FEDERAL COURT OF AUSTRALIA

SZRKF v Minister for Immigration and Citizenship [2013] FCA 181

THE COURT ORDERS THAT:

1.    The second appellant is appointed as the first appellant’s litigation representative and compliance with rr 9.63, 9.64 and 9.66(3) is dispensed with.

2.    The appeal is dismissed.

3.    The second appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court delivered on 21 September 2012. That judgment dismissed an application for judicial review under s 476 of the Migration Act 1958 (Cth) (Migration Act) of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 March 2012.

background

2    The appellants are citizens of India who arrived in Australia on 3 August 2008 on tourist visas. The second appellant (the father) and the third appellant (the mother) are the parents of the first appellant (the daughter). The daughter is a child born in Australia on 3 December 2009.

3    On 1 April 2011 the father applied for a Protection (Class XA) visa on behalf of the daughter. The mother and father also applied for protection visas on that day on the basis that they were members of the daughter’s family unit.

4    By a letter dated 11 April 2011, the Department of Immigration and Citizenship advised the father that the applications of the mother and father were invalid (the Invalidity Decisions). The reason given was that they had already applied for, and been refused, a protection visa in December 2008 (the December 2008 Decisions) and as they had not left Australia, they were prevented by s 48A of the Migration Act from making another application. The December 2008 Decisions had been the subject of a review by the Tribunal. On 26 March 2009 the Tribunal affirmed those decisions to not grant the mother and father’s protection visas. The applications for those visas had been made on 8 September 2008. The father had applied for a protection visa under s 36(2)(a) of the Migration Act claiming to be a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol. The mother had applied under s 36(2)(b) as a member of his family unit.

5    By a letter dated 12 August 2011, the delegate of the Minister advised the daughter that her application for a protection visa had been refused on the basis that she was not a person to whom Australia owed protection obligations (August 2011 Decision). The delegate was not satisfied that the daughter had a well-founded fear of persecution.

Refugee review Tribunal

6    On 26 August 2011, the daughter sought a review by the Tribunal of the August 2011 Decision. The application was signed by the father on her behalf. On 1 September 2011, an amended application for review was lodged naming the mother and father as applicants for review as well.

7    The Tribunal summarised the daughter’s claims at [28] of its Statement of Decision and Reasons (SDR):

In the visa application the applicant claimed that her parents left India to avoid persecution. She claimed her father had been a member of the Congress Party and worked for the party during an election. A leader of the BJP, Mr Harbhajan Singh, asked her father to join that party, but he refused. Her parents were kidnapped and released after the election, and BJP members threatened them with violence. The applicant stated she was born in Australia and had ‘adopted’ the Australian life style, and her parents had skills which would allow them to become productive members of the workforce. She claimed that the family would face psychological and financial hardship if forced to return to India. The applicant also claimed that BJP members would try to kill her and her family if they returned, and that the authorities could not protect them from such an ‘organised political party’.

8    On 12 January 2012, the Tribunal (differently constituted from the Tribunal which had earlier affirmed the December 2008 Decisions) convened a hearing which was attended by the father on behalf of the daughter (then a child of two). The matters put to the father and his responses, as well as the other investigations and steps taken by the Tribunal, are extensively detailed in the SDR sent to the father by the Tribunal on 21 March 2012. In that statement, the Tribunal advised the appellants of its decision to affirm the August 2011 Decision and its conclusion that it did not have jurisdiction in relation to the applications of the mother and father.

9    The Tribunal found much of the father’s evidence problematic and that he had been untruthful in his account of the circumstances in India and the problems he experienced. This was based on the fact that the father was unable to remember matters which the Tribunal considered he should have been able to remember and the finding that independent reports did not support the father’s claims that there was conflict in his home state between the BJP and the Congress Party. Further, the Tribunal relied upon the many inconsistencies that it found between what the father told the Tribunal at the hearing on 12 January 2012, what he told the Department in his interview with the delegate of the Minister in 2008 and what he told the Tribunal at the hearing of his application for review of the December 2008 Decisions. The Tribunal did not accept that the father was actively involved in the Congress Party in India, that he was threatened by political opponents, that the parents were kidnapped or that they suffered any harm: SDR [63]-[78]).

