FEDERAL COURT OF AUSTRALIA

SZRRH v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 783

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellants pay the costs of the First Respondent of the appeal.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Magistrates Court of Australia (now known as the Federal Circuit Court of Australia) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’).

BACKGROUND

2    The appellants are citizens of India who arrived in Australia as husband and wife on 14 August 2011. On 27 September 2011 the first appellant applied to the Department of Immigration and Citizenship for a protection visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’), with the second appellant included in his application as a member of his family unit. A delegate of the first respondent (‘the Minister’) refused the application on 11 January 2012.

3    The first appellant claimed to fear political persecution were he to return to India. The alleged facts relevant to such claim stated:

i.    The first appellant had been approached to join both the Bharatiya Janata Party (‘BJP’) and the Congress Party;

ii.    In or around 2010, he supported a local member of the Congress Party during an election;

iii.    The election was won by the candidate of the BJP, and some time after, ‘BJP thugs’ ransacked the first appellant’s office and harassed his staff;

iv.    In all, his office and staff were attacked three times over the course of a few months; and

v.    If the first appellant returned to India he would continue to be the subject of attacks from the BJP.

4    The Minister notified the appellants by letter that their application for protection visas was refused on the grounds that the first appellant did not satisfy the criteria set out in s 36 of the Act, and the second appellant was a member of the family unit included in the application. Such letter was mistakenly dated 11 January 2011 instead of the correct date of 11 January 2012, but nothing turns on this fact.

THE PROCEEDING IN THE TRIBUNAL

5    On 7 February 2012 the appellants lodged an application for review of the Minister’s decision with the Tribunal.

6    At the Tribunal hearing, the first appellant referred to the political issues outlined above. He also informed the Tribunal that he had a blood disease and required continual medical treatment and medication. Although he stated that the medication in India was very expensive, he informed the Tribunal that he still received the medicine direct from India as he had not applied for assistance from Medicare.

THE TRIBUNAL’S DECISION

7    Inconsistencies in the first appellant’s evidence led the Tribunal to conclude that the account given by the first appellant of his alleged political issues was not reliable and that he was not a credible witness. The Tribunal noted that in applications the first appellant made for a US visa and his tourist visa to Australia, the first appellant expressed a desire to return to India. The Tribunal held that this reinforced its concerns in respect of the first appellant’s credibility.

8    In relation to the medical treatment and medication, the Tribunal held that there was no evidence that indicated the existence of the first appellant’s condition. In any event, the Tribunal noted that the first appellant made clear in his own evidence that he could obtain the relevant medical treatment in India.

9    As a result, the Tribunal determined that the first appellant did not satisfy the criterion of s 36(2)(a) of the Act. The Tribunal was also not satisfied for the purposes of s 36(2)(aa) that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the first appellant returning to India, the first appellant would suffer significant harm. With respect to the second appellant, the Tribunal found that she had not made any claims for protection independent of those of the first appellant.

10    Accordingly, the Tribunal affirmed the decision of the Minister.

THE PROCEEDING IN THE FEDERAL MAGISTRATES COURT

11    In their application filed 26 July 2013, the appellants advanced the following grounds of review:

1.    The [Tribunal] denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

2.    The [Tribunal] emphasised on some irrelevant questions at the oral evidence and ignored my political profile that put my life in risk. In doing so the Tribunal may be said to have ignore relevant material, relied in part of irrelevant material and/or findings which were erroneous or mistaken.

3.    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.

4.    The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequences of the claim.

12    In response to the first ground, the Federal Magistrate (as his Honour then was) found that the procedural fairness obligations under the common law which the appellants relied upon were not applicable. His Honour held that Division 4 of Part 7 of the Act is an exhaustive statement of the requirements of procedural fairness. His Honour held that the ground could not be sustained. Although not raised by the appellants, the Federal Magistrate considered whether any basis existed to support a possible breach of s 425 of the Act. His Honour accepted the submissions of the Minister to effect that the first appellant was put on sufficient notice at the hearing concerning the issue of the credibility of his evidence, and that there was no ground on this basis for jurisdictional error.

