FEDERAL COURT OF AUSTRALIA

SZUCG v Minister for Immigration and Border Protection [2015] FCA 899

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent as agreed or taxed.

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

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REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

1    The appellant is a citizen of India. He arrived in Australia in March 2013 and, shortly thereafter, applied for a protection visa under s 36 of the Migration Act 1958 (Cth) (the Act). His visa application was refused first by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), and then on review by the second respondent, then the Refugee Review Tribunal (the Tribunal). The appellant then applied for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia pursuant to that court’s jurisdiction under s 476 of the Act. In a judgment handed down on 24 March 2015, the primary judge dismissed that application. The appellant appeals to this Court against that judgment.

The visa application and the Tribunal’s decision

2    The appellant claimed that he met the criteria for the grant of a protection visa because he feared harm at the hands of Islamic fundamentalists if he returned to India. In very general terms, he claimed that, for various reasons, he had been involved in the circulation of information downloaded from a website that was opposed to Islamic fundamentalism. He claimed that as a result of those activities, Islamic fundamentalists were searching for him, had visited his home in India, where his wife and child continue to live, and had threatened to kill him.

3    It is unnecessary to rehearse the appellant’s factual claims in any detail. They were initially set out in a statutory declaration that the appellant furnished some months after he lodged his visa application. The appellant was also interviewed by the Minister’s delegate and gave evidence before the Tribunal. On both occasions, he repeated and elaborated on his claims. The appellant’s factual claims are referred to in detail in the Tribunal’s reasons and are summarised in the judgment of the primary judge.

4    The main problem for the appellant is that the Tribunal did not accept most of the claims relied on by him. The Tribunal did not consider the appellant to be a reliable or credible witness, and did not accept the truthfulness or accuracy of most of his evidence.

5    In its statement of reasons, the Tribunal explained, in considerable detail, the reasons that lay behind its adverse credibility findings. The reasons included the delay of three months in the appellant presenting his statutory declaration setting out his claimed reasons for fearing to return to India; the fact that the appellant was not engaged in any activities involving the circulation of anti-fundamentalist information whilst in Australia; his unsatisfactory explanations for that lack of activity; the changing or evolving nature of some aspects of the appellant’s claims; his inconsistent and illogical evidence concerning whether he put his name on any of the documents he claimed he had disseminated; the appellant’s inconsistent evidence concerning his motivation for disseminating the information; and his inconsistent and changing accounts concerning the death of his brother, this supposedly being one of the major motivations for his activities.

6    The Tribunal’s ultimate findings or conclusions concerning the appellant’s evidence, and whether he met the key criteria for the grant of a protection visa, are contained in paragraphs 29 to 32 of its statement of reasons:

29.    Based on all the evidence before it, including the significant cumulative concerns detailed in the Tribunal’s considerations above, the Tribunal is not satisfied of the truth of significant aspects of the applicant’s claimed circumstances. Specifically, the Tribunal is not satisfied that the applicant’s brother died at the hands of Islamic fundamentalists as the applicant has claimed. The Tribunal is also not satisfied on the evidence before it that the applicant’s claimed brother is in fact deceased. The Tribunal is not satisfied that the applicant’s experiences of mistreatment in the middle eastern countries, which he voluntarily pursued work in and returned to over some five years, are as he has claimed or that he has been motivated by those claimed experiences or the death of his brother to circulate anti-fundamentalist or anti-terrorist materials in India. The Tribunal is not satisfied that the applicant has, at any time, in India or otherwise, circulated the anti-fundamentalist or anti-terrorist material he claims to have circulated, or that he has any profile in India which connects him to such activities. The Tribunal is not satisfied that the applicant has been or will be adversely pursued by any militant group in India, including the RSS or any militant Islamic group or that he faces any risk of harm in India for any of the reasons he has claimed either individually or cumulatively. In particular, based on the evidence, reasoning and findings above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm as contemplated by sections 91R(1)(b) or 91R(2) of the Act, or a real risk of significant harm as contemplated by section 36(2A) of the Act, in India in the reasonably foreseeable future, for any of the reasons he has claimed.

    Conclusions regarding the Refugees Convention

30.    Based on the evidence before it and the cumulative considerations and findings above, the Tribunal is not satisfied that the applicant had, at the time he departed India for Australia, an adverse profile of any nature giving rise to a real chance of serious harm as contemplated by sections 91R(1)(b) or 91R(2) of the Act, for any reason, including a Convention reason. Nor is the Tribunal satisfied that the applicant has, since that time, developed any profile within India, including amongst any Islamist or “Mullah group”, which gives rise to a real chance of serious harm in India in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in India and that the Tribunal is not satisfied that he is owed Australia’s protection under section 36(2)(a) of the Act.

