FEDERAL COURT OF AUSTRALIA

SZSLG v Minister for Immigration and Border Protection [2016] FCA 207

ORDERS

THE COURT ORDERS THAT:

1.    Insofar as the same may be necessary, the appellant has leave to raise the first ground specified in the notice of appeal;

2.    The appeal is dismissed;

3.    The appellant is ordered to pay the first respondent’s costs, which are fixed in the amount of $6799; and

4.    The name of the second respondent is amended from Refugee Review Tribunal to Administrative Appeals Tribunal.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The appellant is a citizen of the Republic of India. By an application lodged with the Department of the Minister of State presently titled the Minister for Immigration and Border Protection, who is the first respondent, the appellant sought the grant to him of that class of visa under the Migration Act 1958 (Cth) (the Act) known as a Protection (Class XA) visa (the visa).

2    There is another respondent to the appeal, namely the Refugee Review Tribunal as the second respondent, as termed in the notice of the appeal. In the time which has elapsed since that notice was filed on 10 March 2015 and as a result of legislative change, the role of the Refugee Review Tribunal has been assumed by the Administrative Appeals Tribunal. That being so, and though it be a formality, it is a necessary formality that the name of the second respondent be amended from Refugee Review Tribunal to the Administrative Appeals Tribunal. Quite properly, neither the Refugee Review Tribunal nor the Administrative Appeals Tribunal was an active party respondent. References in these reasons for judgment to the Tribunal are, given the time period concerned, necessarily to the Refugee Review Tribunal.

3    There is quite some history with respect to the fate of the appellant’s visa application following its lodgement by him in March 2012. A delegate of the Minister decided on 1 August 2012 to refuse the application. The applicant then sought the review of the Minister’s delegate’s decision by the Tribunal. On 27 November 2012, the Tribunal decided to affirm the decision of the Minister’s delegate to refuse the grant of a protection visa. The appellant then applied to the Federal Circuit Court for the judicial review of the Tribunal’s decision. On 21 June 2013, that court dismissed the appellant’s judicial review application.

4    The appellant then appealed against that court’s judgment to this Court. On 12 November 2013, the court allowed the appeal, set aside the Federal Circuit Court’s dismissal order, quashed the Tribunal’s decision and remitted the matter back to the Tribunal to be heard according to law, with a direction that the Tribunal be differently constituted for that purpose: see SZSLG v Minister for Immigration and Border Protection [2013] FCA 1185 (Collier J).

5    The occasion for the remittance was a conclusion reached by her Honour, at [25], that there had been a failure on the part of the Tribunal:

… to come to grips with the question whether the appellant actually had a well-founded fear of persecution for a convention reason.

Her Honour considered that this failure went:

… to the heart of its decision –

and that:

although the tribunal found that the appellant could relocate, it is difficult to see how such a finding could be made without a proper appreciation of the appellant’s circumstances and whether there was a convention reason for his well-founded fear of persecution.

6    Following a hearing at which the appellant gave oral evidence, the Tribunal, constituted by a different member to the former occasion, decided on 10 April 2014 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa. The Tribunal member published reasons in writing for that decision that day.

7    From this decision, the appellant again applied to the Federal Circuit Court for judicial review. On 24 February 2015, that court, for reasons delivered ex tempore, dismissed with costs that second judicial review application: see SZSLG v Minister for Immigration [2015] FCCA 404.

8    It is not necessary for present purposes to detail each of the grounds of review in the judicial review application, only one of them. The first ground of review before the Federal Circuit Court was that:

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.

9    His Honour’s reasons for finding an absence of merit in that ground are, with respect, compressed. In short though, a reason for that may well be found in the generality with which the ground of review itself was expressed. Suffice it to say, his Honour expressed the view that the decision was one which had been arrived at in accordance with the provisions of the Act. As will shortly emerge, it is also relevant to note that his Honour felt it necessary to record at para 15 of his reasons for judgment the following:

The Tribunal addressed the reasonableness and practical capacity of the applicant to relocate in that regard and found that the applicant appeared fit, intelligent, articulate and able to speak English and that it would not be unreasonable for him to relocate somewhere where there is not a real risk of significant harm.

10    Even though an alleged error concerning relocation did not feature in the grounds of review, his Honour’s reference to that being a subject addressed by the Tribunal may very well be a reflection of the course of oral submissions before the Federal Circuit Court, particularly those of the appellant.

11    The reason why it is relevant to note the reference to relocation emerges from the grounds of appeal, which are specified in the notice of appeal. They are:

1.    The Federal Circuit Court Judge failed to consider that the Tribunal decision was affected by judicial error in that the Tribunal failed to correctly apply the test in s.36(2B)(a) of the Migration Act 1958.

