CRW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 258
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CRW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 258
File number: MLG 1296 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 12 April 2022 Catchwords: MIGRATION – application for judicial review of Administrative Appeals Tribunal decision – refusal to grant Protection (Class XA) visas – whether Tribunal failed to consider relevant information – whether the Tribunal failed to consider whether the first applicant faced a real chance of persecution - no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 476, 477 Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 7 April 2022 Place: Melbourne Counsel for the Applicants: Mr Gagandeep Mirankot Solicitor for the Applicants: Senia Lawyers Counsel for the First Respondent: Mr Adam Cunynghame Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1296 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CRW17
First Applicant
CRX17
Second Applicant
CRY17 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
12 APRIL 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The first applicant is to pay the first respondent’s costs fixed in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
By application filed on 19 June 2017, the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 29 May 2017. The Tribunal affirmed a decision made by a delegate of the Minister not to grant protection visas to the applicants. The application to this Court is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For the reasons set out below, I find that there is no jurisdictional error in the Tribunal decision and I therefore dismiss the application to this Court.
BACKGROUND
The first applicant is a citizen of India and the second, third and fourth applicants are his children. The applicants arrived in Australia in October 2012 as holders of visitor visas. In March 2013 the applicants were granted student visas as members of the same family unit as the first applicant’s wife, who has since passed away.
On 20 May 2015 the applicants applied for a protection visa. The first applicant claimed that he and his family would face harm in India as members of a particular social group described as ‘defaulting debtors of private moneylenders’. The first applicant claimed that he had been threatened as a result of business debts that had been accruing since 2010. The second, third and fourth applicants applied for the protection visas as members of the same family unit and did not advance their own claims for protection.
A delegate of the Minister made a decision on 28 September 2016 not to grant protection visas to the applicants.
The applicants then lodged an application for review of the delegate’s decision by the Tribunal. The applicants appeared at a hearing before the Tribunal to give evidence and present arguments on 16 January 2017.
After the hearing, the applicants provided further submissions and evidence to the Tribunal on 16 February 2017 and 15 May 2017.
On 29 May 2017 the Tribunal affirmed the decision not to grant the applicants protection visas.
TRIBUNAL DECISION
The Tribunal accepted that:
(a)the first applicant, his late wife and his brothers were involved in a business in India;
(b)the family business began to experience financial difficulties after 2001 and required a serious injection of capital;
(c)the first applicant was not able to access legitimate loans from the bank due to overstretched mortgage commitments and negotiated through connections of a series of loans of ‘black money’ from money lenders; and
(d)in time, the first applicant’s family business was unable to repay the money which it had borrowed.
The Tribunal did not find credible the first applicant’s claim that he and his family face harm or the threat of harm from the people from whom his family’s business had borrowed money. The Tribunal did not accept that the first applicant would have sent his children back to India where they would be exposed to the risk of harm, if the applicants had been threatened as claimed. The Tribunal accepted that when the children returned to India people may have made enquiries as to their parents’ whereabouts, but the Tribunal did not accept that an incident in which the fourth applicant suffered a cut to his head was an attempted kidnapping. The Tribunal did not accept that the applicants would be persecuted for reasons of the membership of a particular social group of defaulting debtors of private money lenders if they returned to India now or in the reasonably foreseeable future.
The Tribunal considered medical evidence provided in relation to the first applicant, which was said to be relevant to whether the applicants could relocate within India. The Tribunal found that there was nothing in the evidence before it to suggest that there was a real chance that the first applicant would be discriminated against in relation to the provision of medical treatment in India.
The Tribunal concluded that the applicants did not meet the criteria for a protection visa in ss 36(2)(a), 36(2)(aa), 36(2)(b) or 36(2)(c) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The application to this Court was filed on 19 June 2017, which is within 35 days of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application raises the following two grounds of review:
1.The Second Respondent failed to consider relevant information.
Particulars
(a) The Second Respondent was sent further documents by email on 16 May 2017. The Second Respondent has listed the receipt of other documents in its Decision Record, however has failed to mention these documents. The documents provide further support for the Applicant’s claims and are relevant.
2.The Second Respondent failed to consider whether, as a member of a particular social group, the Applicant faced a real chance of persecution.
