SZSOB v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: FLICK J DATE: 27 JUNE 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Appellant is a citizen of India. 2 On 24 January 2012 he applied to the Department of Immigration for a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) ("Migration Act"). A delegate of the Minister refused that application on 19 June 2012. He then sought review by the Refugee Review Tribunal. That Tribunal conducted a hearing at which the now-Appellant attended on 10 December 2012 and affirmed the delegate's decision. It published its findings and reasons on 8 January 2013. 3 The Appellant then sought review of the Tribunal's decision by the Federal Circuit Court of Australia. That Court heard the application on 10 March 2014 and delivered its reasons for dismissing the application on the same date: SZSOB v Minister for Immigration and Border Protection [2014] FCCA 486. 4 On 31 March 2014 a Notice of Appeal from the Federal Circuit Court was filed in this Court. The Grounds of Appeal there set forth provided as follows (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 learned judge had dismissed the case without considering the legal and factual errors contained in the decision of the RRT. These precise Grounds of Appeal, it may be noted, have been employed in at least one other appeal to this Court: BZACZ v Minister for Immigration and Border Protection [2013] FCA 1230 at [27] per Rangiah J. The repetition of grounds as formulated in the context of other appeals and without reference to the facts and circumstances of the appeal under consideration, it has previously been noted, may do little to assist either an appellant or an informed consideration of any individual appeal by this Court: SZRCD v Minister for Immigration and Citizenship [2013] FCA 290 at [19]. Self-evidently, a claimant best assists in the resolution of his individual case where the alleged errors set forth in either an application for judicial review or an appeal are directed to the facts and circumstances relevant to the manner in which those claims have been heard and resolved. Arguments which may have prevailed in other cases - and in cases invariably arising in a different factual context - may be of little relevance or assistance. 5 The Appellant appeared before this Court unrepresented. An interpreter assisted him throughout the hearing. 6 The appeal is to be dismissed with costs.

Section 91R and the claim of persecution 7 Section 91R of the Migration Act provides as follows: Persecution (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct. (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person's life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person's capacity to subsist; (e) denial of access to basic services, where the denial threatens the person's capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 8 The meaning and application of this provision have been repeatedly canvassed in decisions of this Court. Decisions of this Court have addressed the terms of s 91R, including decisions addressing what constitutes "persecution involv[ing] serious harm" (e.g., Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [4] per Katzmann J); decisions addressing what constitutes "systematic and discriminatory conduct" (e.g., SZRTN v Minister for Immigration and Border Protection [2013] FCA 1156 at [19], (2013) 138 ALD 104 at 107 per Foster); decisions addressing what constitutes a "threat to the person's life or liberty" (e.g., Minister for Immigration and Border Protection v SZRUT [2013] FCA 1276 at [15] per Rares J); and the qualification expressed in s 91R(3) (e.g., SZSNM v Minister for Immigration and Border Protection [2013] FCA 1209 at [18] per Farrell J; SZRPG v Minister for Immigration and Border Protection [2013] FCA 1242 at [6] per Cowdroy J; SZSHJ v Minister for Immigration and Border Protection [2014] FCA 268 at [42] per Yates J). 9 In the present appeal, and despite the wealth of judicial attention which has to-date been directed to the terms of s 91R, the only assistance which is provided by the Notice of Appeal is the contention that the Tribunal either "acted in a manifestly unreasonable way" or had "ignor[ed] the aspect of persecution and harm". The "obligation" is presumably that founded in s 91R. The error committed by the Federal Circuit Court Judge is presumably an argument that that Court erred in rejecting these challenges to the Tribunal decision.

