SZSHY v Minister for Immigration and Border Protection

Federal Court of Australia|2018-08-17|Before: Farrell J

The appeal is dismissed.
The first and second appellants must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FARRELL J 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): SZSHY v Minister for Immigration and Border Protection [2018] FCCA 702. The primary judge dismissed the appellants' application for judicial review of a decision made by the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellants Protection (Class XA) visas. 2 The appellants are citizens of India. The first and second appellants (respectively husband and wife) arrived in Australia on 11 October 2009. The third appellant is a child born to them in Australia on 4 August 2010. 3 On 19 November 2009, the husband lodged an application for a protection visa, naming his wife as a member of his family unit. On 16 July 2010, a delegate refused the application and on 29 October 2010, the Refugee Review Tribunal affirmed the delegate's decision. On 23 December 2011, a second application for protection was lodged on behalf of the child, naming the husband and wife as members of the child's family unit. On 4 June 2012, a delegate of the Minister refused the child's application, and that decision was affirmed by the Refugee Review Tribunal on 9 November 2012. 4 On 10 December 2013, the husband lodged a further application for protection and the wife and child were named as members of his family unit. That application was refused by a delegate on 24 December 2014. That delegate's decision was affirmed by the Tribunal on 23 February 2017, following a first hearing on 7 July 2016 (at which the husband was unrepresented) and a second hearing on 15 February 2017 (at which the husband was represented by a migration agent). The husband's claims to protection on which the appellants relied are summarised by the primary judge at J[4] as follows (footnotes omitted): 4. In those sections of the form of application requesting information about his claims for protection, the applicant referred to "my full statement". I infer that this was intended to be a reference to the statutory declaration the applicant made which he lodged with the first Protection visa application on 19 November 2009 (Statement). In the Statement the applicant claimed as follows: a) The applicant was born into a Catholic family in Kerala, and began participating in church services when he was seven years of age. The applicant was also actively involved in the "Kerala Catholic Youth Movement" during his schooling. b) From 1996 to 2000 the applicant studied for a Bachelor of Commerce degree at Kerala University. He there joined the Christian Liberation theology movement which "was fighting the Communist, BJP and Congress Ruling party". The applicant also was in charge of a voluntary Catholic organisation known as "United Association of Latin Catholic". c) The applicant was "mercilessly" attacked by the "CPIM (Communist Party of India (Marxist) student's wing SFI (Students Federation of India) and congress student's wing in college premises". There were also "many cases filed" against the applicant by the state because the applicant used to educate fishermen "against CPIM political party and Congress Party's corruption and casted [sic] based politics". d) In 1999 the applicant organised a demonstration with other human rights groups and young Christian youth groups against Indian ruling BJP political parties in defence of minority groups in India. e) In 2002 the applicant joined the Indian Gospel Church. That was a national movement for propagating the teachings of Christ and Catholic beliefs. As part of that movement the applicant went to Sudargah District in Orissa State and "started missionary works there". f) In 2003, when the applicant's "team" was teaching the Bible in Patrapali in a forest area, the applicant and the tribal people were "attacked brutally by the RSS, Bharathia Janatha Party, Bajrang Dal (Hindu military group) people nearly a gang of 20 people". The applicant "was tied to a Big Tree and lashed for three days". After the police arrived and released the applicant, he was required to sign a "blank paper . . . stating that nothing should be revealed". g) In December 2004 the applicant and his team of six members were mercilessly attacked by a Hindu Extremist organisation called "Shiva Sena". In the scuffle that ensued, one of the members of the extremist group was killed "by the hand of their own counter part". The applicant and his team sought asylum at their headquarters because they feared they "will be implicated into murder charges". Meanwhile, the police obtained the applicant's identity card which he had lost during the scuffle, and the police registered a case against the applicant and five others for murder which is "pending in the court of Law". h) In 2005 the applicant went to Abu Dhabi on a visitor visa to search for a job. The applicant returned to India in 2006 and, in 2007, for the purpose of marrying. In 2008, while in Abu Dhabi, the applicant was humiliated and deported "because of my pro-Christian activities". i) In 2008 the applicant went to Sharjah to join a business partnership. In May 2009 someone reported the applicant to the authorities in Sharjah for involvement in anti-Islamic activities. That resulted in his business visa being cancelled, and the applicant's being banned from entering that country. j) In August 2009, at 2 am when the applicant was sleeping, the "shiva people and their Hindu fanatic groups were shouting slogans", and "set ablaze my house". The police subsequently registered a case "against unidentifiable persons of Shiva Sena". The applicant, however, fears he will not get justice because if he is "available for a prosecution I reasonably apprehend that I will be killed at any time as they want to see that I am not appeared in court against them". 5 The Tribunal's decision addressed only complementary protection criteria, applying the Full Court's decision in Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366; [2016] FCAFC 127, applications for protection visas based on criteria in s 36(2)(a) of the Migration Act 1958 (Cth) having been refused previously.