Particulars
(a) The Second Respondent, at paragraph 51, appears to accept that the Applicant is a member of a particular social group, that is a ‘defaulting debtor of a private money lender’.
(b) The Second Respondent accepted that people in India may have made enquiries about the whereabouts of the Applicant.
(c) The Applicant provided the Second Respondent with information that members of that particular social group are subject to harm in India.
(d) The Second Respondent only considered the Applicant’s personal experience, but did not consider whether members of that particular social group in the Applicant’s circumstances would face a real risk of persecution.
The matter came before me for hearing on 7 April 2022. At the hearing, the Court was advised that the second applicant sought leave to discontinue her application to the Court. I granted leave for the second applicant to discontinue the application insofar as it related to her.
The evidence before the Court comprised the court book and a number of newspaper articles and medical reports submitted by the applicants, as well as further statements from the applicants. The Minister did not object to the tender of these documents but indicated that submissions would be made as to the weight that should be given to the documents. The applicants submitted that the documents were relevant to show that they continue to face a real chance of serious harm if he was returned to India. In the absence of any objection, I admitted the documents.
As I explained to the applicants’ lawyer at the hearing, the Court does not determine for itself whether the applicants meet the criteria for a protection visa. Rather, the issue for determination by the Court is whether there is a jurisdictional error in the Tribunal decision. None of the evidentiary documents that the applicants provided to the Court were available to the Tribunal when it made its decision and all except for one document post-dated the Tribunal decision. The documents are not directly relevant to the grounds of review and they cannot establish jurisdictional error in the Tribunal decision. I give no weight to the newspaper articles, medical reports and further statements submitted by the applicants.
SUBMISSIONS MADE BY THE PARTIES
Applicant’s submissions
The applicants made no submissions, either in writing or orally, that relate to the grounds of review.
Rather, the applicants filed a written submission which summarised their claims for protection, contained an overview of key legislative provisions and the grounds for granting a protection visa, and addressed why, in the applicants’ view, they meet the criteria for a protection visa.
At the hearing the applicants’ lawyer confirmed that the applicants continued to rely on the grounds set out in the application. I observed to the applicants’ lawyer that the written submissions appeared to address the merits of whether the applicants should be granted protection visas, and did not address the grounds of application or any alleged error in the Tribunal decision. I invited the applicants’ lawyer to explain to the Court what error the applicants allege that the Tribunal made. The applicants’ lawyer submitted that the Tribunal failed to take into account the circumstances of the applicants’ case in finding that they did not meet the criteria for a protection visa. When I asked what circumstances of the applicants the Tribunal failed to take into account, the applicants’ lawyer submitted that the Tribunal failed to take into account the first applicant’s serious medical condition and the serious threat that the applicants face.
The gist of the applicants’ submissions is simply that the Tribunal made the wrong decision in this matter and should have found that they met the criteria for the grant of a protection visa.
When the applicants had an opportunity to make submissions in reply to the Minister’s submissions, I specifically directed the applicants’ lawyer to the paragraphs in the Minister’s written submissions addressing the grounds, and asked whether the applicants wished to make any submissions in response. The applicants’ lawyer declined the opportunity to make submissions in response.
Minister’s submissions
The Minister’s written submissions addressed the two grounds of review in the application.
In relation to ground 1, the Minister acknowledged that the Tribunal did not expressly refer in its reasons to documents provided by the applicants on 15 May 2017. The Minister submitted that the ground should nevertheless be dismissed for three reasons:
(a)The Tribunal dealt with the claim raised by the additional documents in its more general findings at [54] and [58] of its reasons, and the Tribunal had referred to other similar medical evidence before it. The Tribunal acknowledged the agent’s submission that the evidence went to the reasonableness of relocation in India. The Tribunal found that there was nothing in the evidence before it to suggest that the first applicant would be discriminated against in relation to the provision of medical treatment and did not accept that he would suffer persecution involving serious harm if he returned to India. The Tribunal also found that there was nothing in the evidence to suggest that the Indian government would arbitrarily refuse the first applicant medical treatment or that it had arbitrarily limited treatment for people with the sort of medical problems that the first applicant may have, such that there would be a real risk that the first applicant would be arbitrarily deprived of life if removed from Australia to India. The Minister submitted that the findings made by the Tribunal demonstrate that the Tribunal was aware of and dealt with the first applicant’s claims regarding his health and it did not need to recite or list each piece of evidence in its reasons in relation to this.
