FEDERAL COURT OF AUSTRALIA

SZQIW v Minister for Immigration and Border Protection [2018] FCA 1078

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This appeal concerns an application made by the appellant for a protection visa under the Migration Act 1958 (Cth) on 22 April 2014. A delegate of the Minister for Immigration and Border Protection refused the application. The delegate’s decision was affirmed by the Administrative Appeals Tribunal. The Federal Circuit Court of Australia (FCCA) dismissed the appellant’s application for judicial review of the Tribunal’s decision: SZQIW v Minister for Immigration and Border Protection [2017] FCCA 2495. This is an appeal from that judgment.

2    The protection visa application forming the subject matter of this appeal is not the first application for a protection visa made by the appellant. He first applied for such a visa in April 2010. A delegate of the Minister refused that visa application and subsequent applications for merits and judicial review in relation to the refusal were dismissed. As will be seen, the refusal of the first visa application had legal consequences for the second application.

VISA CRITERIA

3    The Minister may only grant a visa if satisfied that the criteria for the visa are met: s 65(1) of the Act. An applicant for a protection visa must satisfy at least one of the criteria in s 36(2): see s 36(1A)(b). They include the criterion in s 36(2)(a) (Refugee Criterion) and the criterion in s 36(2)(aa) (Complementary Protection Criterion). These provisions will be summarised as in force at the relevant times.

4    With respect to the Refugee Criterion, s 36(2)(a) of the Act provided that a criterion for the grant of a protection visa was that an applicant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol (Convention). Article 1A of the Convention provided that Australia owed protection obligations to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

5    At relevant times s 91R(1) of the Act confined the application of the Convention in relation to persecution for one or more of the reasons mentioned in Article 1A(2) to cases in which:

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

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

(c)    the persecution involves systematic and discriminatory conduct.

6    As to the Complementary Protection Criterion, ss 36(2)(aa), 36(2A) and 36(2B) of the Act relevantly provided:

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

…

(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.

7    The phrase “cruel or inhuman treatment or punishment” is defined in s 5 of the Act to mean:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

8    The “real risk that the non-citizen will suffer significant harm” (as that phrase is used in s 36(2)(aa)) is to be understood as a real chance, as opposed to a remote chance that such harm will occur: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242] — [247] (Lander and Gordon JJ). The protection referred to in s 36(2B)(b) must be such as to reduce the risk of the applicant being significantly harmed “to something less than a real one”: see Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [40] (Lander, Jessup and Gordon JJ).

THE PRIOR APPLICATION

9    As has been mentioned, prior to the protection visa application now forming the subject of this appeal the appellant had made another application for a protection visa which had been refused. At the time of the second protection visa application, s 48A of the Act relevantly provided:

48A  No further applications for protection visa after refusal or cancellation

(1)    Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a)    an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

…

may not make a further application for a protection visa while in the migration zone.

…

(2)    In this section:

application for a protection visa includes:

(aa)    an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c); and

…

(b)    an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

…

10    Section 48B provides that the Minister may determine that s 48A does not apply to a non-citizen. No such determination has been made by the Minister for the benefit of the appellant.

11    Section 48A, on its proper construction, did not prevent a person from making an application based on a criterion which did not form the basis of a prior unsuccessful application for a protection visa: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 at [32] ⸺ [50] (Allsop CJ, Buchanan and Griffiths JJ). In its application to the appellant, s 48A operated so as to preclude him from making a claim for protection under the Refugee Criterion. However, he was not precluded from making a subsequent protection visa application on the basis that he satisfied the Complementary Protection Criterion. So much was identified by the Tribunal and there has been no challenge to that aspect of the Tribunal’s reasons whether before the FCCA or before this Court.

ISSUES ARISING ON THE APPEAL

12    To succeed on his application for judicial review, it was necessary for the appellant to show that the Tribunal’s review of the delegate’s decision was affected by jurisdictional error: s 474 of the Act; see also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

13    The grounds of appeal are expressed, without alteration, as follows:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims 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 Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns.

14    The appellant has not filed written submissions in support of these broadly cast grounds. At the hearing, he stated that he did not wish to make oral submissions. He said that he wished to rely only upon the matters stated in his notice of appeal. The appellant repeated this preference several times.

15    In BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095, Flick J considered the approach to be pursued by this Court in the exercise of its appellate jurisdiction where a litigant in person relies on broadly cast grounds of appeal. His Honour said (at [10] – [12]):

10    It should not be left to this Court on appeal to itself review the reasons for decision of the primary Judge and attempt to identify appellable error. Nor should it be left to this Court to itself try to identify a ground of review that may have been available to the Applicant, irrespective of whether it was previously advanced for consideration.

