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[2016] FCA 971
Federal Court of Australia
2016-08-16
Kiefel JJ, Moshinsky J
Original judgment source is linked above.
Introduction 1 The applicants for leave to appeal are a husband, wife and child. The husband and wife are nationals of the Republic of India. They arrived in Australia on tourist visas in 2009. The child was born in Australia in 2011. 2 There is a lengthy background to this application, which I will briefly set out. 3 In 2009, the husband lodged an application for a Protection (Class XA) visa. The wife made a dependent application. A delegate of the first respondent (the Minister) refused the application on 7 September 2009. The Refugee Review Tribunal (the Tribunal) affirmed the delegate's refusal decision on 12 January 2010. 4 On 17 May 2010, the Federal Magistrates' Court dismissed an application for judicial review. On 9 August 2010, this Court dismissed an appeal from the Federal Magistrates' Court. On 11 November 2010, the High Court (Gummow and Kiefel JJ) dismissed an application for special leave. 5 As noted above, the child was born in 2011. In 2011, he made an independent application for protection. The husband and wife made dependent claims. On 16 January 2012, a delegate of the Minister refused the child's application. The Tribunal affirmed the refusal on 22 August 2012. 6 On 3 April 2013, the Federal Magistrates' Court dismissed an application for judicial review. On 7 August 2013, this Court dismissed an appeal from the Federal Magistrates' Court. 7 The application with which the present application is concerned was made on 12 August 2013. The substantive application is that of the husband. The wife and child made dependent applications. The husband's application was accompanied by a letter from his solicitors, containing, among other things, contentions about the effect of the decision of the Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (SZGIZ) and the same statement as had accompanied the first (2009) application. 8 It is convenient to note at this point the Minister's submission on the present application that the applicants fall into the group whose position was considered by the Full Court in SZGIZ; those in that group had had their protection visa applications determined before the commencement of the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth), and accordingly on a s 36(2)(a) footing only; the Full Court held in SZGIZ that persons in that group were entitled to submit fresh applications for protection based on the complementary protection criterion in s 36(2)(aa). 9 On 23 July 2014, a delegate of the Minister refused the application which had been made on 12 August 2013. 10 The applicants sought review of the delegate's decision in the Tribunal. I note at this point the Minister's submission on the present application that what was before the Tribunal in the present case was an application for review of a refusal of a protection visa sought on the basis of the complementary protection criteria only. The applicants do not raise an issue about this. 11 On 22 June 2015, the husband and wife, together with a migration agent who was representing them, and an interpreter, attended a hearing before the Tribunal. 12 On 29 June 2015, the Tribunal decided to affirm the decision not to grant the applicants protection visas. In relation to the Tribunal's decision, I note the following: (a) The Tribunal referred to the background of the application, including the decision of the Full Federal Court in SZGIZ. The Tribunal stated that, applying the reasoning in SZGIZ, the Tribunal found that it did not have power to consider the Refugees Convention criterion in s 36(2)(a) of the Migration Act and had proceeded on the basis that it could only consider the applicants' claims under the complementary protection criteria in s 36(2)(aa) of the Act. (b) The Tribunal described the husband's claims as follows. The husband claimed that as a Hindu he "preferred" the Hindu Nationalist Party, the BJP; that the BJP's main rival, the Congress Party (CP), used intermediaries to pressure him for donations "a few times" (these intermediaries were described as some kind of "Muslim mafia group"); that the "Muslim mafia" found out that he had donated money to Hindu extremists; that the "Muslim mafia" ascertained all its information about him from a "Muslim guy from Gujurat" who used to know the wife in school and who "liked her"; and that when the husband married the wife, this "Muslim guy … tried to have revenge on me". The applicant also made other claims relating to the "Muslim mafia" and the "Muslim guy" which it is not necessary to set out for present purposes. (c) The Tribunal referred to the evidence of the husband at the hearing and the evidence he had given on previous occasions. The Tribunal considered there to be inconsistencies between his accounts and said that it gave "some cumulative weight" to this. The Tribunal used the expression "some cumulative weight" on several occasions in relation to inconsistencies or (what it perceived to be) other weaknesses in the applicants' evidence. (d) The Tribunal's reasons refer in several places to questions which the Tribunal asked the applicants during the course of the hearing, and their responses to those questions. (e) The Tribunal found that, with regard to the claims about the "Muslim mafia" and the "Muslim guy", it was not satisfied that they were truthful claims. The Tribunal did not accept that the husband and wife were pursued or harmed or threatened by the man or the "Muslim mafia". The Tribunal did not accept other elements of the husband's evidence. The Tribunal said that, even if the man might once have been (or seen himself as) a disaffected marital rival with regard to the wife, the evidence before the Tribunal was that he had not been heard of for several years and had "possibly" lost interest in the matter and moved on. (f) The Tribunal did not accept that the husband was coerced in any way by the "Muslim mafia" as claimed, or by any CP faction or support group. (g) The Tribunal concluded that it was not satisfied that it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there was a real risk they would suffer significant harm. Accordingly, the Tribunal found that the applicants did not satisfy the criterion set out in s 36(2)(aa) for a protection visa; and it followed that they were unable to satisfy the criteria set out in s 36(2)(b) and (c). 