10    The Tribunal said:

79.    Given the findings above, the Tribunal is not satisfied that there is any real chance that the applicant would face any serious harm amounting to persecution on account of her imputed political opinion, or her father’s actual or imputed political opinion, or for any other Convention reason, if she were to return to India now or in the reasonably foreseeable future.

80.    The Tribunal notes that the applicant, through her father, has referred to the possibility and indeed plans of the family to relocate from their home village to another part of the State of Uttarakhand. However, given the Tribunal’s findings above, the Tribunal considers it is not necessary for it to consider whether the applicant might reasonably relocate to another region in her home country, in determining whether she is a person to whom Australia has protection obligations.

81.     The Tribunal is not satisfied from the evidence before it that the applicant is a person to whom Australia has protection obligations under the UN Refugees Convention.

CONCLUSIONS

82.    The Tribunal is not satisfied that the first named applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.

Application to the Federal Magistrates court

11    On 20 April 2012, the appellants applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision under s 476 of the Migration Act on the grounds that:

1.    The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

2.    The Tribunal ha no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

(Grammatical and spelling errors are in the original)

12    At the first court date, the father appeared in person and on behalf of the mother and the daughter. The Federal Magistrate advised the father that, on their face, the first ground of the application lacked legal merit and the second lacked particularity: [2012] FMCA 859 at [21]. The father indicated that he was willing to participate in the Court’s “RRT Legal Advice Scheme”. In his reasons, the Federal Magistrate noted that the Court file indicated that advice was given by a lawyer participating in the scheme. However, despite the opportunity to file an amended application, the appellants continued to press the two grounds as stated in the original application: see [22]-[23].

13    At the hearing on 14 September 2012, the father was assisted by an interpreter. He appeared on behalf of his daughter as her litigation guardian (the terminology adopted by the Federal Magistrates Court Rules 2001 (Cth)) and on behalf of his wife. The father initially had nothing to say in support of the application. However, when pressed, his complaints were that he did not agree with the Tribunal’s decision and that, as a result of his problems in India, his daughter would be at risk. The Federal Magistrate considered that this first complaint was no more than a request for impermissible merits review: at [29]-[30]. He proceeded to find that the other complaint – that the Tribunal did not give proper consideration to his daughter’s case – was simply a complaint about the outcome in the absence of anything else. He went on to find that the Tribunal did give consideration to all aspects of the daughter’s claims and that the findings made by the Tribunal were open to it on the evidence before it. He concluded that the Tribunal’s findings were not susceptible to legal change in the current circumstances: at [31].

14    In relation to ground 1, the Federal Magistrate held that the Tribunal was not required to, nor did it, make any finding with respect to relocation within India because the Tribunal had rejected the daughter’s claim that she would face a real risk of harm if she returned to India. The Federal Magistrate found that this did not reveal any error, let alone “serious” jurisdictional error: at [48]-[49].

15    In relation to ground 2, the Federal Magistrate found that he could see no error in the Tribunal’s consideration and held that the findings were reasonably open to it. The Tribunal had not been able to reach the requisite level of satisfaction and therefore refusal was mandated by ss 65 and 36(2) of the Migration Act: at [51].

16    The Federal Magistrate found that there was no error in the Tribunal’s decision that it lacked jurisdiction to deal with the applications of the mother and father. In doing so he relied upon ss 48A and 47(4) of the Migration Act: at [32]-[33], [37]-[38].

17    The Federal Magistrate also addressed the procedural fairness issues raised by the history of the case:

(a)    He found that the father was acting as his daughter’s guardian before the Minister’s delegate and the Tribunal and therefore the daughter was given the opportunity to explain her claims – through the father – even though the Tribunal did not accept them: at [39]-[40];

(b)    The Federal Magistrate found that the father was afforded procedural fairness even though the Tribunal lacked jurisdiction in relation to his application and therefore Pt 7, Div 4 of the Migration Act was not engaged. The father was given an opportunity to comment and respond at the hearing in relation to his own application and he put nothing before the Court which challenged the Tribunal’s account of what occurred: at [41]-[42].

