BIM15 v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellants pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 This is an appeal against a judgment of the Federal Circuit Court given on 24 February 2016. The Federal Circuit Court dismissed the appellants' application for judicial review of the decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent to refuse the appellants' protection visas. 2 The first two appellants are wife and husband, respectively. The third appellant is the infant child of the first two appellants who was born in Australia. 3 The appellants are citizens of India. The first and second appellants arrived in Australia in August 2008. They lodged applications for protection visas some five years later in November 2013. The Minister's delegate refused the grant of the visas on 6 August 2014. 4 Before the Tribunal, the appellants relied principally upon the claims for protection made by the first appellant. She claimed that she had borrowed money from her parents and her husband's parents so that she could study in Australia but had not paid the money back. She claimed that she had been harassed and threatened by both families and feared that she and her son would be harmed as a result. 5 The Tribunal included as follows: 42. Having considered all of the evidence before me, I make no findings as to whether [BIM15] previously borrowed money from various relatives and in-laws, or as to whether she still owes them all or any of it. The issue here is whether she faces a real chance of serious harm for reasons of this loan and the actions or inaction of any of the parties involved. Overall, I am not satisfied that [BIM15] is a truthful and reliable witness in this matter. I find on the evidence before me that her claims about her husband, son [BIO15] and herself being harassed and threatened with serious harm by their respective families are entirely concocted. In view of [BIM15's] overwhelmingly unreliable performance as a witness in relation to this issue, I give no weight to [BIN15's] evidence. As I do not accept that [BIM15's] substantive claims about the loan and its lenders are at all credible, I give no weight to the material in the adviser's submissions: I specifically give no weight to the letter from [BIN15]; it does not help in any way to overcome the problems and deficiencies in [BIM15's] evidence. I do not accept on the evidence before me that [BIO15] faces a real chance of being kidnapped or ransomed or in any other way seriously harmed in relation to [BIM15's] claimed problems with the loan. 43. As an overall lack of credibility is the critical issue here, it is not necessary to make a finding as to Convention nexus. However, for completeness, I find that the claims in this case about the unpaid loan and the relevant agents of persecution, direct and indirect, are not Convention-related claims. 6 The first appellant made various other claims, including that she fears harm in India as a woman and because she has a pigmentation condition on her hands. The appellants also made claims specifically in relation to the third appellant, including that they feared he would be persecuted in India because he was born in Australia. 7 The Tribunal concluded: 50. Having considered all of the evidence before me separately and cumulatively, I am not satisfied that the applicants face a real chance of Convention-related persecution in India in the reasonably foreseeable future. I am not satisfied that their claimed fear of Convention-related persecution in India is well founded. They are not refugees. 51. For the reasons given above, I find that the applicants do not satisfy the criterion set out in s.36(2)(a). 8 The Tribunal then considered the complementary protection criteria but was not satisfied that Australia owed the appellants protection obligations, pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth). 9 Before the Federal Circuit Court, the appellants raised four grounds of review. 10 The first ground was that the Tribunal failed to comply with the requirements of ss 424A and 424AA of the Migration Act to give the appellants particulars of information it considered would be part of the reason for affirming the decision under review. The ground was not particularised, either in writing or orally at the hearing. The primary judge was not satisfied that there was anything further the Tribunal was required to do to comply with its statutory obligations. 11 In their second ground of review, the appellants claimed that the Tribunal's decision was unjust and made without taking into account the full gravity of the appellants' circumstances and the consequences of their claims and, further, the Tribunal did not consider that the first appellant had been under immense and intimidating pressure from the lenders. The primary judge considered that the ground was an invitation to undertake a merits review based on the appellants' dissatisfaction with the outcome of the Tribunal's decision. Her Honour said that it was not the Court's role to engage in a merits review. Her Honour concluded that, in any event, the Tribunal did not ignore or overlook the appellants' claims, including that the first appellant was stressed and scared. 