FEDERAL COURT OF AUSTRALIA

SZUZG v Minister for Immigration and Border Protection [2015] FCA 858

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The name of the second respondent be changed so as to read “Administrative Appeals Tribunal”.

2.    The appeal be dismissed.

3.    The appellants pay the first respondent’s costs, as agreed or taxed.

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

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of Judge Smith of the Federal Circuit Court of Australia delivered on 13 April 2015: see SZUZG v Minister for Immigration and Border Protection [2015] FCCA 1060 (“SZUZG”). The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal made on 1 August 2014 affirming a decision of a delegate of the Minister not to grant Protection (Class XA) visas to the appellants on 13 December 2013.

2    The Minister made an application to amend the name of the second respondent to “Administrative Appeals Tribunal”. I granted that application.

Background

3    The appellants are citizens of India and are husband and wife. The appellants arrived in Australia on 15 April 2013 on visitor visas. The first appellant (husband) applied for a Protection (Class XA) visa on 2 July 2013. The second appellant (wife) was included in the application as a member of the husband’s family unit.

4    The basis for the husband’s claim to protection is set out at [3]-[4] of the primary judge’s reasons as follows:

[3]     The applicant based his visa application on the fact that he had been a shop owner in Gujarat and used to deliver stock and collect money for some of the small businesses. After working with some of the businesses for several years, they asked him to deliver their payments to different people in Bombay. He realised that he was being paid more money than he used to make in his shop and although happy with that, he realised that there was a level of risk involved in the work.

[4]     One day he came to know that they were dealing with some dangerous people involved in drug dealings and terrorism. For that reason, he refused to deliver the money from that day and cancelled all the deals that he had with them involving the stock for his shop. After a month, the police came to his place and arrested him claiming that they had evidence of his stealing money. The applicant claimed that the people with whom he had previously dealt had bribed the police in order to do that and to harass him every day. The police also threatened him to keep quiet about the business dealings and about the drugs. The applicant claimed that he had nowhere to go for his complaints and, therefore, left India for Australia.

Tribunal Decision

5    The appellants applied to the Refugee Review Tribunal for review of the delegate’s decision on 6 January 2014. The husband attended a hearing on 23 July 2014 and gave evidence and made submissions. The Tribunal’s reasons for affirming the delegate’s decision are set out in a Statement of Decision and Reasons dated 1 August 2014 (“Decision Record”).

6    The Tribunal “did not find the applicant husband truthful in substantive aspects of his claims to fear harm in India”: [27]. The Tribunal said at [28] that the husband:

… demonstrated a frequent resistance to providing information at [the] hearing. He would repeatedly evade answering questions, declare a lack of understanding of very basic simple question[s], or just repeat questions back to the Tribunal instead of providing an answer.

7    The Tribunal then canvassed a number of instances in the husband’s evidence where he had given confusing, contradictory or undetailed responses to questions: [28]-[41].

8    The Tribunal concluded at [42]-[44]:

[42]    In sum the applicant husband was not able to provide substantive detail or informative answers about his claims to fear harm in India. The Tribunal considers the applicant husband’s evidence regarding the claimed new business in Bombay highly minimal and vague. His evidence about the people who threatened him, and the background and context of the threats, was similarly vague and confused so that he could not provide any coherent or rational explanation of the existence of any threat to him. His evidence about his arrest by the police was so vague he could not give a responsive indication of when it occurred.

[43]     The Tribunal finds that the gaps in the applicant husband’s evidence go to basic and core aspects of claimed events so that the Tribunal is not satisfied that any of the events which he claims triggered his fears and departure occurred. The Tribunal does not find it credible that the applicant husband started a business in Bombay. The Tribunal does not find it credible that people linked to drugs and/or terrorism had any connection to the applicant husband or any business he operated. The Tribunal does not find it credible that the applicant husband received threats from people linked to drugs and/or terrorism. The Tribunal does not find it credible that the applicant was arrested by police who had links to the people threatening him or that the police threatened to kill the applicant if he did not continue to operate a business in Bombay.

[44]     The Tribunal is not satisfied on the evidence before it that the applicant husband was ever threatened or harmed in India by people linked to drugs and terrorism. The Tribunal is not satisfied on the evidence before it that the applicant husband has been detained by, or is of any adverse interest to, the police in India, as claimed.

