SZVIA v Minister for Immigration and Border Protection

BACKGROUND 6 The appellants are married citizens of India. The wife only has made claims for protection, her husband to whom I refer as the second appellant, applied as a member of the same family unit. 7 The application for a protection visa was made on 22 March 2013. The appellant there claimed she was a 'Jatt Sikh'. She claimed to fear harm in her village in India because she had married the second appellant who was a 'Hindu Sikh' from another caste. In addition she claimed she would suffer harm from her community because she had been previously married and divorced while in Australia. 8 The appellant did not, however, attend an interview with the delegate of the Minister on 2 July 2013. The delegate subsequently refused the visa application on 12 July 2013. She applied for a review of the decision of the delegate on 5 August 2013 appearing with her husband before the Tribunal on 1 September 2014. 9 As noted in the Tribunal's decision (at [9]-[11]), in her protection visa application, the appellant claimed, in summary: (a) she was born in Sihan Daud, Punjab, India, in 1987 and lived at an address there up to March 2008. Her ethnicity is Sikh and her religion is 'Jatt Sikh'. She received a total of seventeen years of formal education in India, ending in April 2007. She first came to Australia on 31 March 2008 as the holder of a student visa. She married in New South Wales on 29 July 2010 and, besides her husband in Australia, lists her parents and a brother as living in India. She returned to India between 19 January and 19 March 2011 to visit her ill mother; (b) she fears physical, emotional and mental harm in her village because it will be discovered that she has married a Hindu from another caste. About 1500 of the 2000 inhabitants are Jatt Sikhs. She will be asked to appear before the Panchayat (village council). She says there are very old-fashioned and conservative people in the village who will punish her and her parents because she has broken with tradition. As she was studying abroad the community had high expectations that she would marry within her caste and bring pride to the village. Her parents have told her it is unsafe for her and her husband to live there; (c) a further difficulty is that she previously married another person, on 12 December 2008 in Melbourne. They were divorced on 11 March 2012. Not many people in the village know this but they will find out sooner or later. The community can prosecute her over it and make her life miserable. They may even try to assault her sexually; (d) the police will not protect her. They are corrupt and side with the Panchayat; and (e) she cannot relocate to another place in the Punjab because the Jatt Sikh community there would react in a similar way as the community in her village. 10 The appellant had provided media articles downloaded from the internet relating to honour killings in Punjab and elsewhere in India. 11 The Department received a submission from the appellant attaching copies of: (a) an undated one and a half page report dealing with domestic violence against women in India; and (b) further media reports, apparently downloaded from the internet, concerning honour killings and religious persecution in India.

IN THE TRIBUNAL 12 Before the Tribunal, the appellant noted that her divorce would become known in the village, but the Tribunal concluded (at [25]) that she did not claim that she would be at risk of harm for such a reason. The Tribunal was willing to accept that the appellant had married in Australia without having first gained her parents' approval. The Tribunal accepted that neither set of parents approved of the marriage. 13 The Tribunal (at [31]) was unable, however, to be satisfied that the marriage was inter-caste. 14 Additionally, the Tribunal (at [31]) was not satisfied that the marriage was of any other kind that would expose the appellant to a real chance of serious harm. 15 On that basis, the Tribunal (at [32]) was not satisfied that the appellant was a member of the particular social group 'Punjabi Sikh women in inter-caste marriages'. Rather, the Tribunal concluded (at [32]) that she was a member of a particular social group 'Punjabi women marrying against their family wishes'. In any event, the Tribunal was not satisfied (at [31]-[32]) that there was a real chance of serious harm. 16 The Tribunal also considered the complementary protection criteria. It was not satisfied (at [36]-[37]) that there would be a real risk she would suffer harm which would amount to significant harm. Further, the Tribunal found (at [38]) that there was no suggestion that either appellant satisfied s 36(2) of the Migration Act 1958 (Cth) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Tribunal found that the appellants did not satisfy the criterion in s 36(2).

