FEDERAL COURT OF AUSTRALIA

MZZBG v Minister for Immigration and Border Protection [2014] FCA 503

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

1        The appellant is a citizen of India. He arrived in Australia on 5 August 2009 holding a Class TU Subclass 572 (Student Dependant) visa, with his then wife, who was the primary visa holder. The appellant and his wife subsequently divorced and on 16 March 2012, the appellant applied for a Protection (Class XA) visa.

2        In his application, the appellant claimed that he left India because “I fear my life was in danger” and, should he return to India, “I will be murdered”. In support of his claim, the appellant described a series of events that he alleged occurred in India involving his business partner and another business associate. He claimed that his business partner’s house was raided by police, where a cache of weapons was found. He stated that the business associate contacted the appellant and accused him of informing on them to the police, and threatened to kill him. He claimed other unknown people had also called and threatened him. The appellant attempted to report the matter to the police, but claimed he was instead threatened by the police, who told the appellant that his business partner and associate were connected with a known terrorist organisation. The appellant said he also sought assistance from local political leaders, which failed.

3        The appellant said he was attacked by unknown assailants and spent some days in hospital, after which he fled to Australia with his wife. He claimed that, after his arrival in Australia, his wife’s family was also threatened. He claimed this contributed to his wife divorcing him.

4        On 21 March 2012, the Department contacted the appellant, inviting him to contact the Department to arrange an interview with a delegate of the Minister. The appellant did not take up the invitation. On 29 March 2012, the appellant was invited to submit details of any claims he may wish to make for complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). No response to that letter was received from the appellant.

5        On 16 May 2012, a delegate of the Minister refused to grant the appellant a Protection visa. The delegate found that there was no evidence to substantiate the appellant’s claim that he had been attacked and, even if the claimed attack had occurred, there was no evidence it was related to the dealings with his business partner and associate. In refusing the visa, the delegate also relied on the appellant’s failure to contact the Department to arrange an interview as evidence to support the conclusion that he did not have a genuine fear of harm, and the delegate had regard to the delay between the appellant’s arrival in Australia and his application for a Protection visa, which was some three years.

6        On 6 June 2012, the appellant applied for review of the delegate’s decision to the Refugee Review Tribunal. On 13 September 2012, the Tribunal affirmed the delegate’s decision to refuse the appellant a Protection visa. The Tribunal accepted that the appellant had been assaulted, but otherwise found inconsistencies in his evidence such that it did not accept he had a well-founded fear of persecution, so as to be owed protection obligations under the Convention, nor was it satisfied that there was a real risk the appellant would suffer significant harm if returned to India, so as to engage the complementary protections.

7        On 8 October 2012, the appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court. By decision made on 20 December 2013, the primary judge found that there was no jurisdictional or other error on the part of the Tribunal, and the application was dismissed. By a notice of appeal filed in this Court on 6 January 2014, the appellant appeals on the following ground:

1.    The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

(a)    There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A (1).

CONSIDERATION

8        Although the appellant was reluctant to admit it, in my opinion it is obvious that the appellant has had some assistance or relied on information prepared by someone else to formulate the grounds of the appeal in the notice of appeal. Despite the denial of assistance, the appellant himself could not explain to the Court what s 424A of the Migration Act was about, or why he relied on it. The appellant was unrepresented before the Federal Circuit Court and is unrepresented on this appeal. Although he has been in Australia for some five years now, there is no reason to believe he has any particular familiarity with the Australia legal system. He was assisted by an interpreter in the Punjabi language. The Court arranged for the appellant and the interpreter to attend Court prior to the commencement of the hearing so that the interpreter could translate the Minister’s submission to the appellant.

9        If the appellant’s appeal to this Court is unsuccessful, the principal remaining means for the appellant to obtain a different outcome on his Protection visa application will have been exhausted. In the context of the legislative scheme of the Migration Act, that means the consequences for the appellant may be serious indeed, including potential exposure to removal from Australia. That factor, together with the fact he is unrepresented, and unfamiliar with the Australian legal system, means it is appropriate for the Court to consider not only the argument as put forward in the notice of appeal, but more generally whether, on the material before it, the Tribunal’s decision can be said to be affected by any jurisdictional error.