9    The Tribunal was not satisfied that the husband had a well-founded fear of persecution for a Convention reason nor was it satisfied that that there is a real risk the husband would be subjected to significant harm if returned to India. In the result, the Tribunal was not satisfied that the husband was owed a protection obligation, either as a refugee or as a beneficiary of complementary protection: [47]-[48]. The Tribunal noted that the wife had not raised any claims of her own. On that basis, the Tribunal found that it was not satisfied that the wife was owed a protection obligation: [49]-[51]. The appellants therefore did not satisfy the criteria for the grant of a protection visa: [52].

Federal Circuit Court Decision

10    The appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision on 28 August 2014. The appellants identified four grounds (as written):

1.    The Tribunal failed to accord “procedural fairness” to the applicants because of the little weight to give to the claim of applicants

2.    The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicants was at risk of significant harm from the people when he refused to deal with them.

3.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act 1958.

4.    The tribunal has failed to investigate applicant claims, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 1 August 2014 was effected by actual bias constituting judicial error.

11    The primary judge noted that, at the hearing, the husband did not refer to or rely on any of the grounds in the application; he said only that getting a visa would be good for him: SZUZG at [11]. Although the primary judge observed that it may be inferred that the husband abandoned the grounds in the application, his Honour proceeded to deal with the grounds. The primary judge considered and dismissed each ground in the application. In the result, the application was dismissed.

12    In relation to ground one, the primary judge found that procedural fairness is a matter concerning the process of review by the Tribunal rather than the outcome, and in any event, the Tribunal had rejected the husband’s claims in their entirety based on its assessment of his credibility: SZUZG at [13].

13    The primary judge rejected ground two on the basis that the Tribunal’s conclusions were based upon the finding that the husband’s claims were in fact not truthful, and therefore its findings dealt conclusively with all the husband’s claims in connection with the complementary protection criteria in the Migration Act 1958 (Cth): SZUZG at [17].

14    As regards ground three, the primary judge held that if the ground intended to argue that the decision itself was unreasonable, then the ground must fail because the decision was based upon findings of fact that were reasonably open on the material and disclosed no misunderstanding of any of the relevant criteria that were applied by the Tribunal: SZUZG at [18]. If the ground only cavilled with the outcome of the proceeding, then the primary judge held that that was not a sufficient basis to warrant a finding that there was jurisdictional error in the Tribunal’s decision: SZUZG at [19].

15    Finally, the primary judge interpreted ground four to raise a claim of actual bias for which he held that there was no basis in the material: SZUZG at [20]. Further, the primary judge noted that there is no general obligation on the Tribunal to investigate a claim made by the husband; the husband did not identify any critical fact the existence of which could be easily ascertained. The primary judge found that the Tribunal undertook a review of the delegate’s decision by carefully analysing all of the facts and evidence before it and having given the husband the opportunity to address its concerns in respect of his claims: SZUZG at [21].

Appeal to this Court

16    The notice of appeal lists two grounds (as written):

1.    The Hon Judge failed 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.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

17    The Minister provided written submissions and appeared by his representative.

18    The appellants provided no written submissions. The husband appeared at the hearing with the assistance of an interpreter; he confirmed that his wife was aware of the hearing today.

19    The grounds pleaded by the appellants are template grounds which do not engage with the grounds relied upon in the Court below or the primary judge’s reasons. Grounds in those terms have been considered and dismissed on a number of occasions by this Court: see SZSLS v Minister for Immigration and Border Protection [2013] FCA 1187 per Collier J at [18], [20]-[21].

20    In support of the grounds, the husband said at the hearing that he fears for his life if he returns to India as his own people were involved in the difficulties he had there. I accept the Minister’s submission that the husband’s submission seeks to attack the merits of the Tribunal’s decision and as such invites impermissible merits review. I note that the Tribunal considered the husband’s claims, did not find them credible and on that basis considered that there was neither a real chance nor a real risk of him suffering harm if he returns to India: see [8] and [9] above.

21    I have considered the Decision Record and the primary judge’s reasons in SZUZG. I perceive no jurisdictional error by the Tribunal or appellable error by the primary judge. I will dismiss the application for the same reasons as given by Collier J and in the Minister’s written submissions. I will order that the appellants pay the first respondent’s costs, as agreed or taxed.

Associate:

Dated:    17 August 2015