FEDERAL COURT OF AUSTRALIA

SZSRV v Minister for Immigration and Border Protection [2014] FCA 220

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellants are to pay the costs of the First Respondent fixed in the sum of $3,600.

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

REASONS FOR JUDGMENT

1    The First and Second Appellants are (respectively) husband and wife. They were married in April 1997. They are citizens of the Republic of India.

2    They left India on 3 April 2010 and travelled to New Zealand. They then left New Zealand and arrived in Australia on 3 March 2012. They both applied to the Department of Immigration on 23 March 2012 for protection visas. It was the husband who claimed to fear persecution; the wife’s claim depended upon the fate of her husband’s. A delegate of the Minister conducted an interview on 18 June 2012. The delegate refused the claims on 23 August 2012.

3    On 19 September 2012 the now-Appellants applied for review by the Refugee Review Tribunal. The now-Appellants appeared via video link before the Tribunal on 21 February 2013. On 1 March 2013 the Tribunal published its reasons for decision affirming the delegate’s decision.

4    An Application seeking review of the Tribunal’s decision was filed with the then Federal Magistrates Court on 25 March 2013. That Court published its reasons for decision on 13 September 2013: SZSRV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1347. It dismissed the Application. By that time the former Federal Magistrates Court had been renamed the Federal Circuit Court of Australia.

5    A Notice of Appeal was filed in this Court on 2 October 2013. The Grounds of Appeal are there set forth as follows (without alteration):

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 aspects 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 Hon. 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.

6    The First Appellant appeared before this Court unrepresented. He appeared both on his own behalf and on behalf of his wife. He had the assistance of an interpreter and made brief oral submissions. The Respondent Minister appeared by his solicitor.

7    The appeal is to be dismissed with costs.

Manifest unreasonableness and ignoring persecution

8    The meaning and content of the first Ground of Appeal is not self-evident. But it seems to allege error on the part of the Federal Circuit Court Judge in not concluding that the Tribunal had acted in a “manifest[ly] unreasonable way” because the Tribunal had “ignored” the claims of “persecution and harm”. The Ground also seems to allege that the Tribunal had acted in a “manifest[ly] unreasonable way” because it failed to “observe” some unspecified “obligation”. But perhaps the “obligation” being referred to is the need for the Tribunal to properly consider and resolve the claims of persecution being advanced by the husband.

9    In the absence of a conclusion that the Tribunal did not in fact give “proper, genuine and realistic consideration” to the claims being advanced (cf. Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], (2003) 74 ALD 124 at 130 per Wilcox J), Ground 1 comes perilously close to an impermissible attempt to review the merits of the Tribunal’s decision.

10    Some content can (perhaps) be given to the contention that there has been a failure to consider “persecution and harm” as sought to be raised in Ground 1 by reference to the Grounds upon which the Application before the Federal Circuit Court were advanced. Ground 4 in that Application provided as follows (without alteration):

The Tribunal failed to investigate applicants claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 28 February 2013 was effected by actual bias constituting judicial error.

This Ground was rejected essentially for two reasons – first, there was said to be “no general obligation on a RRT to investigate an applicant’s claims” and there was said to be no basis identified by the now-Appellants that “would have prompted an obligation on the part of the RRT to investigate his claims further”; second, the published reasons of the Tribunal failed to disclose any “bias” and no further materials were filed by the now-Appellants to support their assertions as to bias.

11    In so concluding, no error is discernible in the reasoning of the Federal Circuit Court Judge and, in particular, no error in the identification of the relevant legal principles and their application to the facts before that Court.

12    In this Court, the first Ground of Appeal has been construed in part as an assertion that the Court below erred in rejecting the same argument as previously advanced. So construed, the Ground is rejected.

13    If Ground 1 is construed as an attempt to recast the argument that was rejected in the Court below, and as an attempt to assert that the claims to “persecution and harm” were not genuinely considered, the argument is equally without merit.

