SZLWB v Minister for Immigration
[2020] FCCA 1087
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZLWB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1087 |
| Catchwords: MIGRATION – Application to review decision of Tribunal not to grant protection visas to three applicants – whether Tribunal failed to consider an integer of the First Applicant’s claims or the circumstances of the Third Applicant – whether Tribunal erred in failing to considering whether the Second and/or Third Applicants raised their own claims for protection – where Tribunal incorrectly found that the Third Applicant had made a previous protection visa application. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65 |
| Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496; [2003] HCA 26 Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3 |
| First Applicant: | SZLWB |
| Second Applicant: | SZLWC |
| Third Applicant: | SZRZO |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2921 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 1 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| The Applicants: | In person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2921 of 2016
| SZLWB |
First Applicant
| SZLWC |
Second Applicant
| SZRZO |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 11 March 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
In circumstances outlined below, the Applicants did not seek judicial review of the Tribunal decision until 25 October 2016. I extended the time for making the application under s.477(2) of the Migration Act 1958 (Cth) (the Act) (see SZLWB & Ors v Minister for Immigration & Anor [2019] FCCA 93).
The Applicants are husband (the First Applicant) and wife (the Second Applicant) and their son (the Third Applicant). The First and Second Applicants made an unsuccessful protection visa application in 2007. The Third Applicant was born in Australia in 2011. They are all citizens of India.
The Applicants lodged the protection visa application in issue in these proceedings on 9 October 2012 with the assistance of their representative, a solicitor/migration agent. In a covering letter the representative explained that the application was expressly made in reliance only on the complementary protection criterion against which the Applicants’ claims had never been assessed. It stated that a “further” statutory declaration of the primary Applicant, providing detailed complementary protection claims, would be provided.
The Department initially advised the Applicants that the 2012 application was invalid because of the 2007 protection visa application. However, after the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 the Department acknowledged the validity of the 2012 application by letter of 5 September 2013.
In the 2012 application only the First Applicant made claims to fear harm on return to India. The Second and Third Applicants were included as members of his family unit. In his visa application form the First Applicant claimed to be a “member… and active supporter” of the Trinamool Congress (TMC) political party in India. He claimed that he had been tortured, abused and threatened and that he feared he would be killed by the Communist Party of India (Marxist) (the CPI(M)) due to his political involvement. He also claimed that due to his business activities he had obtained government tenders, but had become an enemy of criminal gangs in Kolkata. He feared he would be targeted by his political opponents and by the criminal gangs.
On 20 March 2014 the Applicants’ representative provided a written submission to the Department which addressed both the Refugees Convention and complementary protection criteria. It was claimed that “the applicants (sic) fear they will be seriously harmed if they return to India for reasons explained in their statement (sic)”. However the only asserted basis for the protection claims was that the “primary” (First) Applicant was a member and supporter of the TMC and on this basis “fears that there is a real chance that the applicants will be persecuted in India if they return to India”. It was also submitted that “all the reasons given in their evidence and submission … make them vulnerable … due to their political opinion and that they would not accordingly obtain state protection in India”, and that “it is not practical for the primary applicant with a small family to relocate to other parts of India”.
The representative submitted that “the applicants” faced a real risk of significant harm within the complementary protection criterion on the basis that cited country information indicated that there were substantial grounds to believe that TMC activists faced a real risk of significant harm.
The First Applicant swore a statutory declaration dated 28 March 2014. It was described as a “further statement”. There was no earlier statement or statutory declaration in the Courtbook. At my request the solicitors for the First Respondent made inquiries of the Department. It initiated a search of the records as to whether there was any earlier statement made in support of the 2012 application. I have had regard to the affidavit of Kate Elizabeth Gawidziel affirmed on 13 November 2017 and the First Respondent’s supplementary submission of 13 November 2017 in this respect. There is no evidence (or, indeed, any claim by the Applicants in these proceedings) that any earlier or other statement was provided to the Department in relation to the protection visa application of October 2012 beyond the brief claims in Part C of the First Applicant’s protection visa application form and the representative’s submission (and see SZLWB at [29]-[35]).
In his 2014 statutory declaration the First Applicant claimed he was initially a supporter of the CPI(M), but that he later became a “supporter and follower” of the TMC party and that as a result members of the CPI(M) viewed him as a traitor and that the CPI(M) or associated criminal miscreants or the Maoists would harm him. He claimed that he had been threatened and attacked in India, as he had explained in his 2007 protection visa application. He claimed to fear harm due to his political opinion supporting the TMC, his background as a businessman and as a person perceived to be wealthy because he had been in Australia for considerable time.
The First Applicant claimed that he would face practical difficulties relocating within India, particularly given the medical condition of his son (the Third Applicant) who suffered from global development delay and autism spectrum disorder. He provided medical reports in relation to his son’s medical condition. He made no claim in this statutory declaration as to any fear or risk of harm to his wife and/or son.
