FEDERAL COURT OF AUSTRALIA

SZTHC v Minister for Immigration and Border Protection [2014] FCA 1302

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the first respondent’s costs of the appeal to be taxed.

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

REASONS FOR JUDGMENT

1    The appellants have appealed against a judgment of the Federal Circuit Court of Australia given on 11 September 2014. Judge Cameron dismissed an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) to affirm a decision of the first respondent’s delegate refusing to grant Protection (Class XA) visas to the appellants.

2    The first and second appellants are wife and husband respectively. Their son is the third appellant. They are citizens of Mauritius.

3    The appellants arrived in Australia on 24 June 2008. The first and second appellants held student visas and the third appellant held a dependent visa. On 14 May 2012, the appellants applied for protection visas.

4    The first appellant claimed that she was born into a conservative Sunni Muslim family and that when she was 18 years old she was forced to marry a Muslim man who was strict and violent towards her. She claimed that she escaped from her husband and married the second appellant, who is a Christian. They remained in hiding on a farm for four years from 2004 to 2008, venturing off the farm only rarely.

5    The first and second appellants claimed that on one occasion in 2006 they came into town for a medical check-up and were seen by the first appellant’s ex-husband who drove his car into their motorbike in an attempt to kill them. The first appellant claimed that she was admitted to hospital for treatment and remained there for one month. She claimed that the police initially provided a guard in the hospital room, but said that they could not intervene because it was a religious matter.

6    The third appellant was born in December 2006 with a heart condition. In October 2009, his condition deteriorated and they returned to Mauritius from Australia so that he could receive medical treatment. In November 2010, the appellants returned to Mauritius so the third appellant could undergo further treatment. In February 2011, the first appellant travelled to Mauritius to visit her mother-in-law who had become ill as a result of being threatened by members of the first appellant’s family demanding to know her whereabouts. In November 2011, the second appellant returned to Mauritius to see his mother. The appellants say that they were told that threats continued to be made about them at the mosque attended by the first appellant’s family.

7    In early 2012, the appellants learnt that they could apply in Australia for protection visas and they lodged applications for such visas in May 2012. In summary, the appellants claimed that they will be subjected to persecution and significant harm in Mauritius by the first appellant’s family, her ex-husband and the Muslim community for violating Islamic laws and morals. That claim is asserted on the basis that the first appellant left her first husband, a Muslim, and married the second appellant, a Christian.

8    In order to obtain protection visas, either the first or second appellant is required to satisfy one of the criteria in s 36(2) of the Act. Section 36 provides, relevantly:

(1)    There is a class of visas to be known as protection visas.

…

(2)    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;

…

9    The Refugees Convention provides that the term “refugee” applies to any 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…

10    A fear will be well-founded if there is a real chance of persecution for one of the stipulated reasons if the person is returned to the country of his or her nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 per Mason CJ, at 398 per Dawson J, at 407 per Toohey J and at 429 per McHugh J. But no fear can be well-founded unless the evidence indicates a real ground for believing that the applicant is at risk of persecution: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.

11    The criteria in s 36(2) are qualified by the other subsections of s 36, but those qualifications are not presently relevant. The criteria are also qualified by other provisions of the Act, including s 91R, which provides:

91R Persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

…

12    The Tribunal did not accept the appellants’ accounts to be credible, finding that their claims were “highly implausible and lacking in internal logic”. In particular:

(a)    The Tribunal found it implausible that the first and second appellants would have been seen by the first appellant’s ex-husband on a rare visit to their home town and that he then attempted to kill them in a staged road accident.

(b)    The Tribunal found it implausible that the appellants would have been in hiding from 2004 to 2008.

(c)    The appellants did not give a satisfactory explanation why a notice, which they allege to have been placed in a mosque condemning the first appellant’s behaviour, and which was submitted to the Tribunal, was written in English. The Tribunal considered that the document had been manufactured by the appellants.

(d)    The Tribunal found the appellants’ delay in lodging the application for protection visas to be inconsistent with a genuine fear of persecution and considered that it was significant that the application was only made once the first appellant realised she could not continue her studies due to her financial position.

(e)    The Tribunal found the fact that the appellants returned to Mauritius on a number of occasions was inconsistent with a fear of persecution or a real risk of significant harm.

13    The Tribunal did not accept the appellants’ account of the circumstances in which they left Mauritius or their reasons for not wanting to return as truthful. It did not accept that they faced a risk of serious harm at the hands of the first appellant’s ex-husband, extended family or the broader Muslim community in Mauritius. It concluded that the appellants were not eligible for protection under the Refugees Convention criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa).

14    The Tribunal also rejected the claim that there was a real chance that the third appellant may suffer harm because of a high crime rate in Mauritius and because kidnapping of children is common. The Tribunal considered that the risk of harm to the third appellant was no greater than the risk anywhere else and considered that any such risk was random and remote.

15    Before the Federal Circuit Court, the appellants relied upon the following grounds of appeal:

1.    The Tribunal’s findings with respect to credibility were based on assertions of “implausibility” without addressing or resolving actual questions of fact on which the credibility of the appellants depended.

2.    The Tribunal failed to give proper consideration to the criteria in s 36(2)(aa).

3.    The Tribunal erred in its consideration of the perceived delay in lodgment of the application for a protection visa with respect to the criteria in s 36(2)(aa) of the Act.

