FEDERAL COURT OF AUSTRALIA

SZTRU v Minister for Immigration and Border Protection [2015] FCA 170

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs in the fixed amount of $4,000.

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

REASONS FOR JUDGMENT

(Revised from transcript)

1    The appellant is an Indian national who seeks the protection of Australia. He claims to have a well-founded fear of persecution in India because of his Muslim religion and associated political activities.

2    The appellant has been resident in Australia since April 2008 when he arrived on a student visa from Hyderabad, where he had apparently lived all his life. In September 2012, after having been refused a general skilled migration visa, he applied to the Minister for a protection visa. His application was rejected by a delegate of the Minister and on review by the Refugee Review Tribunal the delegate’s decision was affirmed. He then filed an application in the Federal Circuit Court of Australia asking the respondents to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of the tribunal’s decision. That application was also dismissed. This is an appeal from that decision.

3    The Migration Act and Migration Regulations 1994 (Cth) impose a number of criteria for all visas. Section 65(1) of the Act provides that, after considering a valid application for a visa, the Minister must grant the visa if, amongst other things, he or she is satisfied that the criteria for the visa had been satisfied. Otherwise the Minister must refuse to grant the visa. The primary criterion for a protection visa is described in s 36(2). Relevantly, s 36(2) states:

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.

4    Protection obligations under the Refugees Convention are owed to refugees. A refugee is relevantly defined in Art 1A(2) of the Convention as a person who has a well-founded fear of being persecuted on one or more grounds, is outside his country of nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country. The grounds include religion and political opinion.

5    A person has a well-founded fear of being persecuted if he or she has a genuine fear founded on a real chance that he or she would be persecuted for a Convention reason upon return to his or her country of nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. In other words, the test for whether a person has a well-founded fear of persecution involves both a subjective and an objective element (cf. Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [72]). Additional criteria are imposed by s 91R of the Migration Act. One of those is that the persecution involves serious harm to that person (s 91R(1)(b)). The circumstances in which a non-citizen will be taken to suffer “significant harm” (for the purposes of s 36(2)(aa)) are defined by subs (2A) and (2B) of s 36.

The claim for protection

6    In a statement accompanying his visa application the appellant claimed to have been an active member of the Student Islamic Movement of India (SIMI), who, in common with all other Muslims in India, was oppressed by the Hindu majority. He stated that the SIMI had been banned since 2001 and ever since he had “been targeted either by the communal forces of [his locality] or the police force” and “booked … in false cases”. He claimed to have regularly taken part in rallies against anti-Muslim riots in Gujarat in 2002 and the killing of Ehsan Jafferi, a Congress Party member of parliament who was burned alive during the riots, and had organised a meeting against the killing.

7    The appellant said that he had to move to different locations to avoid arrest, torture, harassment and imprisonment. He said that local Hindus became upset about his activities and started to disturb him and his family. He claimed that one day a local Hindu man threatened to destroy him and his family because he was a Muslim. A few weeks later “they” started disturbing his family members and his father was attacked “with a motor bike” while riding his scooter. “[S]ome years later”, on 1 January 2008, he claimed that he, himself, was assaulted by three Hindus and they threatened to kill both him and his family. He said that his father advised him to go and study abroad “for saving [his] life” and he then came to Australia on a student visa. He married a fellow student whom he met in Australia. She was a Hindu. They later separated.

8    The appellant claimed that his family in India tells him that Hindus continue to threaten him and say they will kill him. He said that he fears that his absence from the country “can be seen as a conspiracy by the police may prosecute me for the unsolved cases”. He asserted that if he were to return to India he will be killed, harassed or abducted by Hindus. He claimed that the police will not protect him because they know that he previously supported protests and that he organised a protest following the death of Ehsan Jafferi.

The tribunal’s decision

9    The tribunal accepted that the appellant was an Indian national and a Muslim but rejected most of his other claims, including his central claim of involvement with the SIMI and his claim to have a well-founded fear of being persecuted for reasons related to his religion or political opinion. In some respects it was not persuaded by the appellant’s account. Aspects of his claims it dismissed as “highly implausible” or not “credible”. They included his claims that:

    his father was intentionally targeted because he was a Muslim or because of the appellant’s involvement with SIMI;

    he was restrained and beaten with batons by police;

    he considered himself to be in danger in Hyderabad;

10    Of the appellant’s claim that he feared serious harm because of his marriage, the tribunal was not satisfied that there were any serious ongoing threats to him as a result of the relationship.