BEFORE THE FEDERAL CIRCUIT COURT 17 Four grounds of review were advanced before the Federal Circuit Court. The first was that the Tribunal erred in its consideration of the appellant's claim to fear persecution as a member of a particular social group, 'Punjabi Jaat Sikh women marrying outside the Jatt Sikh religion'. Although, contrary to the assertion made in the ground, the appellants' submissions before the Federal Circuit Court asserted that the Tribunal was 'wrong' in determining that the appellant did not belong to a particular social group, namely 'Punjabi Sikh women in inter-caste marriages'. That claim was rejected on the basis that the Tribunal assessed the appellant's claim by reference to particular social groups, being 'Punjabi Sikh women in inter-caste marriages' and 'Punjabi women marrying against their family wishes. It was not required to consider the group as otherwise identified in the ground. His Honour held (at [26] and [32]) that the Tribunal's characterisation of the particular social group in its findings were reasonably open to it and did not reveal legal error. 18 Ground 2 asserted a breach of s 424AA of the Act, but no obligation was held to arise under that provision as concerns about the appellant's account (which were said to engage the obligation) was not 'information' for the purposes of s 424A of the Act and, therefore, s 424AA of the Act was not engaged. Ground 3 was not pressed. Ground 4 suggested that the Tribunal had taken into account an irrelevant consideration. That ground was also rejected at ([63]-[70]) as factually misplaced.

CONSIDERATION 19 As to the contention that the primary judge erred in finding the Tribunal made no error in its consideration of the appellant's claims, the same argument is advanced as before the primary judge. In essence, the appellant claimed a fear by virtue of her marriage to her husband (the second appellant) who was from another caste. At [24], the Tribunal said: The [appellant] claims to fear harm from her local council (Panchayat) as well as other members of Sikh society in her village because she has married person from another caste. Although she does not suggest a Convention nexus I accept she can be taken to be claiming to fear harm arising from her membership of a particular social group which might be relevantly defined as "Punjabi Sikh women in inter-caste marriages" or "Punjabi women marrying against their family wishes". I am prepared to accept that such groups can be said to exist in India as particular social groups, in the sense that they are sufficiently identifiable by characteristics or attributes common to all their members, other than a shared fear of persecution, which serve to distinguish them from society at large. 20 From this it can be seen that the Tribunal assisted the appellant in her claim. I am unable to identify any error in characterising her claim in this way, and I agree with the conclusion of the primary judge in that respect. Her evidence provided in the course of her visa application and before the Tribunal was that she was a Punjabi woman of Sikh ethnicity who feared harm due to an inter-caste marriage. 21 It is not apparent that there was any error on the part of the Tribunal in failing to characterise the appellant's claim by reference to an inter-religious marriage. Her references to marrying a person from a different religion appeared in the context of her explaining the point of difference between an aspect of the different castes, to which she claimed she and her husband belonged. She explained at the hearing that 'Jatt Sikh' followed the Sikh religion while 'Hindu Sikh' follow both Sikhism and Hinduism. The Tribunal understood that her characterisation of the two castes was by reference to religion. 22 Moreover, the Tribunal did address the overlapping concepts of caste and religion. The Tribunal (at [28]) accepted that 'caste and religion are not necessarily separate concepts in Punjab, for Sikhs or for Hindus'. However, as the first appellant had framed her claim by reference to her inter-caste marriage, the Tribunal proceeded to test her claims on that basis. It found (at [28] and [32]) that, as country information did not support the existence of a 'Hindu Sikh' caste and that the appellant's evidence did not sufficiently clarify whether she in fact married a person from a different caste, the first appellant was not a member of a particular social group consisting of 'Punjabi Sikh women in inter-caste marriages' as she had claimed. The primary judge was not in error in concluding (at [32]) that the Tribunal's finding was open. 23 As to the particular social group of 'Punjabi women marrying against their family wishes', again, the Tribunal did not err in identifying a claim arising from the appellant's membership of that particular social group. That contention was also advanced before the primary judge and was correctly rejected. The evidence advanced by the appellant was that she sought her parents' approval for the marriage and that was refused. In addition, country information considered by the Tribunal (at [19]-[22]) did note the existence of 'honour killings' where the victim married against the family wishes. The primary judge was correct in concluding (at [38]) it was reasonably open, if not necessary, for the Tribunal to consider whether the appellant could be said to face a real chance or a real risk of harm from her family or others in her village because her family did not approve of the marriage. The Tribunal considered this topic (at [30]-[31]) in its decision record where the Tribunal said: 30 I am prepared to accept that the [appellant] did seek her parents' blessing for her marriage when she returned to India in 2011 and that they refused to give it. I accept that her conduct in marrying without their agreement may well have angered them and that this reaction was exacerbated by the fact that she had previously married, also without their approval, and later divorced. I accept that their reactions would naturally have been upsetting for her and that she might well have experienced considerable emotional distress as a result. However, I am not satisfied that the harm she now fears because of these circumstances can have risen much higher than this, for the following reasons: • She does not claim that she is at any risk of physical harm from her parents, other family members or relatives. Nor is it claimed that the second-named [appellant's] family or relatives wish to harm either him or her. The risk is said to arise, instead, from the reaction of other inhabitants of her village. I note the available country information indicates that, almost without exception, it is the family members or relatives of the victims who perpetrate honour killings in Punjab. While I accept the evidence also indicates that the perpetrators are often driven to these acts under intense social pressures, there is no suggestion in the case of either [appellant] that their family members or relatives have ever contemplated harming them. • If she genuinely believed there was a risk of serious harm from the Panchayat or other inhabitants of her village it is difficult to account for her conduct in returning there in 2011 and remaining for three months. I accept she may have wished to visit her mother who, as she claims, was ill. I am also prepared to accept that the second-named [appellant] did not accompany her. Nevertheless, having informed her parents of her marriage and fearing, as she claims, that the news would leak out it to a society whose members were inquisitive and apt to pose intrusive questions about her, is difficult to believe she would choose to place herself in danger in this way. • On a related issue, she was notably unclear in her evidence at the hearing as to whether or not the news of her second marriage has, in fact, become known in her village. She suggested this may already have occurred but could point to no reason for believing so. When she was asked if her parents had told her that the Panchayat had raised it with them she said they had not. She added that she was in contact with her parents only every three or four months as they were afraid to cause problems for themselves by telephoning her. I find this claim generally implausible and I also find it implausible that, had such an approach been made by the Panchayat, her parents would not have mentioned it when they did call her. • Finally, I note her evidence that in Sydney she attends religious worship both Sikh and Hindu - and major Hindu festivals in the company of her husband. I put to her at the hearing that this seemed to indicate she was not overly concerned about the possibility that knowledge of her marriage might find its way back to her village, to which she responded that there is nobody from her village in Sydney, and that in any event the Indian community here does not concern itself much over matters of caste difference. I find it difficult to understand how she could be confident of the accuracy of either of these propositions, however, particularly when she and her husband were participating in large-scale festivals. This is not to suggest that she should have been deterred from worshipping in this way in Australia by fear that she would reveal the fact of her marriage; rather, her responses at the hearing did not reflect a concern that she was running any particular risks by doing so. 31 Taking these considerations together, I am prepared to accept that the [appellant] has married in Australia without having first gained her parents' approval and I also accept that neither her parents nor the second-named [appellant's] parents approve of the marriage. This is an unfortunate and regrettable situation and I do not underestimate the emotional toll it has had, and will continue to exert, on her. However, I am unable to be satisfied that the marriage is, in fact, one between different castes. Nor am I satisfied it is of any other kind which would expose her to a real chance of serious harm at the hands of her parents, relatives, members the Panchayat or others in her village. 24 This analysis by the Tribunal was, in my view, balanced, careful, detailed and sympathetic. No further particulars are provided, but taken in isolation, the ground fails to demonstrate any appealable error. No error, in my view, has been identified. The primary judge was correct. 25 It might also be said that the Tribunal was careful to not conflate the particular social groups of 'Punjabi Sikh women in inter-caste marriages', on the one hand, and 'Punjabi women marrying against their family wishes' on the other. The Tribunal made separate evaluations of each possible claim. 26 Although the grounds and submissions advanced for the appellants have been somewhat confusing, it should also be confirmed for the record that the Tribunal also evaluated other possible claims. For example, the Tribunal: (a) declined to accept that the appellant and her husband belonged to two different castes (at [31]). This was a finding reasonably open to it. (b) considered the claim by the appellant that she feared harm as a 'divorced person'. The Tribunal considered but rejected this claim, which rejection was open to it. At [25] of the decision record the Tribunal said: I also note that in her protection visa application the [appellant] claimed to fear harm as a divorced person. At the Tribunal hearing, however, she agreed that her divorce would not become known in her village and I have concluded that she does not, in fact, claim that she would be at risk of harm for such a reason. 