FEDERAL COURT OF AUSTRALIA

SZKOR v Minister for Immigration and Border Protection [2018] FCA 260

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal fixed in the sum of $3,055.

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

EX TEMPORE REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 8 August 2017, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) of 16 October 2015. The Tribunal had affirmed a decision of a delegate of the respondent Minister (the delegate) to refuse the grant of a Protection (Class XA) visa (protection visa) to the appellants.

2    The first and second appellants are husband and wife. The third appellant, who was born in Australia, is their child. All three appellants are citizens of India. The appellants’ current application for protection visas was made on 4 July 2013. The second and third appellants applied as members of the first appellant’s family, and they made no independent claims for protection.

3    The first and second appellants most recently arrived in Australia in October 2006. All the appellants have previously made unsuccessful protection visa applications.

4    The first and second appellants first applied for a protection visa in November 2006. This was before the commencement of the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) on 24 March 2012. That application was refused, and the Refugee Review Tribunal later affirmed that refusal decision. A subsequent application for judicial review was unsuccessful.

5    The third appellant first applied for a protection visa in October 2012, after the commencement of the complementary protection criterion. He was the sole applicant on this occasion. That application was refused in November 2012, and the Refugee Review Tribunal subsequently affirmed that decision.

6    The current application for a protection visa (by the first appellant on his own behalf and including his wife and son) was made in express reliance upon the complementary protection criterion in s 36(2)(aa) of the Act. It is not in contest that this application was validly made: see SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 (SZGIZ).

7    The current application has also been unsuccessful. The delegate refused the application on 7 August 2014. The appellants applied to the Tribunal for a review of the delegate’s decision on 9 September 2014. On 16 October 2015, the Tribunal affirmed the delegate’s decision to refuse the appellants’ protection visas.

8    As already noted, the appellants applied unsuccessfully to the Federal Circuit Court for judicial review of the Tribunal’s decision. The appellants appeal against the judgment of that Court.

9    As in the Federal Circuit Court, in this Court the appellants have not had legal representation and the first appellant, assisted by an interpreter, represented himself and his wife and son. The respondent Minister appeared by his lawyers.

the parties’ respective positions

10    The appellants’ notice of appeal filed on 25 August 2017 sets out two grounds of appeal:

1.    The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants 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 AAT.

11    The appellants sought to have the judgment of the Federal Circuit Court set aside and the matter remitted to the Tribunal for re-hearing. They sought costs.

12    The appellants did not file any written submissions as required by this Court’s orders of 15 September 2017. At the hearing the first appellant stated that he had nothing further to say in support of ground 1 of the appeal and, in relation to ground 2, he was unable to identify any particular legal or factual error in the decision of the Tribunal. He was unable to say anything further in support of his appeal.

13    In written submissions filed before the hearing, the respondent Minister submitted that the appeal was without merit and should be dismissed, with costs. The Minister submitted that the first ground of appeal appeared to re-agitate the issue raised by ground 3 in the Federal Circuit Court, as discussed below. The Minister submitted that the former s 91R of the Act set out various forms of “significant harm” for the purposes of the Refugees Convention criteria for a protection visa, and that, for the reasons given by the learned primary judge, those criteria were not relevant to the Tribunal proceeding. The Minister submitted that there was no relevant statutory obligation on the Tribunal under s 91R of the Act and the first ground of appeal therefore could not succeed. The Minister submitted that the second ground of appeal was without substance and that the primary judge gave careful consideration to the alleged grounds of judicial review; that he found no basis for them; and that there was no error in this determination. The Minister further submitted that the second ground of appeal was “expressed with the highest order of generality and cannot, without more, support a successful appeal”.

14    In order to assess whether there is any merit in the appellants’ appeal, one must examine the Tribunal’s decision and the reasons for judgment of the Federal Circuit Court.

