FEDERAL COURT OF AUSTRALIA

SZSUN v Minister for Immigration and Border Protection [2018] FCA 234

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The appellants appeal from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) on 1 September 2017 dismissing an application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal): SZSUN v Minister for Immigration [2017] FCCA 2296 (SZSUN). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellants Protection (Class XA) visas (Visas) under s 65 of the Migration Act 1958 (Cth) (Act).

background

2    The appellants, who are husband and wife, are citizens of India. They arrived in Australia on 28 November 2012 as the holders of Business Entry (Class UC) visas which were subsequently cancelled pursuant to s 116 of the Act.

3    Under cover of a letter dated 14 December 2012, received by the Minister’s department on 19 December 2012, the appellants lodged their applications for the Visas. The wife’s claims for protection were dependant upon those of her husband.

4    The husband’s claims for protection were set out in a statement annexed to his application for the Visas. The husband claimed to fear harm from a Muslim man named “Naggo”. He claimed that in about 2010 he was playing cricket with some friends when he discovered what he described as a “mountain of weapons”. Approximately four to five days later one of the appellant’s friends began telling people in his village that he had stumbled across some weapons in a nearby home. As that news spread throughout the village the owner of the house, Naggo, approached the husband and began threatening him. The husband reported the threats to the police.

5    Within about 20 days of the husband’s report to the police Naggo was arrested. Three to four months following the arrest, Naggo’s sons approached the husband blaming him for their father’s arrest. They beat him, threatened to cut him with a knife and to kill him if he did not leave the area.

6    The husband decided to go to Delhi where he remained for six to seven months. During this period he often returned to his village for supplies and support.

7    In January 2011 the husband returned to his village to marry. Within weeks of his return he was informed by village elders that he should leave the village immediately as Naggo’s sons were still pursuing him. He thus returned to Delhi with his wife where he remained for the next 9 to 10 months.

8    In January 2012 he again returned to his village with his wife, who was pregnant, so that she could have the support of her family. The husband eventually returned to Delhi on his own. He claimed he could not remain in the village because Naggo’s sons were still after him.

9    The appellants left India leaving their son, who at the time was 11 months old, with the husband’s parents and his siblings. The husband believes that Naggo’s sons will harm and mistreat him if he returns and that the authorities will not protect him because he is Sikh.

10    On 22 January 2013 the delegate refused the grant of the Visas.

11    On 29 January 2013 the appellants lodged an application for review of the delegate’s decision with the Tribunal. The delegate’s decision was affirmed by the Tribunal but that decision was subsequently quashed and the matter remitted to the Tribunal by order of the Federal Circuit Court made on 26 May 2014.

12    On 10 October 2014 the appellants appeared at a hearing before the Tribunal, differently constituted, with the assistance of a Hindi interpreter and accompanied by their representative. On 26 November 2014 that Tribunal affirmed the decision under review.

Tribunal decision

13    The Tribunal had concerns about the appellants’ credibility. It found that the husband was not a witness of truth in relation to his claims of past harm, threats and feared future harm and that the wife was also not a witness of truth. It did not accept the wife’s assertion that she is in danger because she is a member of the husband’s family unit or that there is any reason for the wife to fear harm in India.

14    In reaching its conclusions about the appellants’ credibility the Tribunal had regard to a range of inconsistencies and other issues arising from their evidence, including:

(1)    the husband’s inconsistent evidence about the discovery of the weapons and how many days after that discovery he was threatened;

(2)    the husband’s changing evidence about how long it took him to leave his village and go to Delhi after he was beaten up;

(3)    the husband’s evidence about how long he stayed in Delhi before his first return to the village;

(4)    the inconsistency between the husband’s claim that he fled his village fearing he would be killed and the fact he returned to his village for his wedding;

(5)    the inconsistent and confused evidence about the husband’s return to his village for the birth of his son;

(6)    the differences between the husband’s claims and the background information in his application form;

(7)    the wife’s evidence, given when she was detained upon arrival in Australia on 28 November 2012, that she left India and came to Australia as she wished to settle in Australia, and that she and her husband were not able to look after their child in India and so decided to come to Australia to work hard for a good future. The Tribunal considered that the wife’s evidence upon arrival could have indicated the real intention of the appellants in coming to Australia. It considered that it was unlikely and not credible that the wife had no idea why they were coming to Australia;

(8)    the Tribunal was concerned as to why the appellants left their child in India as he was also a member of the family unit. It was not persuaded by the explanations provided by the wife and considered that the fact the appellants left their child with the husband’s family in the village for some of the time since their departure undermined the claim that the husband and members of his family unit faced danger; and

(9)    the husband’s inconsistent evidence concerning when he decided to leave India and the appellants’ delay in actually leaving India, noting that their visas were granted on 14 September 2012 but that they did not leave India until 28 November 2012, which suggested that there was not a genuine fear of harm or concern for safety.