(c)     The Minister conceded before the Federal Magistrates Court that the mother had been denied procedural fairness. The Federal Magistrate noted that the mother was informed by the Tribunal that it did not have jurisdiction in relation to her application but she was not provided an opportunity to respond. She was not invited to the 12 January 2012 hearing. Further, there was nothing in the Tribunal’s account of the hearing to indicate that it had asked the father whether he was also present to represent the mother’s interests or act on her behalf. The Federal Magistrate noted however that the relief sought was discretionary and declined to exercise that discretion on the basis that it would be futile to remit the matter to the Tribunal. This was because the Tribunal had already found that it had no jurisdiction in the mother’s matter and there was no other conclusion open to it. This futility was also said to be seen in circumstances where the mother had never made any claims of her own to be a refugee but had relied on being a member of either her daughter’s or her husband’s family on each occasion: at [43]-[46].

18    For these reasons, the application was dismissed.

the appeal to the federal court

19    The appellants’ notice of appeal from the judgment of the Federal Magistrate set out the following grounds:

1.    The FM 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 Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

(Grammatical and spelling errors are in the original)

20    As a preliminary matter, the father sought to appear in person and as the representative of the daughter and mother at the hearing. As the daughter is now a child of 3, with the father’s consent, I adopted the course that the father should act as the daughter’s litigation representative. This was notwithstanding the fact that he had taken no steps to comply with relevant parts of Div 9.6 of Pt 9 of Chapter 2 of the Federal Court Rules 2011 (Cth) concerning the appointment of litigation representatives of persons under an incapacity (which includes a child). The father said that the mother did not appear due to the fact that she was more than four months pregnant. I did not waive compliance with r 4.01 of the Federal Court Rules 2011 and accordingly the father did not represent the mother at the hearing and it was conducted in the mother’s absence. The Minister’s representative had no objection to this course.

21    The father was assisted at the hearing by an interpreter. He indicated that he did not wish to open and agreed that the Minister’s representative should take the Court through the Appeal Book and make her submissions first.

22    The Minister’s representative submitted that, without particulars, the grounds of appeal lacked meaningful content and did not establish any error on the part of the Federal Magistrate. She relied upon the correctness of the Federal Magistrate’s findings for the reasons he gave.

23    Further, the Minister’s representative noted that, in relation to the first ground, s 91R of the Migration Act sets out the relevant test for what amounts to “persecution” for the purposes of the Act. The Minister submitted that any suggestion that the Tribunal failed to consider whether the appellants faced persecution as defined is unfounded. The Minister’s representative pointed to:

    the specific finding of the Tribunal regarding persecution: at SDR [78]-[79];

    the Tribunal’s conclusion that it should make its own assessment of the father’s claims in deciding the daughter’s application, even though her claims derived from her father’s and they had already been considered previously by a differently-constituted Tribunal in relation to the December 2008 Decisions: at SDR [62];

    the Tribunal’s finding that the father’s account of his circumstances in India, the problems he experienced, the reasons he left and the reasons he feared returning was untruthful: at SDR [78];

    the Tribunal’s finding that the father’s evidence on a number of issues was vague or lacking where one would reasonably expect knowledge and its view that this was highly adverse to his claims: at SDR [65]-[69];

    the fact that the father’s evidence in the January 2012 and March 2009 hearings before the Tribunal was inconsistent. The Tribunal found that this led it to doubt the father’s credibility generally: at SDR [71]-[76]; and

    the fact that the father’s claims were not supported generally by independent evidence: at SDR [77].

24    In relation to the second ground, the Minister’s representative submitted that the Federal Magistrate made no error when he endorsed the Tribunal’s conclusion that it had no jurisdiction to review the Invalidity Decisions by reason of the operation of s 48A of the Migration Act. The Minister’s representative argued that s 48A operates to prevent an applicant from making repeat applications for a protection visa where that person has not left the Australian migration zone after being refused a protection visa on a previous application. By reason of s 48A(2)(aa), this applies to the father (whose first application was made under s 36(2)(a)) and extends to cases where, as with the mother, the original application was as a member of a family unit pursuant to s 36(2)(b). The Tribunal has power to review a decision if it is an “RRT reviewable decision” under s 411 of the Migration Act. A decision to refuse to grant a protection visa or to cancel a visa is an “RRT reviewable decision”. However, by reason of the express terms of s 47(4), a decision by the Minister “that an application is not valid and cannot be considered is not a decision to refuse to grant the visa”.