13 On 23 July 2015, the applicants commenced a proceeding in the Federal Circuit Court of Australia seeking judicial review of the Tribunal decision. The application set out two grounds as follows: 1. I applied for PROTECTION VISA second time to department of immigration which was refused. 2. Then I apply to RRT for review of that decision. Which is affirms by tribunal on 29/06/2015. (Errors in original.) 14 On 9 December 2015, consent orders were made by a Registrar of the Federal Circuit Court. These included an order that, pursuant to r 44.11(b) of the Federal Circuit Court Rules 2011, the matter be listed for a 'show cause' hearing under r 44.12 before a judge. The consent orders also made provision for the parties to file written submissions in advance of the hearing. 15 On 20 May 2016, the hearing of the show cause application took place before a judge in the Federal Circuit Court. The applicants were not legally represented at the hearing. The husband appeared in person. The judge ordered that, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules, the application filed 23 July 2015 be dismissed; and that the applicants pay the costs of the Minister fixed in the sum of $3,416. 16 As the decision of the Federal Circuit Court was interlocutory, the applicants need leave to appeal to this Court. 17 On 3 June 2016, the applicants filed an application seeking leave to appeal. The application contained two grounds as follows: 1. The Federal Circuit Court failed to find that the tribunal's decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error. 1. There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1). (Errors in original.) 18 The applicants, who are now represented by a solicitor, have provided an amended draft notice of appeal. This contains the following proposed grounds of appeal: 1. The Court below erred when it held that the procedures of the tribunal were unimpeachable and that the tribunal did not err in its jurisdiction. 2. The Court below erred when it found that application before it was in essence an impermissible application to review the facts. Particulars The Court below failed to elicit inherently flawed forensic procedures of the tribunal, which led to a finding of the appellants having no little or no credibility and a rejection of their claims. (Errors in original.) 19 The issue to be determined is whether leave to appeal should be granted.
Applicable principles 20 The principles applicable to such an application are well established. The Court must consider (a) whether, in all the circumstances, the decision at first instance is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ.
Application of principles to facts of this case 21 The solicitor for the applicants in oral submissions today has advanced two main arguments to impugn the decision of the Tribunal. The first argument is that the Tribunal erred in that, although the wife was present at the hearing, the Tribunal directed its questions mainly to the husband rather than the wife and thus failed to elicit from her potentially relevant evidence which may have supported the applicants' claims. The applicants' solicitor referred to the fact that, although the Tribunal's reasons record that the Tribunal directed some questions to both the husband and the wife (see paragraphs 19 and 21), in the main, as the reasons indicate, the questions were directed to the husband. 22 The applicants' solicitor accepted that this contention was not put to the primary judge below. In these circumstances, it would be difficult for the applicants to establish error on the part of the primary judge on the basis of this contention. In any event, I do not think the contention has any substantive merit. The applicants were represented by their migration agent during the hearing. It was open to the applicants to ask the Tribunal for an opportunity for the wife to present evidence or further evidence on the issues before, or matters raised by, the Tribunal. There is no indication that the applicants sought to do so. In these circumstances, it is difficult to see how the Tribunal can be said to have fallen into error as contended. 23 The second argument advanced today was that the Tribunal had erred in its consideration of the evidence in relation to the "Muslim mafia" and the man referred to in the applicants' claims. It was contended that the Tribunal proceeded on the basis of "guesswork", specifically as to whether certain information was provided by the man to the "Muslim mafia" or vice versa (see paragraphs 14 and 20 of the Tribunal's reasons). 24 Again, it was accepted that this contention was not raised before the primary judge. It therefore faces the same difficulty referred to above. In any event, I do not think there is any substantive merit in this contention. The Tribunal in the relevant paragraphs was referring to apparent inconsistencies in the evidence about these matters. It was open to the Tribunal to treat the material as inconsistent. It is apparent from paragraph 20 that the Tribunal raised the "seeming inconsistency" with the husband at the hearing; therefore the applicants had the opportunity to address this concern regarding the evidence. 25 The applicants also rely on the decision of Gordon J in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25]-[26]. However, I think that the facts of the present case are very different. Here, the inconsistencies in the evidence identified by the Tribunal went to the heart of the applicants' claims. It was open to the Tribunal to assess the evidence in the way that it did (that is, to identify inconsistencies) and rely on this in reaching its findings. 26 The other matters raised in the application for leave to appeal and the draft amended notice of appeal, were not referred to in oral argument. There does not appear to be any basis, having regard to these matters, to think that any appeal from the orders of the primary judge would have a prospect of success. 27 For these reasons, the proposed appeal lacks merit, and the application for leave to appeal should be dismissed on this basis. There is no apparent reason why costs should not follow the event. There will therefore be an order that the applicants pay the Minister's costs of the application for leave to appeal. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.
BMI15
Minister for Immigration and Border Protection