The Tribunal decision and the decision under appeal 10 When addressing the "Refugee criterion" the Tribunal in its reasons for decision set forth Article 1A(2) of the Refugees Convention and addressed the terms of s 91R. In part, the Tribunal addressed those "criterion" as follows: 8. Section 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. 9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. 10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve 'serious harm' to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c))… … 12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. … 13. Fourth, an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear… 14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. … 11 Those reasons for decision thereafter record as follows (without alteration) the now-Appellant's claim for protection: 25. The applicant's claims for protection are attached to a statement attached to the protection visa application form. These are, in summary: • He is a permanent resident of Kerala State (Kapprattil House, Vengaloor, Thodupuzha, Iddukki District), where he lives with his parents. • On 27 March 2010, communal clashes broke out in Thodupuzha. The trigger was a question in a graduate student exam in Newman College, which some students took to be an insult to the prophet Mohammed. A riot took place in the town, and the police have brought charges against those involved, • The applicant was nowhere near the riot, but some of his friends were involved 'somehow'. The applicant has been mistakenly implicated in the matter. • The applicant fled India for fear of his life. 12 The Tribunal set forth the evidence relied upon in support of these claims and the evidence as it unfolded during the course of the hearing on 10 December 2012. It then set forth its "Findings and Reasons". In doing so, the Tribunal stated: [67] The applicant claims to fear persecution in India from two main sources: (a) NDF activists and (b) hotel management and staff who were affected by NDF rioting, and who have lodged a First Information Report which incorrectly includes the applicant's name. "NDF" is a reference to the National Democratic Front. The Tribunal then set forth its findings in respect to what it characterised as: "Assessment of NDF-related claims"; and "Assessment of other claims". It then set forth its "Findings", including in part the following: 82. The Tribunal finds that the applicant is a witness of very low credibility. It rejects his claims that NDF activists are pursuing him for comments he made in July 2010, in which he distanced himself from their radical actions; that management and staff from the Hotel Sitara are threatening to kill him because of his involvement in a rampage in the hotel; and that there is an FIR alleging his involvement in that property damage or an assault, or any other false case, arrest warrant or other police interest in him on related criminal matters. … 84. Similarly, the Tribunal does not accept that the applicant had any involvement in a hotel rampage in Thodopuzha in July 2010; that hotel management, staff, local police or anyone have either individually or in collusion with each other made accusations against him; or that there exists an FIR that accuses him of affray, assault or any other criminal offence. The Tribunal does not accept that the applicant and his family have received any threats, including that the applicant had to exercise extreme caution on his return visits to India, and that his wife and children are afraid to go out. The Tribunal rejects all claims, including of psychological pressure, associated with the now-rejected claims for protection. 85. Having considered the applicant's claims individually and cumulatively, the Tribunal finds that he has no association with the NDF, is not subject to any threats from NDF activists or other Muslim radicals, for any reasons, and is not wanted by the police, hotel management and staff for any criminal offences linked with the Newman College incident. The Hotel Sitara is a hotel in Thodopuzha. "FIR" is a reference to a First Information Report. 13 The Tribunal's reservations as to the credibility of the now-Appellant and the claims being made would, presumably, have come as no surprise to him. These reservations had been expressed at the conclusion of the hearing conducted on 10 December 2012. Its reasons record this concern, and the notice it gave as to those concerns, as follows: 61. At the end of the hearing, the Tribunal advised the applicant that it had significant concerns about the credibility of his claims and evidence as a whole. This included, but was not limited to, the following: - (a) the period of time that had lapsed between his initial comment to his NDF friends, and his eventual departure from India; (b) his apparent untroubled travel to and from India and Oman, over a period of time; (c) his failure to seek protection in Europe; and (d) the several omissions in his evidence to the Tribunal. The applicant confirmed that he had given all his claims and evidence, and had nothing to add. The Tribunal undertook to reflect on all the material, before making a decision. …

Section 91R - an argument advanced for the first time on appeal? 14 On behalf of the Respondent Minister it was submitted that there had been no previous reliance upon s 91R of the Migration Act and that leave should not be granted to raise any such argument for the first time on appeal. 15 There is much to be said for the proposition that no departure from the requirements imposed by s 91R had been previously relied upon. 16 The Grounds as initially set forth in the Application filed in the Federal Circuit Court on 31 January 2013 did not expressly address any alleged error in respect to the interpretation or application of s 91R. The first two Grounds relied upon asserted a failure on the part of the Tribunal to "engage in an active intellectual process" in considering the documents relied upon to support the claims being advanced and a denial of "procedural fairness". The next Ground asserted (without alteration) a failure to "consider an integer of the Applicant's claims, in failing to consider whether or not a liberal Muslim in India was at risk of being harm from radical Hindus, and not able to access effective protection". The final two Grounds provided as follows (without alteration) : 4. The Tribunal's decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim. 5. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. But these Grounds were amended. An Amended Application filed on 29 August 2013 in the Federal Circuit Court sets forth the amended Grounds alleging: that the Tribunal "constructively failed to exercise its jurisdiction" and "failed to engage in an active intellectual process" in respect to "documents" and "gave the documents no weight"; that the Tribunal ought to have held that the now-Appellant was a refugee; and a failure to investigate the claims being made and "actual bias". The second of these Amended Grounds provided in its entirety (without alteration) as follows: 2. The member of the Tribunal erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the applicant was a refugee within the meaning of the Act. In such circumstances the Tribunal erred in that: a. it failed to properly apply the consideration that applicant's for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicant's claims are plausible, which was the case here. This Ground (potentially) picked up the former argument as to the "four key elements of the Convention definition" and the argument now sought to be advanced before this Court. 17 But it matters not whether the now-Appellant had previously relied upon s 91R. The argument is without substance. The Tribunal did address that provision expressly in its reasoning process and did consider the claims being advanced. If leave is required to now advance an argument not previously relied upon, leave is refused as the argument has no merit. If leave is not required, the argument is rejected.

