FEDERAL COURT OF AUSTRALIA

SZSYS v Minister for Immigration and Border Protection [2014] FCA 857

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The second and third appellants are Indian nationals, who married in India, and unsuccessfully applied for protection visas after coming to Australia. After exhausting their review and appeal rights, but while still in this country, the wife, who is the third appellant, gave birth to a son. He is the first appellant. Applications for protection visas were lodged on behalf of all three appellants on 18 June 2012. The next day the parents were notified that their applications were invalid because, having previously been refused protection visas, they were prevented from making any further applications by s 48A of the Migration Act 1958 (Cth). Three months later a delegate of the Minister refused the application lodged on behalf of the child. An application for merits review of the delegate’s decision was then filed in the Refugee Review Tribunal, listing all three appellants as review applicants.

2    The tribunal affirmed the delegate’s decision, holding that it had no jurisdiction in relation to the parents and that it was not satisfied that the child met the criteria for the grant of a protection visa contained in s 36 of the Act. An application for judicial review by the Federal Circuit Court failed after the Court determined that the tribunal’s decision was not affected by jurisdictional error – the sole basis upon which it had power to set aside the decision.

3    In their notice of appeal the appellants contend that the primary judge erred by:

(1)    failing “to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant 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”; and

(2)    “dismiss[ing] the case without considering the legal and factual errors contained in the decision of the RRT”.

4    In substance, the grounds of appeal are identical to the grounds pleaded in the proposed notice of appeal this Court considered in 2011 when it dismissed the application by the second and third appellants for an extension of time to appeal from the dismissal of their earlier judicial review application: SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388.

5    No particulars were given of either ground and the appellants filed no written submissions. At the hearing, however, the second appellant (the father) made some oral submissions to which I will come in due course. The third appellant (the mother) told the Court in effect that she would rely on those submissions and there was no need for her to remain in the courtroom. She was then excused in order to care for their son.

Eligibility for protection visa

6    To qualify for a protection visa an applicant must first make a valid application for a visa and satisfy the Minister that s/he meets the criteria contained in s 36 of the Act. A decision of the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa: s 47(4). Such a decision may not be reviewed in the tribunal. That is because the tribunal’s jurisdiction is limited to reviewing decisions to refuse to grant or to cancel a visa: s 411.

7    Section 36(2)(a) provides that a criterion for a protection visa is that a person is 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 (that is to say, the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, together “the Refugees Convention”). Article 1A(2) of the Refugees Convention relevantly defines a refugee as 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”. Section 91R of the Migration Act, however, excludes the application of Article 1A(2) in relation to persecution for one or more of the reasons mentioned in that Article unless “that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution”; the persecution involves “serious harm” to the putative refugee; and the persecution involves “systematic and discriminatory conduct”. “Serious harm” is defined in an illustrative way in s 91R(2) to include a threat to the person’s life or liberty; significant physical harassment or ill-treatment; and significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood of any kind that (in any of these circumstances) threatens the person’s capacity to subsist.

8    Section 36(2)(aa) provides an alternative criterion for a protection visa: namely, that the applicant is a non-citizen 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 his or her removal from Australia to a receiving country, there is a real risk that he or she will suffer “significant harm”. This is a statutory enactment of Australia’s non-refoulement (non-return) obligations under international human rights law: see Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [3]. “Significant harm” is defined in s 36(2A) of the Act to mean arbitrary deprivation of life, the carrying out of the death penalty, torture, or cruel or inhuman or degrading treatment or punishment. This is customarily referred to as the complementary protection criterion because it complements the protection afforded by the Refugees Convention.

9    A non-citizen may also satisfy the criterion for a protection visa if he or she is a member of the same family unit as a person who fulfils the criteria in s 36(2)(a) or (aa) and who holds a protection visa: s 36(2)(b).

The appellants’ claims

10    The visa applications in the present case were purportedly lodged on the basis that the first appellant claimed to be a refugee and that his parents were members of the same family unit. At the time the first appellant’s application was filed, he was three months old. Yet, the contents of the application were written in the first person. The author, quite clearly, was his father, the second appellant. It was he who signed the “Australian values statement” and the declaration in the application on his son’s behalf.