(b)Even if the Tribunal overlooked the documents provided on 15 May 2017, this would not constitute jurisdictional error as they were not cogent evidentiary material that was central and important to the applicant’s claims in the Tribunal’s findings. The documents contain medical information in relation to the first applicant and the Tribunal had already considered his claims that he suffered from medical conditions.
(c)Even if the Court were to find that the Tribunal overlooked the material and it was an error to do so, such an error would not be material. The Tribunal accepted the first applicant’s claim to have health issues. Its decision regarding relocation was based on its rejection of the first applicant’s claims to fear harm and not a finding that he did not suffer from the medical conditions he claimed. The Minister submitted that the further documents, which were very similar in terms to those previously provided, would have made no realistic difference to the outcome of the review.
In relation to ground 2, the Minister submitted that it is well-established that a particular social group cannot be defined by the fear of persecution. The Minister submitted that while the decision-maker may consider evidence relating to a group of which an applicant is a member, the decision-maker’s factual enquiry always needs to be done by way of reference to the applicant’s individual circumstances. The Tribunal clearly considered whether the applicants would face harm as a result of their membership of a particular social group but ultimately did not accept that there was a real chance that they would be persecuted for reasons of their membership of the particular social group described as ‘defaulting debtors of private money lenders’. This finding was open to the Tribunal. The Tribunal was entitled to have regard to the applicants’ particular circumstances in assessing whether they had a well-founded fear of persecution due to their membership of a particular social group.
In oral submissions, the Minister’s lawyer submitted that Tribunal correctly considered the applicants’ claims and evidence before it and in its sole function as an arbiter of facts, reached findings that were open to it on the material before it. It is not a case where the procedures adopted by the Tribunal or the Tribunal decision can be seen as unreasonable.
The Minister relied on his written submissions in relation to the grounds set out in the application.
CONSIDERATION
Need to establish jurisdictional error
In order to be entitled to relief by this Court, the applicants must establish that the Tribunal decision is affected by jurisdictional error. The Tribunal will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81] (SZMTA). There might be jurisdictional error in a Tribunal decision if the Tribunal fails to conduct the review in accordance with the provisions in Division 4 of Part 7 of the Migration Act. There might also be jurisdictional error if the Tribunal decision is affected by actual or apprehended bias: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [112].
To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicants of the opportunity of a successful outcome: SZMTA at [45].
Ground 1
On 15 May 2017 the applicants’ lawyer sent to the Tribunal an email attaching his earlier submission of 16 February 2017 and three medical reports in relation to the first applicant. In the covering email, the applicants’ representative submitted that the first applicant’s poor physical and psychological health are relevant to the reasonableness of relocation referred to at page 7 of the submission. One of the reports related to a physical condition that the applicant was experiencing and two of the reports related to a psychological condition.
The Tribunal did not refer to any documents received on 15 May 2017 in its reasons.
The first question for me to consider is whether the Tribunal had regard to these reports. The simple fact that the Tribunal has not referred to the reports in its decision is not determinative of this question. As the Full Court of the Federal Court explained in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (Applicant WAEE) at [46]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The Full Court in Applicant WAEE then proceeded to consider when an inference that the Tribunal did not consider an issue or evidence may be drawn at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
It is appropriate to look to the reasons as a whole in determining whether the information provided on 15 May 2017 was considered by the Tribunal. In its reasons, the Tribunal expressly referred to documents and evidence it had regard to, including:
(a)the documents in the Department file and the material referred to in the delegate’s decision: at [14];
(b)the various documents, individually itemised, that were provided to the Tribunal before the hearing: at [17];
(c)the oral evidence given by the applicants at the hearing;
(d)the post-hearing submission and various evidentiary documents, again individually itemised, that were provided to the Tribunal on 16 February 2017: at [42].
