SZQDR v Minister for Immigration and Border Protection

Summary of background facts 4 The appellant is a 32 year old man from India. He arrived in Australia on 28 July 2010 on a sub-class 456 Business (Short Stay) visa. He initially applied for a protection visa on 7 September 2010, claiming to be a refugee on the basis that he suffered harm as a result of political involvement and also because of his sister's marriage. He was invited to attend an interview with a delegate at the time but did not do so. The application was refused on 18 November 2010. The applicant then lodged an application for review to the Refugee Review Tribunal (the Tribunal). The decision of the delegate was affirmed by the Tribunal on 17 March 2011. The appellant then lodged an application for review of the Tribunal's decision to the (then) Federal Magistrates Court, which dismissed the application on 14 September 2011. An appeal was lodged to the Federal Court; this was dismissed on 15 December 2011 (SZQDR v Minister for Immigration & Anor [2011] FCA 1433). 5 On 24 March 2012, the Act was amended to include a new criterion for a protection visa, being the complementary protection ground in ss 36(2)(aa) of the Act. On 5 December 2013 (and following the Full Court's decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235), the appellant lodged a further application for a protection visa on the basis of the complementary protection criterion. The Minister's delegate refused to grant the visa on 13 May 2014. The appellant lodged an application with the Tribunal for review of that decision. On 5 March 2015, the Tribunal affirmed the delegate's decision. 6 According to the protection visa application forms lodged on 5 December 2013: (a) the appellant was born in Valiaveli, Kerala. He speaks, reads and writes Malayalam and English. His religion is Latin Catholic; (b) he had 10 years of education in India; (c) after school, he worked in India doing labouring jobs, he also spent a significant time working in Dubai. He was in the UAE for work as a labourer on three occasions: 12 July 2003 to 25 December 2005; 15 September 2007 to 1 May 2008; 14 July 2008 to 24 December 2009 (the form also refers to December 2008 but this appears to be an error); and (d) he left India legally on 27 July 2010, using his own passport and arrived in Australia on 28 July 2010. 7 The appellant's claims are set out in [3] of the primary judge's reasons: 3. The applicant's claims in respect of the new criterion were almost identical to those raised in his original protection visa application. They are set out at [17] of the Tribunal's reasons: [Why he left India] I left India because of a fear of persecution. There was enmity against me after my sister got married to my friend. After the wedding people came to my house and asked the whereabouts me and [Mr X] and then ransacked the house, broke the windows and doors. I was attacked one night when going home from visiting my mother in hospital and was rescued by some security guards. I was admitted to a nursing home for treatment. They were determined to kill me because I allowed my sister marriage with [Mr X] who is their main enemy. I also wanted to join the Congress Party to gain protection from them. The CPI learned of this and took it seriously. [Has he experienced harm in India] I was attacked by the CPI when going from visiting my mother in hospital. I was admitted to nursing home for treatment but left when I realised my attackers were the same people who had attacked my mother. [What he fears may happen to him if he goes back to India] I fear of serious persecution if I go back to India. [Who do you fear may harm/mistreat you if you go back?] CPI members will kill me. [Why do you think this will happen to you if you go back?] Because my sister got married with [Mr X] and I became a member of the Congress Party. [Do you think the authorities of the country can and will protect you if you go back?] We are a Christian minority in India and there was enmity against [Mr X] with the police and CPI. 8 In addition, he also claimed for the first time that he feared harm as a Christian. The Tribunal's reasons summarised 9 The Tribunal had significant concerns about the appellant's credibility. It did not find the appellant to be a credible, truthful, or reliable witness in relation to matters central to, and related to, his claims. It was also concerned about his various return visits to India and his delay in leaving India. The following matters were noted by the Tribunal (at [28] to [43]) as undermining the appellant's credibility. (a) The appellant had claimed to have received death threats after the attack on his family home (from about February 2006). It transpired during the hearing that he lived at the family home for 17 to 18 months from December 2005 to July/August 2010; for a period of two to three months from May to July 2008, and then for a period of five to six months from December 2009 to April/May 2010. The appellant claimed to move back to the family home despite the death threats because he had nowhere else to go. The Tribunal noted (at [31]) that the appellant's evidence was that he had occasionally stayed at other places. The Tribunal found this evidence to be contradictory. (b) The Tribunal also found that the appellant continued to return to India after he was in fear and had gone to work in Dubai. The appellant advanced a number of reasons, such as his shoulder problems and that his father was sick, but the Tribunal considered (at [32]) that if the appellant was genuinely in fear, he would not have returned and stayed in the family home