15    The Tribunal also considered whether there could be any other reason for the difficulties with the husband’s evidence, including nervousness about appearing before a tribunal; his lack of familiarity with the immigration and formal interview process; the husband’s “limited education”; the necessity to use an interpreter; the fact that at the time of the departmental interview and the hearing with the first Tribunal the appellants were in immigration detention; the wife’s pregnancy at the time of the first Tribunal hearing; and the husband’s claimed medical condition. However, the Tribunal was not satisfied that these matters explained the difficulties with the husband’s evidence.

16    On the basis of its adverse credibility findings the Tribunal rejected all of the husband’s claims to fear harm. Accordingly, the Tribunal was not satisfied that the appellants met the criterion in s 36(2)(a) of the Act, nor the alternative criterion in s 36(2)(aa) of the Act.

Proceeding before Federal Circuit Court

17    The appellants filed an application in the Federal Circuit Court seeking review of the Tribunal’s decision. Their application raised four grounds as follows:

Ground 1

The Tribunal made a procedural error by not taking into account information relevant to the applicants' particular circumstances.

Particulars

The First Applicant states that he faces a real threat from a person named Naggo and his family. This is because the applicant and his friend discovered a cache of weapons believed to be Naggo's. The applicant states that on his report to the police of the discovery, Naggo was arrested. After few months the sons of Naggo beat him profusely threatening to kill him and asked him to leave.

The applicant states that the Tribunal rejected the above information as unfounded, inconsistent and not credible not allowing the applicant's case to be validated.

Ground 2

The failure to understand or take into account the Applicants' claims that their lives were at risk and continue to be risky manifest ignorance and lack of knowledge of the realities in life in India.

Particulars

The Applicants states that it is naïve to believe that their lives will be at no risk if they return to India because the Tribunal assumes that the Applicants face no such threat on the basis that the Applicants' story is unsubstantiated.

Ground 3

The Tribunal's conclusion that the Firs (sic) Applicant did not have a well-founded fear of persecution in India was illogical or irrational, manifested a misunderstanding or misconstruction of the Convention test or arose out of a failure to take relevant information into account.

Particulars

The Tribunal found that there is not a real chance that the First Applicant will suffer serious harm in India on the basis that his evidence is unsubstantiated, not credible and inconsistent and that the applicants were untruthful witnesses. The First Applicant requests the Honourable Court to hear his case in full and states that he is prepared to give evidence to the best of his ability.

Ground 4

The Applicants were not afforded natural justice.

Particulars

The Applicants believes that they were not afforded a fair hearing. The Tribunal reaffirmed its earlier decision. In doing so, it did not give consideration to the applicants' evidence, and instead, arrived at the decision with a preconceived conclusion that the matters claimed by the first applicant did not arise.

18    The primary judge found that the particularisation of the first and second grounds made it clear that these grounds did no more than express the appellants’ disagreement with certain aspects of the Tribunal’s findings of fact. The primary judge rejected those grounds because they did not identify any legal error on the part of the Tribunal: SZSUN at [14].

19    In relation to the third ground the primary judge noted that the Tribunal had concluded that the appellants’ accounts were marked by “inconsistencies and changeability” and that it was logical for the Tribunal to be troubled by those features of their presentation and to be unpersuaded that a truthful account had been given to it. The primary judge found that it was neither illogical nor irrational for the Tribunal to reach adverse credibility findings and the fact that it did not believe the appellants could not be said to be a misunderstanding of the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967, as the ground seemed to imply: SZSUN at [15].

20    The primary judge noted that ground four raised two matters: an allegation of bias and an allegation of denial of natural justice. In relation to the allegation of bias, the primary judge found that the appellants had failed to “firmly and distinctly” prove the claim, as is required when making such an allegation. In relation to the allegation of denial of natural justice, the primary judge found that there was no basis to conclude that the Tribunal’s conduct of its hearing in any way prevented the appellants from putting their case to it: SZSUN at [16]-[19].

21    Finally, the primary judge considered whether a denial of procedural fairness may have arisen as a result of a certificate issued pursuant to s 438 of the Act (Certificate) that had been provided by the Minister’s department to the Tribunal. The primary judge had before him a copy of the Certificate and the documents which were the subject of it. His Honour noted they were no more than internal working documents and communications involving the Minister’s department and his solicitors – none of which he found had any material bearing on the Tribunal’s review.

