SZVFB v Minister for Immigration and Border Protection

[2015] FCA 1301

FEDERAL COURT OF AUSTRALIA

SZVFB v Minister for Immigration and Border Protection [2015] FCA 1301

Citation:	SZVFB v Minister for Immigration and Border Protection [2015] FCA 1301
Appeal from:	SZVFB v Minister for Immigration & Anor [2015] FCCA 2420
Parties:	SZVFB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	NSD 1062 of 2015
Judge:	ROBERTSON J
Date of judgment:	23 November 2015
Catchwords:	MIGRATION – appeal from Federal Circuit Court of Australia – whether error on the part of the judge of that Court in finding that no jurisdictional error by the Refugee Review Tribunal had been established
Legislation:	Migration Act 1958 (Cth) ss 36, 91R
Cases cited:	ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429
Date of hearing:	23 November 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	38
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms HR Musgrove of Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1062 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZVFB
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	23 NOVEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed, with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1062 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZVFB
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	ROBERTSON J
DATE:	23 NOVEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This appeal is from a judgment of the Federal Circuit Court of Australia given on 25 August 2015. That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 11 September 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection not to grant the present appellant a Protection (Class XA) visa.

2. As found by the Tribunal, the appellant is a national of India. He was born in Tamil Nadu in India, is of Tamil ethnicity and Muslim religion. He entered Australia on 13 April 2013 on a Tourist visa, which was due to cease on 13 July 2013. On 8 July 2013 the appellant applied to the Department for the Protection visa in issue in this appeal.

   The reasoning of the Tribunal

3. The Tribunal recorded that the appellant had lived in Bangkok, Thailand for the preceding 10 years. He said he visited India in August 2012 and on 5 August 2012 was involved in a traffic accident with a driver (Mr K), who the appellant said was a prominent member of an extremist Hindu nationalist paramilitary group, the Rashtriya Swayamsevak Sangh (RSS), which suppressed Muslims and was affiliated with the Barathiya Janatha Party (BJP). The day after, the appellant said, a group of thugs attended the appellant’s house with machetes and iron rods and said they intended to kill the appellant due to the incident on the previous day. The appellant said the thugs entered his house and broke things and his brother was injured when he tried to intervene. The appellant said that he himself was dragged outside and beaten and kicked and they attempted to pour petrol over him. The next morning he went to the police station but the police seemed not to care and threatened to arrest the appellant for disturbing the peace. He returned to Thailand on 9 August 2012.

4. On 9 December 2012, the appellant said, he returned to India to visit his family. Somehow Mr K and the RSS got wind of his return and on 15 December 2012 Mr K and six others went to the appellant’s house but found that he was not there. The appellant’s family informed the appellant of this and the appellant went straight to lodge a complaint against Mr K and his thugs with the District Superintendent of Police. The next day the appellant was told Mr K knew of the report and he decided that he must leave India or his life would be in danger. He stayed at a friend’s house but on 25 December 2012 Mr K and five thugs appeared at the friend’s house and again attacked the appellant. Neighbours came to help and Mr K’s thugs drove away claiming they were after the appellant’s blood. The appellant then attended the clinic and after his discharge stayed in a hotel using a different name. The appellant and his friend decided to lodge a police report against Mr K at the Chennai Commissioner’s Office. He was told that the report would be looked at in due course, but that such reports on local issues had to be dealt with at the village level. The appellant decided the best way to save his life was to travel back to Thailand, which he did on 31 December 2012.

5. On 10 April 2013, the appellant travelled from Bangkok to southern Thailand and, as a result of giving a lift to a man who ran off at a police checkpoint but who left behind a bag with a gun in it, the appellant was accused of aiding and selling weapons to the Pattani Muslim Insurgents. He said he was physically assaulted by the police and offered them a bribe which they refused.