The delegate refused the application, finding that the First Applicant’s written claims and oral evidence were contradictory and not credible. The delegate considered both the Refugees Convention criterion and the complementary protection criterion in relation to the First Applicant and assessed the claims of the Second and Third Applicants as members of the First Applicant’s family unit.
The Applicants sought review by the Tribunal on 2 May 2014. By letter of 9 December 2014 they were invited to a hearing to take place on 19 February 2015.
A copy of a letter from the Applicants’ solicitors to the Tribunal dated 16 December 2014 is in the Courtbook. It referred to various enclosures, including statutory declarations of the First and Second Applicants. Apart from the statutory declaration of the First Applicant of 28 March 2014, the only statutory declarations in the Courtbook were sworn on 6 February 2015, which post-dated this letter.
The solicitors for the First Respondent made further inquiries, as attested to in Ms Gawidziel’s affidavit. Those inquiries revealed that the letter dated 16 December 2014 was in fact emailed to the Tribunal on 6 February 2015 and that it attached the two statutory declarations of 6 February 2015 described below. The handwritten folio numbers on copies of documents from the Tribunal file annexed to Ms Gawidziel’s affidavit are consistent with these two statutory declarations being those referred to in the letter dated 16 December 2014. There has been no suggestion from the Applicants that any other statutory declarations were provided to the Tribunal.
In the meantime, on 30 January 2015 the Applicant’s representative submitted to the Tribunal that it should assess “the applicant’s” case both under the Refugees Convention criterion and the complementary protection criterion, notwithstanding the approach taken in SZGIZ. The representative sent the Tribunal a copy of advice from special counsel for the firm to that effect.
In the email sent on 6 February 2015 the Applicants’ representative corrected the earlier (2014) submission to the Department, clarifying that it was claimed that the First (described as the primary) Applicant was a “supporter” and “not a member” of the TMC as had previously been claimed. The agent also advised that “the applicant’s wife will also attend the interview to provide oral evidence in support of her husband’s application for a protection visa”.
In his statutory declaration of 6 February 2015 the First Applicant claimed to be a “supporter and follower” of the TMC. He provided further information about his study and employment in India. He claimed that “I fear my family and I will face serious harm if we return to India. I fear if I return to India, I would not only be risking my life, but my family’s’ lives too”, but did not identify any basis for this claimed fear for his family independent of his claims.
The Second Applicant provided a statutory declaration of 6 February 2015 which she stated was “in support of my husband’s application for a protection visa”. She claimed that on 2 January 2007 the car in which she and her husband were travelling in India was chased by another vehicle. She claimed that as a result she had suffered a miscarriage and that:
Even after that, we continue to receive threatening calls and some time, the CPI(M) followers used to throw stones on our house. As a result of that, I became mentally sick and whenever I think of the past incident, my blood pressure used to go up and continue to undergo mental depression.
The only evidence before the court as to what occurred in the Tribunal hearing is the hearing record in the Courtbook and the Tribunal’s account in its reasons for decision. It is apparent that the three Applicants and their representative attended the hearing. The First and Second Applicants gave evidence with the assistance of an interpreter.
After the hearing, the Applicants’ representative provided further documents to the Tribunal to address an issue raised during the hearing (and concerns raised in a 2007 departmental case note) as to whether the First Applicant’s claims that he had been the proprietor of a particular business in India were genuine.
In addition, the representative provided a further written submission dated 6 March 2015 in which it was submitted that “the applicant” would face a real risk of significant harm if “he” returned to India.
The submission continued: “If in case, the Tribunal decides to affirm the decision of the delegate, we request the Tribunal to refer the case to Minister under s417”. In this context the representative submitted first that there were unique or exceptional circumstances in the case in that the First Applicant’s fear of harm was genuine, but also that if he returned to India “he and his family will face significant harm” (emphasis added). Secondly, this request was put on the basis that the Third Applicant’s medical condition and need for treatment may bring Australia’s obligations as a party to the United Nations Convention on the Rights of the Child (CROC) into consideration. Thirdly, it was pointed out that the Third Applicant was undergoing medical treatment in Australia and suggested that any breakdown in treatment facilities would affect his development and that his best interests should be given due consideration. Further medical evidence was provided in relation to the Third Applicant.
The Tribunal Decision
In its reasons for decision of 11 March 2015 the Tribunal stated that “the Applicants (sic) arrived in Australia on 7 April 2007” and first unsuccessfully applied for protection visas on 21 May 2007. It described an unsuccessful judicial review application (to the Federal Magistrates Court and then the Federal Court), several unsuccessful ministerial intervention applications and a withdrawn application to the High Court.
The Tribunal explained that the second (2012) protection visa application had been accepted as valid as a result of SZGIZ (which it discussed) and continued (at paragraph 9):
As the Applicants (sic) in this case have previously had their claims for protection assessed under s.36(2)(a) prior to the commencement of the complementary protection laws and have not left Australia since the final determination of their previous protection application, the Tribunal considers that it must confine its consideration to whether they satisfy the requirements of ss.36(2)(aa) and (c).