22    The primary judge found that the circumstances largely reflected those considered in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 (AVO15) and that none of the documents in question could have been of any relevance to the Tribunal’s decision making. The primary judge held that in those circumstances the Certificate did not provide a basis upon which the court ought to order that the Tribunal’s decision be set aside: SZSUN at [20]-[21].

the appeal

23    The notice of appeal filed in this Court advances five grounds:

1.    The Honourable Federal Circuit Court Judge erred in law in deciding my application not finding that the Tribunal did not consider that my life was not in danger for my religious belief as a follower of Sikhism and our bad relations with the Muslim community of our area.

2.    The Honourable Federal Circuit Court Judge erred in law in deciding my application not finding that there was a lack of procedural fairness in the decision of the Administrative Appeals Tribunal as the Tribunal failed to consider that I am not and will not be in reasonably foreseeable future be at risk of serious harm in India by religious extremists, the state, or in sectarian violence.

3.    The Honourable Federal Circuit Court Judge erred in erred in law in deciding not finding that the Tribunal made a procedural mistake that the Tribunal collected information from the applicant and rejected the information without proper assessment and proof. The Tribunal simply rejected the applicant's claim by saying that the Applicant did not provide a consistent account of circumstances in his matter.

4.    The Honourable Judge erred in law in not finding in respect of each of those claims the Tribunal has set out the evidences that it relied upon in reaching its conclusions that it was not satisfied on each particular claim. Each of those conclusions were reasonably open to the Tribunal on the evidence before the Tribunal.

5.    The Honourable Judge erred in law in not finding that the Tribunal in its decision

24    The appellants also filed a document titled “Applicant’s outline of submission”. In that document they set out the procedural background to the appeal and under the heading “Grounds of appeal” repeat the five grounds included in their notice of appeal and appear to raise an additional ground, not included in the notice of appeal, which alleges that the primary judge “erred in law for not considering that the member was biased. This can be proved”.

Application for adjournment

25    At the commencement of the hearing of the appeal the appellants applied for an adjournment so they could seek legal advice. Initially they submitted that they had not received the Minister’s submissions until their arrival at Court. However, upon the solicitor for the Minister tendering evidence of the service of those submissions, including an email from the husband responding to one of the emails that attached a copy of those submissions, the appellants did not press that point. The appellants also submitted that they received the appeal book in January 2018, which was the summer holiday period during which it was difficult to retain a solicitor, and that they had only had the Minister’s submissions for one week. The Minister opposed the application for an adjournment.

26    The notice of appeal was filed on 19 September 2017. That is, approximately five months prior to the hearing. While the appeal book was served in January 2018, a time at which people may traditionally be on holiday, that was still some seven weeks prior to the hearing. Further, the appeal book was substantially made up of documents that were before the Federal Circuit Court and was thus material of which the appellants were aware and which had been provided to them for the purpose of that proceeding. The Minister’s submissions were served in accordance with the Court’s timetable. Finally, there was no evidence from the appellants of any efforts they had made to seek legal advice. In those circumstances, I refused the application for an adjournment.

Consideration

27    The first ground of appeal raises similar issues to those raised by ground two in the court below. It alleges that the primary judge erred by failing to find that the Tribunal did not consider the husband’s life was in danger on the basis of being a Sikh or because of his bad relations with the Muslim community. But, as the primary judge identified, the ground did no more than express the appellants’ disagreement with findings of fact made by the Tribunal. The primary judge correctly identified that the court’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error and that it could not rehear the appellant’s application for a visa.

28    In any event, as submitted by the Minister, the Tribunal did consider the claims made by the husband that his life was in danger because of his religion and because of his poor relations with the Muslim community. In particular at [62] of its decision record the Tribunal said:

The pre-hearing submissions referred to militant activity in Jammu relating to the links that Naggo has with the extremist Muslim groups and the applicant is a Sikh which made him a target for the extremist groups operating within the village. Having regard to the problems with the applicant’s evidence as set out above, the Tribunal does not accept this claim. The Tribunal does not accept that the applicant has suffered harm in his village, nor that there is any reason to find that he faces a real chance of harm in the reasonably foreseeable future if he returns to his village, either because of the claimed links to the person Naggo, claimed extremist groups, claimed extremist Muslim groups, or because he is a Sikh.

(emphasis added)

29    Ground one is not made out.

30    Ground two alleges that the primary judge erred by not finding that there was a lack of procedural fairness in the decision of the Tribunal. The appellants submitted orally that they informed the primary judge that the Tribunal did not give proper consideration to their case, that the husband was “bombarded” with several questions during the Tribunal hearing and that he was so rushed that he could not answer those questions properly. A similar submission was made to the primary judge: see SZSUN at [13].