12 The appellants' third ground of review was that the appellants had been denied procedural fairness by the Tribunal reaching the adverse conclusions that certain aspects of the first appellant's claims were implausible, those conclusions not being obviously open on the known material, without giving the appellants the opportunity to be heard in respect of those matters. The primary judge considered that ground three was essentially an objection about the outcome of the application made to the Tribunal. Her Honour said that the credibility findings and the basis for them were expressly explained in the Tribunal's reasons. The reasons demonstrated that the appellants were given the opportunity to respond to questioning or clarify answers. Her Honour accepted that the third ground was essentially a challenge to the Tribunal's assessment of the first appellant's credibility, but that assessment could not be reviewed by the Court. 13 The appellants' fourth ground alleged that the Tribunal had failed to investigate the appellants' claims, especially the grounds of persecution in India. The ground also asserted that the Tribunal's decision was affected by actual bias. The primary judge considered that it is not the Tribunal's function to undertake an investigative inquiry on behalf of the applicant. Her Honour said that the Tribunal does not have a duty to inquire and it was for the appellants to substantiate their case before the Tribunal. Her Honour also noted that there was no particularisation about what inquiry ought to have been made. Her Honour also held that the allegation of actual bias was entirely without foundation. Her Honour dismissed the proceeding with costs. 14 Before this Court, the notice of appeal contains the following grounds: 1. The Hon. Judge failed to consider that the second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicants clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. Particular The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act. 2. The Federal Circuit court 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. 15 The first appellant appeared at the hearing of the appeal. She sought leave to represent the second and third appellants and that leave was granted. She made oral submissions with the assistance of an interpreter. She was invited to address and explain the grounds set out in the notice of appeal, but did not do so. Instead she repeated her claims made before the Tribunal that she feels scared for her life and for the life of her child at the hands of her family and her husband's family if she returns to India. She also said that the Tribunal had not undertaken any investigation of her claims and that it should have done so. 16 The first ground set out in the appellants' notice of appeal is essentially the same as the first ground before the Federal Circuit Court. It remains entirely unparticularised: see SZSHM v Minister for Immigration and Border Protection [2014] FCA 213 at [8] (Rares J). The Tribunal's decision contains extensive findings concerning the first appellant's credibility due to inconsistencies in her evidence. To the extent that the appellants may be complaining that they should have been given information about the Tribunal's views about credibility, that complaint is misconceived. The "information" within ss 424A and 424AA does not include the Tribunal's disbelief of evidence arising from inconsistencies within that evidence, nor the Tribunal's view that the evidence fails to disclose a Convention nexus, nor the Tribunal's subjective appraisals, thought processes or determinations, nor the Tribunal's identification of gaps, defects or lack of detail or specificity in the evidence: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). The first ground must be rejected. 17 There is no substance in the second ground in the appellants' notice of appeal. The Tribunal's decision was entirely open to it upon its rejection of the first appellant's credibility and conclusion that the claimed fear of persecution at the hands of her family and her husband's family was not for a Convention reason. The Tribunal was also entitled to conclude that it was not satisfied that the remainder of the claims were established on the evidence before it. The Tribunal's decision was not manifestly unreasonable, nor did it ignore any aspect of s 91R (now repealed) of the Migration Act: see AAX15 v Minister for Immigration and Border Protection [2015] FCA 1206 at [18] (Griffiths J). 18 The appellant relied upon the claims that she had made before the Tribunal in her oral submissions in the appeal. However, the Court has no power to conduct a merits review of the Tribunal's decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). 19 The first appellant also submitted that the Tribunal ought to have conducted its own investigation of the appellants' claims. However, it is clearly established that the Tribunal has no obligation to conduct an investigation of an applicant's claims, except in some rare circumstances, which are not present in this case: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ). Therefore, that ground cannot succeed. 20 The appellants have not established any error in the judgment of the Federal Circuit Court, therefore, the appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.