10        Although the Court may not be obliged to take that course, in my opinion, where the Tribunal’s decision would in law be no decision at all (see Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11) if affected by jurisdictional error, and the consequences for the applicant are so serious, it is in the interests of the administration of justice for the Court to satisfy itself, at least on the material before it, that there is no obvious error attending the primary judge’s decision in respect of the Tribunal’s decision. The Minister’s representative had no objection to the Court taking this approach.

11        The primary judge was aware of the appropriateness of the Court critically examining the Tribunal’s decision, given the appellant was unrepresented. His Honour said:

It is the obligation of the Court, in situations where a party is unrepresented, has no legal skills and suffers the further imposition of a lack of familiarity with the Court’s language, both in legal terms and English, that the Court itself, to critically examine the Tribunal’s determination with a view to finding, any jurisdictional error the Tribunal may have made; which I did and I have not found a jurisdictional error.

12        Although the primary’s judge’s reasons are expressed in short compass, it is apparent from his recitation of the Tribunal’s reasons that he did examine the Tribunal’s reasoning for any apparent jurisdictional error.

13        For reasons which I explain now, I agree with his Honour that there is no jurisdictional error apparent in the Tribunal’s reasons.

14        First, there is no substance in the ground of appeal as articulated in the notice of appeal. The only ground put forward by the appellant is non-compliance by the Tribunal with its obligations under s 424A of the Migration Act.

15        Section 424A provides:

424A Information and invitation given in writing by Tribunal

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c) invite the applicant to comment on or respond to it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies — by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention — by a method prescribed for the purposes of giving documents to such a person.

(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application for review; or

(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c) that is non‑disclosable information.

16        At the hearing, I invited the appellant to explain in his own words why he said the Tribunal had not adopted a fair process, or had relied on information without putting him on notice that it was going to do so. He answer was to the following effect: “There is no reason for that ground”. That being all the appellant had to say about the grounds in his notice of appeal, I turn to the Minister’s submissions and my conclusions on that ground.

17        As the Minister points out in his submissions, the terms of s 424A do not assist the appellant, in circumstances where the only information considered by the Tribunal on review, subject to the matters I raise below, was information provided by the appellant himself, especially his three-page typed statement and his oral evidence before the Tribunal on review. That category of information is expressly excluded from the obligations in s 424A by ss 424A(3)(b) and (ba). As the Minister also submitted, the country information which was considered by the Tribunal is also excluded from the obligations under s 424A: see s 424A(3)(a).

18        In any event, it is apparent from the Tribunal’s reasons that it sequentially and clearly put to the appellant in detail the difficulties it had at a factual level with his accounts and his claims. However the procedural fairness obligation may be cast in s 424A, in my opinion, any more general or broad obligation such as might exist under the general law was satisfied by the Tribunal in the conduct of its review, in any event.

19        I have examined the Tribunal’s reasons at a more general level, as I have said I consider it to be appropriate to do, notwithstanding the limited ground in the notice of appeal.

20        The precise Convention ground relied on by the appellant, and considered by the Tribunal, is one matter which does not emerge as clearly as it might from the Tribunal’s reasons. This is not necessarily a matter which assists the appellant, as it may be that his claims did not give rise to any Convention ground.

21        I raised this issue with the Minister’s legal representative at the hearing. The Minister’s legal representative submitted that the Tribunal did not proceed to consider any particular convention ground because it did not accept the factual account put forward by the appellant. The Minister submitted this is also how the delegate approached the decision. The appellant was not represented by a migration agent through the visa application process. He did not attend the interview before the delegate and he attended the Tribunal interview alone.

22        The Tribunal was, in my opinion, entitled to take the approach it did and consider the veracity of the appellant’s claims at a factual level before turning to consider them against any particular convention ground. Since it did not believe the key aspects of his factual claims, there was no occasion for the Tribunal to go on and consider the appellant’s accounts as against any particular convention ground.

23        The Tribunal went through the appellant’s claims at a factual level in some detail. The reasons also reveal the way in which the Tribunal put back to the appellant its concerns about his factual account. For example, in relation to the fact the appellant’s claim revolved around an incident back in 2008, the following passage in the Tribunal’s reasons states:

The Tribunal asked that since there were no threats made or any contact after the assault whether it could be interpreted that the assault was retaliation for his contact with the police and that the whole business was finished now. The applicant stated that they still suspect that he spoiled the business. He stated he thinks they sold alcohol as well as cloth. The applicant said he has since been told they are very bad people and they will not leave him alone.

