FEDERAL COURT OF AUSTRALIA

AMR16 v Minister for Immigration and Border Protection [2017] FCA 1344

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. Her Honour dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse the grant of protection visas to the appellants.

2    The appellants are a husband and wife from India. The primary applicant for a protection visa was the husband. His wife was included in his application. She was also the second applicant in the judicial review proceedings before the primary judge and is the second appellant in this Court. However, she took no active part in the proceedings before the Tribunal, before the Federal Circuit Court, or before this Court.

3    The Tribunal described the circumstances of the appellants’ background and arrival in Australia as follows (at [2]):

2.    The applicants are a married couple, Mr and Mrs Patel. They are citizens of India and come from Gujarat. They entered Australia via Melbourne on Tourist visas on 28 January 2013. They were booked to undertake a tour of Victoria, NSW and Queensland. Mr Patel says they did not join their booked tour but moved straight to Mildura, Victoria, not even spending one night in Melbourne. The applicants lodged their protection visa application on 12 February 2013. Mrs Patel was included in the application as a “Part D” applicant, meaning that she was making no claims of her own, the outcome of her protection visa application being totally dependent on the outcome of Mr Patel’s application.

4    The Tribunal summarised the claims made by the first appellant as follows (at [7]):

7.    The applicants claim fear of persecution in India for reasons of not being able to meet threatening and unreasonable demands from an unscrupulous lender to whom they claim to have handed deeds to their home as surety. They claim to fear assault and murder. They claim to fear for the safety of their family.

5    The statement attached to the protection visa application may be summarised as containing the following further details as to the claims made, as summarised in the written submissions for the Minister:

(1)    the first appellant’s company found itself in financial distress in 2005;

(2)    the first appellant borrowed money from a private lender, providing the deeds to his family home as security;

(3)    the lender unscrupulously changed the terms of the loan to extract more money;

(4)    the first appellant went to the police, but once the lender heard of this, threatened to kill him;

(5)    in 2009, the first appellant went to the United Kingdom to avoid the trouble he was in;

(6)    on his return to India in 2012, the first appellant continued running his company;

(7)    the lender’s gang continued to visit and threaten the first appellant concerning the money he owed; and

(8)    the first appellant (and his wife) fled India to escape the threats and demands of the lender.

6    The Tribunal described the claims made by the first appellant in considerable detail, including the questions asked of him and the answers given. As pointed out in written submissions for the Minister, the Tribunal noted that:

(1)    information given in the first appellant’s tourist visa application that was inconsistent with his evidence to the Tribunal was put to him pursuant to s 424AA of the Migration Act 1958 (Cth) as to when his father died, but he refused to discuss his father;

(2)    it seemed strange that the lender had left the first appellant’s family alone, despite the asserted threats, and had let the family continue to live in the house covered by the title deeds given to the lender for so long, despite the failure to repay the money owed;

(3)    inconsistencies were put to the first appellant in relation to his company;

(4)    questions were asked as to whether, if his business partners continued to run the company, the issues with the lender had impacted upon them;

(5)    one of the reasons the first appellant gave for coming to Australia was to work illegally; and

(6)    a summary of concerns about the first appellant’s evidence were put to him, but he said he had no further comment.

7    The Tribunal’s reasons reveal a careful and thorough consideration of the claims made by the first appellant and of the evidence he gave. The claim for protection visas failed on merits review by the Tribunal because the first appellant was found to be an “utterly unreliable witness”, whose claims of fearing harm were found to be a “complete fabrication”. The Tribunal’s reasons for reaching those conclusions were clear and succinct. The Tribunal was, in any event, unable to see any Convention-related factor as being an essential and significant factor in the harm that was claimed. The claims of complementary protection failed for the same credibility reasons.

8    The grounds of the application for review before the primary judge were as follows:

1.    My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.

2.    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.

3.    The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

4.    The AAT has failed to investigate applicants claim, especially the grounds of persecution, in India. Therefore, the Tribunal decision dated 18th Feb 2016 was effected by actual bias constituting judicial error.