27 It follows that grounds 2, 3 and 4 of the appeal cannot succeed. 28 As to the original ground 2, now ground 5 of the appeal, that the Department failed to accord procedural fairness, there is no expansion or explanation of this ground. In any event, the ground would be incapable of disclosing jurisdictional error on the part of the Tribunal that was reviewable by the primary judge or that would reviewable by this Court on appeal. 29 The appellants argued before the primary judge that the Tribunal failed to comply with s 424AA of the Act by failing to put her on notice that her credibility was at issue. If this ground is intended to relate to that issue, the primary judge was correct to find (at [59]) that the Tribunal's concerns about the credibility of the appellant's claims to fear harm in India amounted to a 'subjective appraisal of her evidence', and such material did not constitute 'information' which engaged the Tribunal's obligation under s 424A, and therefore s 424AA, of the Act as discussed by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (at [18]) where their Honours said (footnotes omitted): [I]f the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information". "does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc." If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 30 For the above reasons, the original ground 2 and now ground 5 of the appeal fail to give rise to an appellable error. 31 As to the new ground 1 that the appellants seek to raise, which is to the effect that there was inadequate preparation by her legal representative, I propose to treat this as an application for leave to amend the notice of appeal to add that ground. This ground was raised shortly before the hearing of the appeal. 32 In SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73, Perram, Robertson and Griffiths JJ (at [49]-[57]) dealt with third party fraud in the context of proceedings before the Federal Circuit Court (see also [58]-[62]) and considered SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 dealing with alleged fraud on the Refugee Review Tribunal. 33 In considering the latter case, the Minister noted that the High Court held that where the conduct of a third party was fraudulent, such that it had the effect of stultifying the Tribunal from discharging its imperative statutory functions, the Tribunal's jurisdiction remained constructively unexercised (at [51]-[52]). 34 However, importantly and relevantly to this claim (at [52]), the Full Court in SZSXT said: It is well settled that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. In Minister for Immigration and citizenship v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17, the Full Court (Tamberlin, Finn and Dowsett JJ) emphasised the necessity of demonstrating that an agent's fraud in dealing with a visa applicant has resulted directly in a fraud on the Tribunal in discharging its decision-making functions. In that case, a protection visa applicant complained that he had failed to attend an adjourned hearing of the Tribunal because his migration agent had not advised him of the hearing. The Full Court held that the evidence concerning the conduct of the agent could not support a finding of fraudulent conduct by that person which caused the visa applicant not to attend the adjourned hearing. The Full Court found that no inference could be drawn that it was the agent's dishonest failure that resulted in the applicant not being told about the adjourned hearing and that it was equally probably that the failure was due to an error or omission on the part of the agent. At [33], the Full Court said: … [A]n agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the tribunal in relation to the due discharge of its Div 4 of Pt 7 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects [sic] the tribunal's Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 and 368; [1938] ALR 334 at 342-3 and 344-5 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud. 35 Mere negligence, inadvertence or incompetence will not constitute fraud to warrant judicial intervention. Rather, in order to draw an inference of fraud, the Court must reach a level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 (at 363 and 368). In any event, such an assertion of conduct amounting to fraud is most certainly not made in this instance. 36 The appellants contend that there was a lack of preparation by their legal representative in the proceedings under appeal. 37 It is true that the primary judge made the following comments in relation to the legal representative's preparation (at [27] and [62]): 27. It must be said that the [appellants'] submissions before the Court put orally by their legal representative were confused and for the most part remained unsatisfactorily explained. While the written submissions filed for the [appellant] presented some difficulties in comprehension, in all, they were a better source of understanding the appellants' case. … 62. It must be said that during the hearing before the Court it was not entirely clear that the appellants' legal representative had looked at the entirety of the Court Book in preparation of the amended application or the hearing before the Court. 