24        In the next paragraph of its reasons, the Tribunal sets out the approach it took with the appellant to what it perceived to be inconsistencies in his account:

The Tribunal then discussed with the applicant the inconsistencies between his typed statement of claim and the oral evidence he had given at the hearing. The Tribunal pointed out to the applicant that these were the only forms of evidence before the Tribunal to support his application and that it concerned the Tribunal that there were inconsistencies. The Tribunal read out some of the statement of claim. The applicant stated that his evidence to the Tribunal at the hearing was that the police inspector had not told him to separate his business from [the business associate] and the applicant’s partner. The applicant maintained that his evidence was that the police said they could not tell the applicant anything about the people he was asking about. Further the applicant stated that after attending the police station he did not have a conversation with [his business partner] and [the business associate] the following day in which he said that he had heard bad things about them which they subsequently denied. The applicant told the Tribunal that the only conversation he had with [his business partner] and [the business associate] after he had attended the police station was to ask them if he could take his share out of the business. The applicant stated that his oral evidence was the correct evidence.

25        Following on from this the Tribunal invited the applicant to provide any further information or evidence to correct or enlarge on those aspects of his account the Tribunal had disclosed it had difficulties with. At [38] of its reasons it describes that invitation:

The Tribunal invited the applicant to consider whether he would like to provide any further evidence to the Tribunal as there had been substantial differences between his written claims and his oral evidence. The Tribunal had read out part of the applicant’s written claims where the written claims were substantially different to the evidence the applicant was giving to the Tribunal in the hearing. The Tribunal explained to the applicant it would be difficult to rely on his evidence as his written claims varied so much from his oral testimony. The applicant stated the evidence he had given in the hearing was the truth, and that where it was different to the written claims, the oral evidence was correct. The Tribunal told the applicant it was happy to give him time to provide further evidence. The applicant stated he did not want to provide any further evidence.

26        After further recitation of what I consider to have been a most fair approach taken at the hearing by the Tribunal to the problems it saw in the appellant’s accounts, the Tribunal then set out its findings and reasons for affirming the delegate’s decision. It did so in considerable detail and in a rational way.

27        I set out here what I consider to be a typical example of the Tribunal’s approach in its findings and its reasoning. Here, this aspect of the Tribunal’s reasons discloses why it did not accept the appellant’s account of the reasons for the assault on him in 2008, while at the same time accepting that the appellant had in fact been assaulted.

The applicant gave different evidence to the Tribunal in his written statement and in his oral evidence about the assault. The Tribunal has found that the applicant at some time in his adult life and before the year 2009 was the victim of an assault. The applicant has scars from being attacked. In his written claims the applicant stated he was attacked whilst coming home at night by some people that he did not recognise. He stated he was taken to hospital by a person passing in a car. In his oral evidence at the hearing the applicant stated that he was near the shop when [the business associate] confronted him and asked him why he had gone to the police station and “dobbed” them in, and told the applicant that he had ruined their business and they would not leave him alone The applicant told the Tribunal he did not know the other people with [the business associate]. He stated he was struck to the head and was unconscious. He stated he was struck with weapons to the forehead, shoulders, backside and legs. The applicant stated that an elderly person assisted him after the attack and took into the hospital. The applicant told the Tribunal that he was in hospital for some nine or ten days.

The applicant gave the Tribunal more evidence about the assault at the hearing. The fact that in his written claims he states he did not recognise the assailants and yet at the hearing the applicant stated [the business associate] confronted him and was with the attackers is different evidence that was very troubling to the Tribunal. The Tribunal finds that the applicant was relying on the scars he had from an unrelated incident to try to support his claims for this application. The Tribunal offered the applicant the opportunity to provide further evidence to overcome the differences in his evidence at the hearing from his written statement, but the Tribunal notes the applicant did not wish to take that opportunity. Based on the different evidence the applicant has provided to the Tribunal, the Tribunal finds the applicant is not credible in his evidence about the assault. The Tribunal finds the applicant was not assaulted by [the business associate]. The Tribunal finds that the assault was not connected with the applicant’s business partnership with [his business partner] or any business dealings with [the business associate]. The Tribunal finds that [the business associate] was not with the people who assaulted the applicant. The Tribunal finds the assault did not occur near the applicant’s cloth shop or factory. The Tribunal finds that the applicant did not know the identity of the people who assaulted him. The Tribunal finds the reason for the assault was not the one claimed by the applicant that it was retribution by [the business associate] and in his written claims also by [his business partner], for him going to the police. Based on the evidence before it, in particular that there was only one incident, the Tribunal finds that the assault was not repeated.