for such long periods of time, especially considering that the attackers knew where he had lived. (c) The appellant claimed that despite receiving a death threat when he was in Dubai and the attackers attending his house in his absence and threatening to kill him again, he was not harmed when he was back living at the family home because, according to the appellant, "they were looking for the right time". The Tribunal considered that if people sought to harm the appellant, they had plenty of opportunity. (d) The appellant had initially claimed that there had been no problems with attacks since 2012, but then he claimed that there were no problems since 2010, and then later still he claimed the last attack occurred in May/June 2007. The appellant could not describe these differences and the Tribunal stated (at [35]) that he would recall when he last had problems if they had in fact occurred. (e) The appellant claimed that CPM's problem (both acronyms CPM and CPI appear to refer to the Communist Party of India (Marxist)) with his brother-in-law was because the family belonged to the Congress Party and the brother-in-law's brother had killed a police officer 20 years ago when CPM was in power. The Tribunal found (at [37]) that this did not make sense as CPM had over 20 years to get at the appellant's brother-in-law and also that the brother-in-law had spent over one year (from January 2006 to late 2007) living in the appellant's family home after the brother-in-law's marriage to the appellant's sister. The appellant claimed his brother-in-law could not be hurt because the Congress Party was in power and despite the Congress Party losing power, the CPM could not come and kill the brother-in-law straight away. The Tribunal considered the appellant's evidence to be changing. (f) The appellant had made claims in his first protection visa application and first Tribunal hearing that he was a member of the Congress Party. However, at interview, the appellant claimed he did not have a party and had no affiliation with the Congress Party. The Tribunal produced a letter which the appellant had provided to the Tribunal on his first protection visa application, which indicated that he had joined the Congress Party. The appellant claimed that he had told the person who assisted him in completing the application form that he was just sticking up some posters for the party. The appellant subsequently admitted that the supporting letter provided to the first Tribunal was false. (g) The Tribunal was concerned with inconsistencies in the appellant's evidence, including his omission to mention that there was a threat before the actual attack on the house and the actual details of when the appellant was attacked personally. (h) The Tribunal found it difficult to accept the appellant's response to the Tribunal's concern of his delay in leaving India and coming to Australia was because the appellant did not know how to come to Australia. 10 The Tribunal was satisfied that the appellant's first language was not English, however that did not explain the inconsistencies presented by the evidence in his application form, given that he said he could understand English and that he had spoken English at the hearing on a number of occasions. Further, the Tribunal found (at [45]) that the appellant had given contradictory evidence about whether or not he knew the contents of his application form. 11 At [52] of its statement of decision and reasons, the Tribunal concluded that "the applicant is not a witness of truth and the applicant has fabricated an account of events upon which he has based his protection claim". At [53], it stated that, on the basis of its adverse credibility finding, it did not accept that: … the marriage between the applicant's sister and his brother-in-law caused any difficulties; that anyone has threatened to harm the applicant's sister and his brother-in-law caused any difficulties; that anyone has threatened to harm the applicant, or has attacked the applicant's home, his relatives, or the applicant (nor that he has memory problems for this reason); that anyone has sought to cause harm to the applicant while he was in India,, or since he has been in Australia; that the applicant's claims about his brother-in-law and his family are true; that his mother was hospitalised because she was concerned about the applicant's problems or for any reasons relating to the applicant's claims; that the applicant came to Australia because of fear of persecution; or that he has ever had fear of harm in India. Further the Tribunal does not accept that the applicant has assisted or was a member of the Congress Party, or that members of the CPI/CPM have ever sought to harm him, or that he has ever had problems for political reasons … 12 As to the appellant's new claim to fear harm on the basis of his Christianity, the Tribunal was prepared to accept that the appellant was a Christian and that he attended church in Australia, and that he would attend church on his return. However, the Tribunal found (at [56]) the claimed fears appeared "speculative" and the Tribunal was not satisfied they were genuine. 13 The Tribunal rejected the appellant's claim for complementary protection under s 36(2)(aa) of the Act. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there was a real risk that he would suffer significant harm. Although the appellant made no claim to be entitled to a protection visa as a person having the status of a refugee, the Tribunal added that, in light of its adverse credibility findings, it was not satisfied that the appellant would meet that criterion (at [63]).