4.    The Tribunal had made up its mind on the review before the appellants had presented their case.

16    The primary judge dealt with the appellants’ grounds of review as follows:

    Ground 1: His Honour considered that the Tribunal’s conclusion that the appellants’ account of the 2006 incident was implausible was not attended by error. Nor was it irrational. As the Tribunal expressly found that the events in question had not occurred, it did not commit an error of the type in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679, where it was held that the reasoning process and supporting evidence that forms the basis upon which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. His Honour also held that even if the appellants had made out their allegation concerning the inappropriateness of the Tribunal’s finding of implausibility, it was only one of several bases of the Tribunal’s conclusion that the appellants had not been telling the truth; implicitly his Honour considered that the alleged error would not have affected the outcome.

    Ground 2:    His Honour found that while the Tribunal did not devote many words to the complementary protection aspect of the application, it was unnecessary for it to do so. The Tribunal had disbelieved the facts upon which the claim for complementary protection were based. The only other aspect of their claim relying upon the complementary protection criteria was that the third appellant might be kidnapped, and that was given separate and adequate consideration.

    Ground 3:    The appellants argued that the Tribunal erred by failing to consider, when drawing an inference adverse to the appellants from their belated lodgment of their protection visa application, that the right to seek a visa on complementary protection grounds had only come into existence two months before the application was lodged. His Honour noted that the appellants had been legally represented before the Tribunal and no submission had been made that their delay in seeking protection had anything to do with the introduction of the complementary protection provisions of s 36 of the Act. As the appellants did not suggest to the Tribunal that their delay in seeking protection was in some way related to the complementary protection amendments, there was no reason for the Tribunal to consider that it was and the fact that it did not do so did not amount to error.

    Ground 4:    The primary judge said that it was unclear whether the appellants alleged actual bias or apprehended bias. His Honour noted that the Tribunal had put its concerns to the appellants and it was, presumably, those statements which they perceived as being evidence of a closed mind. However, the Tribunal’s statements were opportunities given to the appellants, in accordance with ss 424AA and 425 of the Act, to address the Tribunal’s concerns and did not evidence a closed mind.

17    The appellants appeal to this Court from the decision of the Federal Circuit Court relies on two grounds of appeal:

1.    I appreciate His Honour [Judge] Cameron’s judgment but still believe that my concern in the Amended Application filed in Court on 25 November 2013 was not properly considered especially the issue of the Refugee Review Tribunal’s consideration of the complimentary [sic] protection criterion.

2.    The transcript which was lodged does not reflect the Member’s way of interviewing me. I do appreciate if the Federal Court would listen to the transcript to confirm that there was unfairness in the way she conducted the interview.

18    By their first ground, the appellants asserted that the primary judge erred in failing to properly consider the grounds of appeal before the Court, particularly the issue of the Tribunal’s allegedly inadequate consideration of the complementary protection issue. The appellants repeated the arguments that they had made to the Federal Circuit Court. In particular, they submitted that the Tribunal’s finding that it did not believe the first appellant’s account of the motorcycle incident in 2006 was wrong, illogical and unreasonable. They also argued that the Tribunal’s finding concerning their lack of credibility by reason of the fact that they had not lodged their application for a protection visa until 2012 was wrong, illogical and unreasonable. The appellants maintained that they had been telling the truth before the Tribunal and that the Tribunal had erred in failing to find that they were credible witnesses.

19    The appellants’ arguments were largely to the effect that the Tribunal should not have found that they were not credible witnesses and they challenged the merits of the Tribunal’s conclusion concerning their credibility. In an application for review of the Tribunal’s decision under s 476 of the Act, the applicant must demonstrate jurisdictional error on the part of the Tribunal in order to succeed. The merits of a case, including the weight to be given to evidence and the credibility to be attached to witnesses, are solely for the Tribunal (not the reviewing Court) to determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292. To the extent that the appellants asserted that the Tribunal’s findings were simply wrong, they cannot succeed.

20    A decision which lacks an evident and intelligible justification may be said to be unreasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]. The Tribunal’s finding that it did not believe the appellants’ claims concerning the 2006 incident was, however, justified for the reasons it gave. The Tribunal was unwilling to accept that a coincidence involving the appellants leaving the farm on a rare occasion and being seen by the first appellant’s first husband who then tried to run them down was plausible. The Tribunal was assisted in reaching that conclusion by its rejection of other parts of the evidence of the appellants concerning the first appellant’s stay in hospital and the improbability that the first husband would not make any other attempt at harming the appellants if their account of the 2006 incident was true. The Tribunal’s consideration of the appellants’ delay in applying for a protection visa was logical and reasonable. The Tribunal’s findings concerning credibility were logical, open on the evidence and reasonable.

21    The appellants’ second ground of appeal reflects an argument that the Federal Circuit Court erred in failing to find that there was apprehended bias on the part of the Tribunal. The appellants submitted that the Court should listen to the audio recording of the hearing, but did not place the recording before the Court. The appellants did provide a copy of the transcript of the hearing before the Court. Having read the transcript, I consider that there is nothing in the conduct or questioning of the Tribunal that could give rise to a finding of apprehended bias.

22    The test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehended that the Tribunal might not have brought a fair mind to making the decision: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [29]-[31]. The Tribunal quite properly put to the appellants the issues, including questions of credibility, about which it was concerned in order to give them an opportunity to address those concerns. That was required by ss 424AA and 425 of the Act. There is nothing in the transcript that could cause a fair-minded lay observer properly informed to think that the Tribunal had a closed mind.

23    The appellants have not demonstrated any error in the judgment of the primary judge. The appeal must be dismissed with costs.

Associate:

Dated:    3 December 2014