FEDERAL COURT OF AUSTRALIA

SZUQS v Minister for Immigration and Border Protection [2015] FCA 1330

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellants pay the First Respondent's costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

REVISED FROM THE TRANSCRIPT

1    Today, the first appellant on his own behalf and, in effect, on behalf of the second appellant, (his wife) appeals from the judgment of the Federal Circuit Court of Australia (SZUQS & Anor v Minister for Immigration & Anor [2015] FCCA 2041). That decision was delivered on 23 July 2015.

2    The appellants are citizens of the Republic of India and arrived in Australia in September of 2012 holding tourist visas. About six weeks after their arrival the first appellant (whom I will refer to as the appellant) applied for a protection visa. He lodged a separate statement of claims, in which his wife was included as a family member. Almost a year later in August 2013 the delegate rejected the claims under that protection visa claim. The Administrative Appeals Tribunal reviewed the decision and, on 9 June 2014 after a hearing at which the appellant appeared in March 2014, the Tribunal affirmed the decision of the Minister for Immigration and Border Protection under review.

3    As was his right, the appellant on his own behalf and on behalf of his wife then sought judicial review of that rejection in the Federal Circuit Court of Australia. In July this year, the Federal Circuit Court rejected that application, dismissing it.

4    This is the appeal from that decision and the grounds of appeal, essentially, are that:

(1)    the Federal Circuit Court failed to consider that the Tribunal had denied the appellants procedural fairness, reaching the adverse conclusion that their claims were implausible being a conclusion not obviously open on the known material; and

(2)    the Federal Circuit Court dismissed the case without considering the legal and actual errors contained in the decision of the Tribunal which failed to investigate the claims of the appellant to persecution in India.

5    The appellant claims that he helped a pair of students run away and get married. On the students’ parents discovering he had assisted them, they fought with him and tried to harm him. There were quite involved and detailed claims about this essential fear of danger, including the claims that the father of one of the students tried to kill him, and because of one of the students’ father’s political connections, it was not possible for the appellant to contact them and pursue the matter with the police. The appellant claims that he and his wife were forced to move to Mumbai before leaving for Australia two years later. The appellant also claims that if he goes back, the male student’s family and connection will definitely try to harm him again.

6    These matters were advanced in a hearing before the Tribunal but the Tribunal rejected the claims made by the appellant, finding that he was not a credible, truthful or reliable witness. The Tribunal’s reasons demonstrate that it considered carefully all of the claims advanced but was not persuaded that they were a reliable account.

7    It is clear from the reasons of the Federal Circuit Court that it considered each of those five grounds at [10]-[24] of its reasons where the primary judge said:

10.    The applicants raise five grounds in their application for judicial review. The first ground is:

◦    The refugee [sic] Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.

11.    In response to my invitation to make submissions in relation to ground 1, the applicant, who is not legally represented, said “I did not have the evidence,” and that “whatever happened is what I described”. Later in the hearing before me, the evidence I understood the applicant intended to refer to was his not having filed a complaint with the police in India in relation to the matters he claimed had occurred to him there. The applicant also repeated to me the gist of his claim for protection.

12.    What the applicant submitted at the hearing before me in relation to ground 1 does not disclose any jurisdictional error on the part of the Tribunal. The submissions were directed to the merits of the applicant’s claims for protection. As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant has a valid claim for protection. The Court’s role is to determine whether, on the grounds set out in the application, the Tribunal dealt with the applicant’s case according to law. As for ground 1, as stated in the application, it does not identify the aspects of the applicant’s claims about which the applicant alleges the Tribunal reached an adverse conclusion and which were not obviously open to the Tribunal on the known material. For that reason alone, ground 1 does not disclose any jurisdictional error.

13.    In any event, the ground is similar to the ground that was considered by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152. The Court said (at [39]):

◦    If the issues on the review of the delegate’s decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?” rejection of some or all aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant’s claim would be in issue in the Tribunal’s review of the delegate’s decision, but if the issues are to be identified more particularly, other questions arise.

14.    What the High Court said in that passage applies to the circumstances of this case. The delegate did not accept the applicant’s stated fear and claims for protection, although ultimately the delegate did not grant the applicants a protection visa because, even if the applicant’s claims are true, the reasons for which the applicant claimed fear of harm were not related to the Refugees Convention. Thus, before the Tribunal, the issue that arose on the applicant’s application for review of the delegate’s decision was defined no more particularly than whether the applicant was entitled to a protection visa. In those circumstances, rejection of some or all aspects of the applicant’s account of past events said to found his fears of persecution were self-evidently a conclusion that was open to the Tribunal.

15.    Finally, and in any event, the Tribunal dealt comprehensively with the applicant’s evidence and gave reasons for not accepting that evidence. The reasons the applicant gave were reasons it was reasonably open to it to have regard in assessing the applicant’s credibility; and the Tribunal’s decision not to accept the applicant’s credibility was one that was reasonably open to it for the reasons it gave. The first ground therefore fails.

16.    The second ground is:

◦    The Tribunal failed to consider an integer of the applicant’s claim in failing to consider whether or not the applicant in India was at risk of harm from [the boy’s] father and family not able to access effective protection.