In considering the claims and evidence, the Tribunal stated that only the First Applicant had made “specific claims under the Refugees Convention”, and that his wife and son relied on their membership of his family unit.
The Tribunal referred to the First Applicant’s written claims and submissions and to the documentary evidence provided. It summarised the oral evidence of the First and Second Applicants, including the First Applicant’s claims about past threats to him by CPI(M) members and rival contractors, stones being thrown at his house and being following in a car in 2007. He also claimed that a named former employee who had been fired for theft and who had joined a business rival might harm him. In addition, he claimed to fear that he and his family would be targeted by politically involved and powerful people in the CPI(M) because he would be perceived as wealthy. He described his son’s development problems and referred to financial difficulties he had experienced (in Australia) in ensuring that he had the necessary medications for the child.
The Tribunal summarised the Second Applicant’s oral evidence as follows (at paragraph 23):
The second-named Applicant stated, in summary, that she and her husband had been under great mental pressure. They continued to receive threatening telephone calls. It was very difficult to tolerate this environment. Their circumstances in Australia are difficult and they are unable to provide proper medication or food for their son. However, they would lose their lives in India.
In its findings and reasons the Tribunal recorded that the First Applicant claimed to fear harm in India “because he forsook the Communist Party of India - Marxist (CPI(M)) and joined the Trina Mul Congress (TMC) and because he is hated by his business rivals, including a former employee he dismissed for theft.”
The Tribunal had “a number of doubts” as to the credibility of the First Applicant’s claims to be targeted for harm because of political activism. It was prepared to accept that he and his father were formerly supporters, but not members, of the CPI(M). It accepted that in or about 2003 or 2004 they became disillusioned with the CPI(M) and transferred their allegiance to the TMC. It accepted that the First Applicant had provided financial support to the TMC (as indicated by a letter of support). However the Tribunal was not satisfied that this support extended to other activities, such as marching in public processions or campaigning in elections, given what was described as “the quite notable lack of circumstantial detail” in the First Applicant’s account and “the difficulties he clearly had in identifying the party’s candidate … in the local elections in 2006”.
While the Tribunal found that the First Applicant’s account of the harm he feared from former supporters of the CPI(M) was “generally vague and uninformative”, it accepted that it was plausible that there may have been some degree of disappointment when he began supporting the TMC and ceased making donations to the CPI(M) and that he may have received a degree of criticism over that decision. However, given that his political involvement was confined to financial donations and the fact that he lacked any kind of political profile, the Tribunal found it difficult to believe that the First Applicant was subjected to physical assault over his new political opinion.
The Tribunal also had regard to the fact that in neither of the two incidents the First Applicant had described (an attack in a car park in June 2006 and when his car was followed in January in 2007) was he able to recognise or identify the perpetrators. It observed that in the first incident the perpetrators were not reported to have said anything to him which might have indicated that they singled him out for harm and that he was unable to identify who might have been involved in the second incident. The Tribunal also found that it was unclear whether any harm was intended in the second incident, given that the only evidence was of the driver’s belief that they were being followed. It noted that the harm suffered by the Applicant’s wife occurred only because the driver took evasive action and braked suddenly.
While the Tribunal was prepared to accept that both these incidents had occurred, on the evidence before it, it was not satisfied that the First Applicant was deliberately targeted, whether by members of the CPI(M) or supporters, affiliated union members or criminal gangs working on the Party’s behalf or by his business rivals. It accepted that he was attacked and injured during the first incident, but was not satisfied that this was any more than an act of random criminal violence. Nor was the Tribunal satisfied that the second incident involved intentional harm of any kind.
The Tribunal noted that at the hearing the First Applicant had raised a new claim of past harm from the CPI(M) and its supporters. He claimed that on a number of occasions members of the Party’s union had come to his house, thrown stones and raised the Party’s red flag. The Tribunal acknowledged that in her statutory declaration the Second Applicant had referred to CPI(M) members throwing stones at their house. However it observed that these incidents were said to have been linked to difficulties the First Applicant had with a former employee he had dismissed for theft who was said to have enlisted the support of the union to seek re-employment in the First Applicant’s business.
The Tribunal found that this claim involved matters that could reasonably be seen as significant in themselves and highly relevant to the First Applicant’s claims to fear harm in India. It was of the view that his failure to raise this claim at any earlier time cast doubt on his credibility. The Tribunal also found it generally implausible that the ex-employee who was dismissed for theft, but then employed by one of the First Applicant’s business rivals, would seek to regain his former employment. It found that the First Applicant’s explanation that the ex-employee had been well paid and was hoping to steal his business secrets was unconvincing.