38 There may be, hypothetically and entirely without deciding anything, a basis for the contention as to lack of preparation advanced by the appellants in the proposed further ground of appeal, but it is quite clear that the observations made could go no further than mere negligence, inadvertence, or incompetence, as referred to in SZSXT (at [52]). 39 There could be any number of grounds giving rise to the observations made by the primary judge, which is why I expressly make no comment as to those matters. 40 The application for judicial review that was before the Tribunal was made without legal representation and it is the decision of the Tribunal that was being attacked in the Federal Circuit Court. Without going into it, there is a clear indication on the Court record, including filing a notice of appearance, an amended application on 6 February 2015 (after the decision of the Tribunal on 26 October 2014), filing an affidavit annexing a transcript of the Tribunal, as well as an outline of submissions on 1 February 2016 and the appearance on 29 February, which shows active involvement by the legal representative. The documents including the amended application were considered at the hearing in the Federal Circuit Court and the affidavit was read without objection. While I make no finding at all as to the professional conduct of the legal representative, it is evident from the Federal Circuit Court record that there can be no assertion of conduct sufficiently serious to fall within SZFDE or SZSXT (at [52]). This is because of the distinction between fraud and negligence, as also discussed by the Full Court (Tamberlin, Finn and Dowsett JJ) in Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 (at [32]-[34]). 41 Further, while reference was also made by the second appellant, albeit on behalf of the appellant and as part of the family team, to the fact that they would have sought an opportunity before the delegate or the Tribunal to present their evidence in different ways and did not anticipate that the claim was going to proceed without the opportunity for further evidence, these steps were all taken at that stage without legal representation. This was their choice. They did have legal representation before the Federal Circuit Court. They took their own decisions when not legally represented. Even if a legal representative had conducted the application differently, of which there is no evidence, the Tribunal cannot commit jurisdictional error by upholding the decision of the delegate on grounds which were not advanced before it. It is not as though the appellants are or were unable to formulate any claim; the appellants have advanced their claims and submission both before the Federal Circuit Court and before this Court in relation to the approach taken by the delegate, the Tribunal, and the Federal Circuit Court. Those three levels and now a fourth, have, in my assessment, quite carefully considered the claims that they chose to advance in the fashion they chose to express them. 42 As, in my view, the very careful analysis by both the Tribunal and the Federal Circuit Court reveal, this was a difficult case to argue. But in any event, it is patently clear that a ground of appeal resting on mere lack of preparation, as distinct from fraud, would have no prospects of success and, accordingly, I do not propose to permit leave to amend the notice of appeal to include that ground. 43 Finally, at the hearing of the appeal, the appellants, through an interpreter, requested more time to make arrangements for another lawyer to represent them. The first appellant explained (from the bar table only) that there was a death in their family, the second appellant was unable to assist in the preparation of documents for the hearing because he had to care for their baby, and that she had to recover from a 'big operation' related to childbirth. 44 The Minister opposed (what I have taken to be) an adjournment application. I indicated that I would consider the adjournment application when I considered the appeal generally. While sympathetic to the appellants' situation as described from the bar table, for the reasons that follow, I refuse the adjournment application. 45 In summary, there is very little or no explanation for the adjournment application only being brought at the hearing of the appeal in August 2016, particularly as the notice of appeal was filed in May 2016. While the circumstances raised by the appellants during the course of the hearing would account for some preoccupation and distraction in the intervening period, it has not been demonstrated that there was insufficient time to obtain legal advice, alternative legal representation or, at the very least, to give reasonable notice of an intended adjournment application. There is no evidence that any steps have been taken in that regard, and no evidence that would indicate that adjourning the hearing would make it likely that in the foreseeable future a date could be fixed at which time the appellants would have obtained legal representation. Accordingly, I consider that there are no arguable grounds for an adjournment. This approach is consistent with that taken in a number of cases, including: NABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1426 per Whitlam J; NADQ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 483 per Emmett J; Pannu v Minister for Immigration and Citizenship (No 2) [2013] FCA 1406 per White J; and Hanna v Minister for Immigration and Border Protection [2016] FCA 282 per Jagot J. Of these, NABC and NADQ are quite similar situations. 46 As leave to amend must be refused and as the remaining grounds of appeal fail, the appeal must be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.