11    In such circumstances, it is considered that the preferable approach that should be pursued is for this Court to review the reasons for decision of the Federal Circuit Court Judge and to determine whether there is any self-evident error as to the manner in which that Court resolved the grounds of review previously advanced for consideration and which it would appear are sought to be re-agitated on appeal. A course which construes Grounds of Appeal which impermissibly seek to repeat arguments directed to the question of whether the Tribunal erred as though they were expressed as an argument that the Federal Circuit Court erred in not accepting like arguments previously advanced is a course which:

•    is commonly pursued in this Court;

•    recognises difficulties confronting unrepresented appellants; and

•    recognises that the Court’s duty is not solely to the unrepresented litigant but ‘entails ensuring that the trial is conducted fairly and in accordance with law’ and a duty to strike a ‘balance between providing assistance to an unrepresented litigant and ensuring a fair trial for all parties’ (cf. Hamod v New South Wales [2011] NSWCA 375 at [309] to [315] per Beazley JA, Giles and Whealy JJA agreeing; AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [39], (2016) 241 FCR 30 at 44 to 46 per Flick, Griffiths and Perry JJ).

In striking that balance, it is necessary to balance compliance with the requirement imposed by r 36.01(2)(c) of the Federal Court Rules 2011 (Cth) to state ‘briefly but specifically, the grounds relied on in support of the appeal’ and the need to ensure that an unrepresented appellant ‘suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer’ (MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] per Mortimer J).

12    In the absence of any appellable error having been specifically identified in the purported Grounds of Appeal, or in the absence of an ability to construe a Ground as meaning that the primary Judge erred in not accepting much the same argument as previously advanced, this Court has no general function to resolve an unspecified and unidentified error. A consideration as to whether there is any self-evident error, it is recognised, may well fall far short of a Judge of this Court independently parsing and analysing a Tribunal decision with a view to identifying a potential argument as to jurisdictional error and thereafter proceeding to resolve that newly formulated argument. In the absence of a self-evident error, this Court has no general duty or function to itself articulate a question of law.

16    Interpreted generously toward the appellant, the grounds of appeal raise three jurisdictional errors on the part of the Tribunal which, it is impliedly alleged, the primary judge failed to identify. The first is that the Tribunal’s decision is affected by legal unreasonableness. The second is that the Tribunal misconstrued or misapplied s 91R of the Act. The third is that the Tribunal misconstrued or misapplied the Complementary Protection Criterion, particularly the statutory definition of “significant harm” in s 36(2A).

17    The appellant was self-represented before the primary judge. In his originating application he relied on 20 grounds of review, many of which are not sought to be re-agitated before this Court. He made a further allegation of jurisdictional error in an affidavit filed in support of his application for judicial review.

18    The primary judge said that the grounds were discursive, overlapped and largely sought to invoke merits review (at [19]). It appeared, the primary judge said, that the grounds of review and portions of the appellant’s affidavit had been cut and pasted from a matter pertaining to a female visa review applicant and bore no relation to the issues that arose before the Tribunal. I share that view.

19    There is real doubt as to whether the second and third issues now sought to be agitated by the appellant on the appeal were fairly raised in the proceedings before the primary judge. As the primary judge found, the grounds of review raised a broad and un-particularised allegation that the Tribunal had misapplied the law. The grounds did not, however, raise any contention concerning the application and proper construction of either s 36(2A) or s 91R of the Act.

Unreasonableness

20    The appellant is a citizen of Pakistan, he claimed that he feared harm in Pakistan as a result of his involvement with the Pakistan Muslim League (Q) (PML-Q) during the 2008 elections. He claimed that during the 2008 elections members of the Pakistan People’s Party (PPP) had asked him to leave the PML-Q and join the PPP, and that he had refused. He further claimed that after the PPP won the election and formed government, members of the PPP went to his house to harm him but he was not there. He claimed that instead the PPP members harassed his family and stole valuables from his house, and that he later found out that four other members of the PML-Q had been taken by members of the PPP and killed. The appellant also claimed that he had been harassed and threatened by members of the PPP. He said that he ultimately left Pakistan because he feared he would suffer the same fate as those who had been killed by the PPP.

21    The findings of the Tribunal were conveniently summarised by the primary judge (at reasons [14] – [17]) as follows:

14.    The Tribunal was of the view that its jurisdiction in considering the application for a Protection visa was limited to the complementary protection criterion and not the Refugee Convention criteria in s.36(2)(a) of the Act. The correctness of this view was subsequently confirmed in Minister for Immigration v SZVCH (2016) 244 FCR 366 at 379 [44] per Kenny, Siopis and Besanko JJ and at 398-389 [sic] [113]-[114] per Mortimer J.

15.    At [8] – [10] of its Decision Record the Tribunal set out the protection claims of the Applicant. At [14] – [23] it considered and analysed the Applicant’s protection claims and the evidence in support of those claims.