The Tribunal found that the First Applicant’s claims to fear harm in India based on his business dealings and alleged enmity towards him by his rivals because of his success in gaining government contracts were vague and confused. It observed that at the hearing he appeared unable to identify exactly who it was among his business rivals who wished to harm him and had only been able to name two prominent companies in the pharmaceutical industry. The Tribunal found it difficult to accept that the First Applicant would be unable to provide a more detailed and circumstantial account of these difficulties if his life had genuinely been put in danger by them. It also found that his evidence was “notably vague” concerning the role of his former employee. It found it implausible that the former employee had assisted the First Applicant’s rivals by stealing his equipment or that he planned to steal the First Applicant’s business secrets once he was re-employed.
In light of these findings, the Tribunal was not satisfied that the First Applicant was ever targeted, threatened or harmed by members or supporters of the CPI(M) or its affiliated union or that he had suffered harm at the hands of business rivals. It accepted that he may have had an acrimonious relationship with the ex-employee when he was forced to dismiss him for theft, but was not satisfied that this person had ever harmed or threatened the First Applicant. It was not satisfied that the First Applicant left India for Australia because he feared he would be killed or otherwise harmed by political or business rivals.
The Tribunal was reinforced in this conclusion by the delay of almost two months between the grant of the First Applicant’s visitor visa and his departure from India in 2007. It was not satisfied that such a significant delay was consistent with his claimed fear of harm. It did not accept that his explanation (that he had to stay in India to finalise details of social security payments and to safeguard the interests of his employees whom he loved) would outweigh a fear of being killed if he remained in India.
Given these findings and the fact that the First Applicant had not been in India for nearly eight years, the Tribunal was not satisfied that he would face any chance of harm from the sources he had identified if he were to return to India. It stated that this conclusion was not altered by the fact that former CPI(M) members may since have joined the TMC, as the First Applicant claimed.
The Tribunal considered the Applicant’s suggestion that he would be at risk of harm in India because his long period of residence in Australia would cause his persecutors to believe he was wealthy, leading them to kidnap him for ransom. However, as it was not satisfied that such persecutors did, or do, exist it was not satisfied that this claim was more than “simply speculative”.
Under the heading: “Summary - complementary protection issues” the Tribunal stated that “the Applicants” had previously been refused protection visas, but that their “second” visa application was valid because they were considered “SZGIZ-affected” having not left Australia since the final determination of their previous visa application which preceded the March 2012 introduction of the complementary protection criterion. Contrary to their representative’s submission that the Tribunal was able, and in fact required, to consider all grounds for protection, the Tribunal considered that the effect of SZGIZ was to confine its consideration to whether the Applicants satisfied the requirements of s.36(2)(aa) and (c) of the Act.
The Tribunal was not satisfied that there was any reason to believe that the First Applicant would be harmed by members or supporters of the CPI(M) or by his business rivals, including his former employee, if he returned to India. It observed that he had not identified any additional matters which could constitute a cause of either serious or significant harm or which could be relevant to an assessment of Australia’s complementary protection obligations in his case.
The Tribunal was not satisfied that the First Applicant met the complementary protection criterion. It noted that there was no suggestion that the First Applicant satisfied s.36(2) on the basis of being a member of the family unit of a person who satisfied s.36(2)(a) or (aa) of the Act.
The Tribunal found that the Second and Third Applicants had not made their own claims to fear harm in India and that they did not meet s.36(2)(aa) of the Act. It also found that they were not members of the family unit of a person who satisfied s.36(2)(a) or (aa) and accordingly did not meet s.36(2)(c) of the Act.
It affirmed the decision not to grant the Applicants protection visas.
However the Tribunal then outlined humanitarian considerations which led it to refer the matter to the Minister for consideration under s.417 of the Act on the basis of Ministerial Intervention Guidelines in relation to cases exhibiting one or more unique or exceptional circumstances. It noted that under the Ministerial Intervention Guidelines factors relevant to this assessment included circumstances that may bring Australia’s obligations as a party to the CROC into consideration.
In that context the Tribunal referred to the medical difficulties being experienced by the Third Applicant, the medical evidence of his diagnosis of moderate global development delay and autism spectrum disorder, and his specialist treatment. The Tribunal expressed the belief that it was reasonable to assume that the Third Applicant would be unable to receive treatment of a similar standard if he were to return to India and that the services available to him there would be significantly less effective. The Tribunal was of the view that the problems the Third Applicant faced were severe and that it was evident that they had imposed a considerable emotional burden on his parents. It referred to the representative’s submission that Australia’s obligations under the CROC should be taken into account and that the child’s best interests should be a primary consideration. For these reasons, the Tribunal asked that the case be brought to the Minister’s attention.
On 12 March 2015 a Tribunal officer wrote to the Ministerial Intervention Unit advising that the Tribunal member had asked that the case be referred to the Department for consideration under the Ministerial Intervention Guidelines. The letter brought to the Department’s attention the medical conditions of the Third Applicant and the Tribunal’s view that the specialist treatment he was receiving in Australia was unlikely to be available in India, thus putting his welfare at risk.
However on 16 September 2016 the Department notified the Applicants that the Assistant Minister for Immigration had decided that it would not be in the public interest to intervene and that he had not exercised his power under s.417 of the Act to substitute a more favourable decision.