…

The Tribunal accepts that the applicant was a victim of an assault before 2009 in India. However, as the Tribunal does not accept that the applicant was assaulted for the reasons claimed, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future on the basis of being assaulted once by persons unknown to him. The Tribunal accepts that the applicant and his business partner had business dealings with [the business associate]. However, as the Tribunal has found that the applicant was not harmed in the past by [the business associate] and the above events claimed by the applicant did not occur, and the Tribunal has found that the applicant was not told that [the business associate] is not a member of the local mafia or terrorist gang, the Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future on the basis of having had business dealings with [the business associate]. Based on the evidence before it the Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future. Based on the evidence before it the Tribunal finds that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future.

…

The Tribunal finds the applicant was involved in a business partnership which manufactured cloth and that at some time prior to his leaving India he was the victim of an assault. The Tribunal finds the applicant has given different evidence in his written claims and his oral evidence at the hearing about his claims that the Tribunal has considered above. The Tribunal finds that the applicant did have a partnership with [his business partner], and they did have business dealings with [the business associate], and on one occasion, someone came to the shop to talk directly to [the business associate]. The Tribunal finds that the applicant was assaulted before 2009, and has scars as a consequence of that assault.

28        It was appropriate for the Tribunal to spend some time, as it did, on the assault claim as it was a claim of physical injury said to have occurred for a Convention reason. If that was disbelieved, as it was, that represented the rejection by the Tribunal of a central plank of the appellant’s claims.

29        The Tribunal rejected the appellant’s account of what happened to him in India, including rejecting his claim that he was assaulted for contacting police and rejecting that there was a police raid, and decided that the appellant did not go to the police. The Tribunal found that he was not at risk from any local mafia or “terrorist” gang, nor were members of his or his former wife’s family at such risk. Having made all those findings, it is correct that the Tribunal spent little time in its reasoning process on one of the principal tasks in any review; namely, to determine as a matter of fact what it considered was likely to happen to the appellant upon return to India, irrespective of whether it believed his account of what had happened in the past: S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 at [73]-[74] per Gummow and Hayne JJ; SBZF v Minister for Immigration and Citizenship (2008) 104 ALD 415; [2008] FCA 1486 at [51] per Lander J.

30        The content of the Tribunal’s obligation in terms of what it considers may happen to a person on removal from Australia and on return to her or his country of nationality will vary according to the circumstances and will be heavily fact dependent. For example, where a person is a member of a minority ethnic group and there is clear objective evidence about the risks of persecution to members of that minority group, the veracity of the person’s account of what happened in the past may not be determinative of whether Australia owes that person protection obligations.

31        In contrast, where a person’s fear of persecution on a Convention ground is claimed to arise out of factual circumstances particular to that person, which are said to have occurred in the past, a determination by the decision-maker as to the veracity of those claims may provide sufficient foundation for the necessary predictive and speculative exercise about what will happen to that person upon return to her or his country of nationality.

32        In my opinion, the present case is in the latter category. The appellant’s claims were essentially about extortion, intimidation and physical harm by non-state agents and retribution by authorities. On both bases he claimed to have suffered serious harm in the past and to fear it in the future. Where the Tribunal did not accept the harm had occurred (for example, as in the police raid) or did not accept the reason put forward (as in the assault), any objective basis to speculate that harm for a Convention reason was likely to befall the appellant was substantially removed. In those circumstances, to perform its statutory task in the current case it was not incumbent on the Tribunal in my opinion to spend more time in its reasoning process examining what might occur to the appellant upon return to India.

33        The Tribunal also considered any obligations of complementary protection and there is no apparent jurisdictional error in its conclusion that no such obligations arose on the material before it.

34        For those reasons, in my opinion there is no substance in the appeal from the orders of the primary judge and the appeal must be dismissed. There is no sufficient basis to depart from the usual order as to costs and the appellant must pay the first respondent’s cost of the appeal.

Associate:

Dated:    6 June 2014