6. The Tribunal did not find the appellant’s evidence to be credible. The reasons for this were, the Tribunal said, that the appellant’s evidence was implausible and fanciful and contradictory, such as in relation to the fact that the appellant was able to escape a group of thugs who attended his house on 6 August 2012 with machetes and iron rods, and who had dragged, kicked and beaten him; the fact that he and a friend were able to escape from six thugs who attended his friend’s house on 25 December 2012, again despite the fact that they were carrying machetes and iron rods. The Tribunal also found the appellant’s evidence to be contradictory, for example in relation to his evidence as to where his wife was staying.

7. The Tribunal considered the claims with reference to whether the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention. The Tribunal also considered the alternative criterion in s 36(2)(aa) of the Migration Act 1958 (Cth). In this respect the Tribunal adopted its earlier findings that it did not accept any of the appellant’s claims to have suffered harm in India at the hands of the RSS or any other individual or group and did not accept the appellant’s claims regarding his being detained in Thailand. The Tribunal found that the appellant had fabricated all of his claims in relation to the protection visa application and the Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there was a real risk that he would suffer significant harm.

   Proceedings in the Federal Circuit Court

8. The application for judicial review of the decision of the Tribunal contained the following grounds, as written:

   1.The Tribunal constructively failed to exercise its jurisdiction;

   Particulars:

   The Tribunal failed to consider an integer of the Applicant’s claim, in failing to consider wether or not a liberal Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection.

   2.The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

   3.The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicants who had been under immense and intimidating pressure from Hindu extremists.

   4.The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal did not investigate my genuine claim with the requirements of Migration Act 1958.

9. The judge of the Federal Circuit Court noted that the appellant did not file written submissions, but made oral submissions on the day of the hearing in that Court. As to ground 1, the judge said that there was nothing in the material before the Court to indicate that the appellant had expressly advanced a claim to fear harm as a liberal Muslim. The Tribunal had asked the appellant if he wanted to make a more general claim or had anything more specific to which he wished to refer. It had not been established that the Tribunal failed to make a finding on a substantial, clearly articulated argument relying upon established facts or that the material before the Court was such as to clearly raise a claim that the appellant feared harm, as a liberal Muslim, from radical Hindus. As to that part of ground 1 concerning the appellant’s ability to access effective protection, the judge said that as the Tribunal found that all of the appellant’s claims were fabricated and therefore that there was no well-founded fear of future harm, it was not necessary for it to go on to address the issue of state protection. Ground 1 was not made out.

10. As to ground 2, the judge said that if this was a claim that the Tribunal failed to comply with its procedural obligations, such a claim was not made out on the material before the Court. In oral submissions before the judge, the appellant submitted that he had had insufficient time and opportunity to raise all of the claims which he wished to raise before the Tribunal. The judge noted that there was no transcript of the Tribunal hearing in evidence. It seemed that the hearing before the Tribunal was conducted with the assistance of an interpreter and lasted for some one and a half hours. There was nothing in the evidence before the Court to establish or raise concern about whether or not the appellant was afforded the opportunity required under s 425 of the Migration Act to give evidence or present arguments in relation to the issues arising in relation to the decision under review. Ground 2 was not made out.

11. As to ground 3, the judge said that the difficulty that faced the appellant was that the Tribunal did not accept as credible any of his claims about past events he claimed to have experienced, including from Hindu extremists. The claim that the Tribunal did not consider the integer of the appellant’s claim to fear harm from Hindu extremists was not made out. The Tribunal clearly considered the claim, albeit that it did not accept it. No jurisdictional error was made out under ground 3.

12. As to ground 4, the judge said the ground misconceived the role of the Tribunal. The judge said it was for an applicant to put forward information and materials relied upon. It had not been established that this was a case in which the Tribunal failed to make an obvious enquiry about a critical fact the existence of which was easily ascertained, in the sense considered in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429. The judge said there was no evidence before the Court to indicate that the appellant either sought to put witnesses before the Tribunal or to provide further evidence. Ground 4 was not made out.

