FEDERAL COURT OF AUSTRALIA

SZRAG v Minister for Immigration and Border Protection [2016] FCA 189

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs in the sum of $3650.

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

REASONS FOR JUDGMENT

1    The appellant is an Indian national. He arrived in Australia in 2008 on a temporary business visa. Over two years later, on 14 March 2011, he applied for a protection (class XA) visa, claiming to fear persecution in India on the ground that he was a Sikh who feared harm from other Sikhs because of his active membership of the spiritual organisation, Dera Sacha Sauda (DSS). His application was refused by a delegate of the Minister whose decision was affirmed on review by the Refugee Review Tribunal (the functions of which are now performed by the Administrative Appeals Tribunal). An application to the Federal Circuit Court (then known as the Federal Magistrates Court) to set that decision aside was unsuccessful, as was the appeal from the judgment of the Circuit Court: SZRAG v Minister for Immigration and Citizenship [2013] FCA 202. On 12 December 2013 the appellant lodged a second application for a protection visa, which was also refused by a delegate of the Minister whose decision was similarly affirmed by the Tribunal and an application for judicial review suffered the same fate as the earlier application: SZRAG v Minister for Immigration and Border Protection [2015] FCCA 3086. This is an appeal from that judgment. For the following reasons, it, too, must be dismissed.

The relevant statutory provisions

2    Under s 65 of the Migration Act 1958 (Cth) if the Minister is satisfied that a visa applicant satisfies certain criteria set out in the Act and the regulations and pays the requisite fee he is bound to grant the application. Otherwise, he is bound to refuse it. The protection visa is a class of visa created by the Act to meet Australia’s obligations under various international conventions. The primary criteria for the grant of a protection visa are set out in s 36 of the Act, as qualified by s 91R.

3    Section 36 relevantly provides:

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

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-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; or

…

(2A)    A non-citizen will suffer significant harm if:

    (a)    the non-citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non-citizen; or

    (c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…

4    The criterion in para (2)(a) is commonly known as “the refugee criterion”, the criterion in para (2)(aa) as “the complementary protection criterion”.

5    The reference to the Refugees Convention in s 36(2)(a) is a reference to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The Refugees Protocol is the Protocol relating to the Status of Refugees done at New York on 31 January 1967. For convenience I shall refer to both as the Convention.

6    Australia has protection obligations under the Convention to a person who is a “refugee”. Article 1A(2) of the Convention relevantly defines a refugee as a person who “owing to 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, is unwilling to avail himself of the protection of that country …”. Section 91R of the Act, however, excluded the application of Art 1A(2) unless the reason for the persecution is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and the persecution involves both serious harm to the person (as explained in s 91R(2)) and systematic and discriminatory conduct.

7    The complementary protection provisions were intended to give effect to Australia’s “non-refoulement obligations” arising under various international instruments to which Australia is a signatory: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 at [57].

8    The appellant’s first application for a protection visa relied solely on the refugee criterion. The complementary protection criterion was inserted into the Migration Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth). Those legislative changes did not come into effect until 24 March 2012, by which time the first Tribunal had disposed of the appellant’s application.

9    With certain exceptions which are not presently relevant, a non-citizen in the migration zone who has applied for a protection visa may not make a further application for a protection visa, (or have a further application for a protection visa made on his or her behalf) while remaining in the migration zone: Migration Act, s 48A.

10    In SZGIZ a Full Court of this Court held that s 48A did not preclude the making of an application for a protection visa based on satisfaction of the complementary protection criterion when an earlier application based on the refugee criterion had been refused. The Court held at [32] that the reference to “a further application” in s 48A is a reference to an application relying upon the same criterion as an earlier application.

11    Where an applicant is entitled to make a further application for a protection visa, however, in considering the further application, the Minister is not required to reconsider any information considered in an earlier application and may have regard to, and take to be correct, any decision made about or because of that information: s 50. The Tribunal “[stood] in the shoes” of the Minister for the purpose of conducting its review (see Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440). It could exercise all the powers and discretions conferred by the Act on the Minister: s 415. Accordingly, this provision, like s 65, applied equally to the Tribunal.

