SZOIG v Minister for Immigration and Border Protection

2.1 The visa application and the decision of the delegate 7 The applicants applied for protection visas on 17 August 2009. Those applications were refused on 25 November 2009. 8 Subsequently, the Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (SZGIZ) delivered its decision. In SZGIZ, the Full Court held that the bar imposed by s 48A of the Act upon a non-citizen making a further application for a protection visa while in the migration zone did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s 36(2)(a) before the enactment of s 36(2)(aa) from making a further application on the basis of the complementary protection provision in s 36(2)(aa) following its enactment. Accordingly, on 4 September 2013 the applicants made a second application for protection visas. 9 The delegate refused the second protection visa application on 18 July 2014.

2.2 The Tribunal Decision 10 The applicants sought merits review of the second decision of the delegate on 12 August 2014. On 8 July 2015, the applicants appeared before the Tribunal to give evidence and present argument. In line with the decision in SZGIZ, the Tribunal's decision was confined to a consideration of the applicants' complementary protection claims. 11 On 16 July 2015, the Tribunal affirmed the delegate's decision not to grant the applicants protection visas, finding that it was not satisfied that the applicants are persons in respect of whom Australia has complementary protection obligations under s 36(2)(aa) of the Act. This was despite accepting that the applicants were nationals of India as claimed, that they were Sikhs, that they were of Lubana ethnicity and that their home region in India was the area claimed. 12 The Tribunal's reasons were accurately summarised by the Minister's written submissions in the Federal Circuit Court which were adopted by the primary judge as follows (at [8]): 9. The AAT did not accept the applicant's evidence for reason that it was contrary to available country information. i. The AAT accepted it was plausible that the applicant was subject to some harm prior to the cessation of the secessionist insurgency in 1993. However the AAT found that country information indicated that circumstances in the Punjab had changed substantially such that the applicants would not be at real risk of significant harm (see [16]). ii. Having regard to country information, the AAT was not satisfied that the applicants have a real risk of significant harm for reason of their Labuna [sic] ethnicity (see [20]). Further, on the basis of country information, the AAT was not satisfied that the applicants have a real risk of significant harm in [their home region] for reason of their Sikh religion or Lubana ethnicity (see [29]). iii. The AAT found that the applicant's recollection of political claims was vague (see [31]). In any event the AAT concluded that based on country information, it was not satisfied that the applicant had any problems practising his religion, being the source of his alleged political activities (see [32]). iv. Having regard to country information and the applicant's evidence about his political activities, the AAT was not satisfied that the applicant was anything more than a mere supporter of the Lok Dal party in his home village …(see [39]). Based on country information the AAT did not accept that the applicant did anything for Lok Dal that would cause him to be of any ongoing adverse interest (see [39]). Accordingly the AAT did not accept that the applicant was of ongoing adverse interest for any political reason and rejected any related claims including that his truck was damaged (see [41]). 10. The AAT also found that the applicant had a lack of knowledge about politics in [their home region] and that this was indicative of a lack of real interest in politics such that he was not at a real risk of harm for his actual or imputed political opinion (see [43] - [44]). 11. The AAT considered the applicant's health condition and that of his wife. i. The AAT found that there was no material evidence to suggest a deliberate withholding of medical treatment in India (see [49]). The AAT found that any lack of sophistication in health services was not intentional discrimination (see [49]). The AAT was satisfied that the applicants would be able to access medical assistance which is usually made available to persons in India (See [50]). ii. In relation to conduct of the hearing, the AAT indicated to the applicant that the hearing could be re-scheduled if the applicant felt unwell however this was refused by the applicant (see [14]). 12. The AAT considered whether the applicants could safely and reasonably relocate within India (from [55]). i. The AAT did not accept that the applicant was of ongoing adverse interest to anyone in India or that the applicants or their children were threatened when the children returned to their home village in 2014 (see [56]). The AAT was satisfied that the applicants would be able to access a relocation place even in [their home region] (see [56]). The AAT found that the applicants could safely relocate in India and not have a real risk of significant harm (see [56]). Having regard to country information the AAT was not satisfied that any such relocation would cause the applicants to experience a lack of food, clean water, shelter or health care (see [58]). Further the AAT was not satisfied that language, education or employment would be a barrier for relocation of the applicants (see [61] - [63]). The AAT was not satisfied that it would be unreasonable for the applicants to relocate within India should they not wish to return to their home village (see [63]). 13 In essence, the Tribunal rejected the applicants' claims based upon country information, being general information from Australian government agencies and other third party sources independent of the applicants about circumstances in India relevant to their claims, and perceived deficiencies in their evidence in relation to certain of their claims.