17.    At the hearing, in response to my invitation to make submissions in relation to ground 2, the applicant accepted that the Tribunal did consider whether the applicant was at risk of harm from the boy’s father and family. The applicant, however, said that “they considered it but, because I did not have evidence, they did not consider it”. The evidence to which the applicant appears to have intended to refer was evidence of his filing a complaint with the police in India. The Tribunal did not appear to rely as a reason for not accepting the applicant’s evidence that he had failed to make a complaint to the police in India in relation to the matters he claimed occurred to him there.

18.    In any event, even if the Tribunal did rely on the applicant’s not filing a complaint to the police, that does not mean the Tribunal did not consider whether the applicant was at risk of harm from the boy’s father and family. Ground 2, as stated in the application and the submission the applicant made in support of it before me, are not arguable. As my earlier summary of the Tribunal’s reasons shows, the Tribunal did consider the applicant’s claims that he feared harm from the boy’s father and from other members of the boy’s family. The Tribunal, however, did not accept the applicant’s evidence. Further, having concluded the applicant’s fear was not well-founded, the Tribunal was not obliged to consider whether state protection was available to the applicant.

19.    The third ground is:

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

The applicant made no submission to me in support or in relation to this ground. Ground 3 is a bald allegation which does not engage with any part of the Tribunal’s reasoning. It does not disclose any jurisdictional error on the part of the Tribunal and therefore fails.

20.    The fourth ground stated in the application is:

◦    The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of the claim.

21.    The only submission the applicant made to me in relation to this ground is that there were “many incidents where there would not be any evidence”. Again, this appears to be a reference to the applicants not having filed a complaint with police in India. As I have already noted the Tribunal did not appear to rely on the applicants not having filed their complaint to the police in India. Even if the Tribunal did rely on such a matter, that there are other cases of persons in the position of the applicant not having made complaints to police, would not render unjust the Tribunal’s reliance on such matters.

22.    In any event, a claim that a decision is unjust does not state a recognised ground of jurisdictional error. To the extent the ground claims the Tribunal failed to consider the applicant’s claims, that ground cannot be made out. The Tribunal considered the applicant’s claims but did not accept them. As I have already said, it was reasonably open to the Tribunal not to accept the applicant’s evidence for the reasons it gave.

23.    The fifth ground is:

◦    The Tribunal has failed to investigate the claim, especially the grounds of persecution in India. Therefore the Tribunal decision, dated 9 June 2014, was a judicial error.

24.    The applicant made no submission to me in relation to this ground. This ground assumes the Tribunal had a duty to investigate the applicant’s claims. The Tribunal, however, has no general duty to investigate matters that are raised by an applicant for a review. At the most, the Tribunal has a duty to inquire about a critical fact, the existence of which may be easily ascertained (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR [1123] at [25]-[26]). There is nothing in the material before me that indicates there was an alleged fact before the Tribunal whose existence could have been easily ascertained but about which the Tribunal failed to make any inquiry.

8    The appellants find themselves here today seeking to appeal from that decision. I have already referred to the grounds of appeal but I come back to consider them in the light of the material contained in the appeal book and the arguments that I have heard this morning.

9    The first ground of appeal, essentially, was a lack of procedural fairness. This is a ground of appeal which has been expressed in the same terms in numerous cases: see for example SZUMH v Minister for Immigration and Border Protection [2015] FCA 878 per Farrell J; SZTIP v Minister for Immigration and Border Protection [2015] FCA 844 per Farrell J; MZAFO v Minister for Immigration and Border Protection [2015] FCA 822 per Tracey J; SZWBG v Minister for Immigration and Border Protection [2015] FCA 901 per Wigney J; see also SZRUY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 806 per Farrell J; SZRJN v Minister for Immigration and Citizenship [2013] FCA 222 per Besanko J; AZABV v Minister for Immigration and Citizenship [2013] FCA 173 per Besanko J; and SZRIE v Minister for Immigration and Citizenship [2013] FCA 99 per Bennett J.

10    I have considered that ground of appeal in the context of this case and I am not persuaded that it is correct to say that the primary judge failed to consider whether the Tribunal’s credibility findings were open to it. As his Honour said at [15] of his reasons (set out above), the Tribunal dealt comprehensively with the appellant’s evidence and gave reasons for not accepting the evidence.

11    As the appellant has said in argument before me today, he understands that the task of this Court is to ascertain on the grounds of appeal advanced whether there was any legal error in the Federal Circuit Court decision. It is well established that the fact finding exercise is within the domain of the Tribunal. Ascertaining the truth or otherwise of the claims made is not a task for the Federal Circuit Court or for this Court.

12    I turn to consider the second ground of appeal which was the Federal Circuit Court’s failure to investigate the claims of the appellant and his wife, particularly in relation to persecution in India. No particular argument has been advanced in support of this ground and it is, essentially, bare assertion of error on the part of the primary judge.

13    While there may be occasional circumstances in which a Tribunal is under a duty to make further inquiries about a critical fact which can easily be ascertained, there was no further duty upon the Tribunal or the Federal Circuit Court to make inquiries if the Tribunal could not be satisfied on the material presented to it. The primary judge assessed and considered these issues at [17] and [18] of his Honour’s reasons and, in my view, reached the correct conclusion.

14    For those reasons, neither of the grounds of appeal can succeed and it follows that the appeal must be dismissed with costs and I order:

1.    The appeal be dismissed.

2.    The Appellants pay the First Respondent's costs, to be taxed if not agreed.

A/Associate:

Dated:    26 November 2015