The Tribunal’s decision

15    After lodging his protection visa application on 4 July 2013, the first appellant provided the first respondent’s Department with a written statement of his claims. As will be seen, the Tribunal referred to this statement, particularly in the course of assessing the first appellant’s credibility.

16    In this statement, the first appellant made claims to the following effect:

(1)    He feared harm on the basis of his political opinion and “active” membership of the Bhartiya Janta Party (BJP).

(2)    There had been conflicts at almost every BJP event due to a sensitive atmosphere between the two opposition parties’ workers during election times. He had taken leadership of a canvassing campaign and had come to the attention of some of the members and activists of the opposition party. During a procession after an election won by the BJP, stones were thrown by the “opposition party’s people”, and “people started rushing to save their lives”, but then the police came and dealt with the situation.

(3)    His business partner had “trapped [him] in [a] financial blunder with the help of [his] political enemies” and his business had collapsed slowly.

(4)    He had been abducted by unknown people for ransom and released after getting money to those people.

(5)    He was attacked when coming home from his office late one night and subsequently taken to hospital. He complained to the police but it was difficult for the police to search for the people who attacked him because he was not sure who they were.

(6)    Six months after that incident, he and the second appellant had “some kind of explosive” thrown at them from another vehicle while they were riding home on a motorcycle. The second appellant was injured a “little”. He understood people were attacking him and his wife “whenever they [got the] chance”. The first appellant and his family members were scared, and he went to live at his father-in-law’s home with the second appellant around 80 kilometres away.

(7)    The first and second appellant moved back to their family home as his father-in-law became scared after “some unknown people” were asking about the first appellant. He was not able to get help from the police because he did not know who was attacking him.

17    In the first appellant’s protection visa application, also referred to by the Tribunal, the first appellant also claimed:

(1)    Narendra Modi was going to contest the federal election on behalf of the BJP and he feared the Congress Party and its allies would target and harm BJP members and activists.

(2)    As a result of staying in Australia for a considerable period, BJP opposition supporters would perceive him as wealthy and target him, and may abduct his child to extort money from him.

18    The appellants attended a Tribunal hearing to give evidence and present arguments on 22 September 2015. Also on 22 September 2015, the appellants' representative provided a written submission to the Tribunal, to which was attached a number of newspaper articles. The submission and the articles concerned the first appellant's claimed fear of extortion upon return to India. On 29 September 2015, the appellants’ representative forwarded a written statement by the first appellant, addressing perceived inconsistencies in his evidence raised by the Tribunal at the hearing.

19    After considering the appellants’ claims and evidence, the Tribunal found that “the [first appellant] was not a witness of truth” and was “not satisfied the [first appellant] has told the truth in relation to critical aspects of his claims”. The Tribunal accepted that the second appellant had not been told very much and was therefore not able to corroborate much of the first appellant’s claims. In so far as the second appellant gave evidence about the incident on the motorcycle, the Tribunal was not satisfied she had told the truth about that incident.

20    In its reasons for decision, the Tribunal specifically noted that, at the hearing, it had raised its concerns with the first appellant that the first appellant’s oral evidence was different to his written statement in relation to a number of critical aspects of his claims, and it had identified where it perceived these differences to arise.

21    The Tribunal explained the reasons for its finding that the first appellant was not a witness of truth as follows.

(1)    When initially questioned by the Tribunal, the first appellant did not mention that he was “handling the office” of the BJP in his area, as he had outlined in his written statement. The Tribunal took into account the first appellant’s post-hearing statement, which addressed this issue, the passage of time; and the “nerves and stress” of the hearing, but did not accept that these matters explained the omission.

(2)    At the hearing, the first appellant told the Tribunal that his father had been involved in the BJP, which was in coalition with the “NDA”, but, when questioned, at first said he did not know what “NDA” stood for, and later indicated it stood for “National Defence Academy”. The Tribunal raised its concerns with the first appellant that country information before it did not list the National Defence Academy as a party that has links to the BJP, and noted that the BJP was involved in an alliance known as the National Democratic Alliance. The Tribunal took into account the first appellant’s explanation in his post-hearing submission that he had made a mistake about the meaning of NDA because he was nervous, but considered this reflected poorly on his credibility.