FCCA Decision 6 After setting out the claims made in the appellants' visa application at [4], the primary judge noted that, at the first hearing, the Tribunal had questioned the husband about his background, education and travel in and out of India, his experiences in India and the United Arab Emirates and why he would be at risk of significant harm if returned to India. It also raised with him two items of information from the Refugee Review Tribunal's decision record of 10 October 2014 and that the husband asked for and was given time to respond: J[5]. Following the first hearing, the husband appointed a migration agent who asked for further time to respond and that was granted. The agent noted that he had been given a list of issues which the husband said the Tribunal asked him to address. One of the documents provided to the Tribunal was a statutory declaration by the wife in which she said that she lied to the Tribunal member in October 2010 because she wanted to return to India as soon as possible. At the second hearing, the wife said she did not want to return to India because she would have problems because the husband had problems as a result of his religious activities: J[6]-[7]. At the second hearing, the husband asked the Tribunal to take evidence from two witnesses and he was advised that the Tribunal would attempt to contact them but it was concerned that witness statements from them had not been provided earlier in the application process: J[8]. 7 The primary judge summarised the Tribunal's decision and reasons at J[9]-[14]. 8 There were six grounds of review raised by the appellants. The primary judge found that none of them disclosed jurisdictional error.

First ground 9 The first ground was (as written): The Tribunal misconstrued the risk of fear and harm as set out in s36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk of life and fear of significant harm to the applicants upon their return to India (see SYG2227 v Minister for Immigration and Border protection (2015) 10 The primary judge found as follows: This ground did not identify how the Tribunal misconstrued or otherwise failed to understand the risk of fear and harm as set out in s 36(2A) of the Migration Act. In any event, the Tribunal correctly identified the criterion the appellants had to satisfy: that as a necessary and foreseeable consequence of an applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: R[11]. The Tribunal manifested no misunderstanding of s 36(2A). As the Tribunal had not accepted the reasons which formed the basis of the claim to fear harm it was not necessary for the Tribunal to consider whether the appellants faced a risk of significant harm for any of those reasons: J[17]-[18].

Second ground 11 The second ground was (as written): The Tribunal failed to consider properly the test whether the applicants would suffer serious harm a per a 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy the statutory obligation was a serious jurisdiction caused by the Tribunal. 12 The primary judge found that: The Tribunal was not required to consider s 91R of the Migration Act because that section, when it was in force, applied only for the purposes of applying the criterion in s 36(2)(a). That criterion was not relevant to the appellants' claims because their previous applications for protection based on s 36(2)(a) were rejected by the Refugee Review Tribunal, and the only issue before the Tribunal was whether the appellants satisfied the criterion specified in s 36(2)(aa): J[20].

Third ground 13 The third ground was (as written): The Tribunal failed to consider an integer of the applicants claim, in failing to consider whether or not a Christian activist who preached and proselytised to non-Christians in India was at risk of harm from radical Hindus, and not able to access effective protection whilst the Tribunal formed the view the applicant was a credible witness 14 The primary judge found that: While it is true that there was such an integer of the appellants' claims, that integer was premised on facts that the Tribunal was not satisfied existed. In those circumstances, it was not necessary for the Tribunal to consider whether a Christian activist who preached and proselytised to non-Christians in India was at risk of harm from radical Hindus and could not access effective protection. That is because the Tribunal was not satisfied that the husband was ever a Christian missionary in India, or that he was involved in political activism about the rights of Christians in India, or that he was targeted by Hindu extremists: J[22].