11    In each instance the tribunal provided logical reasons why it was unable to accept the appellant’s account.

12    Based on its analysis of the appellant’s evidence and the views it reached on his credibility, the tribunal was satisfied that the appellant was of no particular interest to any Hindu groups because of his political opinions or his religion before he left India in 2008.

13    The tribunal acknowledged that there was evidence that some Muslims in India have been subject to discrimination and, at times, have been targeted for “ill-treatment”. After considering the available country information, which included information emanating from the US State Department, however, it concluded that, if the appellant were to return to his family home in Hyderabad, the chance that he would be seriously harmed for a Convention reason was remote. Hence, it found that the appellant did not have a well-founded fear of being persecuted for a Convention reason. Apparently for the same reasons, the tribunal did not accept that the appellant satisfied the alternative criterion in s 36(2)(aa).

The proceeding in the Federal Circuit Court

14    To succeed before the Federal Circuit Court it was necessary for the appellant to demonstrate that the tribunal’s decision was affected by jurisdictional error.

15    Four grounds of review were contained in the appellant’s amended application and an additional ground was raised in oral submissions.

16    The first ground contained several allegations:

(a)    that the tribunal “made a procedural mistake that it did not understand the significance of the claim”;

(b)    that it did not consider that the appellant would suffer harm as a member of “the minority group”;

(c)    that the tribunal did not investigate and “consider to know the circumstances when radical people may be offensive”; and

(d)    that the tribunal failed to “provide any supporting evidence in support of its findings”.

17    “Particulars” were then given of several of the tribunal’s findings.

18    The primary judge considered that ground 1 was not, in truth, a complaint about a denial of procedural fairness, but an impermissible attempt at merits review. His Honour accepted the Minister’s submission that the tribunal was not obliged to uncritically accept the truth of the appellant’s claims and it properly discharged its functions under ss 65 and 36 of the Act.

19    In ground 2 the appellant alleged that the tribunal made “a procedural mistake” in failing to provide information it had gathered from other sources which were the reason or part of the reason for rejecting his claim without giving him an opportunity to comment on it. He contended this was a denial of procedural fairness. The only “particular” given to support this allegation was a reference to the tribunal’s statements at [51] of the decision record:

I am not satisfied that he was seriously injured. I note his most recent evidence when he says that the assailants said nothing to him at all, a claim which directly contradicts his written and oral account of the incident to the delegate.

20    The primary judge took this ground to be an allegation that the tribunal was in breach of s 424A(1) of the Act and the information gathered from other sources to be a reference to the independent country information. Having regard to the reference to [51] of the tribunal’s decision record, his Honour also took it that the appellant was contending as well that he was denied procedural fairness because he was not given the opportunity to be heard on the point upon which his claim to have been seriously injured was rejected.

21    Section 424A(1) provides;

Information and invitation given in writing by Tribunal

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.

22    Subsection (2A) is not presently relevant. Subsection (3), however, is. Subsection (3) relevantly states that the 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;

(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;

…

23    Section 424 appears within Div 4 of Pt 7 of the Migration Act, which is deemed to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” (s 422B(1)).

24    His Honour dismissed this ground for three reasons.

25    The first reason was that the appellant’s own evidence to the tribunal and his written claims given in relation to the protection visa application were excluded by s 424A(3) from the requirement in s 424A(1).

26    The second reason was that the appellant’s account to the delegate was in fact put to the appellant so that he might respond to the tribunal’s concerns about it.

27    The third and final reason was that the tribunal found that the country information falls within the exception to s 424A(1).

28    In ground 3 the appellant complained that the tribunal failed to understand his claim, “made mistake to assess his claim” and contradicted its own findings (that the appellant was not a victim of religious discrimination in India) with its own information (that there was religious discrimination in India). He protested that his claim was genuine. The particulars referred to the independent country information considered at [57]-[59] and the tribunal’s finding at [61] that it was satisfied the appellant’s family members were going about their ordinary lives.