9    The primary judge summarised the claims made in the original protection visa application and accompanying statement. Her Honour also described the proceedings before the Tribunal and the Tribunal’s reasons in a thorough, but otherwise unexceptional, way. Her Honour reproduced key parts of the Tribunal’s reasons. Having done so, her Honour concluded that the Tribunal had complied with the requirements of s 424AA of the Migration Act, contrary to review ground 1 in the application for review reproduced above. Her Honour found that the Tribunal had correctly applied the law in assessing the claims made and that the adverse credibility findings were open to the Tribunal. Her Honour observed that it was not the function of the Federal Circuit Court to conduct merits review and that there was no basis for the claim made by review ground 2, namely, that the Tribunal’s reasonable satisfaction was not arrived at in accordance with the requirements of the Migration Act.

10    The primary judge described review ground 3 (asserted failure to consider the “four key elements of the Convention definition”, which are not further identified) and review ground 4 (asserted failure to investigate the appellants’ claims) as being misconceived. Her Honour’s reasons for those conclusions may be summarised as follows:

(1)    As to ground 3, the Tribunal had rejected the claims to fear harm in their entirety upon the basis of adverse credibility findings, and so was not required to consider whether such rejected claims met the Refugees Convention requirements reflected in any “key elements” in the “definition”, which I take to be a reference to the meaning of “well-founded fear of persecution” contained in s 5J of the Migration Act. The primary judge was in substance making the unremarkable observation that, if a claim of feared harm is unambiguously not accepted, there is no obligation on the Tribunal to conduct a barren and hypothetical consideration of whether, if such claims had been accepted, they would have constituted a well-founded fear of persecution for a Convention reason.

(2)    As to ground 4, the primary judge observed, correctly, that the Tribunal had no duty to investigate the claims made, and it was for the first appellant to put his case forward. Her Honour correctly observed that this was not a case in which the Tribunal could be said to be under a duty to inquire in the sense that it failed to make an inquiry about a critical fact, the existence of which was easily ascertained, citing Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25]-[26].

11    The primary judge therefore concluded that the application for review before her Honour had no merit, no jurisdictional error attended the decision of the Tribunal and the application for review should be dismissed with costs.

12    Having carefully read and considered both the Tribunal’s reasons and those of the primary judge, I am unable discern any error in the approach, reasons or conclusions of her Honour, nor any jurisdictional error on the part of the Tribunal.

13    The notice of appeal filed in this Court asserts the following grounds:

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

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

14    As s 91R of the Migration Act was repealed in April 2015, which was after the delegate’s decision, but prior to the Tribunal’s decision, I interpret the reference to that provision to be a reference to the meaning given to “well-founded fear of persecution” for a Refugees Convention reason in relation to protection visa claims, including the requirement of fearing “serious harm” also defined, now to be found in s 5J.

15    It may immediately be observed that the above grounds of appeal bear no apparent resemblance to the grounds of review that were before the primary judge. Moreover, they are entirely baseless. There is nothing to show that the Tribunal was either unreasonable in dealing with the claims made, or that the claims reached the point of acceptance at which consideration of the harm and persecution thresholds in the Migration Act needed to be considered. There was no discernible failure on the part of the Tribunal to meet its statutory obligations. While the asserted “legal and factual errors” are not identified, no such errors are apparent. Accordingly, there is no proper basis for granting the appellant leave to rely upon either of the grounds in the notice of appeal, not having been advanced before the primary judge. Leave is therefore refused. Even if leave had not been refused, neither ground of appeal could possibly have succeeded.

16    At the hearing of the appeal, the first appellant appeared, but his wife did not. He did not provide any written submissions. He did not make any oral submissions beyond a continued assertion of a fear of persecution. He did not address any of the grounds of appeal. He did not refer to the decision or reasons of either the primary judge or of the Tribunal. It follows that no basis has been advanced to disturb the orders of the primary judge.

17    It follows that the appeal must be dismissed with costs.

18    The Court therefore orders:

(1)    The appeal be dismissed.

(2)    The appellants pay the Minister’s costs as taxed or agreed.

Associate:

Dated:    17 November 2017