Fourth ground 15 The fourth ground was (as written): The Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligation, the Tribunal engaged in a process of reasoning that was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds. The Tribunal's decision was fundamentally influenced by not receiving evidence from the witness from India. The Tribunal did not try later of the day to contact my witness. At paragraph 66 of the Tribunal's reasons for decision. 16 The primary judge noted that this ground appeared to be directed to the Tribunal's unsuccessful attempt to contact two persons who had given witness statements. The primary judge found that: The ground consists of two claims. The first is that the Tribunal did not do all that it ought reasonably have done to contact the two witnesses. In relation to this ground, on the assumption that the Tribunal was under a duty to contact the witnesses, the primary judge was not satisfied that it had failed to do so. The husband's request to contact them did not state a time at which the attempt should be made. There is therefore nothing to suggest that it was unreasonable for the Tribunal to attempt to contact them when it did. From the Tribunal's reasons, it appears that the Tribunal told the husband about the unsuccessful attempt but the husband made no suggestion to the Tribunal that it would be able to contact them later in the day. That indicates that the husband did not have an expectation that an attempt later in the day would be successful and from that it is reasonable to infer that the Tribunal should have had the same expectation. There is nothing to suggest that the Tribunal would have succeeded in contacting the witnesses had it made such an attempt: J[25]-[26]. 17 The second claim is that the Tribunal was fundamentally influenced by not receiving evidence from those witnesses. The primary judge did not accept this, noting that in its reasons at [66], the Tribunal records that it told the husband that even if it could contact the witnesses it may only be able to place limited weight on their evidence because "taking evidence from witnesses overseas by telephone can be problematic". It follows from this that the Tribunal would have been unlikely to give their evidence much weight which implies that its decision was not fundamentally or even materially influenced by its inability to contact the witnesses: J[25], [27]. 18 The primary judge found that: To the extent that the ground suggests the husband intended to rely on other matters, it does not identify them. In any event, there is nothing in the Tribunal's reasoning to suggest that it acted irrationally, illogically, or on the basis of findings or inferences of fact not supported by logical grounds: J[28].

Fifth ground 19 The fifth ground was (as written): The Tribunal constructively failed to exercise its jurisdiction. Particular: The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing the substance of the documents corroborated his claims. 20 The primary judge took this ground to be a claim that the Tribunal made a jurisdictional error of the sort found by the Full Court in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74. The primary judge set out passages from the judgment of Lee and Moore JJ found in WAIJ at [25]-[26]. The primary judge stated that those passages must be read with the Full Court's judgment in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50. In SZNSP, the words the Tribunal had used were "Given the adverse credibility finding, the Tribunal does not give weight to the document" and at [33], the Full Court held that this approach was open to the Tribunal because it showed that the Tribunal made an assessment of the value of the witness statement and then considered its effect in light of the view it had formed to that point about the credibility of the applicant. The primary judge also referred to SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499 in which Burley J reviewed these and other cases. Accordingly, the primary judge found that the approach taken by the Tribunal was, on the basis of the decision in SZNSP, open to it and the Tribunal did engage with and consider the weight it should give the documents and witness statements the husband produced: J[30]-[34]. 21 The primary judge rejected a submission made by the husband that the Tribunal should not have given the documents and witness statements little or no weight only because he provided them late. His Honour found that that was not the only basis on which the Tribunal acted and it was entitled to take all of those matters into account. The primary judge also noted that it was not for the Court to determine whether the husband's explanation for the late production of documents (offered at the hearing in the FCCA) should be accepted. His Honour also rejected a submission that the Tribunal member had rushed to make her decision, finding that there was nothing that could reasonably support that assertion: J[35]-[37].