31    There is no error disclosed in the primary judge’s reasoning. Before the primary judge the husband said, in answer to a question from the court, that he had not been prevented from telling the Tribunal what he wanted it to know. The husband was not denied an opportunity to put his case to the Tribunal and, as the primary judge observed, despite an invitation to do so, no transcript of the Tribunal hearing was put into evidence to establish any alleged denial of procedural fairness. There was no basis to conclude that the Tribunal’s conduct of its hearing in any way prevented the appellants from putting their case.

32    Insofar as the appellants alleged by this ground that the lack of procedural fairness arose because the Tribunal failed to consider that the husband would be at “risk of serious harm in India by religious extremists, the state, or in sectarian violence” in the reasonably foreseeable future, that is an invitation to this Court to engage in impermissible merits review.

33    In my opinion, there was no error in the approach of the primary judge. Ground two is not made out.

34    Ground three in the notice of appeal broadly resembles ground three raised in the court below. It alleges that the primary judge erred by not finding that there was a “procedural mistake” committed by the Tribunal in rejecting the husband’s claim and by finding that he had not provided a consistent account.

35    The primary judge found that the appellants’ accounts were marked “by inconsistencies and changeability” and that it was logical for the Tribunal to be troubled by those features of the appellants’ evidence. That finding was open to the primary judge. Further, as the primary judge identified, it was neither illogical nor irrational for the Tribunal to make adverse credibility findings in relation to the appellants. They were findings or inferences of fact supported by logical grounds: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [40]-[42].

36    Ground four is a new ground. It was not raised below. By it, the appellants contend that the primary judge erred by not finding that the Tribunal did not set out the evidence it relied upon when rejecting their claims. The appellants require the Court’s leave to raise this ground.

37    The factors governing the exercise of the Court’s discretion in granting leave to raise a new ground on appeal, identified by Madgwick J (with whom Conti J agreed) in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166], include:

1)    Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where, in all the circumstances, do the interests of justice lie?

38    Critical to the exercise of the discretion in the present case is whether the ground has reasonable prospects of success. In my opinion it does not. The appellants have failed to particularise the claims which they contend the Tribunal did not consider. Putting that issue to one side, as submitted by the Minister, it is clear, having regard to the claims made by the appellants, that the Tribunal considered each of those claims but rejected them relying upon its adverse credibility findings. In those circumstances I would not grant leave to the appellants to raise ground four.

39    Ground five is incomplete, cannot be understood and is not a competent ground of appeal. I reject that ground.

40    As noted above, an additional ground is raised by the appellants in their outline of submissions. That is that the primary judge erred in not finding that the Tribunal was biased. The Minister does not oppose the appellants relying on this ground as a ground of appeal. The ground was raised before, and considered by, the primary judge. As the primary judge found, it could not be said that the Tribunal did not take account of the appellants’ arguments following the remittal of the matter for rehearing. It is clear from the Tribunal’s decision record that it did so. Further, as the primary judge observed, the Tribunal’s decision record indicates that its assessment of the appellants’ claims was principally based on their evidence given at the hearing before it. The appellants have not established that there was any bias on the part of the Tribunal. There is no error in the primary judge’s rejection of this ground.

Certificate issued pursuant to s 438 of the Act

41    The final issue to consider is the primary judge’s treatment of the Certificate. No issue was taken by the appellants about that matter in their notice of appeal. However, for completeness, the Minister addressed the issue in his submissions.

42    A copy of the Certificate was in evidence before the primary judge and included in the appeal book. Also in evidence before the primary judge were the documents the subject of the Certificate. Those documents had, through an administrative error, been omitted from the appeal book. At the hearing, the Minister sought leave to rely on an affidavit affirmed by Mia Donald, a solicitor in the employ of the Minister’s solicitors, annexing those documents. A copy of that affidavit was only provided to the appellants on the morning of the hearing.

43    Over objection by the appellants I allowed the Minister to rely on Ms Donald’s affidavit. The documents annexed to the affidavit were, as noted above, in evidence before the primary judge and had been served on the appellants prior to the hearing in the court below. Thus, it could not be said that the appellants were prejudiced by the late service of the affidavit annexing the documents.

44    Turning then to the primary judge’s treatment of the Certificate. I accept the Minister’s submission that the primary judge was correct to conclude that the Certificate did not provide a basis upon which the court would order that the Tribunal’s decision be set aside. The documents the subject of the Certificate concerned the basis upon which the Minister withdrew from the earlier proceeding before the Federal Circuit Court. Those documents did not contain any material which was prejudicial to the appellant’s interest and, as the primary judge found, had no material bearing on the Tribunal’s review: see AVO15 at [87]-[90]; BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198 at [32]-[33].

Conclusion

45    For the reasons set out above the appeal should be dismissed with costs. I will make orders accordingly.

Associate:

Dated:    7 March 2018