2.3 The Federal Circuit Court Decision 14 On 11 August 2015, the applicants filed an application in the Federal Circuit Court seeking judicial review of the Tribunal decision. 15 On 17 September 2015, the first applicant attended a directions hearing before a Registrar of the Federal Circuit Court. On that date, the applicants were given leave to file and serve an amended application, together with any further evidence by way of affidavit by 24 September 2015 and submissions in support by 25 September 2015. No documents were filed by the applicants pursuant to these orders. 16 At the request of the first respondent, the matter was listed for a show hearing on 28 October 2015 pursuant to r 44.12 of the FCC Rules. Under r 44.12, at a show cause hearing the Court may dismiss an application if it is not satisfied that the applicant has raised an arguable case for the relief which she or he claims but, if it is satisfied that there is an arguable case, may make an order requiring the respondent to "show cause" or demonstrate why the relief should not be granted. 17 On 26 October 2015, the show cause hearing was adjourned at the request of the first applicant with the first respondent's consent to 3 February 2016 due to the first applicant's medical condition. 18 On 3 February 2016, the primary judge dismissed the application for judicial review pursuant to r 44.12(1)(a) of the FCC Rules. The primary judge set out the applicants' grounds of review at [11] of the reasons: 1. 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 applicants understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicants 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 Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon their return to India. 19 As ground 1 indicates, s 424A(1) of the Act requires the Tribunal to give an applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming (relevantly) the delegate's decision, to explain why it is relevant, and to invite the applicant to comment on or respond to the information. That requirement does not however extend among other things to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant is a member (s 424A(3)(a)). 20 Section 36(2A) of the Act, which is referred to in ground 2, defines significant harm for the purposes of the complementary protection provision. 21 The primary judge found that neither ground gave rise to an arguable case for the relief claimed.

3.1 Relevant principles 22 Leave to appeal from the decision of the Federal Circuit Court is necessary under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) because a decision summarily dismissing an application under r 44.12(1)(a) is interlocutory in nature: see r 44.12(2) of the FCC Rules. 23 In deciding whether or not to grant leave to appeal, relevant factors include whether the decision of the Federal Circuit Court is attended by sufficient doubt to warrant reconsideration and, if it is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In this regard, the power exercised by the Federal Circuit Court in dismissing the application was discretionary. As such, it would be necessary for the applicant to demonstrate that the primary judge made an error of the kind identified in House v R (1936) 55 CLR 499 at 505 in the exercise of discretion, namely that the primary judge acted upon a wrong principle, was guided by extraneous or irrelevant matters, ignored relevant matters, made a mistake of fact, or that the discretionary decision is unreasonable or plainly unjust.

