SZVKQ v Minister for Immigration
[2016] FCCA 2969
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVKQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2969 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal misunderstood the evidence or claims or made an error of fact involving jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36, 424A, 425 |
| Cases cited: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; [2010] FCAFC 159 Minister for Immigration and CitizenshipvSZQRB (2013) 210 FCR 505; [2013] FCAFC 33 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 |
| First Applicant: | SZVKQ |
| Second Applicant: | SZVKR |
| Third Applicant: | SZVKS |
| Fourth Applicant: | SZVKT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3060 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 4 February 2016 25 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2016 |
REPRESENTATION
| The First Applicant: | In Person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3060 of 2014
| SZVKQ |
First Applicant
| SZVKR |
Second Applicant
| SZVKS |
Third Applicant
| SZVKT |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 1 October 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The Applicants are citizens of India. The First and Second Applicants are husband and wife who arrived in Australia in 2008. The Third and Fourth Applicants are their children and were born in Australia.
On 21 October 2013 the First Applicant lodged a protection visa application including his wife and their first child as members of his family unit. Their second child was born in November 2013 and was also included in the application.
In support of the protection visa application, the First Applicant (referred to for convenience hereafter as the Applicant) claimed he feared harm from unnamed lenders in India to whom he was indebted for a large amount. He claimed that “they” were threatening him that he had to pay back all of the loan “at the cost of me and my family”, that the lenders were “powerful people” who had “previous records of kidnapping, threatening people and ransom” and that they had political links and associations with the Indian underworld and local mafias. He claimed “they” had indicated that he had to pay all the money with interest or lose his life.
The Applicant also claimed that the last time his wife went to India (which elsewhere in the application was said to be between December 2012 and February 2013) “they” had visited her and asked for money and warned that they would kidnap the Third Applicant if the money was not returned soon.
The Applicant claimed to fear torture, kidnapping and inhumane treatment for himself and his family and that the state could not protect him from the powerful people who would harm him.
The Applicant attended an interview with a delegate of the First Respondent. In her decision of 4 April 2014 the delegate summarised the Applicant’s claims at the interview as claims that he had borrowed a total of about $40,000 to $50,000AUD from a particular named friend of his family (referred to as Mr P). He explained that he first borrowed about $30,000AUD in 2008 to fund his and his wife’s expenses in Australia and that he borrowed a further amount in 2011. He claimed that he was unable to repay this debt. The Applicant told the delegate that Mr P went to his mother’s home in India on several occasions, demanded that he repay his debts and threatened that if he did not do so he would harm him and/or his family.
The delegate recorded that the Applicant said the threats from Mr P had started in approximately August/September 2011 but that neither he nor his mother had lodged a First Information Report with the police to report these threats, as they did not believe in the Indian police and justice system.
The application was refused. The Applicants sought review by the Tribunal. They attended a Tribunal hearing on 25 September 2014 and provided the Tribunal with additional documents, including statutory declarations sworn by the First and Second Applicants.
In her affidavit, the Second Applicant claimed that she and her son returned to India in December 2012 and that Mr P and his wife came to visit her at her mother-in-law’s house in January 2013. She claimed she told Mr P that they would be able to pay back the money, but it would take a bit longer for them to get back on their feet. She claimed that a few days later Mr P visited her alone, asked about the money, said that he would give her one more chance to pay the money, and said things that she took as threats to her child and as a warning. She claimed that it was too expensive to change her ticket to return to Australia immediately, so she hid at her mother’s home until she returned in February 2013. She claimed to fear that if they were sent back to India her sons would be killed or kidnapped.
The First Applicant provided a further elaboration of his claims in his statutory declaration and addressed various aspects of the delegate’s decision. He claimed that while in 2011 Mr P had said he was getting angry with the delay in repaying the money, his threats were not of a life threatening nature, but that Mr P made direct threats to his wife during her 2012-13 return to India. The Applicants also provided copies of articles and press reports in relation to the situation in India.
The Tribunal Decision
In its reasons for decision the Tribunal acknowledged that originally the Second, Third and Fourth Applicants were included as members of the First Applicant’s family unit, but stated that it had taken into account claims made by the wife on her and her children’s behalf as well as in support of her husband’s case.
The Tribunal detailed the Applicants’ migration and work history in Australia and their travel to and from India. In the course of describing the Applicants’ original claims and evidence at the hearing about the circumstances and, amounts said to be owed to Mr P and the claimed threats, it made findings about aspects of such evidence relevant to its ultimate conclusion.
The Tribunal recorded that the Applicant had told it that neither of the two loans from Mr P, a bookmaker and black market trader, had been documented and that this was why he was unable to provide supporting evidence. He claimed that initially the loans were interest free and that Mr P had more or less asked for the principal to be repaid once the Applicants were on their feet professionally in Australia. There were said to be no other obligations, although he claimed that he and Mr P had an understanding that he would try to give preference to Mr P in future (legitimate) business ventures.