    Complementary Protection

31.    The Tribunal has also considered whether the applicant is eligible for complementary protection. Based on the findings of fact detailed in the Tribunal’s considerations above, the Tribunal is not satisfied that the applicant faces a real risk of the death penalty being carried out on him or that he will be arbitrarily deprived of his life in India. Further, based on the considerations and cumulative findings of fact detailed above, the Tribunal is not satisfied on the evidence before it that any entity, group or individual in India has or would have the requisite intention to inflict any harm on the applicant. Without the presence of intention, the Tribunal is not satisfied that he faces a real risk of being subjected to torture or cruel or inhuman treatment or punishment within the meaning of section 5 of the Act. Similarly, the evidence before the Tribunal does not indicate that any harm or hardship, including economic hardship, he fears in the reasonably foreseeable future in India would be “intended to cause” extreme humiliation which is unreasonable. Accordingly, the Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of being subjected to degrading treatment or punishment in India in the reasonably foreseeable future.

32.    If follows, on all the evidence before it, including the cumulative findings of fact above, that the Tribunal is not satisfied that the applicant faces a real risk of significant harm in India in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm, as defined in section 36(2A) of the Act. Accordingly, the Tribunal does not accept that the applicant is a person in respect of whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

The application to and judgment of the Federal Circuit Court

7    The appellant’s amended application in the Federal Circuit Court was long and discursive. It ostensibly contained four grounds, but when those grounds are read together with the supposed particulars of each of the grounds, many different errors on the part of the Tribunal were alleged. Following is a brief summary.

8    Ground 1 included allegations that the Tribunal misunderstood or misconstrued the facts, took into account extraneous or irrelevant matters, failed to take some material considerations into account and reached a result which was unreasonable or unjust. The particulars to this ground included a contention that the Tribunal’s finding that economic motivation was the main reason for the appellant’s visa application was wrong. This latter contention appears to have been central to the appellant’s case in relation to ground 1.

9    The second ground included allegations that the Tribunal asked several irrelevant questions to test the appellant’s oral evidence in relation to his brother’s death and thereby denied him procedural fairness.

10    The appellant’s third ground included allegations that the Tribunal’s decision was based on “assumption and probability”, that the Tribunal’s reasons were confused, that the Tribunal did not apply the correct test for persecution and that the Tribunal ignored independent information.

11    The fourth ground was that the Tribunal failed to apply the correct test in respect of the complementary protection criterion in s 36(2)(aa) of the Act and failed to consider some relevant considerations.

12    In his submission to the Federal Circuit Court, the appellant also contended that there was either actual or apprehended bias on the part of the Tribunal. The allegation was particularised in terms that suggested that the alleged bias was based solely on the contention that the Tribunal misunderstood the evidence and made a decision with a closed mind.

13    The primary judge rejected all of the contentions included in the appellant’s review grounds.

14    In relation to ground 1, the primary judge rejected the appellant’s submission that the Tribunal was wrong insofar as it found that economic motivations were the main reason for the appellant applying for a protection visa. In any event, the primary judge found that this finding was not important, let alone critical, to the Tribunal’s adverse credibility finding. The primary judge referred, in that regard, to paragraph 9 of the Tribunal’s reasons, in which the Tribunal stated that it was mindful that its finding that economic motivations were central to the appellant’s overseas travel, including to Australia, was not determinative.

15    The primary judge found that the Tribunal considered all of the appellant’s claims, but did not accept the majority of them. The non-acceptance of the appellant’s claims was based on the Tribunal’s adverse findings concerning the appellant’s credibility. The primary judge concluded that the adverse credibility findings were open on the material before the Tribunal.

16    In relation to the second ground, the primary judge interpreted the appellant’s claim of denial of procedural fairness as involving a claim that the appellant was unable to understand a number of questions the Tribunal posed to him at the hearing. That, in turn, appeared to be based on a claim that the translation or interpretation services provided to the appellant at the hearing in the Tribunal were deficient or defective. The primary judge found that there was no evidence that the interpretation at the hearing was defective, let alone that it was so incompetent that the appellant was prevented from giving evidence on critical matters: see Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [38] and [45].

17    Insofar as ground 2 involved a contention that the Tribunal asked the appellant irrelevant questions, the primary judge pointed out that the appellant had failed to provide any particulars of this allegation. In any event, the primary judge found that the Tribunal was entitled to test the appellant’s evidence by asking questions. The appellant had not demonstrated that any particular questions asked by the Tribunal were irrelevant.