13    Grounds 2 and 3 were rejected on the basis that the first appellant had not provided any particulars or details which would have enabled the Federal Magistrate to consider whether the Tribunal asked irrelevant questions or ignored relevant material. His Honour was satisfied that the Tribunal considered the first appellant’s evidence, tested it and then arrived at its conclusion.

14    The Federal Magistrate considered ground 4 to amount to no more than impermissible merits review.

15    The first appellant also argued in oral submissions before the Federal Magistrate that the Tribunal failed to investigate what happened between him, the Congress Party and the BJP. His Honour held that it is a common misunderstanding that the Tribunal has a duty to make inquiries about claims made by applicants in situations where the Tribunal doubts the validity of their claims. His Honour noted the restricted circumstances in which a duty to inquire may arise, as considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25], but found that duty for which the first appellant contended did not fall within such circumstances. Accordingly, the application was dismissed with costs.

THE APPEAL PROCEEDING

16    The appellants filed their notice of appeal to this Court on 22 April 2013. The first appellant relies upon the following grounds:

1.    The [Federal Magistrate] 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 [s 91R] of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation [sic].

2.    The Federal Magistrate 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.

17    The first appellant appeared before the Court unrepresented but assisted by an interpreter. He stated that he also represented the second appellant. No written submissions were provided in support of the grounds of appeal.

18    The first appellant was invited to make oral submissions at the hearing. As to the first ground of appeal, the first appellant claimed that the decision of the Tribunal was not correct; that he had a ‘problem’ in India; that he was beaten two or three times and that his wife had been attacked. He claimed to have a ‘deformity’ in his body resulting from such attacks. He also said that he suffered from a medical condition and wished to provide a file to the Tribunal, but no time was permitted. The first appellant provided no submissions with respect to the second ground of appeal.

19    As to ground 1, it should be observed that the claims that the Tribunal acted in a ‘manifestly unreasonable way’ in dealing with their claim and breached statutory obligations were not raised before the Federal Magistrates Court. Accordingly leave is required to raise this ground: SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[10].

20    The Court assumes that the factual allegations of the alleged assaults relate to the claims made by the first appellant that he and his wife were attacked by people associated with the BJP. Given that the Tribunal did not accept these claims, the submissions of the first appellant merely challenge findings of fact. It follows that this ground of review could not succeed if leave were granted as the Court cannot review the merits of the decision below: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and 291-292.

21    As to the claim that the first appellant wished to obtain a file to provide to the Tribunal, such file is a reference to a matter put by the Tribunal to the first appellant as to whether he disclosed his alleged illness in his Australian tourist visa application. Such matter is peripheral and was not the reason, or part of the reason, for the Tribunal’s decision to affirm the Minister’s decision.

22    In passing, the Court notes that the Tribunal considered all of the claims of the appellants. The Tribunal reached its conclusion because it was not satisfied, due to the inconsistencies in such evidence, that the first appellant was truthful in the claims advanced in support of the protection visa application. It would not be in the interests of justice to permit a ground to be raised in these circumstances: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. Such a ground could only succeed if it could be demonstrated that no reasonable decision-maker would have arrived at the same conclusion: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]. The Court’s examination of the Tribunal’s reasons makes it satisfied that no such conclusion in favour of the appellants could be drawn in view of the comprehensive and careful consideration of the appellants’ claims. Leave to raise the first ground of review is therefore refused.

23    As to ground 2, this ground was raised before the Federal Magistrate and dismissed by him. The Federal Magistrate found that in the absence of particulars the ground should be dismissed. The Tribunal, as the Federal Magistrate observed, considered the appellants’ evidence, ‘tested it and concluded that it did not meet the statutory requirement in ss 65 and 36(1) of the Act’.

24    The Court therefore rejects the second ground of appeal in light of the absence of any particulars to support it.

25    It follows that the appeal must be dismissed and that the costs of the Minister of the appeal should be paid by the appellants.

Associate:

Dated:    8 August 2013