(3)    The Tribunal raised a concern with the first appellant that his oral evidence regarding his business and business partner was different to his written statement. At the hearing, the first appellant said he did not wish to comment. The Tribunal was not persuaded that the first appellant’s nerves or fear of returning to India, or the passage of time, explained the inconsistency.

(4)    The Tribunal raised a concern with the first appellant that his oral evidence regarding campaigning in an election in 2001 or 2002, stones being thrown during a procession, and being kidnapped in 2004, was “very different” to his written statement. In response, the first appellant told the Tribunal “it had been so long he missed out some parts”. The second appellant told the Tribunal she did not wish to comment. The Tribunal considered that a long time had passed since the first and second appellants had been in India, but was not satisfied this explained the differences, noting they were “more than mere detail”.

(5)    The Tribunal put to the first appellant that information from his interview with the delegate about acid being thrown at him and the second appellant while on a motorcycle was different to the first appellant’s written statement, and different to the first appellant’s oral evidence before the Tribunal. The Tribunal accepted that the first and second appellants had been in Australia a long time, but was not satisfied that the passage of time or nerves explained the differences and considered that they reflected poorly on the first and second appellants’ credibility.

(6)    At the hearing, the Tribunal raised its concern with the first appellant about the delay between the motorcycle incident and the first and second appellant leaving India. The first appellant did not respond at the hearing, but said in his post-hearing written statement that he was seeking “BJP protection”. The Tribunal noted that the first appellant’s written statement made no mention of this and, given the other credibility concerns, the Tribunal was not satisfied the first appellant had told the truth.

22    Given its credibility concerns, the Tribunal:

(1)    did not accept that the first appellant was interested in politics since his childhood or that his father was involved with the BJP or the NDA;

(2)    did not accept that the first appellant was an active member of the BJP or that he handled all activities in his area, or handled the BJP office in his area, or did any work for the BJP;

(3)    did not accept the first appellant helped his father and/or the BJP with campaigning and canvassing or arranged public meetings, or that the first appellant had a leadership role or any role in electoral activities;

(4)    did not accept the first appellant came to the adverse attention of the opposition party or its supporters due to any political activity or imputed political opinion or for any other reason;

(5)    did not accept the first appellant was targeted or injured in a victory procession after an election;

(6)    was prepared to accept the first appellant had his own business in partnership with a friend, but did not accept the first appellant’s business partner “trapped the [first appellant] in a financial blunder with the help of his political enemies or that it was published in the local newspapers or that the business collapsed slowly”;

(7)    did not accept the first appellant was abducted in 2004 or that he had been attacked on his way home from work and taken to hospital;

(8)    did not accept that the first appellant or second appellant were attacked in any way while on a motorcycle; and

(9)    did not accept the first appellant or second appellant were, or are, of any adverse interest to anyone in India.

23    With respect to the first appellant’s claim about Narendra Modi contesting the federal election, the Tribunal noted that the first appellant had told the Tribunal “he does not have any concerns about this”.

24    With respect to the first appellant’s claim that on return to India, he would be considered wealthy and therefore a target for extortion, and the third appellant would be at risk of abduction for this reason, the Tribunal accepted that kidnapping for extortion occurs in India, but did not accept that people returning from Australia would be perceived as wealthy for that reason and were specific targets for extortion, and found the chance of the first appellant or his child being abducted for extortion was remote.

25    Having considered the claims individually and cumulatively, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the first appellant being removed from Australia to India, there was a real risk he will suffer significant harm. The first appellant therefore did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). As a consequence, the Tribunal found that none of the appellants satisfied s 36(2)(b) or (c) on the basis of being a member of the same family unit as a person who satisfies the relevant criterion. 

federal circuit court proceedings

26    In the Federal Circuit Court, the appellants relied upon six grounds of judicial review:

1.    The Administrative Appeals Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the applicant was not a witness of truth, 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.