14    Moreover, and as noted by the Federal Circuit Court Judge, the Ground as previously advanced was “unsupported by particulars, evidence or oral or written submissions”. The failure to provide particulars or other assistance in respect to the arguments sought to be advanced for judicial resolution make the task more difficult. In the absence of such assistance, there is no reason to doubt the genuineness of the consideration given to the claims of persecution by both the delegate and the Refugee Review Tribunal. Any failure to “investigate” those claims is not readily apparent.

15    The Application for the protection visa received by the Department on 23 March 2012 stated that the husband feared persecution and annexed a “typed statement”. That statement recounted asserted persecution and intimidation of the husband by the “local BJP leader” in the following terms (without alteration):

I had left India in 2010 and went to New-Zealand on 2010. I went to New Zealand as visitor and got affiliated in a college in Diploma of Business course. I had finished the Diploma course on 2011. I never went back to India from New Zealand because of fear of persecution. The BJP members threatened to kill me. I was a businessman in India and an active member of Congress party. I had worked with the Congress party leaders during the election and other issues. Modi’s regime is one of the most corrupt governments in the country. We demanded that Nerendra Modi-led government should step down. Modi is in power in Gujarat state for long time and his party member became untouchable. General public and local business had been suffering from systematic corruption and money extortion. The local BJP leader realised my activities and warned me many occasions. But my political belief and expression of this could not hinder by this intimidation and I pursued with my party political work. I was even canvassing house to house and distributed leaflets, organised mini meeting among the area youths in last general election. At one stage they attacked me and humiliated me in front of the public to have a low profile. My wife pleaded me to curtail my party work, but I wanted to adhere to my sacred basic human right of freedom of expression and expressed my political belief surpassed all this intimidation. Furthermore my true patriotism towards mother India made me canvas vigorously.

16    The fundamental difficulty now confronting the Appellants is that these claims were in fact considered by both the delegate and, more importantly, the Tribunal. The Tribunal, in its reasons for decision, thus extracted the text of the “typed statement”. The Tribunal, moreover, set forth the inquiries it made of the First Appellant during the course of the hearing. Thus, and by way of example, the reasons for decision of the Tribunal state in part as follows:

The Tribunal asked what harm he hears, and from whom. He said he fears the BJP government as they threatened to kill him. The Tribunal asked when they threatened to kill him and he said in the 2009 election Raj Singh starting threatening him. The Tribunal asked when exactly this was and he said in 2009 after the election. The Tribunal again asked when that was and he said exactly in 2009. The Tribunal said when exactly in 2009, and he said after 15 days of election after 10 days. The Tribunal asked again when he said at his business place in October of November 2009. The Tribunal asked whether he was threatened or beaten at that time and he said beaten by Raj Singh’s people, BJP people, 5-6 people, he was injured completely with swelling on his body. The Tribunal asked what were his injuries and he said swelling and red or black bruises. The Tribunal asked where the bruises were and he said on his legs, arms and waist. He did not go to the police. He went to hospital and stayed there for 1 month. The Tribunal asked what kind of treatment did he have and he said doctor gave him medicines and injections and the Tribunal said what for and he said for his swelling and bruises and he applied ointment.

The Tribunal thereafter separately made findings in respect to “the applicant’s claims”, including the following:

The Tribunal finds there is no basis for the applicant’s claims to fear persecution. The Tribunal is satisfied that if the applicant returns to India there is no real chance that he will be harmed for a political opinion or imputed political opinion, or for any other Convention-based reason. The Tribunal is satisfied that there is no real chance that the applicant will be at risk of persecution for any Convention-based reason should he return to India in the foreseeable future.

There is, with respect, no substance in the submissions that the Tribunal “failed to investigate” the claims being made and no substance in the submission that the Tribunal “ignored” any aspect of those claims. Nor is there any substance in any more generally expressed concern that the decision of the Tribunal was “unreasonable”.