In the present case, I infer that the Tribunal overlooked the documents provided on
15 May 2017 for two reasons:
(a)the Tribunal expressly listed every other item of evidence provided to it by the applicants, but failed to refer to the documents provided on 15 May 2017; and
(b)
in addressing the first applicant’s health issues at [54] and [58] of its reasons, the Tribunal referred to other medical evidence before it, but not that received on
15 May 2017.
However, I do not find that this amounts to jurisdictional error. In assessing whether the Tribunal’s failure to consider particular evidence amounts to jurisdictional error, it is appropriate to have regard to the importance of the material in the context of the Tribunal’s review. In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317, the Federal Court said at [111]:
In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
In the present case, the medical reports provided on 15 May 2017 do not significantly add to the evidence already before the Tribunal, and expressly considered by the Tribunal.
The first of the medical reports provided on 15 May 2017 was a report from Palmers Medical Centre dated 16 April 2017. Aside from some differences in the listed symptoms experienced and current medication, the report is substantially the same to an earlier report by the same medical practitioner dated 24 October 2016. For the purposes of the Tribunal decision, the differences in the listed symptoms and medication are of no consequence.
The second of the medical reports is also provided by Palmers Medical Centre and is dated 1 May 2017. The report simply indicates that the doctor had seen the first applicant on a few occasions in relation to anxiety and depression due to past traumatic history. The Tribunal already had before it evidence provided by the first applicant at the hearing that he was depressed, and there is nothing in the Tribunal’s decision to suggest that it doubted the applicant’s credibility in any way.
The third of the medical reports is a letter to the applicant’s GP from his psychologist dated 23 April 2017. This report addresses the applicant’s mental health issues and set out the symptoms that he reported and history he provided, as well as the recommendations for treatment. Although this report contains a higher level of detail than the other evidence before the Tribunal, the applicants have offered no explanation of how the failure to consider this report might have affected the Tribunal’s decision.
As mentioned above, the applicants’ agent before the Tribunal indicated that the evidence provided on 15 May 2017 was relevant to the reasonableness of relocation. Ultimately, the Tribunal did not need to consider whether it would be reasonable for the applicants to relocate to another part of India, as it was not satisfied that they would face a real chance of serious harm or a real risk of significant harm anywhere in India.
In any event, the Tribunal considered whether the first applicant met the criteria for a protection visa as a result of his health problems at [54], [58] and [59] of its reasons. In assessing whether the applicants met the refugee criteria in s 36(2)(a) of the Migration Act, the Tribunal said at [54]:
Prior to the hearing the applicants’ representative produced evidence to the Tribunal indicating that the main applicant had been referred to a psychiatrist because he was said to have disturbed sleep, low mood and lack of enjoyment. At the hearing the applicant said that he was depressed and that he believed he had cancer. After the hearing the applicants’ representative produced evidence that the main applicant had been referred for tests to determine if he had COPD (Chronic Obstructive Pulmonary Disease). The applicants’ representative indicated that he relied on this evidence with regard to whether it would be reasonable for the main applicant and his children to relocate within India. There is nothing in the evidence before the Tribunal to suggest that there is a real chance that the main applicant will be discriminated against in relation to the provision of medical treatment in India for one of more of the reasons mentioned in s.5J(1)(a) of the Act.
In assessing whether the applicants met the complementary protection criteria in s 36(2)(aa) of the Migration Act, the Tribunal said at [58]-[59]:
58. Prior to the hearing the applicant’s representative produced evidence to the Tribunal indicating that the main applicant had been referred to psychiatrist because he was said to have disturbed sleep, low mood and lack of enjoyment. At the hearing the applicant said that he was depressed and that he believed he had cancer. After the hearing the applicants’ representative produced evidence that the main applicant had been referred for tests to determine if he had COPD (Chronic Obstructive Pulmonary Disease). The applicants’ representative indicated that he relied on this evidence with regard to whether it would be reasonable for the main applicant and his children to relocate within India. There is nothing in the evidence before the Tribunal to suggest that the Indian Government will arbitrarily refuse the main applicant medical treatment or that it has arbitrarily limited treatment for people with the sort of problems which he may have, such that it could be said that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that the main applicant will be arbitrarily deprived of his life.
