in Mumbai. The delegate cites independent information indicating the need for compulsory tenant registration in Delhi, but notes that this is not always the case. As put to the applicant in the hearing, the Tribunal would not be inclined to consider there was a risk to the applicant as a result of having to register for housing. [55] In any event, as put to the applicant, the delegate cites information which suggests that in some cities, such as Mumbai, half the population live in informal settlements. Elsewhere in the same report it is stated that in a number of cities, including Chennai, Hyderabad, Kolkata and Mumbai, more than 50% of all households live in informal settlements. It was put to the applicant in the hearing that the applicant could live in an informal settlement obviating the need for more formal requirements for housing, if that was necessary. In addition, the applicant could rent a room in an established premises. In response, the applicant indicated that he would eventually have to reveal his identity details to local authorities, and at this point this would enable [the deceased roommate's] family to locate him. [56] As indicated, the Tribunal is not satisfied that [the deceased roommate's] family would have this ability through political connections. [57] During the discussion that took place with the applicant in the hearing in terms of reasonableness, the applicant significantly responded by turning to his claims that [the deceased roommate's] family would have the ability to track him down wherever he resided in India. [58] The Tribunal sought to explore with the applicant that if the Tribunal were not to accept that [the deceased roommate's] family had the ability to track him down and harm him all over India, whether he was otherwise claiming that it would be unreasonable for him to relocate. [59] Eventually, the applicant indicated that it would be unreasonable referring principally to language concerns and difficulty obtaining a job. Given that the applicant speaks three languages utilised in India, and has a number of tertiary qualifications, the Tribunal is not satisfied that it would not be reasonable for the applicant to relocate within India because of language or difficulties obtaining a job. The Tribunal is not satisfied that it would otherwise not be reasonable for the applicant to relocate. [60] Thus, there is not taken to be a real risk that the applicant will suffer significant harm in India because it would be reasonable for the applicant to relocate to a part of India where there would not be a real risk of significant harm (s.36(2B)(a)). This would include a large and populous city such as Mumbai or Delhi. [61] Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that he will suffer significant harm.
The Parties' Submissions 14 In this Court the appellant submitted that a critical component of his claim was the ability of his deceased roommate's family to locate him in all parts of India. He submitted that in order to properly consider that claim, the Tribunal was required to consider whether or not relocation prevented the family from being able to locate him thereby ameliorating the real risk of serious or significant harm. He submitted that the individual characteristics that the Tribunal failed to consider in assessing the appellant's protection claim was his Sikh ethnicity and religion and that, despite the geographical size of India and its population of some 1.3 billion people, the Sikh population was relatively small (approximately 19 million out of a total population of 1.3 billion). 15 The appellant further submitted that the Tribunal failed to take into account the fact that a Sikh man would be much easier to track down and identify than someone who belonged to one of the more populous ethnic and religious groups. In the appellant's submissions reference was made on more than one occasion to the possibility that the deceased roommate's family might engage someone (the word used was "hitman") to track the appellant down and kill him. Reference was made to a written statement made by the appellant which was provided to the Tribunal that the deceased roommate's family "can hire anyone to kill me". 16 In his written submission the appellant placed particular reliance on the following passage in the judgment of Greenwood J in SZTSC v Minister for Immigration and Border Protection [2017] FCA 1032 at [78]: The Tribunal recites the fact that the appellant was injured by a mine and lost his left leg from the knee down in 1995 during the civil war. The Tribunal also described that injury as a "very serious" one. Other references in the material before the Tribunal refer to the injury and give emphasis to it. I accept that there was no obvious or expressly identified claim before the Tribunal that the appellant's disability made him vulnerable either to serious harm or significant harm within the complementary protection criterion. However, it seems to me, that there is enough material before the Tribunal to warrant the Tribunal considering in its reasoning the implications of the appellant having suffered a very serious injury and being reliant for his mobility in protecting himself, upon a prosthetic leg. I cannot see that consideration weighed in the reasoning leading to the Tribunal's conclusions. 17 The appellant also relied on the decision of the Full Court in GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at [32] (Flick, Griffiths and Moshinsky JJ) in which the Court reviewed some of the well-known authorities concerning the consideration that a Tribunal is required to give to a claim made by an applicant, or a claim squarely arising from material relied upon by an applicant, in the context of an application for a protection visa. 18 The appellant submitted that while his protection claims did not arise from his ethnicity and religion, the fact that he was a practicing Sikh was plainly relevant to the question whether his deceased roommate's family would be able to track him down. This is because he is a member of a relatively small religious and ethnic minority who tend to congregate together and regularly visit particular places of worship. 