However the Tribunal had regard to the fact that the Applicant had also told it that subsequently Mr P had unilaterally imposed “a levy of interest” that increased the amount owed to between seventy to eighty thousand dollars. The Tribunal observed that this claim meant that the amount said to be owed had “leapt” from fifty thousand to eighty thousand dollars in the few months since the Applicant’s interview with the delegate. The Tribunal also had regard to the fact that elsewhere in his evidence the Applicant had said that he had cut off contact with Mr P in 2013 by changing his telephone number in Australia, that he had changed his address in Australia a number of times in the last year or so and that Mr P had not been harassing his mother over the matter.
The Tribunal found that at the Tribunal hearing the Applicant had been vague about precisely what interest had been added, the intervals at which it was accruing, and when Mr P began to impose an interest change, although he had said that Mr P’s attitude towards him had changed around the end of 2011, a few months after the second loan was provided. The Tribunal found that this aspect of the Applicant’s evidence was “unimpressive” considering the “imposte” it would have been adding to his overall debt.
The Tribunal also considered, but gave very little weight to, the Applicant’s claim that he knew that Mr P was a criminal who had kidnapped, tortured and killed a client in 2009 but had paid a bribe and had never faced justice. It had regard to the fact that while the Applicant claimed that this matter had been reported in the press (although none of the relevant names were mentioned) he could not explain how he knew the article he referred to was about Mr P and was not able to provide a copy of such article to the Tribunal.
The Tribunal outlined the Second Applicant’s evidence about events during her visit to India in 2012-2013, including the description in her statutory declaration of two different visits by Mr P and her claim that there was an implied threat of harm to her son during the second visit. While there were said to be some inconsistencies in the Second Applicant’s written and oral claims about the date of Mr P’s visits and whether she had gone into hiding at her mother’s place, the Tribunal took into account that she appeared very stressed throughout the hearing.
The Tribunal considered the Applicant’s evidence about police corruption, his involvement with Mr P and his claims that while Mr P was an unscrupulous criminal who became more aggressive as time went on, he did not become threatening until January 2013. The Applicant claimed Mr P only learnt that the wife’s visa applications in Australia had become “problematic” when she told him about it in January 2013 and that this was when Mr P became threatening.
The Tribunal stated (at [15]-[16]):
15. [The Applicant] said to me that Mr [P] used to threaten him over the telephone. He claimed Mr [P] told him, “I know where your mother lives.” I asked [the Applicant] what has been happening to his mother and he said she has been losing weight from worry; he went on to state clearly that she has not been receiving intimidation, harm or threats from Mr [P]. I asked in the circumstances why not, and he said he believed Mr [P] still thought he could get him to co-operate in the matter. He indicated Mr [P] might fear that he would never get his money back if [the Applicant]’s mother came to harm. I also considered this information in light of quite different information that [the Applicant] provided at his interview with the delegate. This information is referred to in the primary decision that [the Applicant] submitted directly to the Tribunal. According to that information, Mr P had started to threaten and intimidate [the Applicant]’s mother in India as well. [The Applicant] told the delegate that in spite of the intimidation she was receiving, his mother did not lodge any “First Information Report” (FIR), the standard means of formally engaging the police in a matter, because his family had no faith in the Indian police and justice system. [The Applicant]’s evidence about whether his mother had become implicated in this matter struck me as inconsistent.
16. Relevant to this, [the Applicant] also told me he changed his Australian telephone numbers in 2013 after Mr [P] had violently threatened him over the age and progress of the loan. This leaves [the Applicant]’s mother as the only apparent point of contact between Mr [P] and himself. It seemed incongruous in the claimed circumstances that Mr [P] was not continuing to press for satisfaction in the matter through what was now his only avenue of contact with [the Applicant]: his mother (emphasis in original).
The Tribunal stated that it had weighed the Applicant’s claim that Mr P had business and criminal connections throughout India in the context of his wife’s claim in her statutory declaration that she had been able to hide for a period in her own mother’s home because Mr P did not have a close relationship with her side of the family. It addressed other concerns the Applicant raised about the possibility of relocating within India and effective state protection.
The Tribunal acknowledged that various media articles submitted by the Applicant reported unscrupulous behaviour by some money lenders, including local moneylenders killing local clients or forcing them, under threat, to donate kidneys or repay loans. However it found that none of these articles suggested that people had been pursued by moneylenders over large distances or far from their home district, although they did illustrate that the harm caused by some moneylenders in the pursuit of old debts was serious enough to amount to persecution.
The Tribunal also had regard to the fact that most of the articles referred to circumstances in which an exorbitant interest rate had been explicitly applied from the outset, apparently as a condition of proceeding to grant a loan. In contrast, the Applicant claimed he had borrowed $30,000 interest-free from Mr P in 2008, had then left India for Australia and, although he had still not repaid the loan, that he had received a further interest-free transfer of around $20,000 from Mr P in 2011.
The Tribunal also recorded that the Applicant had accepted that there did not appear to be any Convention‑related nexus with regard to the claims about Mr P’s threats.