11    In his visa application the claim made on behalf of the son was that he feared the family would face serious persecution if they had to return to India. The details of the claim are extracted in full in the decision of the primary judge at [31]. In essence, the contention was that his parents were involved in a family property dispute in India, that they were attacked by people associated with the Congress Party, who became involved in the dispute, and that if they were to return to India, the son would also be at risk. The dispute referred to in the application apparently concerned property the father inherited from his father and which his brothers allegedly coveted. The father contended that the brothers used their political connections to threaten and harm him and his wife in order to force them to surrender the land. In a telephone interview with the delegate the father said that the claim was the same as the one he and his wife had advanced in their earlier unsuccessful applications.

12    The delegate was satisfied that the Convention ground of imputed political opinion was the essential and significant reason for the harm feared and that the harm was serious within the meaning of s 91R(2). But he was not satisfied that the fear was well-founded.

The tribunal’s decision

13    The tribunal had serious concerns about the father’s credibility based on numerous inconsistencies in his various accounts. They included significant discrepancies in the statements he made about both his and his brothers’ political allegiance, the threats and attacks to which he claimed to have been subjected in India, and the fact that, although they were granted tourist visas in October 2009, he and his wife did not leave India for another six months, suggesting that they were not forced to flee. These inconsistencies had been outlined in a letter sent to the appellants on 19 April 2003 signalling that, subject to what they had to say, that information could be a reason for affirming the delegate’s decision. The appellants were invited to comment or respond but did not take up that opportunity. The tribunal decided that its concerns were so significant that it could not be satisfied that the father was a credible witness. It noted the explanation given by the father at the hearing (that some of the evidence may have been confused because of a fire that had occurred a few days earlier at home) but, in view of the number and significance of the inconsistencies, did not accept the explanation.

14    In the result, with the exception of the matters of identity and nationality, the tribunal rejected every aspect of the claim made on the child’s behalf and concluded that it was not satisfied that he fulfilled any of the criteria in s 36 of the Act. As for the parents’ claims, the tribunal noted that the Minister had decided that their applications were invalid, noted that that decision was not reviewable in the tribunal (referring to ss 47(4) and 411 of the Act) and consequently concluded that it did not have jurisdiction to entertain them.

15    Three grounds of review were pleaded in the court below: first, that the tribunal had no jurisdiction to make the decision “because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act”; second, that the tribunal’s decision was “unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim”; and third, that the tribunal had failed to investigate the claim, “specifically the grounds of persecution in India”.

16    The primary judge rejected all these grounds. Her Honour held that the tribunal had complied with its statutory obligations, that the factual findings were open on the evidence and material before it and that it had “applied the correct law”. At [75]–[78] she said that the tribunal had no obligation to make further inquiry, noting that the tribunal’s duty was to review, not to inquire, and there was no obvious inquiry about a critical fact, the existence of which was easily ascertained, that it failed to make. In this context her Honour referred to the High Court’s decision in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39. She acknowledged that, in some circumstances, the tribunal may be obliged to carry out some further investigation but said that the obligation did not arise in this case because “[t]he father did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the [tribunal] to investigate his claims further”.

Disposition of the appeal

17    I turn now to the grounds of appeal. With some justification the Minister described them as “template” grounds, referring to the decision of this Court in SZSLS v Minister for Immigration and Border Protection [2013] FCA 1187. In that case, where the same grounds of appeal were pleaded, Collier J noted that they were identical to the grounds pleaded in at least 23 other cases heard in this Court, which her Honour then listed. A perusal of the published judgments reveals at least another 12 since then in notices and draft notices of appeal. As her Honour observed in SZSLS, so it is in this: the grounds bore no apparent relationship to the circumstances of this case. They were generic in nature. They did not identify why it was that the primary judge ought to have found the tribunal’s decision to be “manifestly unreasonable” or what were the legal or factual errors she should have detected in the tribunal’s reasons.

18    At the hearing I asked the appellant to explain the basis for each of the grounds.

19    With respect to the first ground, the father said that the tribunal asked for proof as to “why [he] was late in coming here”. He said that he had told the tribunal he had “given certain proofs” that his mother was not well and provided “some certificates”. He said that he told the tribunal that their house caught fire in 2013 and all their documents were burned in the fire, but complained that the tribunal did not believe him. He said that if the Court needed “more proofs” and gave him some time, he could lodge more evidence. In submissions in reply, he said that he had supplied the tribunal with “all the medical certificates”. He later added that they were “attested by the JP” and faxed to the tribunal.