The appellant’s claims

12    In a typed statement attached to his first protection visa application the appellant claimed to be a Sikh who had fled India in fear of being harmed (including killed) by members of the Sikh Youth Federation and the Indian police because he was an active member of the DSS, which had been accused of insulting Sikhism, and was close to its leader, Guru Gurmeet Ram Raheem Singh, many of whose followers had been killed or injured in sectarian violence. He, himself, he claimed, had been falsely accused by members of the Sikh Youth Federation of recruiting poor Sikhs to the DSS and of orchestrating, and being involved in, violence. The first Tribunal accepted that the harm he professed to fear was serious and that it involved systematic and discriminatory conduct within the meaning of s 91R of the Act but it did not accept his claims. The Tribunal noted that country information indicated that DSS was led by Gurmeet Ram Raheem Singh and that the group ws considered heretical by orthodox Sikhs,. But the Tribunal did not accept the appellant’s claims because of “multiple inconsistencies and contradictions between [his] claims at interview and the relevant country information”. Consequently, it was not satisfied that the appellant was a credible witness and that his claims were true. In any event the Tribunal saw no reason why the appellant was not able to relocate to another part of India where he could avoid detection or harm by the Sikh Youth Federation. The Tribunal concluded that the appellant did not have a genuine fear of harm and, consequently, that his fear of persecution was not well-founded, with the result that it was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention.

13    In his second protection visa application the appellant repeated the claims the first Tribunal was unable to accept, albeit in an abbreviated handwritten account, which he told the Minister’s delegate at his interview had been completed by a friend but which he adopted as true. In that application he also claimed to have lived in the DSS temple at Sirsa in the state of Harayana, for about 35 years, although he had told the first Tribunal that he had lived throughout that period at the DSS headquarters in Gurusar Godia, Ganganagar (some 132 km away in the state of Rajasthan), and it was the first Tribunal which put to him that the DSS headquarters were in Sirsa, Harayana.

14    Remarkably, in contrast to what appeared in both his visa applications, the appellant also told the second Tribunal that he was not in fact a Sikh but a Hindu and claimed for the first time that he did not wish to return to India because of problems between Hindus and Sikhs. He said that the government and police in the Punjab, where he comes from, wanted him to leave the DSS and become a Sikh. Furthermore, he claimed, again for the first time, that when he refused to leave DSS he was beaten more than 50 times, injured many times, and on one occasion had required surgery to his stomach.

15    Mindful of the terms of s 48A of the Act and the judgment in SZGIZ, the Tribunal confined its review to a consideration of whether the appellant satisfied the complementary protection criterion.

16    Like the first Tribunal, the second Tribunal found that the appellant was “not a credible, truthful [or] reliable witness”. It said that his evidence showed “a propensity to manufacture, shift and tailor evidence in a manner which achieves his own purpose”. It concluded that he had “fabricated and concocted his evidence”. The Tribunal referred specifically to:

    the inconsistent claims by the appellant concerning his religion;

    the inconsistent accounts about his residence;

    a lack of familiarity with the key ideas and practices of the DSS (“beyond banal generalities”), despite his professed lengthy association and involvement with the organisation;

    the fact that when he was interrogated by the Tribunal about this matter, he claimed that he just went to the kitchen and did not listen to the “sermons”;

    a conflict between the claim in his visa application that he was threatened by the Sikh Youth Federation supported by the Punjab government because of his involvement with DSS and his account to the Minister’s delegate that the source of the threat was not the Sikh Youth Federation but the Punjab police and “private people” or individual Sikhs in his locality;

    his failure during the interview with the delegate to mention any threats from the Sikh Youth Federation until prompted;

    his explanation for that omission (that he could not recall what was in his application);

    the various new claims advanced to the second Tribunal; and

    the delay in making an application for a protection visa and the explanation given for that, which the Tribunal found unsatisfactory.

17    Consequently, the Tribunal rejected all the appellant’s claims and did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to India, there is a real risk he will suffer significant harm (as defined in s 36(2A)) “arising from his claimed membership, association or involvement with DSS or any other organisation, his real or perceived political opinion, his real or perceived religion or any other factor arising from his claimed circumstances” or for any other reason, including a deformity in his left leg, which it accepted he had.