3.2 Grounds 2 and 3: alleged failure by the primary judge to consider legal and factual errors by the Tribunal 24 It is convenient to deal first with grounds 2 and 3 of the draft notice of appeal. 25 I do not consider that there is any merit in ground 2 alleging that the primary judge failed to consider legal and factual errors in the Tribunal's decision; nor, to the extent if any that it has any different meaning, ground 3 that the primary judge failed to consider that the Tribunal fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal. 26 While these grounds did not identify any specific findings by the Tribunal which the applicant sought to challenge, at the hearing the applicants submitted that the Tribunal did not give proper consideration to the first applicant's heart condition. The applicants also raised events that had occurred in their home region after the Tribunal's decision. 27 As to the last of these points, the first respondent correctly submitted that the Tribunal cannot be found to have erred in failing to take into account events which postdate its decision. The task of the Tribunal is to make the correct and preferable decision on evidence as at the date of its decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 298-299[35]-[38], 304[60] (Kirby J). While the first respondent also correctly accepted that in some cases, subsequent events might be a ground on which an application for Ministerial intervention under s 417 of the Act might be sought, that is not a matter which is before this Court or was before the Federal Circuit Court. 28 As to the balance of the grounds, first, it was not the function of the Court below to consider whether or not it agrees on the evidence before the Tribunal with the factual findings made by the Tribunal within the scope of its jurisdiction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). As the primary judge explained at [12] of her reasons: …the role of this Court was very different to that of the AAT. I explained to the Applicant that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether or not the decision of the AAT was made according to law or was affected by jurisdictional error. I explained to the Applicant that a disagreement with the findings and conclusions of the AAT rarely, by itself, establishes such a mistake. 29 In this regard, the applicants correctly accepted that their concern with the Tribunal's findings as to the availability of medical treatment in India for the first applicant's heart condition represented one view that might be taken of the evidence, but that the Tribunal's findings represented another view that might be taken. In other words, the concern was ultimately a disagreement with the findings of fact made by the Tribunal. That is not sufficient to give rise to jurisdictional error. 30 Secondly, a consideration of the reasons by the primary judge reveals that her Honour gave careful and thorough consideration to the question of whether the Tribunal's decision revealed a jurisdictional error. 31 Thus, in the context of considering allegation of a failure to comply with s 424A of the Act, the primary judge found (at [15]-[21]) as follows. (1) The first applicant was unable to identify any information which he said should have been given to him by the Tribunal for comment in accordance with s 424A and informed the Court that the grounds had been written for him by a stranger who he met in the library. (2) A fair reading of the Tribunal's decision reveals that the information relied upon by it in affirming the decision under review was country information about a class of persons of which the applicant claimed to be a member. However such information is specifically excluded from the operation of s 424A(1) of the Act by s 424A(3)(a), as earlier explained, and the Tribunal was not therefore required to give the particulars. (3) The choice of country information to which the Tribunal had regard is a matter for the Tribunal, citing NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29. (4) The Tribunal's disbelief of the applicants' evidence was not information which attracted the obligation in s 424A of the Act; information for the purposes of that provision does not include the Tribunal's subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in the applicants' evidence (citing SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; and VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at [14] per Finn and Stone JJ). (5) The Tribunal's findings would appear to be open to it on the evidence and material before it for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (that is, they are findings squarely within the Tribunal's exclusive fact finding function), citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J. 32 The principles to which the primary judge refers at paragraphs (3), (4) and (5) above are well established and supported by the authorities cited by her Honour. Nor am I able to see any error in the primary judge's application of those principles or otherwise in her reasons in dealing with this ground of the judicial review application. To the contrary, I consider that her Honour was plainly correct in the reasons which she gave for holding that ground 1 of the application for judicial review did not raise an arguable case for the relief claimed. As such, I do not consider that there is an arguable case of error with respect to these findings. 33 I also agree with the primary judge for the reasons which she gave at [25]-[27] that ground 2 of the application for judicial review did not raise an arguable case for the relief claimed. Specifically: (1) It is evident from the Tribunal's reasons for decision that the Tribunal dealt expressly with the question of whether the first applicant would suffer significant harm if returned to India as defined in s 36(2A) of the Act for the purposes of assessing the complementary protection claim, namely, whether the first applicant would be arbitrarily deprived of his life, whether the death penalty would be carried out on him, whether he would be subjected to torture, whether he would be subjected to cruel or inhuman treatment or punishment, or whether he would be subjected to degrading treatment or punishment. (2) It is well established in any event that the Tribunal is not required to accept uncritically any and all claims made by an applicant: se e.g. Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 (Kirby J); and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 (Wilcox J). (3) Nor does the Tribunal have to have rebutting evidence before holding the particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 (Heerey J). 34 In addition, the Tribunal correctly identified the relevant risk threshold at [11] of its reasons, quoting Lander and Gordon JJ in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) as stating at [246] that "[i]n our opinion, the [real risk] test is as for s.36(2)(a) [of the Act] … is there a real chance that SZQRB will suffer significant harm… were [she or] he were to return to [the receiving country]": see also SZQRB at [296]-[297] (Besanko and Jagot JJ) and [342] (Flick J).