18    In relation to ground 3, the primary judge found that the appellant had failed to provide any particulars of how the Tribunal misapplied the test in ss 36(2)(a) and 91R of the Act in respect of serious harm. The particulars in relation to this ground simply related to the merits of the Tribunal’s decision, and essentially restated the appellant’s substantive claims. The primary judge found that the Tribunal had considered all the claims put to it by the appellant and its findings were open to it on the evidence.

19    In relation to ground 4, the primary judge again pointed out that the allegation that the Tribunal misapplied the complementary protection criterion was unparticularised and appeared to be based on the contention that the Tribunal ignored relevant considerations. The primary judge found that the Tribunal applied the correct test for whether there was a real risk that the appellant would suffer significant harm.

20    Finally, in relation to the allegation of bias, the primary judged noted that the allegation of bias is a serious matter which must be distinctly made and clearly proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127].

21    The appellant’s claim of bias appeared to be based on assertions that the Tribunal misunderstood or discredited the appellant’s evidence and failed to assess the appellant’s claims. The primary judge rejected those assertions. His Honour found that a fair reading of the Tribunal’s reasons revealed that the Tribunal did not misunderstand the appellant’s evidence and considered all the claims put to it.

Appeal Grounds and Submissions

22    The appellant’s notice of appeal contains two grounds, though again these grounds are long and discursive and include many allegations of error on the part of the Tribunal. The grounds essentially allege that the primary judge erred in not accepting that any of the long list of alleged errors were made by the Tribunal.

23    Appeal ground 1 appears to be no more than a re-agitation of ground 4 of the application in the Federal Circuit Court. The primary judge is said to have erred in failing to find that the Tribunal applied the incorrect test in relation to the complementary protection criterion in s 36(2)(aa) of the Act. The central allegation appears to be that the Tribunal failed to “separate” the claims or findings in relation to the Refugee Convention criterion in s 36(2)(a), from the complementary protection criterion in s 36(2)(aa) of the Act. It is also said that the Tribunal’s findings in relation to the complementary protection criterion were unreasonable.

24    The appellant’s written submissions are somewhat confused and do not greatly assist in articulating the appellant’s contentions in relation to appeal ground 1. The appellant did not make any oral submissions specifically directed at this appeal ground concerning the complementary protection criterion.

25    Appeal ground 2 also appears to be simply a re-agitation of a number of arguments advanced in the court below, including arguments that the Tribunal’s finding concerning the motivation for the appellant’s overseas travel was misconceived and misinformed, that the Tribunal misunderstood aspects of the appellant’s claims, that the Tribunal ignored materials presented by the appellant and thereby denied him procedural fairness, that the Tribunal had a closed mind and that the Tribunal’s findings were unreasonable.

26    The appellant’s written submissions did not add to the clarity or particularity of this appeal ground. The appellant’s oral submissions repeated a number of the alleged errors referred to in ground 2 of the notice of appeal. He submitted that his evidence before the Tribunal concerning his trip to Afghanistan was that he travelled to Afghanistan legally, but the Tribunal found that he travelled to Afghanistan illegally. In the appellant’s submission this finding was wrong. The appellant contended that he had evidence which demonstrated that he had travelled to Afghanistan legally. The appellant made some submissions concerning the Tribunal’s findings concerning the death of his brother. He maintained that his brother was attached to a Hindu religious organisation and was killed by anti-Islamic people.

27    The appellant also repeated his claims that he feared returning to India because he would be persecuted or harmed by a group in India. He maintained that he was not in Australia for economic reasons. Finally, the appellant submitted that the Tribunal had not taken into consideration all of the evidence he had given before it. When pressed to identify the evidence that the Tribunal did not take into consideration, the appellant simply said that the Tribunal did not understand his evidence.

Consideration of appeal grounds

28    The appellant has failed to demonstrate any error on the part of the primary judge in dismissing his review application. Nor, for that matter, has the appellant demonstrated that the Tribunal made any error, let alone any jurisdictional error, in conducting its review.

29    A fair reading of the Tribunal’s reasons reveals that the Tribunal carefully considered the appellant’s claims and evidence. The Tribunal’s decision turned almost entirely on findings that the appellant’s evidence in relation to key aspects of his claims was not truthful, credible or reliable. The Tribunal’s reasons for so concluding were not, in any sense, unreasonable or illogical and were open to it on the evidence.

30    The appellant’s various complaints that the Tribunal somehow misunderstood his evidence, or that the Tribunal was biased, or unreasonable, or approached the matter with a closed mind, or ignored parts of his evidence, are, in truth and reality, simply attacks on the merits of the Tribunal’s decision.