25    The Minister’s representative conceded that the Tribunal failed to give the mother an opportunity to be heard on the question of the Tribunal’s jurisdiction and she was therefore denied procedural fairness. However, the Federal Magistrate was correct to conclude that it would be futile to grant relief in respect of this failure – the Tribunal’s finding was plainly correct. See, for example, Hammadi v Minister for Immigration & Multicultural Affairs [2000] FCA 1722 at [23].

26    When again offered the opportunity to put forward any submissions or to be more specific as to the grounds of the appellants’ complaints, the father declined the opportunity, adding words to the effect that he would accept the Court’s decision.

consideration

27    In the absence of particulars or submissions from the appellants, I agree that it is difficult to give meaningful content to the grounds of appeal.

28    If, by the first ground, the appellants seek to re-ventilate the first ground of their application to the Federal Magistrates Court, I do not see any error by the Federal Magistrate in rejecting that ground. The reasons for the Tribunal’s decision did not relate to the relocation of the appellants within India, and this is made express in the Tribunal’s reasons: see SDR [80] and the Federal Magistrate’s reasons at [49] where he said:

As submitted by the respondent, the Tribunal did not, nor was it required to, make any relocation finding. While relocation was discussed with the applicant’s father at the hearing ([80] at CB 140 to CB 141), it was not necessary for the Tribunal to make a finding as to the reasonableness of relocation in circumstances where it rejected the applicant’s claim to face a real risk of harm if returned to India (Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 at [13] per Whitlam, Lehane and Gyles JJ). Its failure to do so does not reveal any error, let alone “serious” jurisdictional error.

29    If the applicants seek to make some broader argument that the Tribunal did not give adequate consideration to whether the daughter might be exposed to serious harm in the sense set out in section 91R(2)(a), then I reject it because:

(a)    no argument in these terms was raised before the Federal Magistrate. It is doubtful that it can somehow be construed as a different form of the second ground argued before the Federal Magistrate.

(b)    I accept the submissions of the Minister in relation to Ground 1 that the Tribunal did consider whether the daughter may suffer persecution, albeit that her claims derived through her father. The fact is that the Tribunal rejected those claims as unfounded because it found the father’s evidence to be untruthful in some respects, his accounts inconsistent and unsupported by independent evidence. It is for the Tribunal, in performing its role as the reviewer of the merits of an application for a protection visa, to make factual findings. Like the Federal Magistrate at [51] of his reasons, it appears to me that the Tribunal’s relevant findings were reasonably open to it and probative of the material before it. The reasoning was cogent. When the factual claims are rejected, there is no basis for the suggestion that the daughter may have a well-founded fear of prosecution.

30    No error is revealed, either by the Tribunal or the Federal Magistrate, on this basis and I accordingly reject the appellants’ claims as expressed in the first ground.

31    In the absence of the particularisation of any legal or factual error in the decision of the Tribunal the second ground may, in the words of the Federal Magistrate, amount to no more than a complaint about the outcome of the application. As such, it must be rejected.

32    In summary:

(a)    in relation to the daughter’s application, no appellable error in the reasons of the Federal Magistrate can be discerned based upon the issues raised by Ground 1. I also agree that the daughter was, through her father, afforded procedural fairness as was the father: see [39]-[42] of the Federal Magistrate’s reasons;

(b)    I agree with the Federal Magistrate’s reasoning and conclusions at [32]-[38] and the submissions of the Minister’s representative referred to at [24] above that the Tribunal had no jurisdiction to deal with the mother and father’s applications for review. The terms of ss 48A(2)(aa), 411(1)(c) and 47(4) are clear and unambiguous; and

(c)    as the mother did not appear before this Court, her appeal is dismissed. However, if I had been called upon to determine her appeal, I would not consider that the Federal Magistrate exercised his discretion inappropriately by declining to remit the application to the Tribunal when the outcome must be that the Tribunal does not have jurisdiction and when the success of the mother’s application is contingent on the success of her daughter’s application and her daughter’s application has failed: see [45]-[46].

33    For all of these reasons, I am obliged to dismiss the appeal and order the father to pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    6 March 2013