59.The definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Act required that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. The Tribunal does not accept on the evidence before it that there is the requisite intention to inflict pain or suffering or to cause extreme humiliation to people suffering from the sort of medical problems which the main applicant may have. The Tribunal does not accept on the evidence before it, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm as defined as a result of the main applicant’s medical problems.
In my view, the evidence provided on 15 May 2017, when viewed in the context of the other evidence already before the Tribunal and the agent’s submission that it was relevant to reasonableness of relocation, was not important enough to the applicant’s case to cause the failure by the Tribunal to consider the evidence to amount to jurisdictional error.
In any event, in circumstances where:
(a)the applicants provided the documents on 15 May 2017 for the purposes of the Tribunal’s assessment of reasonableness of relocation, and based on the findings of the Tribunal, the need to consider reasonableness of relocation did not arise; and
(b)the Tribunal found, based on the medical evidence already before it, which was substantially similar to the further evidence provided on 15 May 2017, that the first applicant would not face a real chance of serious harm or a real risk of significant harm as a result of his medical conditions,
any error by the Tribunal in failing to consider the medical documents provided on
15 May 2017 could not realistically have deprived the applicants of the opportunity of a successful outcome, and is therefore not material.Ground 1 is not established.
Ground 2
In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71, McHugh and Kirby JJ said at [58] (emphasis added):
… Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future. But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant. Moreover, helpful as the history of the social group may be in determining whether an applicant for a protection visa is a refugee for the purpose of the Convention, its use involves a reasoning process that can lead to erroneous conclusions. It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a "well-founded fear of being persecuted for reasons of … membership of a particular social group".
This passage makes clear that, in assessing whether the first applicant had a well-founded fear of persecution by reason of his membership of a particular social group described as ‘defaulting debtors of private money lenders’, it was open, and indeed necessary, for the Tribunal to have regard to his personal circumstances (see also, NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195 at [75]).
The Tribunal in the present case clearly considered the first applicant’s personal circumstances and found that the applicants did not have a well-founded fear of persecution by reason of their membership of a particular social group or for any other reason. The Tribunal gave reasons for these findings, summarised above, which were open to it on the evidence before it.
Ultimately, I accept the Minister’s submissions in relation to this ground, particularly those set out at [36] of the Minister’s reasons. This paragraph reads:
Contrary to the applicant’s allegation, the Tribunal was entitled to have regard to the applicants’ particular circumstances in assessing whether the applicants had a well-founded fear of persecution due to their membership of a particular social group. It is not enough that the applicant is part of a particular social group. The applicant must also have a well-founded fear [of] persecution and that fear must be because of the applicant’s membership of the particular social group (or another reason as specified in s 5J(1)(a) of the Act). In this case, the Tribunal simply did not accept the applicants’ claim to fear persecution from moneylenders, regardless of whether that was characterised as a fear due to the applicant’s membership in a particular social group or any other reason. Accordingly, it was open for the Tribunal to find the applicants did not have a well-founded fear of persecution for reasons of their membership of a particular social group for the reasons it gave and no jurisdictional error is made out.
Ground 2 is not established.
Other matters raised at the hearing
None of the submissions made on behalf of the applicants at the hearing establish jurisdictional error. For the most part, these submissions address the merits of whether the applicants should be granted protection visas.
To the extent that the oral submissions can be viewed as an assertion that the Tribunal failed to take into account relevant considerations, no jurisdictional error is established. The Tribunal clearly considered the first applicant’s claims to face harm as a result of his debts to moneylenders and whether his medical conditions might put him at risk of harm in India. There is no discernible error in the Tribunal’s application of the relevant legislative criteria in considering these claims. In essence, the applicants are just expressing disagreement with the outcome.
To the extent that the applicants’ oral submissions can be viewed as an assertion that the Tribunal decision is unreasonable, illogical or irrational, the submissions likewise failed to establish jurisdictional error. The findings made by the Tribunal were clearly open to it on the evidence before it and the applicants have not demonstrated any flaw in the Tribunal’s reasoning process.
CONCLUSION
The applicants have not established jurisdictional error in the Tribunal decision. It follows that the application to this Court is dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 12 April 2022
SCHEDULE OF PARTIES
MLG 1296 of 2017 Applicants
Fourth Applicant:
CRZ17 BY HIS LITIGATION GUARDIAN CRW17
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