3.3 Ground 1: whether the primary judge failed to consider that the Tribunal acted in a manifestly unreasonable way and ignored the aspect of persecution and harm in terms of s 91R of the Act 35 Nor do I consider that ground 1 of the draft notice of appeal has any reasonable prospects of success. First, s 91R of the Act was repealed by Part 2 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) with effect from 18 April 2015, several months before the Tribunal's decision. 36 Further, as the first respondent submitted, former s 91R of the Act had no relevance to a complementary protection claim in any event. That section was concerned with the assessment of claims to fear persecution for a Refugees Convention reason for the purposes of assessing a claim for protection as a refugee under s 36(2)(a) of the Act. As earlier explained, the decision of the Tribunal relevant to these proceedings was concerned only with the applicants' claims for complementary protection under s 36(2)(aa). The question of whether the applicants feared persecution for a Refugees Convention reason is not relevant to a consideration of those claims. It also follows for the same reason that the applicants' submission that the Tribunal erred in failing to consider whether they feared persecution is misconceived. 37 Secondly, no finding by the Tribunal is identified as unreasonable and I consider that the Tribunal's findings were open on the evidence and material before it for the reasons already given. 38 In the circumstances, therefore, I agree with the primary judge that ultimately the applicants' complaints take issue with the merits of the decision by the Tribunal which is beyond the jurisdiction of a court on judicial review to address for the reasons I have earlier given.

4. COSTS 39 At the hearing the first respondent made submissions in support of his application to be paid his legal costs in the event that the application for leave to appeal was dismissed. The first respondent submitted that there was no reason why the ordinary rule that costs follow the event should not apply, that is, that in general a successful party is entitled to costs as compensation for the legal costs incurred by her or him in the litigation. While the award of costs is in the discretion of the Court under s 43(2) of the FCA Act, the ordinary rule is well established: Ruddock v Vadarlis [2001] FCA 1865; (2001) 115 FCR 229 at 237 [16] (Black CJ and French J). 40 The applicants submitted that no order should be made requiring them to pay any costs if their application for leave to appeal was dismissed on the ground that they did not have the money to pay those costs. However, while I understand the applicants' difficulties, I accept the first respondent's submission that the fact that an unsuccessful litigant does not have the money to pay the other party's costs is not generally a reason for depriving a successful party of her or his costs including in the migration context: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [50]-[51] (Allsop CJ, Kenny and Griffiths JJ); WAFU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1238 at [35]-[40] (French J); AZK15 v Minister for Immigration and Border Protection [2015] FCA 1444 at [67] (Jagot J); MZXRN v Minister for Immigration and Citizenship [2008] FCA 1622 at [18] (Gray J). 41 In the circumstances, I consider that the ordinary rule should apply and the first respondent should be awarded his costs of the application for leave to appeal.

5. CONCLUSION 42 For the reasons set out above, I do not consider that the decision of the primary judge is attended with sufficient doubt to warrant the grant of leave to appeal; nor, as I do not consider that the grounds of appeal are reasonably arguable, that substantial injustice would be suffered if leave were refused. I consider that the application for leave to appeal must be dismissed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.