The Tribunal found (at [22]-[24]):
22. Having considered all the facts in this case, I accept that the [First and Second Applicants] borrowed a large sum of money in 2008 from an individual called Mr [P]. I accept that Mr [P] is an old family friend. I accept that Mr [P] operates businesses arguably outside of the law and regulations in India, but I do not give this particular fact very much weight. In light of the independent evidence provided by the applicants, I have great difficulty accepting that four years after lending the [First and Second Applicant] a large sum of money at no interest, Mr [P] lent them more than half of the same amount again at no interest. However, I do accept that Mr [P] did lend the second amount again at no interest and, as claimed, without any clearly defined conditions beyond talk of possible future business co-operation. I accept that neither loan has ever been the subject of anything written between the lender and the debtor. I give little weight to the fact that this is also the practice in the case of loans provided by violent and unscrupulous lenders. On the evidence in this case overall, I put more weight on the claims about Mr [P] being a family friend than on the claims about his operating outside of the law.
23. I accept that Mr [P] lent the [First and Second Applicants] the two sums of money on the understanding that they were working in the mid- to longer term at securing residency in Australia. In this regard, I find that Mr [P] and the [First and Second Applicants] are respectively very different from the lenders and debtors described in the independent evidence that they have provided. That evidence depicts moneylenders and loan sharks in India relying on quite close physical and geographic access to debtors and their families, and co-opted local authorities, in order to enforce repayment of their loans. The loan shark loans in the media reports submitted by the [First and Second Applicants] also show that heavy interest and flight risk assessments are common conditions on which loans are considered. I give some weight to the difference between the independent evidence submitted by the [First and Second Applicants] and the kind of condition-free arrangement they enjoyed for not only for several years (sic) but in what Mr [P] purportedly knew to be an open-ended absence from India. Meanwhile, whereas Mr [P] is said to have made threatening remarks about Mr [P]’s (sic) mother and is said to know exactly where she lives, he has not evidently harassed or intimidated her even after [the Applicant] cut off the only means of contact with him. I have taken into account that [the Applicant] thinks Mr [P] does not intend to intimidate or hurt his mother lest he lose all chance of getting his money back but, on reflection, I give little weight to this particular situation. In light of the two loans having helped the debtors leave and remain away from India and in light of Mr [P] evidently having, or exploiting, no local leverage to enforce payment of the loan, such as by putting pressure on [the Applicant]’s mother, I am not satisfied that [the Applicants] are under the particular threats they claim to face. I find that their claims about serious or significant harm are exaggerated and not reliable.
24. I find that the two loans in question were condition-free non‑commercial loans from a family friend and that they were not loans from a loan shark. I do not accept on the evidence before me that any interest has been added to the loans. I accept that [the Applicants] are presently at a loss as to how they will repay Mr [P] what they borrowed. While I accept that the applicants may feel or be placed under pressure to repay the loans, I am not satisfied on the evidence before me that there is a real chance that this will amount to serious or significant harm to any of the applicants. I am not satisfied that the applicants face a real chance of persecution in India. In particular, I am no satisfied that they face a real chance of serious harm from Mr [P], directly or indirectly.
The Tribunal concluded that the harm feared was not Convention-related, but rather that the essential and significant factor in the harm feared was individualised harm threatened by a non-state actor in the context of an unpaid and unforgiven personal loan. There was said to be no suggestion of persecution for a Convention reason. In addition, the Tribunal was not satisfied on the evidence before it that the state would deny the Applicants’ protection for any Convention-related reason.
While the Tribunal considered it unnecessary to do so, it also addressed the issue of whether it would be reasonable for the Applicants to relocate. It accepted that the family was subsisting on charity in Australia, that the parents had been suffering stress and depression and that their children were highly dependent infants. However, on the evidence before it, the Tribunal did not accept the claim that Mr P had the benefit of a national network in India. It also gave very little weight to the claim about Mr P being able to locate the Applicants through the First Applicant’s mother. It took into account the Applicants’ claims that local discrimination on grounds of language, caste, race and religion could make relocation within India difficult and their claim that they were not able to afford anything at present. However, having considered all of these claimed obstacles to relocation, Convention-related and otherwise, the Tribunal was not satisfied that any or all of them, alone or in combination, would make it unsafe or unreasonable for the Applicants to relocate within India.
The Tribunal was not satisfied that the Applicants were persons in respect of whom Australia had protection obligations under the Refugees Convention.
The Tribunal also considered the complementary protection criterion on the basis of its findings in relation to the claim about Mr P and the unpaid debt. While it accepted that the harm the Applicants claimed to fear at the hands of Mr P was “significant harm” for the purposes of s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act), on the evidence before it the Tribunal was not satisfied that there was a real risk (see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33) that the Applicant would face significant harm from Mr P.
Again, while it considered it unnecessary to do so, the Tribunal addressed the question of relocation having regard to the evidence about the Applicants’ health and economic situation, the age and dependency of the children and the very general claims made about discrimination on the basis of language, race, caste and religion in different parts of India. The Tribunal had regard to its rejection of the claim that Mr P had “networks” outside his home district. The Tribunal concluded that overall it was not satisfied that it would be unsafe, impracticable or “reasonable” (which is clearly a typographical error and should read “unreasonable”) for the Applicants to relocate elsewhere from their home town in India. It found that they did not meet the complementary protection criterion.