The application to the Federal Circuit Court

18    In his show cause application in the Federal Circuit Court, the appellant relied on two grounds (without material alteration):

1.    The [Tribunal] committed jurisdictional error by failing to address the applicant's claim in the way it was made;

a.    The applicant stated in his protection visa that he was an active member of DSS in India. He was later given managerial position and travelled to many countries with the Guru to collect the donation.

b.    The applicant accused of converting other Sikhs to his organization and received death threats from Sikh Youth Federation

c.    The Tribunal failed to consider whether or not the applicant in India was at risk of harm from Sikh followers and not able to access effective protection.

2.    In … finding that it was not satisfied that the applicant was a person to whom Australia owed protection obligations, the Tribunal engaged in a process of reasoning that was irrational, illogical and not based upon fact supported by the applicant.

The judgment below

19    The reasons of the primary judge were brief. It is possible that this circumstance contributed to the appellant’s sense of grievance. In view of their brevity it is convenient to reproduce the substantive paragraphs in full:

7.    Relevantly, the Tribunal found the applicant had fabricated and concocted his evidence to achieve an immigration outcome. In relation to ground 1, it is clear from the Tribunal’s reasons in paras.9 and 32 that the Tribunal understood the nature of the applicant’s claims.

8.    It is also clear that the Tribunal considered whether there were substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to India there was a real risk that he would be subjected to significant harm as identified in paras.32, 33, 34 and 35. It is clear from the Tribunal’s reasons that the Tribunal rejected the applicant’s claims and evidence and that those findings were open. Ground 1 fails to disclose any jurisdictional error.

9.    Ground 2 is, in essence, an impermissible challenge to the conclusion by the Tribunal that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under s.36(2)(aa) had not been made out. The Tribunal identified reasons for the adverse findings that cannot be said to lack an evident and intelligible justification and were clearly open on the material before the Tribunal. Ground 2 fails to make out any jurisdictional error. The application is dismissed.

20    In para 9 of its decision record, the Tribunal had summarised the appellant’s claims in his second protection visa application. In para 32 it disposed of them for the reasons it gave in the intervening paragraphs.

The appeal

21    There are two grounds of appeal. They read (without alteration):

1    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant 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 Federal Circuit Court failed to take into consideration that the Tribunal’s decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim.

22    Neither ground is sound.

23    In substance ground 1 alleges that the Tribunal erred because it ignored s 91R. But s 91R was only relevant to the appellant’s claim to satisfy the refugee criterion. As the Tribunal stated, s 48A imposes a bar on a non-citizen whose application for a protection visa has been refused from making a further application for a protection visa while in the migration zone. As the Tribunal observed, referring to the Full Court’s decision in SZGIZ, that did not preclude the making of an application based on different criteria. Accordingly, the Tribunal rightly proceeded on the basis that it could only consider the appellant’s claims in the context of the complementary protection provisions of the Act. Not only was this approach not “manifestly unreasonable”, it was correct as a matter of law. See AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 (Markovic J).

24    To the extent that the allegation of manifest unreasonableness is intended to relate to the Tribunal’s factual findings, it is unsustainable. As Crennan and Bell JJ pointed out in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133], the correct approach in a case like this is “to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”. The answer to that question in the present case is that it was. A decision will not be “illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ). Here, there was ample room for a logical or rational person to reach the same decision as the Tribunal.

25    A decision will be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at [135]. That is not this case. A decision is not manifestly unreasonable unless no reasonable person could have reached it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). A decision might still be legally unreasonable if it lacks “an evident and intelligible justification” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68]). But that is not this case either. The conclusions reached by the Tribunal were open on the material before it. It is difficult to see how the conflicting accounts could be reconciled.

26    As Gleeson CJ and McHugh J pointed out in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] , to describe a decision-maker’s process of reasoning as illogical, irrational or manifestly unreasonable may be no more than an emphatic way of expressing disagreement with those reasons. If so, the description has no legal consequence. So it is here.