13. The judge of the Federal Circuit Court then considered a number of other matters raised by the appellant in oral submissions. The appellant claimed he did not receive a departmental invitation to an interview; that his time or opportunity to raise claims in the Tribunal hearing was in some way limited so that he was unable to put his case to the Tribunal; and that the Tribunal did not believe him. As to the first of these matters, the judge said it was the Tribunal’s decision that was the subject of review and the appellant had and took the opportunity to attend the Tribunal hearing. As to the second of these matters, the evidence did not support the appellant’s oral claim that his time or opportunity was limited, and, to the extent the appellant complained that documents were not available to him, he was on notice of the opportunity to provide a wide range of documents of various kinds to the Tribunal. As to the third of these matters, the judge said it was open to the Tribunal to make an adverse credibility finding, notwithstanding that the appellant had sworn an oath or made an affirmation to tell the truth at a Tribunal hearing.

    Appeal to the Federal Court

14. The grounds of appeal to this Court were as follows, as written:

    1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

    2.The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

15. These grounds are pro forma or template: see the identical grounds considered in ARP15 v Minister for Immigration and Border Protection [2015] FCA 1220 at [26].

16. The appellant filed no written submissions. In oral submissions the appellant put a number of contentions which, to some extent, overlapped. Those submissions were as follows. First, the appellant submitted that the Tribunal or the Federal Circuit Court did not take what he told them into consideration. Secondly, the appellant submitted that he could not provide documents to support his submissions that he had problems in India but this was because he was unable to get the documents because the authorities would then find out where he was and harm him. The documents concerned the police in India. Thirdly, it was three years, the appellant said, since he came to Australia and it could be seen that problems against Muslims in India were increasing day by day. In this respect the appellant submitted that the RSS was the mother party of the BJP, which was the ruling party at the moment. Therefore the BJP did not worry about anything the RSS did. The appellant also referred to a rally in about 2004 where approximately 3000 Muslims were killed in an area where, the appellant said, the present Prime Minister was the Premier. Lastly, the appellant submitted that the Tribunal and the Federal Circuit Court did not investigate his case properly.

17. In oral submissions in reply, the appellant said that he did not receive the letter to attend before the Minister’s delegate. He also submitted that the Federal Circuit Court took the Tribunal’s decision as its basis point. Lastly, the appellant submitted the Tribunal was looking at him as an economic refugee rather than as a refugee in harm’s way.

18. The Minister filed written submissions. In relation to ground 1, the Minister submitted that the appellant did not raise unreasonableness or illogicality for consideration by the primary judge. Further, the Minister submitted that the reasoning of the primary judge at [24], “that it was not necessary for [the Tribunal] to go on and address the issue of state protection” because the Tribunal had found that all of the appellant’s claims were fabricated, applied equally to the need for the Tribunal to address the issue of persecution. By reason of having found that all of the appellant’s claims were fabricated, it was not necessary for the Tribunal to go on and consider whether the harm feared by the appellant amounted to persecution within the meaning of s 91R of the Migration Act.

19. In relation to ground 2, the Minister submitted it lacked sufficient particularity to be meaningful and, based on a fair reading of the reasons of the primary judge, could not be made out. Further, the appellant sought impermissible merits review in relation to the Tribunal’s factual findings.

20. In oral submissions, the Minister responded to the oral submissions put by the appellant.

    Consideration

21. The role of this Court is to be borne in mind. That role is to consider the correctness of the decision of the Federal Circuit Court, that Court hearing an application for judicial review, for jurisdictional error, of a decision of the Tribunal. It is not for this Court to consider afresh or on its merits the application to the Tribunal.

22. It is not apparent that either of the grounds in the notice of appeal as written was raised before the Federal Circuit Court, at least in their present form.

23. Ground 1 contains possibly two elements. The first is a general claim that the Tribunal acted in a manifestly unreasonable way, and the second is that the Tribunal ignored persecution and harm as referred to in s 91R of the Migration Act, as it stood at the time of the Tribunal’s decision in September 2014.

24. As to the first element, there is no basis for concluding that the Tribunal acted in a manifestly unreasonable way as those words are understood in judicial review. In my opinion, there is no basis for saying that there was arbitrary fact-finding, or that the Tribunal acted unreasonably in a legal sense: see Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [72] and [76].