The Tribunal also found that as none of the Applicants satisfied the Refugee’s Convention criterion or the complementary protection criterion, none of the Applicants met the family unit criteria. It affirmed the decision under review.
The Applicants sought review on 4 November 2014. They relied on two grounds in the application. In addition, the Applicant raised a number of other issues in oral submissions.
The misrepresentation claim
The first ground in the application is that the Tribunal made an error by not taking into account “the full extent” of the First Applicant’s claims. The particulars to this ground are that the Tribunal “misrepresented [his] response in #15”. This was a reference to paragraph 15 of the Tribunal reasons for decision set out at [20] above.
It emerged in the course of the hearing that the Applicant took issue with the accuracy of the Tribunal’s description of what occurred at the Tribunal hearing, in particular as to whether he had “state[d] clearly” that his mother “has not been receiving intimidation, harm or threats from” Mr P.
The Applicant claimed that the oral evidence he had given to the Tribunal was to the effect that his mother had been receiving threats (although he acknowledged that he had not claimed that she had been harmed). He also said that he had told the Tribunal that his mother had received telephone calls from Mr P asking about money and about him and that because of that stress and fear his mother was losing weight and that in saying this he had meant that she was getting threats.
The Applicant said that the issues he raised about the Tribunal hearing were confined to concerns about two particular parts of the hearing. Rather than requiring him to file a transcript of the hearing, given the limited issues he raised, I gave him leave to rely on the recording of the parts of the Tribunal hearing with which he took issue, provided he identified the specific parts of the Tribunal hearing with which he took issue in submissions. He filed a submission identifying a one minute twenty second portion and a twenty second portion of the recording of the Tribunal hearing.
A copy of the recording was tendered. The relevant parts, which were played in court, are as follows:
a)At 27.20min – 28.40min:
T: Um, again looking, looking at the evidence of people’s behaviour, I wonder why he, he makes threats about… in this matter but your mother is still where she is, like, he says he knows where she lives but---
A: Yes
T: ---as far as we know she’s still there and nothing has happened to her?
A: She’s still there just, just now I can say that if, see, I didn’t ask for any, any of her medical report, but I can present that report that she just lost ten kilos of weight. She…uh---
T: Yeah… but what
A: Lost… because of the stress-
T: Who, who lost the weight?
A: My mum.
T: Your mum, yeah ok but, it’s not so much about evidence of how frightened she is, it’s evidence of, um, him saying I know where your mother lives, and just leaving her where she lives, like not, not…
A: Because she, she, he knows that my mother is alone all day, so if he wants money or he wants to do something, he can’t do to her because if she’s alone living over there, he wants something from me. That’s why in the last um um, communication he say me that now he will, um, recall all the money with my body parts…
b)At 45.40min – 46min:
T: … [unclear] that he’s threatened your wife and to some extent threatened your mother?
A: Yes.
T: But might not hurt your mother in the short term because, uh, he wants the money from you?
A: Exactly.
T: Ok. Um…
The Applicant submitted that it was apparent that in these parts of the hearing he was indicating that there was “not any harm but from the answer I was trying to clear the level of the threat and the impact of the threat” on his mother.
The Applicant also submitted: “It seems to me that in the recording the interweaver (sic) was not understand the meaning of my answers, maybe because of my English level” (errors in original). He submitted that this meant that the Tribunal may not have understood his claims overall. It is apparent that this is a submission that the Tribunal may not have understood the First Applicant’s claims because of the First Applicant’s English-speaking ability. There was no interpreter at the Tribunal hearing as none was requested.
First, it is well-established that as Black CJ, French and Selway JJ stated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [53]:
…mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351–352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.
As the First Respondent submitted, jurisdictional error has not been established on the basis contended for by the Applicant.
In the first of the exchanges relied on, the Applicant was giving evidence to the Tribunal. It is apparent that this was the part of the hearing referred to at the start of paragraph 15 of the Tribunal reasons, following the Applicant’s evidence that Mr P used to threaten him over the telephone and told him that he knew where his mother lived. It appears that the Tribunal was addressing the Applicant’s claims that Mr P made threats to him, in asking “why” and what he (Mr P) made threats “about”. In that context the Tribunal put to the Applicant that his mother was still living in the same place and that while he claimed Mr P had said to him that he knew where his mother lived, it appeared that the Applicant’s mother was still living in the same place and that nothing had happened to her.
The Applicant did not state that his mother had been receiving threats from Mr P. Rather, he responded: “She’s still there just, just now I can say that if, see, I didn’t ask for any, any of her medical report, but I can present that report that she just lost 10 kilos of weight.” He went on to suggest to the Tribunal that his mother had lost weight “because of the stress”, at which point the Tribunal explained that, “Ok, but its not so much about evidence of how frightened she is, it’s evidence of, um, him saying I know where your mother lives and just leaving her where she lives, like not, – not…”.