2.    The Federal Circuit Court Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

12    An understanding of ground 1 and its merits is assisted by setting out not only the particular paragraph of the Act to which it refers but to give context, ss 36(2), (a), (aa), (2A) and (2B):

(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 because the person is a refugee;

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 cruel or inhuman treatment or punishment; or

(d)    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.

13    The first ground of appeal did not, as the Minister correctly submitted, feature explicitly as a ground of review before the Federal Circuit Court. Even so, the subject of relocation was canvassed in the reasons for judgment of that court. And this may well, as I have observed, be a reflection of the course of events before that court on the hearing of the judicial review application. Be this as it may, because the ground of appeal was not pleaded in the Federal Circuit Court, it would require a grant of leave on the part of this Court to raise it.

14    It is at the risk of repetition, for the statement has been made in many a case, to state that the jurisdiction exercised by this Court in matters of this kind is appellate, not original. The conferral of original jurisdiction is on the Federal Circuit Court. Even so, and as the Minister fairly conceded, it is possible for a ground not taken below to become a ground of appeal by leave, with it being for an appellant to demonstrate that a ground is at least arguable in order for that leave to be given. An absence of prejudice can also be a consideration, but not in this case. The long and the short of it is that determining whether to grant leave entails a consideration of the merits of ground 1.

15    Ground 2 reproduces the first ground of review before the Federal Circuit Court. That being so, and as the Minister correctly submitted, it has the difficulty of being expressed at such a level of generality as to make the precise error alleged in the Federal Circuit Court’s treatment of the Tribunal’s decision not possible to identify with precision. I will say something more about ground 2 later in these reasons for judgment.

16    First it is necessary to detail the basis of the claim which the appellant made all those years ago now in his application for a protection visa. The basis for that claim did not change over the course of initial review, judicial challenge and further review. The basis for that claim is fairly set out by the Tribunal in para 21 of the Tribunal’s reasons:

In his written application for a protection visa (completed on Form 866C) and lodged with the Department on 12 March 2012, the applicant claims that he was a financial planning consultant with MetLife Insurance India. He claims he carried out this work in the Chandigarh area. He claims that with the advent of economic liberalisation the banking and insurance sector has grown in India. He said that as a MetLife salesman, he explained insurance policies’ benefits but those polices failed to deliver those benefits. He claims that the global financial crisis directly impacted on the macroeconomic variables and that since the middle of 2009 there was a decline in the foreign exchange reserves. He claims that local people who bought policies from him trusted him but that the policies lost value and therefore the policy holders lost money. He claims that he was attacked and threatened by persons associated with the policy holders. The applicant also claims that he is a Lock Dal Party supporter. He claims that police help was denied because of Congress Party influence amongst the Indian police. He claims that his family home was ransacked and his family members were threatened. He claims that his former clients and Congress Party members will kill him.

17    On the second occasion that it fell to the Tribunal to review the Minister’s delegate’s decision, the Tribunal did not commit the jurisdictional error identified by Collier J and detailed above. I say that because there is a finding by the Tribunal at para 65 that:

Having regard to all the evidence, while the Tribunal finds the applicant may face a real chance of serious harm, it is not satisfied that such harm is motivated by one or more of the Convention grounds. The Tribunal therefore finds the applicant does not have a well-founded fear of Convention persecution.

18    That finding meant that the Tribunal did not have to consider, in the context of a persecution based fear, the question of relocation implicit in the definition of refugee in the Refugee Convention as the two conventions are collectively defined in the Act. It did mean, given the Tribunal’s conclusion that the appellant may face a real chance of serious harm, that the Tribunal had to address relocation in the context of what is termed complimentary protection. It is that obligation which supplies the basis for the first ground in the notice of appeal and the reference in that ground to s 36(2B)(a) of the Act.

19    The Tribunal’s reasons directed to that subject are to be found in paras 66, 67, 68 and 70 of the reasons:

66.    The Tribunal then considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. The term ‘significant harm’ includes where a person may be arbitrarily deprived of their life. The Tribunal finds that in the circumstances of the particular applicant where persons believe he induced them to purchase policies which led them to lose money, those persons may be motivated to vent their anger on the applicant and in so doing may harm him such that he may be arbitrarily deprived of his life. The Tribunal accepts that and arbitrary deprivation of life equates to significant harm for the purposes of the Act.

67.    Having found that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to India, the Tribunal considered whether it would be reasonable for the applicant to relocate to another part of India where there is not a real risk of significant harm to him. The Tribunal asked the applicant at the hearing for comment on relocation; he claimed that communication systems have improved in India and it is easy for the police to communicate with each other. He also said that the Congress Party is in power in most areas and its leaders can communicate and get him into trouble. As stated above, the Tribunal put it to the applicant that he appeared fit, intelligent, and articulate and able to speak English and that it would not be unreasonable for him to relocate to somewhere where there is not a real risk of significant harm. Having regard to all the evidence, the Tribunal is not satisfied that the applicant would be targeted for harm by members of the Congress Party, or that the Indian police would target the applicant for harm so it does not accept his claim that members of these entities would track him down for harm across India. In all the circumstances, the Tribunal finds that it would be reasonable for the applicant to relocate to another part of India, for example a large city such as New Delhi or Mumbai, or elsewhere, where there is no appreciable risk of serious or significant harm.