Sixth ground 22 The sixth ground was (as written): The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reasons 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. 23 In relation to this ground, the primary judge found that it did not identify the information which the husband claims the Tribunal failed to give particulars of and "for that reason alone" the ground failed: J[40].

Appeal 24 The appellants were not legally represented at the hearing of the appeal. The proceedings were conducted with the assistance of an interpreter. The appellants rely on three grounds of appeal to this Court.

First Ground 25 The first ground is as follows (as written): The Hon. Judge 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. 26 On its face, this ground appears to agitate ground four (unreasonableness) and ground two (s 91R) considered by the primary judge. 27 In oral submissions, the husband explained that by this ground the appellants intended to say that the Tribunal did not give consideration to the documents which he provided. He confirmed that the reference to s 91R was in connection with his complimentary protection claims. 28 Counsel for the Minister, Mr Swan, relied on his written submissions and addressed the issues raised in the husband's oral submissions. 29 Mr Swan submitted that there is no legal unreasonableness apparent from the Tribunal's reasons. The reasons demonstrate that the Tribunal considered all of the documents submitted by the husband and was aware of their contents: (1) At R[32], the Tribunal noted that post-hearing submissions filed by the appellants' migration agent argued that the husband "did not fully grasp the concept of supporting evidence" and noted that the husband had "now provided statements from people who knew him and his family which refer to the three main incidents involving his family" being an attack on his wife while she was pregnant, the burning of the house and the death of his uncle. It also noted that some of the witness statements "also refer to the attacks on the applicant in Orissa State in 2003 which led to his being injured and hospitalised and claim that people are still looking for the [husband] in his home area". (2) At R[33], the Tribunal summarised a statutory declaration provided by the husband in which he states that the most important aspect of his application is the fact that he was an evangelist in India. (3) At R[35]-[36], the Tribunal summarised a statutory declaration provided by the wife and her claims. (4) At R[37], in paragraphs (a)-(l) the Tribunal individually summarised 12 "supporting statements" provided by the appellants. 30 Mr Swan noted that at R[49]-[67] the Tribunal explained its concerns with the credibility of the husband's evidence of his past experiences. At R[64], the Tribunal notes that in "assessing the credibility of the [husband's] claims, I have considered the numerous documents and witness statements that the [husband] has provided in support of his claims" and says that the documents "do not overcome" the Tribunal's concerns about the credibility of his claims. Some of the documents did not, on their face, support his claims. The Tribunal notes that country information indicates that fraudulent documents are readily available in India and found that "police reports, post mortems, and medical documentation" produced "can be given limited weight as I am not persuaded the documents are reliable". At R[65], the Tribunal was not satisfied that letters and statements from people and various churches in Kerala offered as corroboration were reliable or overcame concerns as to the credibility of the husband's claims. The Tribunal found that the husband did not adequately explain why documents were produced so late in the visa application process, since he was represented by a migration agent during his first application and he had given evidence before the Refugee Review Tribunal in two previous applications. The Tribunal was not persuaded by his argument that he was not aware that such evidence should have been provided at an earlier time. At R[66], the Tribunal noted witness statements from residents of India which were in English and signed on 27 July 2016. It noted its attempts to contact the two people which the husband had requested that it speak to without success and concluded that the statements amount to mere assertions so that on the evidence before the Tribunal they "can be given little weight as they do not overcome my concerns (set out above) about the credibility of key elements of the applicant's claims". 31 Mr Swan submitted that the Tribunal's conclusions concerning the husband's credibility and his claims at R[68]-[72] were open to it on the evidence. The Tribunal accepted that the appellants are practising Catholics but it did not accept that the husband had been targeted by Hindu groups in the past, it did not accept that he would be targeted in the future nor did it accept that the husband had involved himself in Christian missionary activity or proselytising in the past or that he would if he returned to India. It made its express findings concerning whether there was a real risk that the appellants would face significant harm if returned to India (including on the basis of country information) at R[71]-[72] concluding that the appellants would be able to practise as Catholics in Kerala without being exposed to a real risk of significant harm. 32 Mr Swan submitted the Tribunal's conclusions were rational and reasonable, a rational and reasonable Tribunal could reach those conclusions. They are therefore not legally unreasonable and reveal no jurisdictional error, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [124], [131] and [135]. 33 Mr Swan submitted that, insofar as the ground refers to s 91R, it is misconceived, since the appellants' claims before the Tribunal were limited to complimentary protection under s 36(2)(aa), not Convention based claims under s 36(2)(a). Accordingly, the primary judge's finding at J[20] reveals no appealable error. 34 Having regard to the matters discussed in the recital of Mr Swan's submissions, it is clear that the Tribunal gave detailed and careful consideration to the documents submitted by the husband. I accept Mr Swan's submissions. This ground must fail for the reasons that he gave and no error in the primary judge's reasons for rejecting grounds two and four have been identified. Although it was not raised in submissions, for completeness, to the extent that this ground might also be thought to have raised the issues in the fifth ground considered by the primary judge, I perceive no error in his Honour's reasons for dismissing that ground.