The Applicants then sought judicial review of the Tribunal’s decision.
Whether the Tribunal failed to consider an integer of the claims
The first ground of review is a generally expressed and unparticularised contention that the Tribunal failed to consider the full integers of the claims of “the Applicant” (sic).
When given the opportunity to identify aspects of his claims that were not considered by the Tribunal (at both the hearing of the application for an extension of time and at the final hearing), the First Applicant expressed concern that the Tribunal had not believed his claims that his wife had miscarried after the 2007 car chase because of the actions of his enemies or his claims about having an office and business in India and had not accepted that he would be attacked if he went home to India. He explained that his concern was that he had not been believed by the Tribunal. He also claimed that after he came to Australia “they” had demanded a lot of money from his parents, but that the Tribunal had not accepted this claim.
In so far as the First Applicant maintained that the Tribunal had not considered his claims, that is not supported by the material before the court. The Tribunal accepted that the two claimed incidents of 2006 and 2007 had occurred, but was not satisfied that the First Applicant was deliberately targeted, whether by members of the CPI(M), supporters, affiliated union members, criminal gangs or business rivals.
The Tribunal was not satisfied that the 2006 incident was more than an act of random criminal violence. It did not fail to accept that the Second Applicant had suffered harm or a miscarriage after the 2007 incident. Rather, it noted that the driver had taken evasive action and braked suddenly. The Tribunal proceeded on the basis that the 2007 incident had occurred and that the Second Applicant had suffered a miscarriage. However, on the First Applicant’s evidence, the Tribunal was not satisfied that this incident involved intentional harm of any kind, having regard to his inability to identify who was involved or why harm was intended. It was not satisfied that he was deliberately targeted (in this or any other incident) by his business rivals because of his success in gaining government contracts, given his vague, confused and limited evidence in that respect.
These findings have not been shown to involve illogicality or irrationality or to demonstrate legal unreasonableness. It cannot be said that there was no logical connection between the Applicant’s limited evidence of his political involvement, his speculation about the cause of the incidents and the Tribunal’s conclusion that it was not satisfied on the evidence before it that the First Applicant was deliberately targeted in 2006 or that the 2007 incident involved intentional harm (see Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3 at [135] per Crennan and Bell JJ). Further, I am not satisfied that no reasonable decision-maker would have found the Applicant’s evidence as to why he feared his business rivals (including his ex-employee) was vague and confused in circumstances where he was unable to identify which rivals wished him harm or to clearly explain the suggested role of his former employee. The Tribunal’s reasoning has not been shown to demonstrate extreme illogicality such as to involve jurisdictional error.
As to the First Applicant’s claims about his business interests in India, while the Tribunal recorded that it had raised a concern in that respect based on a 2007 departmental file note, after further documentary evidence was provided the Tribunal proceeded on the basis that the First Applicant had the claimed business in India. It considered his claims to fear his business rivals.
While the First Applicant told the court that since he came to Australia “they” had demanded a lot of money from his parents, there is no evidence that he made such a claim to the Tribunal. It addressed his claim to fear being kidnapped by his rivals for ransom as a perceived wealthy person.
The Applicants’ disagreement with the Tribunal’s conclusion otherwise seeks impermissible merits review.
It has not been established that the Tribunal failed to consider all the integers of the First Applicant’s claims. Ground 1 is not made out.
Whether the Tribunal failed to consider the circumstances of the Third Applicant in relation to the complementary protection criterion
The second ground in the application is a contention that the Tribunal “failed to consider the circumstances of the child in relation to the best interests of the child under complementary protection requirements”.
In oral submissions the First Applicant claimed that his child would not get treatment in India and could not have a good life there. However no claim was made to the Department or to the Tribunal that any of the Applicants feared significant harm within the complementary protection criterion because of the Third Applicant’s circumstances or that the best interests of the child should be taken into account in that context. Nor did any such claim arise clearly or squarely on the material before the Tribunal in the manner considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263. There is no evidence or suggestion of any claimed risk of harm to any of the Applicants based on the Third Applicant’s medical condition or needs such as to fall, even arguably, within any of the definitions of harm constituting significant harm within s.36(2A) of the Act (arbitrary deprivation of life or the imposition of the death penalty, intentional infliction of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5 of the Act). In particular, there was no suggestion to the Tribunal or evidence raising a claim of any risk of intentional infliction of harm relating to the circumstances of the Third Applicant. For the sake of completeness I note that there is also no evidence of any claim to the Department or to the Tribunal (or material that squarely raised a claim) that any of the Applicants’ feared harm for a Convention reason based on the Third Applicant’s circumstances, including his medical condition and/or the unavailability of medical treatment in India.
The circumstances of the child, including his best interests, were not raised in support of any proposition that any of the Applicants feared harm for a reason within the Refugees Convention criterion or within the complementary protection criterion, except in so far the First Applicant raised his son’s medical condition as an obstacle to relocation. Given the Tribunal’s findings it was not necessary for it to consider relocation.
Further, as the First Respondent submitted, there is no statutory requirement under the Act for the Minister (or the Tribunal) to take into account the best interests of the child when making a decision under s.65 as to whether an applicant meets the requirements for the grant of a protection visa.
This was not a case in which it could be said that the Applicant/s had a legitimate expectation that the best interests of the Third Applicant would be taken into account by the Tribunal in making such a decision (cf. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20). While the CROC raises issues of the best interests of the child, this case did not involve the exercise of a discretionary power (in relation to which such a legitimate expectation may arise) (cf. SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 at [29] per Griffiths J and cases cited therein, in particular SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568 at [17]-[19]).
As was made clear by the submission to the Tribunal from the Applicants’ representative of 6 March 2015, the issues in relation to the child, in particular his best interests, were raised only in support of the request that if the Tribunal decided to affirm the decision of the delegate it should refer the case to the Minister for consideration under s.417 of the Act on the basis that there were unique or exceptional circumstances in the case, including those attributable to the child’s condition and his need for specialist medical treatment.
Ground 2 is not made out.
Other issues
At the hearing of the application for an extension of time, I raised with counsel for the First Respondent possible issues which arose out of the fact that the Tribunal considered only whether the Second and Third Applicants met the s.36(2)(c) family unit criterion, not whether either or both of them met s.36(2)(aa) or, in the case of the Third Applicant, s.36(2)(a) of the Act.
The first issue was whether the Tribunal fell into jurisdictional error in considering only protection claims advanced by the First Applicant. The second issue was whether the Tribunal fell into error in appearing to treat the Third Applicant as having previously made a protection visa application.
The parties were given the opportunity to make both written and oral submissions in relation to these issues. The First Respondent did so. The Applicants, who were self-represented, did not address either of these issues.
The first issue raised the question of whether the Second and/or Third Applicants had advanced their own claims for protection in connection with the 2012 protection visa application or in the course of the Tribunal review or whether any such claims were advanced on their behalf or arose clearly or squarely on the material before the Tribunal.
As the First Respondent submitted, the starting point is the visa application form lodged on 9 October 2012 which was prepared with the assistance of solicitors.
In his covering letter of 9 October 2012 the Applicants’ solicitor/migration agent stated that the protection visa application was “expressly made” in reliance only on s.36(2)(aa) of the Act as no previous application relying on this ground had been made by the First Applicant. It was explained that a statutory declaration of the First Applicant providing detailed complementary protection claims (summarised on his Part C Form) would be provided.
Part C is to be completed by “an applicant who wishes to submit their own claims for protection”. Only the First Applicant completed Part C in the protection visa application. In answer to the question in the Form as to why he left his home country, the First Applicant claimed to fear he would suffer harm. While he stated “see my detailed statement”, as confirmed by the solicitors for the Minister, no such statement was provided with the protection visa application. However a statutory declaration in support of the First Applicant’s claims dated 28 March 2014 was subsequently provided to the Department by the Applicants’ lawyers. Both the protection visa application and the First Applicant’s statutory declaration of 28 March 2014 claimed only that the First Applicant feared or faced harm personally. No mention was made in those documents of any fear or risk of harm to the Second or Third Applicants.
The Second Applicant (the First Applicant’s wife) signed a completed Part D in the protection visa application. As the printed form states, Part D is to be completed by a member of the same family unit who does not have their own claims for protection but who is included in the application. A Part D was also completed for the then one year old Third Applicant and signed in the name of his father, the First Applicant. No claims to fear or face harm were advanced in the protection visa application form on behalf of the Second or Third Applicants. As the First Respondent submitted, the completed protection visa application form made it clear that the Second and Third Applicants were (at that time) seeking visas only as members of the family unit of the First Applicant.
However, in the submission to the Department dated 20 March 2014 in support of the protection visa application, the Applicants’ then solicitor stated that: “The applicants fear that they will be seriously harmed if they returned to India for reasons explained in their statement” (emphasis added). The only “statement” provided to the Department addressing a fear of harm consisted of the First Applicant’s claims in the protection visa application and his statutory declaration of 28 March 2014. As indicated, those documents addressed only his claim to face a risk of harm personally.
Despite the express disavowal of any Refugees Convention claim in the original covering letter, the submission of 20 March 2014 addressed, among other things, the Refugees Convention criterion as well as the complementary protection criterion. However, it failed to identify any basis on which it was claimed that the Applicants, other than the First Applicant, had a fear or risk of serious or significant harm independent of the First Applicant’s claims. It referred to “their political opinion” solely on the basis that the primary (First) Applicant was a “member and supporter” of the TMC. It made no claim that the Second Applicant was a supporter or member or that she feared or risked harm independently of her husband’s claims. Rather, it was submitted that:
The primary applicant submits that he is a member and supporter of Trinamool Congress led by Mamta Banerji in West Bengal. We submit that his feared persecutors consider the applicant as holding a political opinion against his persecutors including CPI(M), Congress and Maoists.
Accordingly, the primary applicant fears that there is a real chance that the applicants will be persecuted in India if they return to India.
In relation to the complementary protection claim, the representative submitted that generally TMC activists faced a real risk of significant harm and that:
… the country information confirms our applicants fear of significant harm including torture, degrading, inhuman and cruel treatment at the hands of their persecutors and the absence of effective State protection.
In so far as it was intended to assert a claimed fear or risk of harm on behalf of the Second and Third Applicants, it was clearly based entirely on the claimed activities of the First Applicant.
While a copy of a 2011 medical report in relation to the Third Applicant was provided to the Department, there was no suggestion that this in itself was intended to, or on its face raised, a claimed fear or risk of harm to the Third Applicant within either the Refugees Convention criterion or the complementary protection criterion.
The delegate’s account of the protection visa interview does not identify or suggest that any claimed fear or risk of harm on the part of the Second or Third Applicants was raised. In the delegate’s decision their claims were assessed solely as members of the First Applicant’s family unit.
Notwithstanding the effect of SZGIZ, in January 2015 the Applicants’ representative submitted to the Tribunal that it should, and indeed was required to, consider the Applicants’ claims under both s.36(2)(a) and s.36(2)(aa) of the Act although (it was suggested) they had previously applied for protection relying on the Refugees Convention criterion. Such submission did not address the factual claims of any of the Applicants and did not distinguish the situation of the Third Applicant from that of his parents.
In the First Applicant’s statutory declaration of 6 February 2015 (in support of what he described as “my” application for a protection visa) he claimed to the Tribunal to be a supporter and follower of the TMC. In that context he did claim to fear that “my family and I will face serious harm” and that if he returned he “would not only be risking my life, but my family’s lives too”, but no independent basis was suggested for his claimed fear or risk in relation to the lives of his wife and child.
In her statutory declaration of 6 February 2015, the Second Applicant stated, very clearly, that she was providing the statement “in support of my husband’s application for a protection visa”. She addressed events supporting her husband’s claims, including how the claimed incidents directed at him had affected her. In particular, she stated that during a January 2007 car chase by unidentified persons, she developed pain and nervous shock and later went to hospital and suffered a miscarriage. She also stated that she became mentally sick following an incident in which CPI(M) followers threw stones at their house. These were incidents the First Applicant relied on in support of his claim.
Taken at its highest, the Second Applicant’s statutory declaration indicated that she had in the past suffered as a consequence of the actions of those who were targeting her husband. There was no suggestion that she (or the Third Applicant) had a fear or risk of future harm independent of the claims of her husband.
Moreover, on 6 February 2015 the Applicants’ migration agent sent an email to the Tribunal in which it was stated: “We advise that the applicant’s wife also will attend the interview to provide oral evidence in support of her husband’s application for a protection visa” (emphasis added).
The First and Second Applicants both attended and gave oral evidence at the hearing conducted by the Tribunal on 19 February 2015. In its reasons the Tribunal referred at paragraph 23 to the Second Applicant’s evidence that:
… she and her husband had been under great mental pressure. They continued to receive threatening telephone calls. It was very difficult to tolerate this environment. Their circumstances in Australia are difficult and they are unable to provide proper medication or food for their son. However, they would lose their lives in India.
In so far as this raised a protection claim, it was based entirely on the claims of the First Applicant.
Finally, on 6 March 2015 the Applicants’ representative wrote to the Tribunal claiming that the First Applicant faced a real risk of significant harm (that is, that he met the complementary protection criterion). The letter asked that the matter be referred to the Minister under s.417 of the Act should the review be unsuccessful. In that context the First Applicant’s fear of harm was said to be genuine. It was, however, claimed that if he returned to India “he and his family will face significant harm”. This letter did not assert any Refugees Convention claim. No independent basis for a claimed risk of harm to the Second or Third Applicants was suggested.
The First Respondent acknowledged that it was well-established that the Tribunal would make a jurisdictional error if it failed to consider a substantial, clearly articulated argument relying upon established facts (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496; [2003] HCA 26). However was submitted that. to the extent that in certain correspondence from the Applicants’ representatives reference was made to the “Applicants” fearing harm, absent any specific articulation of what harm the Second and Third Applicants themselves faced, the Tribunal was not required to engage in constructive or creative activity in order to expose the claim (see NABE (No 2) at [56]).
It was submitted that the Tribunal correctly understood that it was only the First Applicant who advanced protection claims and that the Second Applicant claimed to have witnessed the harm that was directed towards her husband, some of which had indirectly affected her.
On this basis the First Respondent contended that, having regard to the totality of the material before the Tribunal, it was correct to proceed on the basis that only the First Applicant had raised claims for protection and that accordingly, as the Tribunal had observed, the Second and Third Applicants could only be granted visas if they satisfied s.36(2)(c) of the Act.
As indicated, the Applicants did not address this issue.
The Tribunal is not obliged to consider claims “which are not articulated and which do not clearly arise from the materials before it” (NABE (No 2) at [60]). Further, a judgement that the Tribunal failed to consider a claim not expressly advanced “is not lightly to be made” (NABE (No 2) at [68]).
It is the case that in the protection visa application only the First Applicant claimed to face a risk of harm (and the Second and Third Applicants relied solely on their membership of his family unit). However while the matter was before the Department and the Tribunal, the First Applicant or his representative expressly claimed that both he and his family would face harm. Such claims as were made in the representative’s March 2014 submission were based solely on the First Applicant’s political opinion. Notwithstanding the manner in which the claims were presented at the time of the protection visa application, I accept that, on balance, on the material before the Tribunal at the time of its decision, a claim was made (or, if it was not, it clearly arose) that there was a real risk of significant harm to the Second and Third Applicants (as well as to the First Applicant) based solely on the factual circumstances and activities of the First Applicant. On the evidence before the court (which I note did not include a transcript of the Tribunal hearing), as the claim was ultimately presented to the Tribunal, no claim was maintained that any of the Applicants had an independent basis for a risk or fear of harm.
However the Tribunal considered, but rejected, all the factual bases on which there was such a claimed risk of harm, in addressing the First Applicant’s claims. The Tribunal’s conclusion, by reference to the First Applicant’s claims, was that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there was a real risk that he would suffer significant harm as defined in s.36(2A) of the Act. However it reached this conclusion having rejected the factual basis for any claimed risk of harm. There was no independent or separate basis on which any claim was maintained or arose that the Second or Third Applicant had a real risk of significant harm (or, indeed, any well-founded fear of persecution).
The Tribunal erred in failing to consider whether the Second or Third Applicants independently met the complementary protection criterion. However, as the factual premise upon which the claimed risk of significant harm to the Second or Third Applicant rested was rejected, there was no basis upon which either of them could have succeeded if the Tribunal had expressly considered such claims.
Further, as the Minister submitted, even if a claim on behalf of the Third Applicant arose on the material before the Tribunal that he would face harm in India due to his health and limited access to medical treatment, no claim was made or arose that any such harm would come within or be capable of coming within the definition of significant harm in s.36(2A) of the Act. The definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s.5(1) of the Act incorporate the element of intention, which is to be given its natural and ordinary meaning, being an actual, subjective intent to cause harm (see SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [26]-[27] per Kiefel CJ, Nettle and Gordon JJ). There was no claim, whether articulated or arising on the material before the Tribunal, that any harm the Third Applicant faced in India due to his health or related to his medical conditions would be intentionally inflicted or would otherwise be within the definitions of conduct amounting to significant harm.
Hence, even if the Tribunal erred in not expressly considering whether the Second and/or Third Applicants, as well as the First Applicant, met the complementary protection criterion, such error did not deprive the Second or Third Applicants of the possibility of a successful result. It was not material and hence was not a jurisdictional error (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 and SZMTA).
The other issue that arose for consideration related to the Tribunal’s statement that the Applicants had previously made a protection visa application. The First Respondent accepted that the Tribunal was mistaken to find at paragraph 7 of its reasons that the Applicants (that is, all three of them) had previously made an application for a protection visa in 2007 which was assessed under s.36(2)(a) of the Act such that SZGIZ barred any further application on the part of any of the Applicants in reliance on s.36(2)(a) of the Act. The Third Applicant was born in 2011, after the 2007 application was finally determined. There is no evidence or suggestion that he had made (or was included in) any protection visa application prior to the 2012 application.
As discussed, the 2012 protection visa application was initially said to be limited to a complementary protection claim on behalf of the First Applicant. The Second and Third Applicants made initial claims based solely on their membership of the First Applicant’s family unit. As ultimately presented to the Tribunal, the only claims that were maintained or arose clearly in relation to the Third Applicant were claims as a member of his father’s family unit (within s.36(2)(c) of the Act) and also that he personally faced a real risk of significant harm based on his father’s circumstances (within s.36(2)(aa) of the Act).
It is the case that, contrary to the Tribunal’s assertion, the Third Applicant was not in fact barred from making a claim based on the Refugees Convention criterion by his parents’ 2007 protection visa application. The Tribunal did not consider whether the Third Applicant met the criterion in s.36(2)(a) of the Act. However, even if, contrary to my view, a Refugees Convention criterion claim was maintained in relation to the Third Applicant or arose clearly on the material before the Tribunal, such claim was entirely based on the First Applicant’s factual circumstances which were considered by the Tribunal. The Tribunal’s rejection of the factual basis which underpinned any such claims, as well as the complementary protection claims, left no basis on which the Third Applicant could have met the criterion in s.36(2)(a) of the Act.
Hence, even if the Tribunal erred in failing to consider the Refugees Convention criterion in relation to the Third Applicant, such error could have made no difference to the result of the review and did not deprive the Third Applicant of the possibility of a successful result. Any such error was not material (see in particular Hossain at [66]-[72] per Edelman J) and accordingly no jurisdictional error is established on that basis.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 8 May 2020
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