68.    For the reasons set out in the preceding paragraph, the Tribunal finds that pursuant to s.36(2B)(a) of the Act, the risk faced by the applicant is taken not to be a real risk as it would be reasonable for the applicant to re-locate to an area of Indian where there would not be a real risk he will suffer significant harm.

69.    For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

70.    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

20     I should also record, for it was noticed in the course of an exchange with counsel for the Minister, that there is an obvious inadvertence in para 69 of the Tribunal’s reasons, where the word “not” ought to appear, having regard to the absence of satisfaction as to a well-founded fear of persecution already expressed in para 65 by the Tribunal. Nothing turns on this. It is but a reminder of the need to consider a Tribunal’s reasons as a whole and not narrowly and with an eye for error: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6.

21    I have no doubt, having heard the appellant’s oral submissions today, that he emphatically disagrees with the conclusions reached by the Tribunal on the subject of relocation in the paragraphs quoted. That is because, in the course of his submissions, he reiterated the harm that he had put to the Tribunal he would suffer in the event he were returned to India. A number of members of the High Court over time have observed that describing reasoning as “illogical or unreasonable or irrational” may merely be an emphatic way of expressing disagreement with that reasoning: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 646, Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1105 at 1107; [2003] HCA 30 at [5] and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626.

22    In so doing, each of those judges has stated that unreasonableness is not to be found just in such emphatic disagreement. For present purposes, what that means is that the second ground of appeal, insofar as it might be regarded as evidencing disagreement with the particular satisfaction or want thereof expressed by the Tribunal, is not sufficient to amount to a jurisdictional error.

23    One thing which the Federal Circuit Court on judicial review and this Court on appeal must not do is to delve into what are just matters of relative factual merit or, related to that, credibility. If there is some basis rationally and logically expressed for a particular factual conclusion, it is for this Court to observe the limits of judicial power in this case and not interfere with evaluative factual conclusions reached by the Tribunal for all of the reasons expressed by Sir Gerard Brennan in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

24    There was, therefore, no error in the Federal Circuit Court’s dismissal of that first ground which has been translated into the second ground of appeal.

25    As to the first ground of appeal, it was submitted on behalf of the Minister that although the focus of the inquiry as to satisfaction is different to that which arises in respect of relocation in the context of a Convention based fear of persecution, there is nonetheless an analogy with the satisfaction expressed in s 36(2B)(a) of the Act in the sense that, in each, what is “reasonable” depends on the:

Particular circumstances of the applicant and the impact upon that person of relocation: see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 27.

26    Also relied upon by analogy in this regard by the Minister were statements made in Randhawa v Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 by Black CJ, who referred to a need on the part of the administrative decision-maker considering relocation to give (at 443):

… specific attention … the extent of the decision-maker’s task will be largely determined by the case sought to be made out by an applicant.

and in that same case by Whitlam J, who stated that the consideration of relocation would largely be determined by (at 453):

… the case sought to be made out by an applicant.

27    There is, in my respectful view, force in that analogy. In other words, in the application of s 36(2B), the decision-maker will be necessarily informed by the particular case, which necessarily includes the particular circumstances of an individual applicant. Looking at the passage that I have quoted from the Tribunal’s reasons, it is just that approach which I see. The particular risk of significant harm which the Tribunal found did exist had about it, on the material the Tribunal accepted, a particular geographic focus arising from the activities in which the appellant had engaged in selling particular insurance products. The Tribunal also found, as it was entitled, that the appellant was a supporter but not a member of the Lok Dal party.

28    The Tribunal’s conclusions as to relocation reflect particular individual features of the appellant. It was not necessary for the Tribunal to identify some other region within India, much less a specific locale, to which he might relocate in order to address the issue posed by s 36(2B) when one has regard to the appellant’s individual circumstances. The position may well be different in respect of a different individual who had, for example, a very high public profile which the Tribunal accepted. But that is not this case. What follows, in my view, is that the Tribunal did address, correctly, the relocation issue which was necessary for it to address, having regard to its conclusion about the appellant facing significant harm as defined.

29    There is something of a novelty about the particular approach to be taken in relation to s 36(2B) in that the approach has been informed by analogy. The Minister’s submissions reflected as much. That there is some novelty inclines me to grant the appellant leave to include ground 1 as a ground of appeal. It is just that, for the reasons given, that ground does not succeed.

30    It necessarily follows from the rejection of both ground 1 and ground 2 that the appeal must be dismissed.

Associate:

Dated:    7 March 2016