Second ground 35 The appellants' second ground is: The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 36 The husband explained that by this ground he meant that the Tribunal relied on general information (that is, country information and media reports) in reaching its conclusions rather than by consideration of his individual circumstances. For instance, the Tribunal said that Kerala was comparatively safe and peaceful whereas he had provided specific instances of problems he faced based on religion. 37 Mr Swan noted that at R[16]-[45] the Tribunal set out a summary of his original claims and the various submissions and documents filed in support of them with the Department and the first Tribunal, matters relevant to the first application for a protection visa by the child, claims made in the current application for a protection visa, a summary of the delegate's decision, a summary of matters canvassed at the first hearing, a summary of post hearing submissions and the 12 supporting statements, and a summary of the second hearing. At R[49]-[67] the Tribunal considered his claims concerning past experiences and explained why they were not credible. At R[68], the Tribunal found that for "all the reasons above" the husband was not a credible witness even though it did accept that he was a practising Catholic. Although the Tribunal did not accept that the husband would be at risk because of missionary activities or proselytising, it considered his position as a practising Catholic at R[71]-[79]. Although it is true that the Tribunal did refer to country information in assessing his risk as a practising Catholic in Kerala, at R[73] it noted that: When the situation of Catholics in Kerala was discussed at the first hearing the [husband] acknowledged that there were many Catholics in Kerala and he did not dispute that Catholics were not at real risk of significant harm but argued his circumstances were different because of his past experiences. Similarly the [wife] did not dispute that Catholics were not at real risk of significant harm but suggested that her family would have problems because her husband had problems. Both adult applicants gave evidence that they went to church in Kerala and neither applicant reported any difficulties doing so. And at R[78] it found that: Accordingly, having considered the [husband's] evidence about their church attendance in Kerala and the information from independent sources, I am satisfied that Catholics in Kerala are commonly able to practice their religion freely and safely. 38 It is plain from the Tribunal's reasons that in forming its view of the appellants' risk as practising Catholics in Kerala, it took into account not only country information but also evidence given by the husband and wife that they were not at real risk of harm for that reason and the Tribunal for reasons that were open to it did not accept that the husband conducted missionary activities or proselytised, the basis on which the husband and wife asserted that they would be at risk of significant harm. Accordingly this ground is not made out.

Third ground 39 The third ground is: I refer Minister for Immigration and Border Protection vs BIL15 (NSD1855/2016). 40 Mr Swan's written submissions pointed out that NSD 1855/2016 was a proceeding in which the Tribunal's decision was set aside by consent because the Tribunal failed to disclose a certificate issued under s 438 of the Migration Act which was relevant to the Tribunal's review. That was not a ground which was pressed in these proceedings. Further, the husband told the Court that he did not know what was intended to be raised by this ground. It therefore must fail.

Conclusion 41 As all of the grounds of appeal have not been made out, the appeal should be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Migration Act 1958(Cth)ss 36, 91R, 438

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