20    The submission was presumably directed to one of the reasons the tribunal gave for disbelieving the appellants’ claim to fear persecution in India. At [34] of the decision record the tribunal wrote:

Ninth, as put to them in the s.424A letter, Departmental records show that the father and mother applicants were granted a Tourist visa [in] October 2009 but did not arrive in Australia until [a date in] April 2010, nearly six months later. This suggests to the Tribunal that they were not forced to flee for fear of their life but rather came to Australia for some alternate motive. The father applicant claimed that they stayed for six months to look after his mother who was ill (and remains ill). He claimed that his “cousin sister” is now looking after her but was unable to do so at the time because of her child’s school examination. The Tribunal does not accept that if the husband and wife’s lives were in danger they would have remained in India, at the same address for nearly six months after they were given the opportunity to leave even if his mother was ill. The Tribunal does not accept that school examinations would have been considered more important than their lives.

(Original emphasis.)

21    I took the father to be saying that the medical certificates would have corroborated his explanation.

22    Nonetheless, it was not entirely clear what the father was putting. In particular, his reference to the Court needing “more proofs” is vexing. Any evidence touching upon the veracity of the refugee claims had to be presented to the tribunal. The task for the Court on the appeal is to decide whether the primary judge erred. While the Court has the power to receive further evidence on an appeal (Federal Court of Australia Act 1976 (Cth), s 27) and that power is not limited in its terms to “fresh evidence”, the evidence first needs to be properly identified so that the Court can determine whether it is relevant to the issues on the appeal and whether the discretion to admit it should be exercised in the appellants’ favour. The rules require a formal application to be made in advance of the hearing (21 days in fact) and an affidavit in support to be filed, which, amongst other things, identifies the evidence the appellant wants the Court to receive and explains why it was not adduced in the court appealed from (Federal Court Rules 2011 (Cth), r 36.57). The Court has power to dispense with those requirements (r 1.34), which I was not invited to exercise and which I would not exercise without some identification of the evidence and some understanding about why it was not tendered in the court below (cf. Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme (2007) 245 ALR 389). Here, there was no attempt to identify the further evidence or to explain why it was not presented to the primary judge. But even if I were to dispense with compliance with the rules, the appellants did not produce any evidence and the father did not ask the Court to adjourn the hearing so that he do so. Even if I were to treat the father’s statement as a request for an adjournment and assume evidence was available to corroborate his explanation to the tribunal, based on the material before me and the limited assistance I received from the father’s submission, I cannot see how any such evidence would be relevant to the issues for determination on the appeal. For this reason there would have been no utility in adjourning the hearing.

23    It may well be, however, as the Minister submitted, that the father was really saying that it was unreasonable for the tribunal to decide their case without giving them the opportunity to provide additional evidence or without having regard to the certificates that were said to have been provided. In other words, they were unreasonably denied an adjournment and/or the tribunal failed to take into account relevant evidence. To the extent that this was the appellants’ grievance, it must be rejected.

24    It may be accepted that in some circumstances a failure to grant an adjournment may amount to a jurisdictional error, either because it is a denial of procedural fairness or because the discretion to refuse the adjournment was exercised in a manifestly unreasonable way: see, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; [2014] FCAFC 1. But this is not such a case.

25    There is no evidence to support the submission made by the father from the bar table that he had provided all (or, indeed, any) relevant certificates to the tribunal. The only certificate included in the appeal book is the first appellant’s birth certificate and the limited correspondence in the appeal book does not refer to any certificates. I therefore reject the implication in the father’s submission that the tribunal failed to take into account relevant evidence.

26    I also reject the notion that it was manifestly unreasonable to decide the review application without giving the appellants a reasonable opportunity to provide corroborating evidence.

27    In its reasons for decision the tribunal noted at [13] that the father had further evidence he wished to provide, including medical evidence relating to his mother, but that this had been burned in the fire which had occurred shortly before the hearing.

The Tribunal asked why he had not submitted these earlier given his evidence that he has had them for three months. He replied that he was going to show or give them to the Tribunal at the hearing. When the Tribunal put to him that he could not show them to the Tribunal as it was a video hearing and he was aware of this, he changed his evidence and said he was going to send or fax them. The Tribunal stated that it found it hard to believe that he had new evidence given that these claims were first raised when they lodged their protection visa applications in May 2010 and that they had had two hearings before the Tribunal previously for their 2010 applications during which time they were granted time to produce any further evidence they wished. They lodged the current protection visa application in June 2012 and were interviewed in September 2012 so it found it difficult to accept that they now have new evidence they have not produced previously. However, at the conclusion of the hearing the Tribunal stated that it intended to write the applicants a letter inviting their comments on certain information and that they could use this time to provide any further evidence they wished.

28    On 25 July 2013 orders were made in the Federal Circuit Court that the appellants have leave to file any further evidence, including the transcript of the tribunal hearing, but they filed no further evidence. This statement by the tribunal of what occurred should therefore be accepted. It demonstrates that no medical evidence relating to his mother had been provided before the time of the tribunal hearing or at the hearing itself. It also shows that the appellants were afforded an opportunity to furnish any such evidence if they wished to do so.

29    The tribunal hearing took place on 17 April 2013. The tribunal sent its letter to the appellants on 19 April 2013. The letter, as I have already mentioned, invited them to comment on or respond in writing to certain information the tribunal considered (subject to their comments or response) would be the reason or part of the reason for affirming the decision under review. The tribunal fixed a deadline of 15 May 2013. The appellants did not reply to the letter. Nor did they forward to the tribunal any further evidence. And there is no evidence to suggest that they requested any additional time. The tribunal proceeded to finalise its decision and on 23 May 2013 it sent them the decision record, which included the reasons (dated 22 May 2013).

30    The father told the Court that he had not received the letter and represented that it had been sent to the wrong address. While it is of course possible, I do not accept this assertion. The letter was addressed to the appellants at the address they provided in their review application, which was the same address to which all correspondence from the tribunal had been sent, including the decision itself. In any case, the letter, like the decision, was sent by registered post. Section 441C(4) of the Migration Act provides that if the tribunal gives a document to a person by dispatching it from a place in Australia to an address in Australia by prepaid post or by other prepaid means the person is taken to have received the document at the place of the address seven working days after the date of the document. Consequently, in the absence of evidence to the contrary, the appellants are taken to have received the letter on 26 April 2013. A statement from the bar table is not evidence.

31    It follows that the appellants had ample opportunity to provide any further evidence. If they needed more time, they could have asked for it. I do not accept that that it was unreasonable for the tribunal to proceed to a decision without giving them any more time or, for that matter, that there was any procedural unfairness.

32    Neither was there anything manifestly unreasonable about the tribunal’s findings. It could not be said that no reasonable decision-maker could have come to the same conclusion: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]–[131] (Crennan and Bell JJ). Nor is this decision one which “lacks an evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. Far from it. The tribunal provided cogent reasons to justify its rejection of the application.

33    No submissions were made to support the proposition contained in the notice of appeal that the tribunal had “ignor[ed] the aspect of persecution and harm in terms of Sec.91R of the Act”. For completeness, however, I will deal with it shortly.

34    The tribunal referred to s 91R in an attachment to its reasons which summarised the relevant law. In its reasons, however, it is true that it did not expressly consider whether the appellants came within its terms. Yet, having found that it could not be satisfied that the claims made on behalf of the child were true, the questions raised by s 91R did not arise. The appellants’ claims to fear harm and the reasons for them were certainly considered.

35    For all these reasons the first ground of appeal is not made out.

36    In support of the second ground the father merely submitted that if the Court thought he was telling lies it could make inquiries in India. When I pressed him to identify the legal errors referred to in the notice of appeal, he said that he felt that the tribunal did not read his case properly and did not take his proof seriously. The factual errors, he explained, were, in effect conclusions reached by disbelieving him.

37    This Court has no jurisdiction to conduct inquiries in India. The primary judge dealt with the question of further inquiry by the tribunal at [75]–[78]. There is no error in those reasons.

38    If the submission on legal error is to be taken as a submission that the tribunal did not conduct the review contemplated by s 414 of the Act, I would reject it. The tribunal’s reasons show that it read and gave careful consideration to the appellants’ case. That it did not accept what the father said does not reflect on the quality of the review but on the quality of the evidence presented. The tribunal’s credibility findings were plainly open, based on rational grounds and on a consideration of matters that were “logically probative of the issue of credibility”: Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 at 649; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552C, 559C.

39    It follows that the second ground is not made out either.

Conclusion

40    The appellants have been unable to demonstrate error on the part of the primary judge or jurisdictional error by the tribunal. Consequently, the appeal must be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    14 August 2014