27    Ground 2 must also be rejected. It was not up to the Federal Circuit Court to consider whether the Tribunal’s decision was “unjust”. The merits of the application are a matter for the Minister and the Tribunal, not the courts. The Federal Circuit Court’s powers are severely circumscribed by the terms of the Act. The only basis upon which it was entitled to set aside the Tribunal’s decision is if it was affected by jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The primary judge concluded that the grounds upon which the appellant relied did not disclose any such error. I can discern no reason to doubt the correctness of that conclusion. While the primary judge’s reasons were brief, they were not erroneous. The Tribunal considered the appellant’s claims in all their iterations against the complementary protection criterion. The appellant’s accounts were replete with apparent inconsistencies which the Tribunal found the appellant was unable to satisfactorily explain, despite being given a further opportunity to do so after the hearing concluded (of which he did not avail himself). There is nothing unreasonable, illogical or irrational about the Tribunal’s conclusions and there was a basis in the evidence for each of them, as the Tribunal’s decision record discloses.

28    At the hearing the appellant was invited (through a Punjabi interpreter) to address each of the grounds. He accepted the invitation but his submissions bore little or no relationship to them. In large part his submissions were a plea to allow him to remain in Australia. At the outset he stated that he had “a problem” in India and did not wish to return home. For that reason, he submitted, he did not believe that the Tribunal gave proper consideration to his case. He explained that because the Tribunal found against him it must not have properly considered his application. That, of course, does not follow. To the extent that an allegation that the Tribunal failed to properly consider a claim may give rise to jurisdictional error, I can see no basis for concluding that it made such an error in this case.

29    The appellant also told the Court that he informed the Tribunal that it should make inquiries about his claims in India, that he would stay in Australia for five, six or up to 10 years so that it could carry out an investigation and, if his claims were then proved not to be genuine, he would return to India, but that it took no action at all in this regard. At first he said he had made a similar submission to the Federal Circuit Court but he gave no proper consideration to his claims either. He said that the primary judge refused to listen to his claims even though his life was in danger, so he was unable to get his message across. He later said that he had not raised with the primary judge his contention that he had told the Tribunal it should make inquiries in India because his Honour had not asked him.

30    He submitted that he needed one year more to stay here and then he would probably return to India. In reply he stated:

I’m not sure whether my refugee claims were genuine or not. If you believe that my refugee claims were not genuine, then at least permission should be granted to stay here for a period of at least one year.

31    I shall pass over the first sentence. As for the second, it is, of course, not up to me to decide whether the appellant’s claims are genuine. This Court’s role is limited to deciding whether the primary judge erred as alleged.

32    There was no transcript or any other record of the proceedings before the Court of either the Tribunal hearing or the hearing in the court below and the appellant filed no affidavit attesting to what had been said in either place. Nor was the appellant able to point to anything and I can find nothing in the appeal book to corroborate the appellant’s contention that he raised with the Tribunal or the primary judge any concern that the Tribunal should make inquiries in India. This is a matter which was not raised by either the application before the Circuit Court or the notice of appeal. Consequently, leave to amend the notice of appeal would be necessary. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] and the authorities referred to there. As the Full Court said in VUAUX, leave may be granted if a point which was not taken below clearly has merit and it would cause no real prejudice to the respondent. But the point raised by the appellant in his oral submissions has no merit. As the High Court explained in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] there is no general duty to inquire; the Tribunal’s duty, imposed by s 414 of the Migration Act, was a duty to review. The plurality countenanced the possibility that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review” which could give rise to jurisdictional error. But, assuming, despite the absence of any confirmatory material, that the appellant did in fact ask the Tribunal to make inquiries in India, as he maintained he had, the appellant’s submissions did not approach the level of particularity that the plurality had in mind. Accordingly, if leave to raise the point is required, leave should be refused. If not, the submission should be rejected as a failure to make inquiries in India, as formulated by the appellant, is incapable of giving rise to any jurisdictional error.

33    On its face, the complaint that the primary judge refused to listen to the appellant’s claims (assuming it to be true) is a matter of concern. Ultimately, however, I was persuaded by Ms Blake, who appeared for the Minister both in this Court and in the court below, that the complaint was related to the merits of the appellant’s claims for protection. The appellant did not submit otherwise in reply. Consequently, even if the complaint is well-founded, it would not give rise to error because, as I observed above, the primary judge was not entitled to explore the merits.

34    It follows that the appeal must be dismissed. The appellant should pay the Minister’s costs. There will be orders to this effect.

Associate:

Dated:    2 March 2016