31    Factual findings, including, in particular, findings relating to the credibility and reliability of evidence, are matters entirely for the Tribunal. They are not able to be challenged in judicial review proceedings under s 476 of the Act unless they somehow reveal that the Tribunal exceeded or failed to properly exercise its jurisdiction. No such error has been established by the appellant. The appellant’s submissions in support of his appeal amount, at their highest, to allegations that the Tribunal made errors of fact. Even if made out, those submissions would not demonstrate jurisdictional error.

32    In relation to ground 1, there is nothing in the Tribunal’s reasons to suggest that it applied any incorrect test in relation to the complementary protection criterion. Paragraphs 29 and 31 of the Tribunal’s reasons employ the language used in s 36(2)(aa) and s 36(2A) and the various expressions used in those subsections that are defined in s 5 of the Act. The exact basis upon which the appellant contends that the incorrect test was applied is unclear. As has been said, the appellant advanced no oral submissions in support of this ground at the hearing of the appeal.

33    The argument that the Tribunal failed to separate the “refugee” claims from the complementary protection claims has no merit. The appellant’s claim that he satisfied the complementary protection criterion in s 36(2)(aa) was based on the same body of facts as his claim that he met the Refugees Convention criterion in s 36(2)(a) of the Act. The Tribunal’s rejection of most of the appellant’s factual claims concerning his supposed dissemination of anti-fundamentalist material meant that the Tribunal was not only not satisfied that the appellant had a well-founded fear of persecution; it was also not satisfied that there was a real risk of significant harm to the appellant if he returned to India. It was unnecessary to repeat or deal separately with the same facts when dealing with the separate criterion in s 36(2)(a) and s 36(2)(aa): see SZSHF v Minister for Immigration and Border Protection [2014] FCA 237 (at [26]). The Tribunal approached the complementary protection criterion separately, even though its findings in relation to that criterion were based on the same factual findings that led to its non-satisfaction that the appellant met the Refugee Convention criterion in s 36(2)(a).

34    The primary judge was accordingly correct to reject the appellant’s arguments that the Tribunal applied the incorrect test in relation to the complementary protection criterion.

35    The balance of the appellant’s arguments in relation to ground 1, so far as they are able to be comprehended, are also rejected. They in effect amounted to no more than a challenge to the merits of the Tribunal’s decision.

36    In relation to appeal ground 2, this ground and the appellant’s arguments in relation to it amount to no more than an attack on the Tribunal’s adverse credibility findings. For the reasons already given, the Tribunal’s rejection of much of the appellant’s evidence on credibility grounds was open on the evidence, was neither unreasonable nor illogical, and does not indicate or demonstrate bias or a closed mind on the part of the Tribunal. The various arguments advanced by the appellant that the Tribunal misunderstood his evidence or ignored parts of his evidence have no merit and were properly rejected by the primary judge. No error has been demonstrated.

37    The only specific argument advanced by the appellant in relation to the judgment of the primary judge (as opposed to the decision of the Tribunal) is that the primary judge should have made his own objective assessment of the credibility of the appellant’s evidence. That submission misconceives the role of the Federal Circuit Court in considering an application under s 476 of the Act. It is not for a Federal Circuit Court judge, in review proceedings under s 476 of the Act, to form his or her own view as to the facts, including the credibility of the appellant’s evidence. As already indicated, findings of fact are generally entirely up to the Tribunal. The jurisdiction of the Federal Circuit Court is limited to providing remedies in respect of jurisdictional error. Mere errors of fact, do not, without more, amount to jurisdictional error.

38    The oral submissions that the appellant made in support of his appeal reveal that his real complaint concerns the merits of the Tribunal’s decision. He simply disagrees with the Tribunal’s findings. All of the various arguments he has advanced are really all directed, at best, to establishing that the Tribunal made errors of fact in determining his claim. There is no merit in the appellant’s submissions that the Tribunal made any such errors. But even if such errors of fact were made, they would not amount to jurisdictional errors in any event.

Disposition

39    The appellant has failed to demonstrate any error on the part of the primary judge. The appeal is accordingly dismissed.

40    As is often the case, the appellant submitted that he should not be required to pay the Minister’s costs because he has no money. Unfortunately, however, that is no reason why costs should not follow the event. The appellant, as the unsuccessful party, should pay the Minister’s costs as agreed or taxed.

41    Accordingly, the orders of the Court are as follows:

1.    The name of the second respondent be amended to the “Administrative Appeals Tribunal”.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent as agreed or taxed.

Associate:

Dated:    20 August 2015