17    Before this Court, the First Appellant in his short oral submissions failed to identify any particular line of “investigation” which he contended should have been undertaken. In the absence of any “readily identifiable” line of inquiry which may emerge on the face of materials advanced for consideration, and in the absence of a claimant even attempting to identify any such line of further inquiry, no jurisdictional error is exposed on the part of the decision-maker resolving a claim upon the basis of the materials placed before him.

18    Of more immediate relevance, no appellable error is discernible in the reasons for decision of the Federal Circuit Court Judge. Even if it were permissible for this Court, on appeal, to reconsider for itself whether any jurisdictional error is discernible in the reasons for decision of the Tribunal, no such error emerges.

19    However the first Ground of Appeal is construed, and however the claims of the Appellants are presented, the first Ground of Appeal is without substance. It is rejected.

The absence of reasonable satisfaction

20    As with the first Ground of Appeal, the second Ground of Appeal also presents difficulty.

21    Before the Federal Circuit Court, the third Ground there relied upon provided as follows:

The applicants satisfy the key elements of Convention definition as detailed in page 2,3 and 4 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

Pages 2 to 4 of the Tribunal’s reasons for decision set forth the criteria for the grant of a protection visa and claims (such as those of the wife) for “complementary” protection. Reference is there made (inter alia) to s 36(2) of the Migration Act 1958 (Cth) which provides as follows:

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 under the Refugees Convention as amended by the Refugees Protocol; 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

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa.

22    In the absence of any further assistance from the Appellants, it has been assumed that the second Ground of Appeal to this Court is an attempt to assert that the Federal Circuit Court Judge erred in rejecting the comparable argument as advanced before that Court. The Federal Circuit Court Judge rejected the argument essentially upon the basis that it was “no more than a disagreement with the adverse findings and conclusions made by the RRT”: [2013] FCCA 1347 at [35]. The “legal and factual error” referred to in this Ground as advanced in the Court below was not there further identified. Nor was it identified in this Court. No appellable error on the part of the Federal Circuit Court Judge is discernible.

23    The Tribunal was not “satisfied” as to the claims being made by the First Appellant on a number of bases, including a conclusion that the First Appellant was not a “credible witness”. Its reasons for decision thus state in part as follows:

For the totality of the above reasons, the Tribunal does not accept that the applicant is a credible witness and considers that his evidence is not reliable or truthful.

The ultimate conclusion was that there was “no basis for the applicant’s claims to fear persecution”. Different decision-makers upon the facts presented may not have made the same adverse findings as to credibility. Indeed, the factual basis upon which the Tribunal member in the present proceeding acted in order to make her adverse findings may well provide reason to question those adverse findings. It forever remains necessary for a Tribunal member to adequately set forth the findings of fact upon which ultimate findings are founded; findings as to credit provide no exception. But no conclusion can be reached that the finding as to credit was not a finding open to the Tribunal. And that finding was not the sole basis upon which the Tribunal proceeded. As the Tribunal’s reasons make apparent, it addressed “the applicant’s credibility, and other considerations”. Part of those “other considerations” included the “vagueness in the applicant’s evidence” and the wife’s inability “to provide any real details consistent with the evidence of her husband concerning a number of crucial matters…”

24    Even if it were open to this Court to itself review the reasons for decision of the Tribunal, as opposed to discerning appellable error on the part of the Federal Circuit Court Judge, no jurisdictional error is exposed by the relevant reasons and findings of the Tribunal.

25    The second Ground of Appeal is also to be rejected.

Conclusions

26    Neither Ground of Appeal has been made out.

27    The appeal is to be dismissed.

28    There is no reason why the Appellants should not pay the costs of the Respondent. An order is sought pursuant to r 40.02 of the Federal Court Rules 2011 for costs to be awarded in the fixed sum of $3,600. An affidavit in support of such an order has been filed. Such an order should be made.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellants are to pay the costs of the First Respondent fixed in the sum of $3,600.

Associate:

Dated:    14 March 2014