25. As to the second element, as it then stood, s 91R provided as follows:

    91R     Persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

    (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

    (b)       the persecution involves serious harm to the person; and

    (c)       the persecution involves systematic and discriminatory conduct.

    (2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)       a threat to the person’s life or liberty;

    (b)       significant physical harassment of the person;

    (c)       significant physical ill‑treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (3)For the purposes of the application of this Act and the regulations to a particular person:

    (a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

    disregard any conduct engaged in by the person in Australia unless:

    (b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

26. In my opinion, in light of the findings of fact made by the Tribunal, it cannot be said that the Tribunal ignored, relevantly, the aspect of persecution and harm in s 91R. This has every appearance of a pro forma ground. It was not developed by the appellant in his oral submissions. It has no substance.

1. Ground 2, as written, has no legal content. The judge of the Federal Circuit Court considered in detail the written grounds of judicial review and the appellant’s oral submissions. The judge of the Federal Circuit Court considered the errors contended for and found that they were not made out as jurisdictional errors. It was not part of the jurisdiction of the Federal Circuit Court to consider the merits of the Tribunal’s decision. In my opinion, there is no substance in ground 2.

2. I turn now to consider the appellant’s oral submissions.

3. As to the claim that the Tribunal and the Federal Circuit Court did not take into consideration what the appellant told them, on the face of the reasons of the Tribunal and of the Federal Circuit Court what the appellant then put was considered. At this level of generality, this submission is no more than an attack on the merits and must fail.

4. As to the absence of documents, this matter was raised before the Federal Circuit Court and dealt with at [42] and [44] of the reasons of the primary judge. The context was that the delegate had said that the appellant had not provided any supporting documentary evidence, the appellant was provided with a copy of the delegate’s decision record, the appellant had been invited to appear before the Tribunal and give evidence, including documentary evidence, and the Tribunal was under no general duty to inquire: Minister for Immigration and Citizenship v SZIAI. This submission must fail.

5. As to the appellant’s third submission, that problems against Muslims in India were increasing, the appellant was asked by the Tribunal if he wanted to make a more general claim but found that no further claims were made or established on the grounds of the appellant’s religion, membership of a particular social group, actual or imputed political opinion or any other Convention related reason: see [26] and [39] of the Tribunal’s reasons. The Federal Circuit Court noted this reasoning at [22] and [39] of its reasons. This submission fails.

6. As to the relationship between the BJP and the RSS, the Tribunal considered this claim at [37] of its reasons. Again, at the level of generality at which the submission was put, the submission goes only to the merits of the Tribunal’s decision and must therefore fail.

7. As to the submission concerning the rally at which 3000 Muslims were killed, this claim was considered by the Tribunal at [26] and [39] of its reasons and by the Federal Circuit Court at [22]. The appellant has not shown error on the part of the Federal Circuit Court or on the part of the Tribunal and this submission fails.

8. As to the appellant’s fourth submission, that the Tribunal and the Federal Circuit Court did not investigate his case properly, at the level of generality at which the submission was made, it goes only to the merits and must fail.

9. Turning to the appellant’s submissions in reply, the question of the letter was dealt with by the Federal Circuit Court at [43] where that Court upheld the submission on the part of the Minister that the decision the subject of the proceedings was the Tribunal decision; the Tribunal review was a review de novo; and the appellant had and took the opportunity to attend the Tribunal hearing. I agree with this reasoning and the point put by the appellant does not establish error.

10. As to the submission that in the Federal Circuit Court the judge took the Tribunal’s decision as its basis point, that follows from the fact that the Federal Circuit Court was engaged in judicial review for jurisdictional error and, of necessity, the decision of the Tribunal was the basis of the Court’s consideration. This submission by the appellant does not show error.

11. Finally, in relation to the submission that the Tribunal regarded the appellant as an economic refugee, the Tribunal’s task was to consider whether the appellant’s claims for refugee status were made out. The Tribunal held that those claims were not made out, for the reasons it gave. The Tribunal said nothing in its reasons as to the appellant being an economic refugee. This submission by the appellant does not show error.

    Conclusion and orders

12. For these reasons, the appeal must be dismissed, with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        23 November 2015