29    The primary judge characterised this ground as a challenge to the tribunal’s findings and conclusions summarised below:

[The Tribunal] accepted that communal violence, societal abuses and discrimination occur in India. Further, it accepted that Hindu extremists have perpetrated communal violence against Muslims. However, the Tribunal also had regard to country information before it, that referred to the trend in the conduct of the Indian Government to respect religious freedom, that the vast majority of Indian citizens of all religions live in peaceful coexistence and that, on the applicant’s own evidence to the Tribunal as to his family’s circumstances, his family did not appear to have been affected by this. The Tribunal found, as a result, that the applicant could return to his family home and the chance of harm would be remote.

30    His Honour said that there was nothing to indicate that the tribunal misunderstood the appellant’s claims or failed to deal with a claim that was expressly made or clearly arising on the materials. He considered that the tribunal’s findings and conclusions were reasonably open to it. To the extent that the appellant was making an allegation of bias, he noted that such an allegation was neither distinctly made nor clearly proved, as required, referring to a number of authorities, most notable of which was Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127].

31    The fourth ground alleged that the tribunal’s procedure for determining the appellant’s claim was “not supported by the Migration Act”, because the country information referred to in [56]-[58] and [60] supported his case. This was also said to be a denial of procedural fairness, because the tribunal wanted to reject his claim and did not check his claim properly.

32    The primary judge regarded this ground as no more than a repetition of the complaints in ground 3.

33    When he was invited to address the court, the appellant referred to a medical certificate which he said he had provided to the tribunal and complained that the tribunal did not give proper consideration to the incident to which the certificate related (the assault in 2008) and his claims in general. Evidently, he said nothing more.

34    In relation to the incident in question and the medical certificate, the primary judge observed that the tribunal discussed these matters at [31]-[33] and made findings at [51] to the effect that it accepted that the appellant was assaulted but not because he was a Muslim or supported SIMI or that his assailants were Hindus. His Honour noted that the tribunal gave reasons as to why it did not accept the appellant’s claim and said that, on the material before the court, the findings were reasonable and “probative of the evidence before it”. In these circumstances, his Honour said that the appellant’s complaint was no more than “a disagreement with, or a challenge to the merits” of the tribunal’s decision.

35    His Honour concluded that there was no evident jurisdictional error.

The appeal

36    Two grounds of appeal are identified in the notice of appeal. They read (without alteration):

(1)    The applicant claims that the Federal Circuit Court made a procedure mistake;

(2)    The Federal Circuit Court made a mistake that the applicant’s claim determination procedure taken by the court is not supported by Part 7 of Migration Act 1958.

37    No particulars were given and, although the appellant filed submissions, they were not clearly directed to the grounds.

38    The submissions began with a largely uncontentious account of the background to the appeal and a reiteration of the appellant’s claims. Otherwise, the appellant submitted that:

    the tribunal erred in relying on country information from the US State Department, with which he disagreed, and which, in any event, was insufficient to support the tribunal’s findings;

    that the tribunal impermissibly followed a Ministerial Direction; and

    that he did not get “enough opportunity to reply [to] the adverse findings” of the tribunal and the court did not consider this issue.

39    It is not apparent that the matters referred to in the second bullet point was raised in the court below.

40    At the hearing the appellant submitted that the procedural mistake was that the tribunal did not act independently. Rather, it followed the Minister’s Guidelines instead of the evidence “and the practical witnesses”. By the Minister’s Guidelines, the appellant confirmed that he was referring to PAM 3: Refugee and humanitarian – Complementary Protection Guidelines and PAM 3: Refugee and humanitarian – Refugee Law Guidelines. By “the evidence and the practical witnesses” the appellant explained that what he meant was that the tribunal did not believe him and, on that account, the decision was unfair. The mistake the court made, he said, was that it did not interfere with the tribunal’s decision.

41    For the following reasons the appellant’s submissions must be rejected.

42    First, the tribunal is a body that makes administrative decisions. There is no right of appeal from those decisions: Migration Act, s 474. The Federal Circuit Court was exercising original jurisdiction to review the tribunal’s decision for the purpose of determining whether a constitutional writ should be issued: Migration Act, s 476. It was not open to the Federal Circuit Court to engage in a review of the merits of the tribunal’s decision. The Federal Circuit Court could only interfere with the tribunal’s decision if it was satisfied that the tribunal had made a jurisdictional error. As Brennan J explained in Attorney-General for the State of NSW v Quin (1990) 170 CLR 1 at 35-6:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

(Emphasis added.)