Unreasonableness or a failure to consider persecution 18 Any prospects of success on appeal lies in the Appellant's alternative argument, namely that the Tribunal had acted in a "manifestly unreasonable way". 19 Any argument founded upon "unreasonableness" in administrative decision-making, including "unreasonableness" within the context of migration decision-making, faces a considerable hurdle to success. 20 In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 Crennan and Bell JJ summarised the principles to be applied as follows: [123] Judicial review has commonly been relied on to set aside a discretionary decision which "is so unreasonable that no reasonable authority could ever have come to it" or decisions "which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful". As remarked by Gaudron J in Abebe v Commonwealth: [I]t is difficult to see why, if a statute which confers a decision-making power is silent on the topic of reasonableness, that statute should not be construed so that it is an essential condition of the exercise of that power that it be exercised reasonably, at least in the sense that it not be exercised in a way that no reasonable person could exercise it. This court has observed with reference to s 75(v) of the Constitution and jurisdictional error that where a statutory power is conferred the legislature is taken to intend that the discretion is to be exercised reasonably and justly. With reference to the decision of the Refugee Review Tribunal there in question, their Honours continued: [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 21 More recently, in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 French CJ has similarly observed: [30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker… See also: Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 at [16], (2013) 85 NSWLR 86 at 91 per Basten JA. The fact that a court "may emphatically disagree with a decision reached by a decision-maker does not lead to the conclusion that it is unreasonable, irrational or illogical": A v Corruption and Crime Commissioner [2013] WASCA 288 at [123], (2013) 306 ALR 491 at 521 per Martin CJ and Murphy JA. 22 The findings of the Tribunal in the present appeal, including its findings as to credibility, cannot be characterised as "unreasonable". 23 Particular reference was made by the now-Appellant, both in the Grounds of his Amended Application and in his oral submissions to this Court, to "documents" which he contended had been given "no weight" by the Tribunal. These "documents" were the documents he provided to the Tribunal which included newspaper articles and an "affidavit" from the Appellant's father. The Tribunal set forth its findings in respect to these "documents". In respect to the newspaper articles, the Tribunal "place[d] very little weight on them as independent evidence to support the applicant's claim for protection". It gave reasons for so concluding. With respect to the father's "affidavit", the Tribunal "place[d] very little weight on this statement as independent evidence to support the applicant's claims". 24 The "weight" to be given to various considerations or to the evidence or other material relied upon by a claimant is generally a matter for the decision-maker: cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 to 42 per Mason J. The giving of inadequate weight to certain matters and undue weight to others does not, of itself, establish a case of "unreasonableness": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [44] to [45], (1999) 197 CLR 611 at 627 to 628 per Gleeson CJ and McHugh J. See also: Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641 at 652 per Cooke P. And the circumstances in which an administrative decision-maker is required to "investigate" a claim or to conduct further inquiries are limited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 83 ALJR 1123. In the circumstances of the present appeal, the "investigations" the Appellant contended should be undertaken were not readily apparent - even if there was a duty or requirement upon the Tribunal to do so. 25 Each of the findings made by the Tribunal were findings open to be made. No unreasonableness is exposed by the Tribunal's findings in respect to the now-Appellant's credit or in its findings in respect to the claims being made and the documents being relied upon. 26 Nor can any conclusion be open that the Tribunal "ignored" any aspect of the now-Appellants claims to persecution. The Tribunal summarised the claims being made and thereafter addressed those claims. There is no factual foundation for any submission that there was a reasonable apprehension of bias on the part of the Tribunal, let alone any support for a conclusion that there was "actual bias". 27 Nor can any conclusion be open that the Federal Circuit Court Judge "dismissed the case without considering the legal and factual errors contained in the decision of the RRT". The Judge addressed each of the three Grounds set forth in the Amended Application. In rejecting the second Ground the Judge concluded (for example) as follows: [13] The first part of this ground would appear to be asking for a merits review that is impermissible in this court. The second part of the ground assumes that the Tribunal entertained the possibility that the applicant's claims were plausible. It did not do so. It accepted that the incident that the applicant claimed had occurred in his home town had occurred, but that does not mean that it accepted that the applicant was involved in it, or that the consequences of the incident affected him. It did not do so for reasons that it provided and which were entirely within its remit. This ground cannot succeed. 28 The alternative argument advanced by the Appellant is also without substance. The Federal Circuit Court Judge was correct in concluding that the same argument, or a like argument, was an impermissible attempt to seek merits review.

CONCLUSIONS 29 Neither of the Grounds of Appeal prevail. No error is discernible in the reasons for decision of the Tribunal. And, of present relevance is the fact that no appellable error is discernible in the reasons for decision of the Federal Circuit Court Judge. 30 The appeal should be dismissed. There is no reason why the Appellant should not pay the costs of the First Respondent.

THE ORDERS OF THE COURT ARE:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.