The FCCA proceeding 14 The appellant sought judicial review of the Tribunal's decision in the FCCA under s 476 of the Act. He raised three grounds of judicial review. An additional ground was raised by him at the hearing, namely that the interpreter did not express his real reasons and did not interpret properly. This was rejected by the primary judge and nothing more needs to be said about it because no appeal is made in relation to that rejection. 15 The first ground of judicial review was that the Tribunal committed jurisdictional error by failing to address the appellant's claim in the way it was made. This was particularised as the appellant stating in his protection visa application that he left India because of fear of persecution and there was enmity against him after his sister got married to a friend, the appellant being attacked by the CPM after visiting his mother in hospital and he being at risk of harm in India from the CPM and not being able to access effective protection. 16 The second ground of review below claimed that the Tribunal had no jurisdiction to make its decision because it was not arrived at in accordance with the provisions of the Act. 17 The third ground of review below was that the Tribunal's decision was unjust and made without taking into account the full gravity of the appellant's circumstances and consequence of his claims. This ground was particularised as the Tribunal having not considered whether the appellant had been under immense and intimidating pressure from the CPM. 18 The primary judge rejected all three grounds. As to ground 1, the primary judge found (at [13] to [16]) that the Tribunal expressly considered the appellant's claim in the way it was made. This was apparent from the Tribunal's Decision Record at [36] to [38], [42] and [52] to [53]. The primary judge found (at [16]) that the allegation did not amount to an allegation of jurisdictional error, "but only represents a disagreement with the factual conclusions made by the tribunal". The primary judge found that he had no jurisdiction to interfere with the Tribunal's decision on that basis. 19 As to ground 2, the primary judge rejected it (at [17]) on the basis that the ground "does not have any meaning without any particulars". As formulated, the primary judge found that it did nothing to advance the appellant's case. 20 Ground 3 was rejected by the primary judge on the basis that, merely because the Tribunal did not accept the appellant's claims, did not constitute jurisdictional error but, rather, was an impermissible challenge to the merits of the Tribunal's decision.

The appeal 21 It is convenient to set out in full the two grounds of appeal in the notice of appeal (without alteration): 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 decision was unjust and made without taking into account the full gravity of applicant circumstances and consequence of claims. The Tribunal did not consider the applicant who had been under immense and intimidation pressure from CPM. 22 For the following reasons, both grounds of appeal must be rejected and the appeal dismissed. Ground 1 23 The first ground was not raised in the proceeding below. At the hearing of 17 May 2016, the appellant sought leave to rely on the new ground. The appellant represented himself and was assisted by an interpreter. It might be noted that, contrary to directions which were made on 23 March 2016, he failed to file and serve an outline of written submissions in advance of the hearing. At the hearing, the appellant made no submissions in support of the two grounds of appeal but he explained that he had not raised the first ground of appeal previously because he was not legally represented and his education was limited. 24 In Francuziak v Minister for Justice [2015] FCAFC 162; 329 ALR 268, the Full Court discussed the requirement for leave in such a case at [11]: On one view, the arguments now sought to be raised on appeal were arguments that could and should have been put to the primary judge. Normally a party is bound by the manner in which the case has been conducted at first instance. An appellate Court may allow a party to rely upon an argument not previously relied upon, but leave to do so is required, and leave will generally only be granted where it is "expedient in the interests of justice to do so": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ. "The court must be satisfied that allowing a new point to be argued would work no injustice to the other party": Summers v Repatriation Commission [2015] FCAFC 36 at [94], (2015) 145 ALD 30 at 57. 25 In circumstances where the appellant was unrepresented, both below and in the appeal, and where the Minister pointed to no prejudice, I considered that it was expedient and in the interests of justice that leave be granted to enable the appellant to rely upon the first ground of appeal. 26 I will now consider and determine both grounds of appeal in turn. 27 The first ground relies on ss 424A and 442AA of the Act. They provide: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by - one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by - a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non‑disclosable information. (4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). 424AA Information and invitation given orally by Tribunal while applicant appearing (1) If an applicant is appearing before the Tribunal because of an invitation under section 425: (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) if the Tribunal does so - the Tribunal must: (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and (ii) orally invite the applicant to comment on or respond to the information; and (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and (iv) if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information. (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). 28 The relevant principles were discussed in the matter which was heard immediately before this appeal. That matter is SZUMS v Minister for Immigration and Border Protection [2016] FCA 542. For convenience I will set out that analysis here. 29 The nature and extent of the requirements imposed by s 424A have been considered in many cases and are relatively well settled. The authorities include SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 (SZBYR); Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; 238 CLR 507 (SZLFX) and, more recently, the Full Court's decision in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; 229 FCR 90 (SZTGV). 