43    Secondly while I accept that the tribunal followed the Ministerial Direction and, as the tribunal acknowledged at [82] of its reasons, it took into account the Guidelines to the extent that they were relevant, this was no error. Indeed, as the tribunal observed, it was required to take them into account.

44    Section 499 of the Act allows the Minister to give written directions to a person or body having functions or powers under the Act (such as the tribunal) about the performance of those functions or the exercise of those powers. If the Minister gives such directions, s 499(2A) provides that the person or body must comply with it. Ministerial Direction No 56 was such a direction. Its stated objectives are to guide decision-makers performing functions or exercising powers under ss 65, 414 and 415 of the Act when considering applications for the grant of a protection visa and when reviewing a decision to refuse to grant a visa. I have already referred to s 65, which is directed to the Minister’s decision. Sections 414 and 415 are concerned with the duties and powers of the tribunal on a review. The objectives clause in the Direction also states:

It is undesirable for first instance and review decision makers to take inconsistent approaches to the decision making task where there is no rational basis for these inconsistencies. Accordingly, it is desirable that subject to the Migration Act and Regulations and other applicable laws, decision makers take as a starting point a common set of guidelines and country information.

45    Clause 2 of the Direction states:

In performing functions or exercising powers under section 65 414 or 415 of the Act. the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.

'PAM3: Refugee and humanitarian - Complementary Protection Guidelines'

'PAM3: Refugee and humanitarian - Refugee Law Guidelines'

(Emphasis added.)

46    That the tribunal took into account the Guidelines does not mean that it was not acting independently. Nor does the circumstance that it affirmed the Minister’s decision.

47    In SZTKA v Minister for Immigration and Border Protection [2014] FCA 1294 Barker J was confronted with a similar argument. As his Honour explained at [53]:

The Tribunal must act as required by the Act. This has the effect of producing an independent review of relevant decisions of the Minister. The fact that the Tribunal may not be satisfied as to a case put by an applicant, or that it accedes to submissions made on behalf of the Minister … does not thereby mean that the Tribunal has failed to meet the hearing and determination requirements imposed on it by the Act.

48    His Honour also held (at [55]) that it was undoubtedly correct of the tribunal to say that it was required to take the Guidelines into account to the extent that they were relevant to the decision under consideration.

49    Thirdly, the tribunal committed no jurisdictional error in relying on country information including the information from the US State Department. As the Full Court explained in NAHI v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:

By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function... [The information] may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not…an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

50    No argument was advanced to support the proposition that the country information from the US State Department was insufficient to support the tribunal’s findings, and I am not satisfied that to the extent that the tribunal relied upon it, it was in any way in error in doing so, or that its conclusion was undermined as a matter of law because of that.

51    Finally, the appellant’s complaint that he did not get enough opportunity to reply to the adverse findings of the tribunal, and the court did not consider this issue, must also be rejected. The appellant was provided with an opportunity to respond to the tribunal’s concerns, not only about his own account, but also about what was revealed by the country information, notwithstanding in the latter case that there was no obligation upon it to do so. Furthermore, the tribunal took the appellant’s response into account.

52    In his submissions, the appellant did not identify any deficiency in the opportunity afforded to him or, at least, any deficiency sufficient to support a conclusion that the tribunal’s decision was affected by a denial of procedural fairness.

Conclusion

53    It follows that the appeal must be dismissed.

Costs

54    Costs should follow the event. The Minister applied for costs in the fixed amount of $4,700. That application was supported by two affidavits affirmed today by Natasha Blake, the solicitor for the Minister. The sum proposed was at the highest end of the range she expected to recover on taxation. At the lowest end it was $4,080. When I asked Ms Blake why I ought not make an order for $4,000 she replied “that would be perfectly acceptable”. The appellant could offer no reason why he should not pay it, only that he would have difficulty doing so. I will therefore order that the appellant pay the Minister’s costs in the amount of $4,000.

Associate:

Dated:    27 March 2015