19 In his submissions the appellant emphasised that he was not represented before the Tribunal and that this is a matter that should be taken into account when considering whether the claim or issue now raised by him was squarely raised in the material before the Tribunal. In effect, the appellant submitted that in assessing whether claims were made either by way of a clearly articulated representation or on the basis that they clearly emerged from the material before the Tribunal, the Court should be sympathetic to the difficulties faced by the appellant for whom English is not a first language and who may not have had the skills necessary to present his case in a focused and clearly articulated manner. 20 The Minister did not contest this last submission but contended that, whatever one might say about the claims that were articulated by the appellant, the issue of the appellant's ethnicity or religion as potential avenues allowing the deceased roommate's family to locate the appellant wherever he may be in India was not squarely raised on the material before the Tribunal. 21 The Minister submitted that the appellant did not make any claim or representation before the Tribunal that the fact that he was a practicing Sikh was relevant to him being tracked down by the deceased roommate's family or the ability of any other person engaged by them (eg. a "hitman") to do so with a view to killing the appellant. The Minister submitted that the appellant's claims to the Tribunal on this issue were confined to a series of representations made by him as to the extent of the deceased's family's political connections and the ability of them to enlist the assistance of police or other authorities. 22 The Minister emphasised the requirement in the authorities that, in the absence of a substantial clearly articulated claim or representation to the effect that the appellant's ethnicity or religion would make it easier for the deceased roommate's family to locate him, it was necessary that the claim or representation clearly emerge from the material before the Tribunal. The Minister referred to AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (Collier, McKerracher and Banks-Smith JJ) where the Court referred at [31] to the fundamental threshold requirement that such a claim or issue "clearly emerge" from the material before the Tribunal: see also NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 ("NABE") at [58] and [68].
Consideration 23 The authorities show that the Tribunal is required to engage in an active intellectual process and to give meaningful consideration to any clearly articulated and significant claim or representation made in support of his protection visa application. The Tribunal must also do the same in respect of any significant claim, representation or issue that clearly emerges from the material before it. But as the Full Court in NABE noted at [68], a judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly made. 24 It is accepted by the appellant that he did not make any explicit claim or representation to the effect that his Sikh ethnicity and religion would make it easier for the deceased roommate's family to track him down in India if he were to relocate from Haryana to another part of the country. The Tribunal specifically requested that the appellant provide reasons why he may find it unreasonable to relocate to either Delhi or Mumbai. In his written response he said that it would be easy for the deceased's family to locate him because "… they have relatives everywhere in India …". Similar statements were made by the appellant at the hearing before the Tribunal. At the hearing before the Tribunal, he maintained that the deceased's family had significant political connections which would allow them to track him down wherever he was located in India. This argument was not accepted by the Tribunal which said that it was not satisfied that the deceased roommate's family would be able to track down the appellant through either their political connections or their relatives. The Tribunal considered that, given the size of India, it could not be satisfied that the family's influence was so extensive. 25 The appellant relies on the ability of the family to engage a person (eg. a "hitman") to locate and kill him, a task he now says would be made easier by knowing that the appellant is a practicing Sikh and is therefore likely to live in an identifiable community and regularly visit particular places of worship. In effect, the appellant says that the Tribunal's reasoning in [36] is undercut by the fact that the appellant is part of a readily identifiable ethnic and religious minority which would make it easier for the family or its agents (including a "hitman") to track him down. 26 In my opinion the Tribunal was not required to consider whether the appellant's status as a Sikh man made it more likely that he could be found if he returned to India. The appellant's contention, before the Delegate and the Tribunal, was that the deceased roommate's family had an extensive network of political and familial connections which could be deployed for the purpose of tracking down the appellant. That contention did not rely on the appellant's status as a Sikh man. His status as a Sikh man was a matter raised by the Delegate who had referred to the possibility that the appellant might experience discrimination on ethnic and religious grounds if he relocated within India. 27 The Tribunal was not satisfied that, given the large size and enormous population of India, it was reasonably likely that the appellant would be found were he to relocate away from Haryana. No doubt the appellant has a range of other identifying characteristics apart from being a Sikh man that may distinguish him from other residents of India including his name (which is known to the deceased roommate's family along with the name and whereabouts of his parents). He is also multi-lingual and relatively well-educated. In the absence of a clearly articulated claim, the Tribunal was not obliged to consider whether each and every one of those characteristics, either individually or in combination, materially affected the likelihood of him being found by the deceased roommate's family. More particularly, the possibility that the appellant's status as a Sikh man would materially increase the likelihood of the deceased roommate's family finding him in a large city such as Mumbai or Delhi did not emerge sufficiently clearly to require the Tribunal to consider it.
Disposition 28 The appeal will be dismissed. The appellant must pay the first respondent's costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.
EVQ20
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs