SZSUW v Minister for Immigration & Border Protection

[2014] FCCA 940

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUW v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 940

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal properly considered the applicant’s claims – whether the Refugee Review Tribunal applied the correct test in considering whether the applicant met the complementary protection criterion – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
SZSRY v Minister for Immigration [2013] FCCA 1284
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

Applicant: SZSUW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 958 of 2013

Judgment of: Judge Emmett

Hearing date: 7 April 2014

Date of Last Submission: 7 April 2014

Delivered at: Sydney

Delivered on: 12 May 2014

REPRESENTATION

Counsel for the Applicant: Mr John Williams

Solicitors for the Applicant: Adrian Joel & Co

Counsel for the Respondents: Mr Benjamin O’Donnell

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 958 of 2013

SZSUW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 11 April 2013 and handed down on the same date (“the RRT”).

2. The applicant claims to be a citizen of India and of Sikh faith and ethnicity, who fears harm from a money lender in India.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 31 January 2008 having departed legally from India on a passport issued in his own name and a student visa issued on 12 December 2007.

2. On 27 August 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 7 December 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 18 December 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 11 April 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 6 May 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Section 36(2A) of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. In the applicant’s application for a protection visa, the applicant claimed that:

   a)The applicant and his parents would be vulnerable to pressure and harassment in respect of debts incurred regarding the applicant’s studies.

   b)The applicant has suffered significant humiliation with respect to failing to achieve any proper training or education and not completing a number of training courses. This has caused significant shame and embarrassment within the family. The applicant claims as a result he may be ostracised by his family.

   c)The applicant has significant debts as a result of his study in Australia.  

   d)The applicant’s father has had to stop his planned retirement and has returned to a construction job in Dubai due to financial pressure.

   e)The applicant’s parents are indebted to money lenders. The applicant claims that the police would consider such an issue a civil problem. Further, the applicant claims the relationship with his parents has caused embarrassment and humiliation.

2. In support of the applicant’s application, the applicant’s representative attached to the application a letter in the following terms:

   “My instructions are as follows.

   The Applicant has been on a student visa for a number of years. He first came to Australia during 2008 on a sub-class 572 visa to attend an English language course and then later a “community services” course at Cambridge College in Sydney. He then commenced a hospitality course at Windsor College paying a fee of $15,000 to achieve a Certificate III in hospitality. The course finished during September 2009 and he was then advised by a purported ‘education agent’ to enrol for another $6,000 a short term course for a diploma of business management [sic]. Unfortunately, the college collapsed.

   He now recognizes that at that time he should have pursued the cookery/hospitality option. Had it not been for the collapse of the college he would have continued instead of paying an additional $7,000 during 2010 to the Strathfield College continuing his studies in the diploma of business administration, which he has not yet completed.

   He has been placed in a situation where he has studied for years for what he and many of his peers now recognize as rather worthless qualifications, which he feels should not have been approved and sold to the public. All told, he and his family have contributed approximately $40, 000 including living costs, for nothing.

   Moreover, when he completed is [sic] proper studies in the Punjab he believes both he and his peers were fraudulently recruited to come to Australia. Education agents came to his village and school and emphasized how easy it would be to become a resident of Australia if them embarked upon such expensive courses.

   The Applicant now recognizes that had it not been for the collapse of the colleges and the fact that 900 hours of free labour was meant to be arranged to obtain so-called work experience in kitchens, he would have been able to achieve residence.

   The relevance of the above is that both he and most significantly his family are very heavily in debt and it has had grave implications on his family relationship. His father was based in Dubai as a construction worker and came home to [the village] to retire. As a result of the loans taken, the money provided to help his son, he has now been obliged to return to Dubai to work. Moreover, as an only child his mother and father have lost faith in him because he has not achieved anything and both he and they have felt an acute sense of humiliation and in the Applicant’s case, futility and depression.

   Had he known that the student industry was characterised by low quality, expensive and useless courses, which did not lead to recognition of qualifications, except in circumstances to what amounted to 900 hours of slave labour (work experience) he would not have come to Australia in the first place.

   It is respectfully submitted that the focus in terms of analysis may be undertaken with respect to Complementary Protection. The key test appears at Section 36(2)AA [sic] and the harm that  would be faced on a practical basis would be that from money lenders, not-withstanding [sic] the extreme humiliation he would face socially. He would be perceived as a failure and in debt.

   In is not a situation where the Section 36 (2) B [sic] exemptions and exclusions can apply. For example, with respect to purported relocation. Moreover, we would assert under these unique circumstances, primarily with respect to the operation of the International Convention of Civil and Political Rights, a pre-requisite level of unreasonable level of extreme humiliation [sic] associated with degrading treatment could be recognized. It is not a “risk” that is faced by the population generally.

   Your attention is drawn to the analogous precedent established by European litigation regarding the parameters of debasement – constituting an affront to human dignity. The issue, which was recognized in Moldovan v. Romania, was whether such humiliation and its consequences adversely impacted the applicant’s personality in a manner incompatible with Article 3 (with respect to the analogous European Court of Human Rights Provisions). Significantly, the European Court has held that degrading treatment may also encompass… “the denial of socio economic rights, such as insufficient provisions of basic services necessary for a dignified existence…”

   The significance of this precedent/policy can be reaffirmed as it is actually referred to at paragraph 4, page 81 of the Complementary Protection Manual. Quoting Ireland v. United Kingdom, degrading treatment has been defined as that which arouses in the victims feelings of anguish, inferiority and debasement.

   Further, the selection of case examples from page 83 of the Manual reaffirms the ambit of degradation that has to be considered. For example, questioning regarding homosexual tendencies (Smith and Grady), unclean prison cells (Dougz v. Greece), insufficient light affecting sleep patterns (Mayzit v. Russia).

   The point of the above is the breadth of consideration as to the circumstances of degradation in terms of establishing a nexus with respect to extreme humiliation. Such is the plight of the Applicant – unskilled, extremely in debt, estranged from his parents and particularly humiliated as he bears the guilt of the cessation of his father’s retirement.

   Persecutory grounds may also be considered based upon cumulative discrimination in much the same sense as has been particularized in the Complementary Protection arena.

   I have instructed by client to obtain particulars of the costs associated with his studies and have attached some academic transcripts.

   Please sympathetically consider.”

The Delegate’s decision

1. On 8 November 2012, the Delegate wrote to the applicant inviting him to attend an interview on 5 December 2012. The applicant failed to attend the scheduled interview with the Delegate.

2. On 7 December 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

3. The Delegate found that the type of harm claimed by the applicant – that he was being threatened by a money lender was not for a Convention ground.

4. The Delegate also found that the applicant would, in any event, be able to avoid the feared harm by relocating within India. The Delegate noted independent country information which indicated that the applicant could reasonably avail himself of the protection of the Indian authorities.

5. Finally, the Delegate noted the applicant’s delay in making his protection application and the fact that the applicant returned to India in April 2011 for a short period. The Delegate found, on the basis of the applicant’s delay in filing his protection application and his return to India that his fears of persecution were insubstantial.

6. In relation to complementary protection, the Delegate found that on the evidence before it the claimed harm by the applicant was not significant as defined in s.36(2A) of the Act.

The RRT’s review and decision

1. On 28 December 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 11 March 2013, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 10 April 2013 to give oral evidence and present arguments.

3. On 10 April 2013, the applicant attended the RRT hearing and gave evidence. The applicant also submitted further documents to the RRT.

4. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

5. The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.

6. The RRT accepted that the applicant’s family had borrowed money from a money lender to pay for the applicant’s education costs in Australia.

7. The RRT accepted as being plausible that the applicant’s family feels under some pressure in relation to the loans from the money lender. The RRT further accepted that the money lender had stressed the need for timely repayments.

8. The RRT did not accept that the applicant’s family had fallen behind in their repayments to the money lender and noted that there was no persuasive evidence of legal action to foreclose the family’s home.

9. The RRT found that the applicant’s family have had no cause to seek police or other protection, either due to problems with the money lender or otherwise in the past. As such, the RRT was not satisfied that the police would deny the applicant or his family protection in the future for any reason.

10. The RRT accepted that the applicant’s family may be upset if he was to return to India without having achieved permanent residency in Australia or educational qualifications. The RRT also accepted that there may be some friction within the applicant’s family as a result of this failure. However, the RRT did not accept that, given the applicant’s ongoing contact with his father and the applicant’s observed tendency to exaggerate his evidence, that the applicant’s family would reject the applicant completely or mistreat him.

11. The RRT accepted that should the applicant return to India that he would have personal feelings of regret and embarrassment and that people within the applicant’s village may discuss his return, sometimes in negative terms. The RRT did not accept any negative reaction would be extreme or sustained.

12. The RRT found that none of the persecution which the applicant claimed was an essential or significant reason of any Convention ground, nor did the applicant advance any argument to the contrary.

13. The RRT then considered the applicant’s claims in respect of complementary protection. The RRT found that the applicant and his family felt under pressure to repay their loans, even if the applicant had exaggerated the amount owing. The RRT also found that the family’s creditors were entitled to take legal action against the applicant’s family, including foreclosing on the applicant’s family’s house, in the event that the loans were defaulted upon. The RRT found that this had not occurred because the applicant’s family had not defaulted on their loans.

14. The RRT did not accept that the applicant’s family was on the verge of default or that the money lender would increase pressure on the applicant’s family in the event that the applicant returned to India. Further, the RRT did not accept that any pressure on the applicant’s family to repay their loans, or even the threat of legal action including foreclosure, amounted to ‘significant harm’. Nor did the RRT accept that such pressure would amount to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as defined by the Act.

1. The RRT had regard to a submission by the applicant in respect of a different Refugee Review Tribunal decision concerning a Malaysian businessman who had borrowed money from loan sharks, in which the Refugee Review Tribunal did find that that assault, harassment and various forms of punishment constituted serious harm for the purposes of s.36(2)(aa) of the Act. The RRT acknowledged that complementary protection may be extended to people indebted to loan sharks in some circumstances, however this was not such a case.

2. The RRT was not satisfied on the available evidence that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there was a real risk that the applicant would suffer significant harm. Consequently, the RRT found that the applicant was not entitled to complementary protection.

3. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Jay Williams of counsel. 

2. By consent, the applicant was granted leave to rely on a further ground identified in a further amended application filed in Court today in the following terms:

   “1. The first respondent erred in law in applying the incorrect test for the grant of a protection visa under the provisions of the Migration Act 1958 (Cth) as amended

   Particulars

   The RRT adopted the incorrect test, that being “real risk” of significant harm, as opposed to the “real chance” of significant harm, as per Minister for Immigration and Citizenship v SZQRB 210 FCR 505.”

3. In relation to the amended application filed on 1 August 2013, whilst ground 1 and 2 were not abandoned, no submission was made in support of either ground.

4. Mr Williams characterised grounds 1 and 2 as different formulations of ground 3 upon which the applicant did rely. For the sake of completeness, ground 1, 2, and 3 are as follows:

   “1. The First Respondent erred in in law in applying the correct test for the grant of a protection visa under the provisions of the Migration Act 1958 (Cth) as amended.

   Particulars

   [a] The delegate adopted the test for complementary protection applying prior to 24 March 2012;

   [b] The Tribunal adopted the same test as the delegate;

   [c] The Second Respondent by his servants as agents adopted the wrong evidentiary test for the grant of a protection visa.

   2. That the First Respondent failed to address the correct question before it, namely whether the Applicant was entitled to be granted a protection visa according to law.

   Particulars

   [a] The Applicant repeats the particulars in Ground 1.

   3. That the First Respondent failed to have regard to a relevant consideration.

   Particulars

   [a] The First Respondent failed to have proper regard to the circumstances that the Applicant was the subject of intimidation and attendant in India;

   [b] The First Respondent failed to have regard to the Applicant’s argument properly or at all referred to in [a] specifically.

   • Equating the terms and conditions of loans provided as comparable to a legitimate loan provider notwithstanding an agreed compound annual interest rate of one hundred and twenty per cent, in contrast to that of a ‘loan shark’.

   • Dismissing the claim that the family could not maintain the debt upon the basis that the Applicant did not provide evidence that the money lender had not commenced legal action and thus the family were not in default of loan repayments.

   • Failing to appropriately consider the threats of violence with respect to the alleged inability of local police to provide sufficient or any meaningful protection with respect to the Applicant and his family in circumstances that may invoke the application of Section 36(2)(aa0 – namely Complementary protection Criterion.

   • Establishing an adverse evidentiary nexus between the bank balance of the Applicant in Australia as at the time of interview and the Complementary claims conveyed.

   • Failing to consider that even if the family (and vicariously the Applicant) were not in default (which is denied) the consequence of a life based upon effective ‘debt bondage’ .”

Ground in Further Amended Application

1. At the heart of the ground of the Further Amended Application is a contention that, in considering complementary protection, the RRT failed to apply the correct test. Mr Williams submitted that in considering whether there is a real risk that the applicant will suffer significant harm, the RRT failed to consider whether there was a real chance of significant harm in accordance with the test referred to by Lander and Gordon JJ in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 (“SZQRB”). SZQRB was decided a month before the decision of the RRT in the case before this Court.

2. Mr Williams submitted that SZQRB was authority for the proposition that in considering whether there is a real risk that an applicant would suffer significant harm if returned to their home country, the decision make must consider whether there is a real chance that the applicant will suffer significant harm, rather than considering only whether it was “more likely than not.”

3. SZQRB was considering the application by a different Refugee Review Tribunal of a Departmental Policy which suggested that in considering whether an applicant met the complementary criterion in ss.36(2)(aa) and s.36(2A) of the Act, it was sufficient to assess an applicant’s claims against whether it was “more likely than not” that an applicant would suffer significant harm.

4. In SZQRB, the Departmental Policy upon which the different Refugee Review Tribunal relied in that case, found that a real risk was something different to the real chance test that is usually provided in relation to the refugee criterion in s.36(2)(a). It is accepted that a “real chance” is something less than the balance of probabilities. SZQRB held that a “real risk” referred to in s.36(2A) meant the same as a “real chance” in refugee law.

5. In the case before this Court, in considering complementary protection, the RRT concluded that it was not satisfied on the available evidence that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a “real risk” that he will suffer significant harm as defined in s.36(2A) of the Act and therefore did not meet the requirements of s.36(2)(aa).

6. I accept the submission of counsel for the first respondent, Ms Rachel Francois, that, unlike SZQRB, there is nothing to indicate in the RRT decision record that it was not applying the correct test in considering whether there is a “real risk” of significant harm. “Real risk” is the language of s.36(2)(aa) of the Act and no error can be drawn from the simple fact that the RRT used the words of the section.

7. In reaching its conclusion that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act, and therefore does not meet the requirements of s.36(2)(aa) of the Act, the RRT relied on the same findings it had made in considering whether the applicant met the refugee criteria. A fair reading of the RRT decision record makes clear that the RRT applied the “real chance” test to the findings it made and against which it assessed whether the applicant met the refugee criteria in s.36(2)(a).

8. In SZQRB, at [240], there was a clear indication that the standard that had been applied by the different Refugee Review Tribunal in considering the complementary protection criterion was not the “real chance” test but a higher standard. As stated above, there is no such indication that the RRT in the case before this Court did not apply the real chance test in considering the complementary protection criterion.

9. Accordingly, ground 1 of the Further Amended Application is not made out.

Grounds 1 and 2 of the Amended Application

1. As stated above, no submission was made in support of either of grounds 1 or 2 of the Amended Application. Mr Williams agreed that the complaints in grounds 1 and 2 were simply reformulations of ground 3. Mr Williams further conceded that if he was unsuccessful in ground 3 he would be unsuccessful in grounds 1 and 2.

Ground 3

1. Ground 3 alleges that the RRT failed to properly consider the applicant’s argument or at all. Ground 3 particularises various findings of the RRT in support of the ground. The particulars identify findings which the applicant contends the RRT made without considering his evidence because his arguments were rejected. The particulars identified are considered below.

2. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out ( at 348 per Heerey J).

Ground 3 Particular (i) Loan Shark

1. The first particular asserts that the RRT fell into error by:

   “Equating the terms and conditions of loans provided as comparable to a legitimate loan provider notwithstanding the agreed compound annual interest rate of one hundred and twenty per cent, in contrast to that of a “loan shark”.

2. The applicant told the RRT that he earnt about $2,500 per month in Australia and has $7,000 in an Australian bank account. The RRT noted that it put to the applicant that his Australian finances could cast doubt as to whether his family was as severely indebted as he claimed, or were subject to threats for non-payment, given that the applicant had said that those funds had not been used to reduce pressure on his family. The RRT noted that the applicant’s response that he “commented vaguely that he had been thinking about sending a cash sum back to India to help his parents with the loan.”

3. In the light of that evidence, the RRT made the following findings:

   “The Applicant and his family arranged for the Applicant to study in Australia, on borrowed money, in the hope that it would lead to permanent residency in Australia and/or impressive qualifications that would ensure his future in India: at [16]. 

   The Applicant’s family took out successive high interest loans to pay for his studies in Australia: at [11].

   His father went to work in Dubai, in part to earn more money to service and pay off these loans: at [11]. 

   The Applicant himself had sent money to the relevant money lender or loan shark on four or five occasions, to help pay off the debts: at [11].

   The Applicant’s family feels under some pressure in relation to the loans and their creditors have stressed the need for timely repayments: at [13]. 

   The Applicant’s family may be upset if he returns to India without having achieved permanent residency in Australia and/or more prestigious qualifications and some family frictions may arise as a consequence: at [18], [26].

   People in the Applicant’s village will come to know of the Applicant’s return to India, and may talk about it in negative terms: at [19], [26]. 

   The Applicant himself will have feelings of regret and embarrassment on his return to is village: at [20].”

4. The RRT’s findings make clear that he accepted that the applicant had sent money to Manjit Singh, the money lender, on four or five occasions to help pay off debts but found that it is unclear whether Manjit Singh is a money lender or a loan shark. In the light of the applicant’s evidence of his positive cash balance at the bank in Australian, the RRT found that the applicant had exaggerated the amount of the outstanding debt to Manjit Singh and the difficulties his family had in servicing it.

5. The RRT clearly turned its mind to whether or not Manjit Singh was a loan shark or a money lender and did not make a finding that he was a loan shark. Those are findings of fact that were open to the RRT on the evidence and material before it and for the reasons it gave.

Ground 3 Particular (ii) Family’s Financial Difficulties

1. The next complaint made by the applicant relates to an allegation that the RRT failed to consider “the dire financial predicament of the family.”

2. The finding which the applicant contends was not open to the RRT is as follows:

   “Given the applicant’s positive cash balance at the bank, his possession of the car and his other circumstances, the RRT find that the applicant has exaggerated the amount of the outstanding sum and the difficulties he and his family has in servicing it.”

3. For the reasons given in particular (i) above, that finding was open to the RRT on the evidence and material before it and for the reasons it gave.

Ground 3 Particular (iii) Threats by Money Lender

1. The applicant then asserts that the RTT failed to consider the “death threats and acts of intimidation by the loan shark.”

2. The finding with which the applicant cavils is the RRT’s finding as follows:

   “The RRT does not accept that Manjit Singh has made credible threats to kill the applicant if he returns to India or other threats to the family.”

3. In support, Mr Williams referred to the applicant’s evidence of threats from Manjit Singh.

4. In its decision record, the RRT noted the applicant’s claims that Manjit Singh telephoned him two or three times a week, insisting that the loans be repaid or he will be killed on his return to India. The RRT noted that it was surprised that Manjit Singh persisted with telephone calls to Australia that seemed fruitless and noted that the applicant had not reported any of the calls to the Australian police.

5. The RRT also put to the applicant that Manjit Singh had legal agreements for the loan and, according to the applicant’s own evidence, the right to seize the family home if the family defaulted. The RRT noted that the loans were in some cases over five years old and that Manjit Singh had had plenty of opportunities to foreclose on the family home but that the family continues to live there.

6. The RRT noted that it seemed odd that Manjit Singh would threaten to kill the applicant and obtain money through life insurance fraud as this would expose him to criminal prosecution when he had a more immediate legal means to secure any unpaid monies. The RRT noted the applicant’s response that Manjit Singh had tried to take legal action against his parents but had been told that the applicant’s parents could stay in the home as long as they kept up payments.

7. Ultimately, the RRT made the following finding in respect of that evidence:

   “[13] The Tribunal accepts, on the basis that it is plausible, that the applicant’s family feels under some pressure in relation to the loans. It accepts as plausible that their creditors have stressed the need for timely repayments. However, it does not accept that the family has actually fallen behind in its repayments, as there is no persuasive evidence of any legal action such as measures to foreclose on the family home. The Tribunal does not accept that Manjit Singh has made credible threats to kill the applicant if he returns to India, or other threats to the family. The applicant gave very little insight as to why Manjit does not prefer to exhaust legal options first, such as seizing the family’s home, rather than threaten to kill the applicant. The Tribunal does not accept that the money lenders are threatening to harm the applicant or his family at all.” (emphasis added)

8. The RRT did not accept the applicant’s evidence that Manjit Singh had made credible threats to kill him if he returned to India or threats to his family. A fair reading of the RRT’s decision record makes clear that those findings were open to the RRT on the evidence and material before it and for the reasons it gave.

Ground 3 Particular (iv) Debt Bondage

1. The applicant also alleged that the RRT erred in failing to consider “debt bondage as a ground under complementary criterion.” In support of this particular, Mr Williams submitted that the RRT had failed to take into account the overall effect of debt bondage on the applicant’s family when considering the complementary criterion because it failed to take into account that even if the family was not in default, the consequence of a life based upon effective “debt bondage” is a legitimate consideration under the complementary protection criterion.

2. The particular finding with which the applicant take issue is as follows:

   “The family’s creditors are entitled to take legal action and even foreclose on the property, if the applicant and his family do not meet their repayments.”

3. In considering complementary protection, the RRT stated as follows:

   “[23] The Tribunal has found above that the applicant and his family feel under pressure to repay outstanding loans, even though the Tribunal considers that he exaggerated the amount of the unpaid debt and his and his family’s overall financial situation. The family’s creditors are entitled to take legal action and even foreclose on the property, if the applicant and his family fail to meet their repayments. The Tribunal finds that they have not done so to date, because the family is not in default. The Tribunal does not accept that the creditor has threatened to kill the applicant, or has made credible threats against him or his family in the past, other than the possibility of legal action. Looking to the future, it appears that the applicant has made only occasional, modest contributions towards loan repayments. The Tribunal is not satisfied that his return to India would diminish the family’s chances of meeting any loan repayments. On the available evidence, the Tribunal is not satisfied that the family is on the verge of default, or that the money lender will increase pressure on the family, mentally or physically, if the applicant returns to India.

   [24] The Tribunal does not accept that any pressure on the family to repay the loans, or even the threat of legal action, such as an application to seize the family home to recover the original loans, involves ‘significant harm’. In its view, such action would not amount to ‘cruel or inhuman treatment or punishment’, and it would not amount to ‘degrading treatment or punishment’, as defined by the Act.” (emphasis added)

4. Moreover, there was no claim made by the applicant in terms that he or his family were suffering from “debt bondage.” As stated above, the RRT accepted that the applicant’s family took out successive high-interest loans to pay for his studies in Australia but also found that the applicant had exaggerated the amount of the outstanding loan and the difficulties that his family had in servicing it for the reasons referred to above.

5. There is nothing on the face of the RRT’s decision record to suggest that it had a view that “debt bondage” was not a legitimate consideration under the complementary protection criterion. Simply that it was not a claim that was made in this case. In the circumstances, no such claim arose squarely on the evidence and material before the RRT (see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263)

6. The RRT’s findings cited above were open to the RRT on the evidence and material before it and for the reasons it gave.

Ground 3 Particular (v) Breach of Socio-Economic Rights

1. In his written submission counsel for the applicant asserts that the RRT failed to consider “breaches of socio-economic right as a basis of complementary protection.”

2. The finding to which the written submissions refer in support of that assertion is as follows:

   “In its view, such action would not amount to ‘cruel or inhuman treatment or punishment’, and it would not amount to ‘degrading treatment or punishment’, as defined by the Act.”

1. As is clear from the considerations above, the RRT did consider the applicant’s claim that pressure on his family to repay the loan or the threat of legal action, such as an application to seize the family home to recover the original loans, involves ‘significant harm.’ The RRT was not satisfied that such action did amount to significant harm in circumstances where it was not satisfied that such action would not amount to ‘cruel or inhuman treatment or punishment’, and did not amount to ‘degrading treatment or punishment,’ those being the relevant criteria to consider in assessing whether there is a real risk of significant harm to the applicant as defined in s.36(2A) of the Act.

2. Those findings were open to the RRT on the evidence and material before it and for the reasons it gave.

Ground 3 Particular (vi) Complementary Protection Training Manual

1. Counsel for the applicant’s written submissions seem to suggest that the RRT failed to have regard to the Complementary Protection Training Manual because it failed to find that applicant’s claims constituted a breach of socio-economic right and such a claim is a legitimate ground for protection.

2. The Complementary Protection Training Manual has no greater status than other academic articles (see: SZSRY v Minister for Immigration [2013] FCCA 1284 at [57]-[58], per Judge Driver) is not a document to which the RRT was bound to have regard and has no greater status.

3. In any event, as considered above, the RRT did consider the effect of the applicant’s socio-economic rights and concluded that they did not amount to significant harm for the purposes of s.36(2A) of the Act. As stated above, that finding was open to the RRT on the evidence and material before it and for the reasons it gave.

Ground 3 Particular (vii) Police Protection

1. Counsel for the applicant also asserted that the RRT failed to consider the inability of local police to provide protection. The complaint seems to be related to the RRT’s consideration as to whether the applicant met the complementary protection criterion as appeared to be that the RRT did not consider the issue of the resources and ability of local police to protect the applicant.

2. The RRT noted the applicant’s claim that he had no faith that the police will protect debtors like him and his family and that they would allow the money lender to act with impunity. The RRT noted the applicant’s claim that one needs to bribe the police and that they are reluctant to intervene in private commercial matters. However, the RRT found those claims inconsistent with the applicant’s suggestion at the hearing that Manjit Singh, the money lender, had initiated some action to have the applicant’s family evicted from the family home only to be informed that this could proceed only if there had in fact been a default.

3. Accordingly, the RRT placed little weight on the applicant’s statement as to the lack of police protection and found that the applicant “appeared to be making up his evidence as went along.” The RRT was not satisfied that the local authorities would fail to protect his family. The RRT made the further following finding in respect of this issue:

   “The Tribunal finds that the applicant’s family have had no cause to seek police or other protection in this matter in the past. It is not satisfied that the police would deny them protection if needed in the future, for any reasons.”

4. Those findings that was open to the RRT on the evidence and material before it and for the reasons it gave.

Ground 3 Particular (viii) Different Tribunal Case

1. Counsel for the applicant also asserted that the RRT failed to consider and apply a different case heard by a different Refugee Review Tribunal panel arising from similar claims. Mr Williams submitted that the cases are analogous and that that there was no basis for distinguishing the other case, in which that applicant was granted protection, and that such authority should be applied to this matter. In particular Mr Williams submitted that other Refugee Review Tribunal case was clear authority for the proposition that debt bondage can entitle one for protection.

2. As stated above, there is no suggestion that the RRT rejected that debt bondage was capable of entitling an applicant to protection. No such claim of debt bondage was made and no such finding was made of the existence of such debt bondage by the RRT in this case. Indeed the RRT made the specific finding “that while complementary provisions of the Act may extend to provide protection to those indebted to loan sharks in particular cases, the RRT is not satisfied that this is such a case.”

3. Again that finding was open to the RRT on the evidence and material before it and for the reasons it gave.

4. In any event, the decision of another Refugee Review Tribunal is not an authority by which the RRT in this case is bound.

5. In the circumstances, ground 3 seems to be no more than a disagreement with various findings of the RRT. Such complaints invite merits review which this Court cannot undertake. (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

6. A fair reading of the RRT decision record makes clear that all the RRT’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

7. Accordingly, ground 3 is not made out.

Conclusion

1. As stated above, the RRT decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  12 May 2014