Had the Applicant intended to claim to the Tribunal that his mother was being threatened directly by Mr P (as distinct from claiming that what Mr P had said to him amounted to a threat to his mother), he had the opportunity to say so in this part of the hearing. Instead he gave a response which clearly suggested that his mother had not been the subject of direct intimidation, harm or threats from Mr P. He started:
Because she, she, he knows that my mother is all alone all day. So if he wants money or he wants to do something, he can’t do to her because if she’s alone living over there, he wants something from me. That’s why in the last um, um communication, he say me that now he will, um, recall all the money with my body parts…
The Tribunal’s account in paragraph 15 of its reasons of this part of the hearing has not been shown to involve any misunderstanding of the Applicant’s response.
In the second of the exchanges relied on by the Applicant, 45 minutes into the hearing, the Tribunal raised with him (apparently in reference to earlier evidence) whether he was saying that Mr P had threatened his wife “and to some extent threatened your mother”. The Applicant responded: “Yes.” The Tribunal then said: “But might not hurt your mother in the short term because, er, he wants the money from you?” The Applicant responded: “Exactly.” Tribunal, “Okay.” This part of the hearing is accurately reflected in paragraph 23 of the decision (set out at [25] above). It is not inconsistent with the Tribunal’s understanding (recorded in paragraph 15 of its reasons) that the Applicant claimed Mr P had told him that he knew where his mother lived, but that Mr P had not harmed his mother.
In oral submissions the Applicant pointed out that in the exchanges relied on he had not said that his mother was not getting any threats. He claimed that what he had been trying to say to the Tribunal was that the level of the threats made by Mr P had caused his mother stress. However this contention does not establish jurisdictional error on the part of the Tribunal. In these parts of the hearing the Applicant did not say that threats made by Mr P to his mother had caused her stress. Nor is this implicit in what he did say in the extracts relied on. The Tribunal understood that the Applicant claimed that Mr P made threatening remarks to him (including about knowing where his mother lived). It was open to the Tribunal to consider that the Applicant’s oral evidence amounted to stating that his mother had not been receiving direct intimidation, harm or threats from Mr P. It was also open to the Tribunal to consider this aspect of the Applicant’s oral evidence was inconsistent with his claims to the delegate that Mr P had started to threaten and intimidate the Applicant’s mother directly.
It is the case that in the limited parts of the hearing relied on by the Applicant, he did not expressly state (or “state clearly” as the Tribunal put it) that his mother had not received intimidation, harm or threats from Mr P. However it was open to the Tribunal to understand from the first exchange that the Applicant was making it clear that he was not claiming that his mother had been intimidated or threatened directly or harmed by Mr P and to take the view (expressed in the first part of paragraph 15) that the Applicant’s evidence was to the effect that his mother had not been “receiving” intimidation, harm or threats that she would be harmed. In context it is apparent that this was a reference to the absence of any claim by the Applicant at the hearing of direct threats to his mother by Mr P.
There is no indication on the evidence before the Court that the Applicant gave specific evidence at the Tribunal hearing that Mr P made any direct threats to his mother (as distinct from evidence of threats communicated to him) or that he claimed at the hearing that she had in fact been subject to direct intimidation or harm by Mr P.
If the Tribunal could be seen as having made a factual error in paragraph 15 of its reasons in taking the view that the Applicant “state[d] clearly” (in the part of the hearing relied on in the first extract) that his mother had not been receiving intimidation, threats and harm from Mr P, any initial misunderstanding or confusion on the part of the Tribunal at that stage of the hearing as to whether the Applicant expressly claimed there were any threats by Mr P to or involving his mother, was no more than a factual error and was clarified in the second part of the hearing relied on by the Applicant. This clarification is reflected in the Tribunal reasons for decision. The Tribunal understood that the Applicant was saying that Mr P had “to some extent” made threatening remarks “about” his mother (a proposition with which the Applicant agreed in the Tribunal hearing), but that Mr P had not evidently harassed or intimidated the mother (whose whereabouts Mr P said he knew), even after the Applicant cut off Mr P’s means of contact with him (as it found at paragraph 23).
The Tribunal ultimately understood that the Applicant was saying that Mr P had threatened the Applicant over the phone, had threatened his wife and, “to some extent” threatened his mother. It also understood that the Applicant was claiming that Mr P might not hurt his mother in the short term because he wanted the money from him.
Even if there was an initial misunderstanding during the hearing (assuming for present purposes that there was no other discussion relevant to this issue during the hearing) or mischaracterisation in paragraph 15 of exactly what the Applicant said in part of the hearing, the Tribunal did not fail to consider a claim or an integer of the Applicant’s claims (see Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51) and any such misunderstanding or error in recording the Applicant’s initial evidence (if it occurred) was not taken into account in the Tribunal’s findings about the Applicant’s claims to protection.
While the Tribunal made the initial observation that aspects of the Applicant’s evidence about whether his mother had become implicated struck it as inconsistent, in making its ultimate findings it did not rely on any apparent inconsistencies in relation to whether the mother was threatened directly by Mr P, but rather on the absence of any claims or evidence of harassment or intimidation of the Applicant’s mother after the Applicant cut off the only means for Mr P to contact him.
