SZRAG v Minister for Immigration and Border Protection

The appeal 21 There are two grounds of appeal. They read (without alteration): 1 The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant 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 Federal Circuit Court failed to take into consideration that the Tribunal's decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. 22 Neither ground is sound. 23 In substance ground 1 alleges that the Tribunal erred because it ignored s 91R. But s 91R was only relevant to the appellant's claim to satisfy the refugee criterion. As the Tribunal stated, s 48A imposes a bar on a non-citizen whose application for a protection visa has been refused from making a further application for a protection visa while in the migration zone. As the Tribunal observed, referring to the Full Court's decision in SZGIZ, that did not preclude the making of an application based on different criteria. Accordingly, the Tribunal rightly proceeded on the basis that it could only consider the appellant's claims in the context of the complementary protection provisions of the Act. Not only was this approach not "manifestly unreasonable", it was correct as a matter of law. See AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 (Markovic J). 24 To the extent that the allegation of manifest unreasonableness is intended to relate to the Tribunal's factual findings, it is unsustainable. As Crennan and Bell JJ pointed out in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [133], the correct approach in a case like this is "to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it". The answer to that question in the present case is that it was. A decision will not be "illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker": Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ). Here, there was ample room for a logical or rational person to reach the same decision as the Tribunal. 25 A decision will be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at [135]. That is not this case. A decision is not manifestly unreasonable unless no reasonable person could have reached it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). A decision might still be legally unreasonable if it lacks "an evident and intelligible justification" (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68]). But that is not this case either. The conclusions reached by the Tribunal were open on the material before it. It is difficult to see how the conflicting accounts could be reconciled. 26 As Gleeson CJ and McHugh J pointed out in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] , to describe a decision-maker's process of reasoning as illogical, irrational or manifestly unreasonable may be no more than an emphatic way of expressing disagreement with those reasons. If so, the description has no legal consequence. So it is here. 27 Ground 2 must also be rejected. It was not up to the Federal Circuit Court to consider whether the Tribunal's decision was "unjust". The merits of the application are a matter for the Minister and the Tribunal, not the courts. The Federal Circuit Court's powers are severely circumscribed by the terms of the Act. The only basis upon which it was entitled to set aside the Tribunal's decision is if it was affected by jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The primary judge concluded that the grounds upon which the appellant relied did not disclose any such error. I can discern no reason to doubt the correctness of that conclusion. While the primary judge's reasons were brief, they were not erroneous. The Tribunal considered the appellant's claims in all their iterations against the complementary protection criterion. The appellant's accounts were replete with apparent inconsistencies which the Tribunal found the appellant was unable to satisfactorily explain, despite being given a further opportunity to do so after the hearing concluded (of which he did not avail himself). There is nothing unreasonable, illogical or irrational about the Tribunal's conclusions and there was a basis in the evidence for each of them, as the Tribunal's decision record discloses. 28 At the hearing the appellant was invited (through a Punjabi interpreter) to address each of the grounds. He accepted the invitation but his submissions bore little or no relationship to them. In large part his submissions were a plea to allow him to remain in Australia. At the outset he stated that he had "a problem" in India and did not wish to return home. For that reason, he submitted, he did not believe that the Tribunal gave proper consideration to his case. He explained that because the Tribunal found against him it must not have properly considered his application. That, of course, does not follow. To the extent that an allegation that the Tribunal failed to properly consider a claim may give rise to jurisdictional error, I can see no basis for concluding that it made such an error in this case. 29 The appellant also told the Court that he informed the Tribunal that it should make inquiries about his claims in India, that he would stay in Australia for five, six or up to 10 years so that it could carry out an investigation and, if his claims were then proved not to be genuine, he would return to India, but that it took no action at all in this regard. At first he said he had made a similar submission to the Federal Circuit Court but he gave no proper consideration to his claims either. He said that the primary judge refused to listen to his claims even though his life was in danger, so he was unable to get his message across. He later said that he had not raised with the primary judge his contention that he had told the Tribunal it should make inquiries in India because his Honour had not asked him. 30 He submitted that he needed one year more to stay here and then he would probably return to India. In reply he stated: I'm not sure whether my refugee claims were genuine or not. If you believe that my refugee claims were not genuine, then at least permission should be granted to stay here for a period of at least one year. 31 I shall pass over the first sentence. As for the second, it is, of course, not up to me to decide whether the appellant's claims are genuine. This Court's role is limited to deciding whether the primary judge erred as alleged. 32 There was no transcript or any other record of the proceedings before the Court of either the Tribunal hearing or the hearing in the court below and the appellant filed no affidavit attesting to what had been said in either place. Nor was the appellant able to point to anything and I can find nothing in the appeal book to corroborate the appellant's contention that he raised with the Tribunal or the primary judge any concern that the Tribunal should make inquiries in India. This is a matter which was not raised by either the application before the Circuit Court or the notice of appeal. Consequently, leave to amend the notice of appeal would be necessary. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] and the authorities referred to there. As the Full Court said in VUAUX, leave may be granted if a point which was not taken below clearly has merit and it would cause no real prejudice to the respondent. But the point raised by the appellant in his oral submissions has no merit. As the High Court explained in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] there is no general duty to inquire; the Tribunal's duty, imposed by s 414 of the Migration Act, was a duty to review. The plurality countenanced the possibility that "a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review" which could give rise to jurisdictional error. But, assuming, despite the absence of any confirmatory material, that the appellant did in fact ask the Tribunal to make inquiries in India, as he maintained he had, the appellant's submissions did not approach the level of particularity that the plurality had in mind. Accordingly, if leave to raise the point is required, leave should be refused. If not, the submission should be rejected as a failure to make inquiries in India, as formulated by the appellant, is incapable of giving rise to any jurisdictional error. 33 On its face, the complaint that the primary judge refused to listen to the appellant's claims (assuming it to be true) is a matter of concern. Ultimately, however, I was persuaded by Ms Blake, who appeared for the Minister both in this Court and in the court below, that the complaint was related to the merits of the appellant's claims for protection. The appellant did not submit otherwise in reply. Consequently, even if the complaint is well-founded, it would not give rise to error because, as I observed above, the primary judge was not entitled to explore the merits. 34 It follows that the appeal must be dismissed. The appellant should pay the Minister's costs. There will be orders to this effect. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.