16.    At [15] the Tribunal prefaced its consideration and analysis by recording that, having considered all of the evidence, the Tribunal was not satisfied that the Applicant was a truthful witness but rather that he had manufactured the entirety of his claims to fear harm in Pakistan. In coming to these findings the Tribunal had particular regard to three matters, being:

a)    the Applicant’s very little knowledge of the PML-Q’s aims, policies or manifesto. This lack of knowledge was not consistent with the Applicant’s claims to have been involved with that party from 2001 or 2002 until 2007 or 2008. The Tribunal considered this lack of knowledge to be indicative of the Applicant not having any involvement with the PML-Q: see [20] of the Decision Record;

b)    the implausibility of anyone in Pakistan having any continuing interest in pursuing the Applicant or his family members because the Applicant had around 2008 refused to join the PML-Q: see [21] of the Decision Record; and

c)    the Applicant’s failure to seek assistance from the UNCHR [sic] whilst in Indonesia during the period he had worked there from October 2008 until 10 January 2010, and the fact that he left Indonesia because he could not continue to work, was indicative of the Applicant not leaving Pakistan because he had a genuine fear of harm: see [21] of the Decision Record.

17.    In light of its findings, the Tribunal:

a)    rejected the Applicant’s claims in relation to adverse interest from rival political groups as ‘not credible and indicative of the fact that his claims have been manufactured’: see [22] of the Decision Record;

b)    did not accept that the Applicant would seek to be involved in the PML-Q in the future or that there is a real risk he will suffer significant harm from the PPP, PML-N or any other political parties or persons in Pakistan: see [23] of the Decision Record; and

c)    held that the Applicant did not satisfy the complementary protection criterion under s.36(2)(aa) of the Act and was not a person in respect of whom Australia had protection obligations: see [24] of the Decision Record.

22    The primary judge properly identified that the decision of the Tribunal turned upon its adverse credibility findings, which were based upon its assessment of the appellant’s oral evidence. His Honour said (at [31]):

…  Those credibility findings appear to me to be based on legally rational grounds and there is nothing ‘capricious’ or ‘irrational’ or ‘lacking an evident or intelligible justification’ in relation to those findings.

23    The appellant has made no submission to this Court to support his contention that this conclusion of the primary judge was affected by appellable error. Although the Tribunal’s adverse credibility findings were not immune from judicial review, there is nothing on the face of the Tribunal’s reasons to support a conclusion that the Tribunal’s conclusions were legally unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332: see also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158.

24    In the absence of written or oral submissions supporting the grounds of appeal it is not for this Court to critically assess every finding of the Tribunal against the material upon which it might have relied or purportedly relied. The appellant bears the onus of establishing appealable error, just as he bore the onus of establishing jurisdictional error on the part of the Tribunal on his application for judicial review: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). The appellant has not discharged that onus. He has pointed to nothing in the material before the Tribunal to make good his allegation that either the credibility findings or the Tribunal’s ultimate affirmation of the delegate’s decision were legally unreasonable. There is no self-evident error of that kind on the material before me.

Section 91R

25    The Tribunal correctly identified that it formed no part of its task on review to determine whether the appellant satisfied the Refugee Criterion. The effect of s 48A of the Act, as construed in SZGIZ, was that the appellant could not make a valid application for a protection visa based upon his claim to be a person to whom Australia owed protection obligations under the Convention. His first application was based upon such a claim and had been unsuccessful. The primary judge did not err in concluding that the task of Tribunal was so confined.

26    No occasion arose for the Tribunal to construe or apply s 91R of the Act, as that provision is concerned solely with the application of Article 1A(2) of the Convention (and hence the Refugee Criterion) to a visa applicant. The contention that the Tribunal misconstrued s 91R is rejected.

The Complementary Protection Criterion

27    There is nothing in the Tribunal’s reasons to suggest that it either misconstrued or misapplied s 36(2A) of the Act. The Tribunal’s decision did not turn upon whether the harm the appellant might suffer if returned to Pakistan was significant harm as defined in s 5 and s 36(2A) of the Act. Rather, the Tribunal determined that the factual claims the appellant had made in support of his application under the Complementary Protection Criterion were fabricated.

28    The Tribunal’s reasons correctly state that the concept of “significant harm” in s 36(2)(aa) is defined in s 36(2A). After rejecting the factual bases for the appellant’s claim, the Tribunal concluded (at [23]):

…  The Tribunal is not satisfied, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Pakistan, there is a real risk that he will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

(emphasis added)

29    There is nothing in that passage, nor elsewhere in the Tribunal’s reasons to suggest that the Tribunal ignored or misunderstood the definition of “significant harm”, nor that it misapplied the statutory definition to the facts as it found them.

30    The appeal should be dismissed.

Associate:

Dated:    20 July 2018