If there was an error, misunderstanding or mischaracterisation in the Tribunal’s description of the Applicant’s evidence or in its observation in relation to the Applicant’s initial oral evidence as described in paragraph 15 of the Tribunal reasons for decision it was not such as to lead to jurisdictional error, whether considered in terms of legal reasonableness, irrationality, illogicality or otherwise (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1).
The evidence in relation to whether the mother was or was not threatened directly referred to in paragraph 15 was not critical or determinative (see SZMDS, Singh, Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; [2010] FCAFC 159 and SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58). It was not relied on by the Tribunal in reaching its finding at paragraph 23 that the Applicant’s claims were exaggerated and not reliable having regard to the fact that, on the Applicant’s own evidence, the money lender was a family friend who had lent them a large sum of money at no interest; that the circumstances were very different from those of lenders and debtors described in independent evidence in relation to loan sharks and their activities; that the loans provided to the Applicants would have helped them to leave and remain away from India (which would have made it difficult for Mr P to enforce the debts); and also that it was essentially incongruous with the Applicant’s claims to fear Mr P that local leverage or pressure was not applied by Mr P against the Applicant’s mother in India (in the sense that he had not harassed or intimidated her, that is, that “nothing has happened to her” as the Tribunal had put to the Applicant) after the Applicant cut off the only means for Mr P to contact him directly, by changing his telephone number and address in Australia. In other words, the Tribunal had regard to the fact that Mr P had not harassed or intimidated the Applicant’s mother as one of the factors which led to it not being satisfied that the Applicants were under the particular threats they claimed to face. The Tribunal’s account of what the Applicant stated at the hearing and its observation about an apparent inconsistency in the Applicant’s evidence in paragraph 15 of the Tribunal’s decision did not form any basis for the conclusion it reached in paragraphs 23 and 24 of its decision (in which it rejected the Applicant’s claims, not because of such inconsistencies, but rather because they were exaggerated and not reliable) or for its ultimate decision.
It cannot be said that the Tribunal’s reasoning in relation to the relevance of Mr P’s failure to harm or intimidate the Applicant’s mother or its exercise of decision-making power lacked an evident and intelligible justification (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72], SZMDS and Singh at [43]-[51]) or that the decision was one at which no rational or logical decision-maker could arrive on the same evidence (see SZMDS at [130]-[131] and [135]).
In any event, the Tribunal also provided independent alternative bases for its findings in relation to both the Refugees Convention criterion and the complementary protection criterion. It found that the harm said to be feared by the Applicants was not Convention-related and that it was reasonable for them to relocate. Similarly, in considering complementary protection, the Tribunal’s findings on relocation provided an alternative basis for its decision. Neither of the relocation findings was infected by any asserted misunderstanding as to the precise nature of what the Applicant claimed in relation to his mother.
It has not been established that there was any material misunderstanding of the Applicant’s evidence or other error relating to the parts of the hearing relied upon such as to demonstrate or give rise to jurisdictional error.
The Applicant also submitted that the Tribunal may not have understood his claims because of his English-speaking ability. In the response to hearing invitation form he had indicated that he did not need an interpreter. None was provided. He had indicated in his protection visa application that he spoke, read and wrote English. The Tribunal recorded that its observation at the hearing was that an interpreter was not required.
I note that in these proceedings an interpreter was provided (despite the Applicant’s indication in the application that he did not require an interpreter). However the Applicant chose to participate in the hearing in English. The manner in which he did so did not raise any concern about his English language ability.
It has not been established that the Tribunal failed to afford the Applicant (or Applicants) a meaningful opportunity to participate in a hearing as required by s.425 of the Act (cf SZGYM v Minister for Immigration and Citizenship [2007] FCA 1923 at [27] and see generally SZRMQ v Minister for Immigration and Citizenship (2013) 219 FCR 212; [2013] FCAFC 142 and SZSEI v Minister for Immigration and Border Protection [2014] FCA 465). The Applicant did not ask the Tribunal to provide an interpreter. There is no suggestion that he raised any issue of communication or comprehension difficulties with the Tribunal at the hearing. Nor were any apparent to the Tribunal. The evidence before the Court does not establish or even suggest that the Applicant was not afforded a meaningful opportunity to participate in the Tribunal hearing. The suggestion he now makes that he may not have explained his claims clearly does not establish jurisdictional error on the part of the Tribunal.
Insofar as there was any lack of clarity in what the Applicant said to the Tribunal, it is apparent from the extracts of the Tribunal hearing he relied on that the Tribunal endeavoured to clarify its concerns and the Applicant’s responses. The Applicant did not take issue with the Tribunal’s ultimate understanding of his evidence as reflected in paragraph 23 of its reasons.
The Applicant’s contention that the Tribunal misunderstood an aspect of his claims such as to give rise to jurisdictional error (whether because of his English ability or otherwise) is not made out on the material before the court.
No jurisdictional error is established on the basis of paragraph 15 of the Tribunal decision and what was said in the parts of the hearing relied on by the Applicants. Ground one is not made out.