2.    The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the requirements of the Migration Act.

3.    The applicants satisfy the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

4.    The Tribunal failed to consider an integer of the applicants claim, in failing to consider whether or not a BJP activist in India was at risk of harm from Congress party, and not able to access effective protection.

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

6.    The Tribunal has failed to investigate the claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated on 16 October 2015 was a judicial error.

(Errors in original).

27    In relation to ground 1, the primary judge held that the conclusion reached by the Tribunal as to the first appellant’s lack of credibility and the findings that informed it were reasonably open to the Tribunal. As to the alleged denial of procedural fairness, the primary judge noted that the appellants had not put any evidence before the Court as to what occurred at the Tribunal hearing and the “only evidence of what occurred at the Tribunal hearing is what is in the Tribunal’s decision record”. His Honour held that the Tribunal’s decision record made it clear the Tribunal had put the first and second appellants on notice about its credibility concerns; that the Tribunal had regard to the appellants’ post-hearing written submissions; and that the Tribunal had put to the appellants, pursuant to s 424AA of the Act, information the Tribunal said would be the reason, or part of the reason, for affirming the delegate’s decision. Ground 1 therefore did not reveal jurisdictional error on the part of the Tribunal.

28    In relation to ground 2, the primary judge noted that that the ground contained no particulars, and the first appellant was not able to explain what was meant by the ground in oral submissions to the Court. The primary judge concluded that there was nothing to indicate the Tribunal had failed to consider any of the claims made by the appellants, or any evidence relevant to those claims, and could not see that the Tribunal fell into legal error in the way generally alleged by the appellants in this ground.

29    In relation to ground 3, the primary judge noted that the appellants appeared to be seeking to press advice provided to the Tribunal by the appellants’ then migration agents, and, in particular, advice provided by the “Special Counsel” dated 13 November 2014 about the operation of s 48A of the Act in light of SZGIZ. His Honour noted that “[t]he Tribunal considered the assertion made in that ‘opinion’, that the Tribunal should consider the applicants’ claims to protection under the Refugee Convention criterion, notwithstanding that that criterion had already been considered and refused by a delegate, and by another previously constituted Tribunal”. His Honour further noted that the advice had been drafted before the Full Federal Court’s judgment in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366 (SZVCH) and held that, on this authority, it was only open to the Tribunal to consider the first appellant’s claims against the complementary protection criterion in s 36(2)(aa). The primary judge held that ground 3 was not made out, after noting that the Tribunal had separately considered the situation of the second appellant, and found that she did not satisfy the criteria in s 36(2)(a) or (aa) of the Act; and the situation of the third appellant, and found that he did not satisfy s 36(2)(b) or (c) of the Act.

30    The primary judge rejected ground 4 on the basis that the ground ignored the Tribunal’s finding that the first appellant was not an active member of the BJP and did not do any work for it. The primary judge noted that once the Tribunal had reached that conclusion, based upon findings that were reasonably open to it, it was not necessary for the Tribunal to then proceed to consider whether an active member of the BJP may be at risk of harm in India, and whether he could access state protection.

31    The primary judge rejected ground 5, noting that the first appellant had been unable to explain to the Court what was meant by this ground beyond seeking to take issue with factual findings made by the Tribunal; that no relevant error was discernible; and that the ground appeared to seek impermissible merits review.

32    In relation to ground 6, the primary judge noted that the exact scope of the legal error asserted in this ground was not clear, but if there was an allegation that the Tribunal was under a duty to undertake an investigation into the first appellant’s claims beyond inviting him to a hearing, there was no support for any such allegation. The primary judge noted that there was nothing in the ground, in the material before the Court, or indicated by the appellants, to point to any particular line of enquiry the Tribunal should have, but did not, undertake. His Honour therefore held that ground 6 was not made out.