30 Having regard to the mandatory language (i.e. the use of the term "must"), a breach of s 424A(1) if established, would most likely constitute a jurisdictional error and invalidate a decision by the Tribunal (see SAAP v Minister for Immigration and Multicultural and Indigenous Affair [2005] HCA 24; 228 CLR 294 at [77], [173] and [208]). 31 What constitutes "information" that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review for the purposes of s 424A(1)(a) was explained by the High Court in SZBYR at [16]-[18]: [16] … First, while questions might remain about the scope of para (b) of s 424A(3), it was accepted by both sides that information 'that the applicant gave for the purpose of the application' did not refer back to the application for the protection visa itself, and thus did not encompass the appellants' statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; 110 FCR 27;] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214;] Accordingly, no occasion now arises for this Court to determine whether that assumption was correct. [17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration 'would be the reason, or a part of the reason, for affirming the decision that is under review'. The statutory criterion does not, for example, turn on 'the reasoning process of the Tribunal', or 'the Tribunal's published reasons'. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ('would be') rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The 'reason, or a part of the reason, for affirming the decision that is under review' was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be 'information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review'. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review. [18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute 'information'. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471[] that the word 'information'. 32 This analysis of s 424A was reaffirmed by the High Court in SZLFX at [21]-[25]. The Full Court noted in SZTGV at [18] that the reasoning of the High Court in SZBYR and SZLFX is not "readily reconcilable" with the reasoning of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [221]-[225] per Allsop J (with whom Weinberg J agreed) and NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174;156 FCR 205 at [74] per Allsop J. It is clear nevertheless that "information" within the meaning of s 424A(1) does not extend to the "prospective reasoning process" of the Tribunal (SZTGV at [18]). 33 As the High Court emphasised in SZLFX at [23] (in reaffirming the approach in SZBYR), "information" in the context of s 424A(1) "is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence". 34 As the Minister pointed out, the appellant did not particularise the information which he claims attracted the obligation under s 424A. Rather, his complaint seems to relate to the fact that the Tribunal did not put him on notice that it proposed to reject his claims. Section 424A does not impose upon the Tribunal an obligation to disclose to the appellant for comment its prospective reasoning or deliberative processes for rejecting his claim. This aspect of proposed ground 1 is rejected. 35 In relation to s 424AA, s 424AA(1)(a) states inter alia that "the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" (emphasis added). That language, in its context, is discretionary and is to be contrasted with the mandatory language of s 424A. In SZMMP v Minister for Immigration and Citizenship [2009] FCA 233; 174 FCR 514, Lander J at [51] said with reference to s 424AA as it then stood (which was expressed in different terms to the current terms but not in a materially different way): Section 424AA is not cast in the mandatory terms of s 424A. At least s 424AA(a) is not. Instead, s 424AA(a) permits the tribunal, where an applicant is appearing before it pursuant to an invitation under s 425, to orally give to the applicant clear particulars of any information that the tribunal considers would be the reason or part of the reason for affirming the decision that is under review. Section 424AA(a) is facultative. It permits the tribunal to adopt a different procedure to the procedure which is mandatory under s 424A. It is entirely discretionary. 36 I respectfully agree. His Honour's observations apply equally to s 424AA(1)(a) in its current form. The power conferred by this provision is entirely discretionary. The appellant has not pointed to any reviewable error in the exercise of the Tribunal's discretion as to whether or not it should proceed in the manner indicated in s 424AA. 37 For these reasons, the second aspect of the appellant's proposed ground 1 is also without merit.

Ground 2 38 The appellant has failed to establish any appealable error in respect of the primary judge's rejection of ground 3 of his judicial review application below, which turned on his claim that the Tribunal's decision was unjust and made without taking into account the full gravity of his circumstances and the consequence of his claims. The appellant argued that the primary judge had failed to consider that he was "under immense and intimidation pressure from CPM". 39 As the primary judge found, the Tribunal expressly considered (but rejected) the appellant's claim that he had left India because of his fear of persecution and the enmity against him after his sister married a friend. It also considered (but again rejected) his claim that he was attacked by the CPM after visiting his mother in hospital and his fear that he was at risk of harm from the CPM if he were returned to India. 40 In my view, no appealable error has been established in relation to the primary judge's determination of this ground of review. I respectfully agree with his Honour's characterisation of the ground as involving, in substance, an impermissible challenge to the merits of the Tribunal's decision.

Conclusion 41 For these reasons, the appeal should be dismissed. There is no reason why costs should not follow the event. An affidavit by his solicitor, Ms Natasha Blake, was read in support of the Minister's application that costs be fixed in the amount of $4,700. This is at the upper end of a range of $4,000 to $4,700 which Ms Blake considered would be awarded to the Minister on an assessment of costs. I prefer to adopt a figure in the middle of that range. Accordingly, costs will be fixed in the amount of $4,350. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.