Failure to consider claims
The second ground is that the Tribunal failed to consider the claims of the Second, Third and Fourth Applicants in their own right.
The First Applicant submitted that the Tribunal did not consider his wife and children, except in their capacity as members of his family, and that it had stated that they did not have any separate claims. He also claimed that he had not known that he could make claims for the family, but that if this “thing” was affecting him it was also going to affect his family. This appears to be a claim that the Tribunal failed to consider claims that the Applicant’s family members feared harm from Mr P.
As the First Respondent submitted, while the wife and children were originally included as “Part D Applicants” (in other words as applicants who applied only as members of the First Applicant’s family unit so that the success of their case depended on the determination of his claims alone), the Tribunal expressly considered claims made by the Second Applicant on her and her children’s behalf as well as in support of her husband’s claims.
It is clear from the Tribunal’s reasons, read fairly and as a whole (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6), that the Tribunal understood that the claims presented by the First Applicant and those of his wife were also said to have implications for the wife and children. It is also clear that all such claims arose out of and were dependent on the underlying claim to fear harm from Mr P.
As well as the First Applicant’s claims to fear harm, the Tribunal considered the claims of potential harm to his wife and children. In particular, it referred to and considered the evidence from the Second Applicant (including in her statutory declaration) about interactions between herself and Mr P and her claim that he had issued a threat that implied her son would be harmed. The two children were infants and did not give evidence.
The Tribunal accepted that the Applicants (although in context this was clearly a reference to the First and Second Applicants) had borrowed a large sum of money from Mr P. It considered whether the family faced the particular threats they claimed to face. The Tribunal accepted that they (clearly the adult Applicants) were presently at a loss as to how they would repay Mr P what they had borrowed and that they may feel or be placed under pressure to repay the loans. However the Tribunal was not satisfied on the evidence before it that there was a real chance that this would amount to serious or significant harm “to any of the Applicants” (emphasis added). In this way it expressly considered the claims about future harm to “any” of the Applicants. In particular it was not satisfied that they faced a real chance of serious harm from Mr P, directly or indirectly. Similarly the Tribunal considered whether the First Applicant and his family could avail themselves of effective state protection and whether it would be reasonable for all the Applicants to relocate within India. It found that none of the Applicants were persons in respect of whom Australia had protection obligations under the Refugees Convention. The Tribunal’s ultimate findings in relation to a real chance of harm and state protection and cl.36(2)(d) considered the claims made in relation to all of the Applicants.
The Tribunal also considered the complementary protection criterion in relation to all of the Applicants, but was not satisfied that the harm that the Applicants claimed to fear because of the unpaid debt to Mr P was significant harm. It is the case that the Tribunal also stated at paragraph 29:
According to the Full Federal Court, the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of the “well-founded fear” in the Refugee Convention definition (MIAC v SZQRB [2013] FCAFC 33). On the evidence before me, I am not satisfied that there is a real risk the applicant (sic) will face significant harm from Mr [P].
Seen in isolation this reference to “the applicant” would appear to relate only to the First Applicant. However it appears to be no more than a typographical error. Elsewhere in its reasons in relation to complementary protection the Tribunal referred to “applicants”. In an event, the Tribunal made findings about the reasonableness of relocation for “the applicants” which sufficiently addressed the complementary protection claims of the Second, Third and Fourth Applicants. It concluded that it was not satisfied that “the applicants” met the complementary protection criterion.
The Tribunal did not limit its consideration of claims for the Second, Third and Fourth Applicants to their claims as members of the First Applicant’s family unit. It did not fail to consider the claims of the Second, Third and Fourth Applicants which were made expressly or which arose clearly or squarely on the material before it in the sense considered in NABE (No 2). Ground two is not made out.
Other issues
In oral submissions the Applicant raised several other issues about the Tribunal decision and procedures.
First, he took issue with the fact that in paragraph 15 the Tribunal stated that in his statutory declaration he had claimed that Mr P was not initially threatening in 2011, but that he had displayed some anger at what the Tribunal described as the “four‑year delay” in getting any of his money back. The Applicant’s concern in this respect was that the Tribunal made an error in describing the period between March 2008 and mid-2011 as a four‑year period, rather than a three-year period.
This was, strictly speaking, a factual error. However it did not affect the Tribunal’s consideration of the Applicants’ claims. It was not adverse to the Applicants that the Tribunal referred to a four year delay rather than a three year delay. In paragraph 22 of its reasons for decision the Tribunal expressed great difficulty in accepting that four (rather than over three) years after lending the Applicants a large sum of money at no interest, Mr P lent them more than half the same amount again at no interest. However, critically, the Tribunal accepted that Mr P did lend the second amount at no interest as claimed (that is, in 2011, as the Tribunal elsewhere recorded) without any clearly-defined conditions beyond talk of a possible further future business co-operation.
The factual error did not mean that the Tribunal failed to consider the Applicants’ claims. Nor was it indicative of jurisdictional error on some other basis, such as considered in NABE (No 2) at [53]. The Tribunal’s overstatement of the period between the two loans did not relate to a jurisdictional fact and was not a manifestation of an error of law constituting jurisdictional error.