33    For these reasons, the primary judge therefore dismissed the judicial review application.

Consideration

34    By focussing on s 91R of the Act, it may reasonably be assumed that the first ground of the appellants’ notice of appeal seeks to contest the primary judge’s rejection of the third ground of their judicial review application, as indeed the first respondent submitted. Section 91R to which this ground refers was introduced by the Migration Legislation Amendment Act (No 6) 2001 (Cth), but has since been repealed. Since 18 April 2015, the equivalent provision is s 5J of the Act: see Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Sch 5, item 7. This legislative amendment was after the delegate’s decision and before the Tribunal’s decision. The ground may for present purposes be read as a reference to s 5J, being the current provision of the Act.

35    By s 5J, the Act defines the meaning of the expression a “well-founded fear of persecution”, for the purpose of supporting a claim that a person is a refugee within s 36(2)(a) of the Act. It will be recalled that the third ground of the appellants’ judicial review application complained that the Tribunal erred in failing to consider the application of s 5J, and related s 5H of the Act, and failed to find that the first appellant was a refugee.

36    As the primary judge held, however, this ground was not sustainable. First, the protection visa application with which the Tribunal was concerned relied expressly on the complementary protection criterion in s 36(2)(aa) of the Act. Secondly, it was not open to the Tribunal to consider the protection visa application against the ‘refugee’ criterion in s 36(2)(a) of the Act, the operation of which was informed by ss 5H and 5J (and previously s 91R). Had the Tribunal done so, it would have exceeded its jurisdiction. It was only open to the Tribunal to consider the appellants’ claims against the complementary protection criterion in s 36(2)(aa) (and against the family member provisions in s 36(2)(b) and (c)). This is the effect of the decision of the Full Court of this Court in SZVCH at [42]-[44] and [114]. His Honour’s determination to this effect was not in error. The first ground of the appellants’ appeal must fail.

37    The second ground of the appellants’ appeal, that the primary judge dismissed the appellants’ case without considering the legal and factual errors contained in the Tribunal’s decision, must also be rejected. It should be clear from the foregoing account of the reasons for judgment of the Federal Circuit Court judge that his Honour conscientiously considered and addressed each of the grounds raised on the appellants’ application for judicial review, as well as their submissions in court. There is no error apparent in these reasons.

38    Further, as the foregoing account of the Tribunal’s reasons indicates, there is no discernible jurisdictional error in its decision that might have made that decision liable to be set aside as the appellants have sought.

DIsposition

39    For these reasons, the appeal should be dismissed.

40    The Minister sought to rely on an affidavit of Mark Clive Wiese affirmed on 7 March 2018, in support of his application that the appellants pay his costs of the appeal fixed in the sum of $3,055. The first appellant did not contest the making of such an order.

41    The Court’s power to make an order for costs in a lump sum is to be found in s  43(3)(d) of the Federal Court of Australia Act 1976 (Cth) and in r 40.02(b) of the Federal Court Rules 2011 (Cth) (2011 Rules). The Court has a broad discretion whether or not to make a lump-sum costs order, as is reflected in the authorities. There is also a relevant Practice Note – GPN-COSTS, which contains a section on lump-sum costs orders.

42    As I noted at the hearing, r 40.43 of the 2011 Rules addresses a short form bill in a migration appeal, such as the present proceedings. The effect of this provision is that, if such a proceeding is finalised after a final hearing, the successful party may claim as costs and disbursements of the appeal an amount set out in item 15.1 of Sch 3 to the 2011 Rules. The amount sought by the Minister in this case is significantly less than the amount therein set out. Having regard to this fact and to the contents of Mr Weise’s affidavit, it appears to me that it is appropriate to make the order sought by the Minister.

Associate:

Dated:    7 March 2018