In addition, the Applicant expressed concern about the fact that the Tribunal had not accepted his explanation for the nature of the transaction with Mr P and the circumstances in which Mr P provided a second loan and his claims that Mr P had become angry and started to threaten the Applicants. He took issue with the Tribunal’s failure to accept the explanations he provided.
The Applicant seeks impermissible merits review. No jurisdictional error is established on this basis. The Tribunal gave reasons for its findings which were reasonably open to it on the material before it. Insofar as the Applicant attempted to provide a further explanation for the transaction, this does not establish jurisdictional error.
The Applicant also raised a concern that the Tribunal had failed to put its provisional reasoning to him for comment. He also complained that the Tribunal hearing was held on 25 September 2014 and the Tribunal made its decision on 1 October 2014 without giving him any opportunity or time to “explain” if Tribunal was not satisfied of certain things. He suggested that the Tribunal should have come back to him after the hearing and told him what it was not happy about and should have put its provisional reasoning to him. He expressed this concern generally and also in relation to the Tribunal’s approach to specific aspects of his evidence about past events and reasoning about the relevance of his wife’s ability to live in her mother’s house.
The Applicant’s concerns in this respect do not establish jurisdictional error. First, the Tribunal is under no obligation under s.424A of the Act to put its provisional reasoning to an applicant for comment (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] per French CJ and Kiefel). No information has been pointed to, and nor is any apparent, that would have enlivened the obligation under s.424A(1) of the Act.
Insofar as this may be seen as a concern that the Tribunal should have raised dispositive issues with the Applicants at the hearing, the evidence before the court is not such as to establish (or even suggest) that the Tribunal failed to put the Applicants on notice of dispositive issues in accordance with the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [33]-[47]. I also note in that respect that the Applicant was on notice of the issue of the credibility of his claims to fear being killed or his family being harmed by Mr P from the delegate’s decision. No jurisdictional error is established on this basis.
Insofar as the Applicant submitted that the Tribunal was under an obligation to give them a further opportunity after the hearing to address the Tribunal’s concerns or provisional reasoning, there is no such general obligation.
The Applicant also took issue with the Tribunal’s reasoning in relation to state protection. He appeared to be of the view that the Tribunal had found that state protection would be available. That is not the case. Rather, the Tribunal’s finding was that it was not satisfied that the state would deny the Applicants protection for any Convention‑related reason. It made this finding in considering the need for a Convention nexus for the Refugees Convention criterion to be satisfied in circumstances where it had concluded that the harm the Applicants feared from Mr P was not itself Convention-related. There was no suggestion that any persecution feared from Mr P would be for a Convention-related reason. The concerns raised by the Applicant in this respect do not establish jurisdictional error.
In any event, the Tribunal was not satisfied that the Applicants faced a real chance of serious or significant harm from Mr P, directly or indirectly. In those circumstances it was not necessary for the Tribunal to consider whether state protection would be available to the Applicants in relation to harm that met the standard of serious harm or significant harm.
The Tribunal also went on to make its findings on an alternative basis, by considering the reasonableness of relocation in relation to both the Refugees Convention and the complementary protection criteria. In that context it considered, but rejected, the Applicants’ claim that Mr P had the benefit of a national network. Again, the Applicant’s disagreement with such findings which were reasonably open to the Tribunal on the material before it for the reasons which it gave, does not establish jurisdictional error.
The Applicant expressed a concern about the inability of the police to provide an adequate level of protection. He acknowledged that he disagreed with the Tribunal’s conclusion that he could avoid harm somewhere else in India, claiming that even the police in Australia could not protect him every day and because there was said to be police corruption in India. However, in this respect the Applicant seeks impermissible merits review. No jurisdictional error is established on the basis of the Applicant’s disagreement with the Tribunal’s factual findings in relation to relocation. The Tribunal addressed the obstacles to relocation raised by the Applicants.
The Applicant also stated that he had expressed difficulty in getting documentary evidence from India. This does not establish jurisdictional error on the part of the Tribunal. There is no suggestion of circumstances raising any issue of the reasonableness of the exercise of a discretion by the Tribunal to adjourn a hearing or otherwise (cf Li and also see Singh).
Insofar as the Applicant also expressed concern about the Tribunal’s view as to whether or not particular documents were necessary, he has not particularised any claim that any documents not provided to the Tribunal would have been of relevance in support of his claims about the relationship with and intentions of Mr P which formed the basis for the Tribunal decision. His claim was that the loans from Mr P were not documented. Despite the absence of any supporting documents, the Tribunal accepted that Mr P had lent the Applicants two sums of money as claimed without any clearly-defined conditions and that neither loan had ever been the subject of anything written between the lender and the debtor. No jurisdictional error is established in relation to the Tribunal’s consideration of any existing or foreshadowed documentary evidence.
As no jurisdictional error has been established on any of the bases contended for by the Applicants the application must be dismissed.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 17 November 2016
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