SZTHC v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellants have appealed against a judgment of the Federal Circuit Court of Australia given on 11 September 2014. Judge Cameron dismissed an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") to affirm a decision of the first respondent's delegate refusing to grant Protection (Class XA) visas to the appellants. 2 The first and second appellants are wife and husband respectively. Their son is the third appellant. They are citizens of Mauritius. 3 The appellants arrived in Australia on 24 June 2008. The first and second appellants held student visas and the third appellant held a dependent visa. On 14 May 2012, the appellants applied for protection visas. 4 The first appellant claimed that she was born into a conservative Sunni Muslim family and that when she was 18 years old she was forced to marry a Muslim man who was strict and violent towards her. She claimed that she escaped from her husband and married the second appellant, who is a Christian. They remained in hiding on a farm for four years from 2004 to 2008, venturing off the farm only rarely. 5 The first and second appellants claimed that on one occasion in 2006 they came into town for a medical check-up and were seen by the first appellant's ex-husband who drove his car into their motorbike in an attempt to kill them. The first appellant claimed that she was admitted to hospital for treatment and remained there for one month. She claimed that the police initially provided a guard in the hospital room, but said that they could not intervene because it was a religious matter. 6 The third appellant was born in December 2006 with a heart condition. In October 2009, his condition deteriorated and they returned to Mauritius from Australia so that he could receive medical treatment. In November 2010, the appellants returned to Mauritius so the third appellant could undergo further treatment. In February 2011, the first appellant travelled to Mauritius to visit her mother-in-law who had become ill as a result of being threatened by members of the first appellant's family demanding to know her whereabouts. In November 2011, the second appellant returned to Mauritius to see his mother. The appellants say that they were told that threats continued to be made about them at the mosque attended by the first appellant's family. 7 In early 2012, the appellants learnt that they could apply in Australia for protection visas and they lodged applications for such visas in May 2012. In summary, the appellants claimed that they will be subjected to persecution and significant harm in Mauritius by the first appellant's family, her ex-husband and the Muslim community for violating Islamic laws and morals. That claim is asserted on the basis that the first appellant left her first husband, a Muslim, and married the second appellant, a Christian. 8 In order to obtain protection visas, either the first or second appellant is required to satisfy one of the criteria in s 36(2) of the Act. Section 36 provides, relevantly: (1) There is a class of visas to be known as protection visas. … (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; … 9 The Refugees Convention provides that the term "refugee" applies to any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country… 10 A fear will be well-founded if there is a real chance of persecution for one of the stipulated reasons if the person is returned to the country of his or her nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 per Mason CJ, at 398 per Dawson J, at 407 per Toohey J and at 429 per McHugh J. But no fear can be well-founded unless the evidence indicates a real ground for believing that the applicant is at risk of persecution: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. 11 The criteria in s 36(2) are qualified by the other subsections of s 36, but those qualifications are not presently relevant. The criteria are also qualified by other provisions of the Act, including s 91R, which provides: 91R 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. … 12 The Tribunal did not accept the appellants' accounts to be credible, finding that their claims were "highly implausible and lacking in internal logic". In particular: (a) The Tribunal found it implausible that the first and second appellants would have been seen by the first appellant's ex-husband on a rare visit to their home town and that he then attempted to kill them in a staged road accident. (b) The Tribunal found it implausible that the appellants would have been in hiding from 2004 to 2008. (c) The appellants did not give a satisfactory explanation why a notice, which they allege to have been placed in a mosque condemning the first appellant's behaviour, and which was submitted to the Tribunal, was written in English. The Tribunal considered that the document had been manufactured by the appellants. (d) The Tribunal found the appellants' delay in lodging the application for protection visas to be inconsistent with a genuine fear of persecution and considered that it was significant that the application was only made once the first appellant realised she could not continue her studies due to her financial position. (e) The Tribunal found the fact that the appellants returned to Mauritius on a number of occasions was inconsistent with a fear of persecution or a real risk of significant harm. 13 The Tribunal did not accept the appellants' account of the circumstances in which they left Mauritius or their reasons for not wanting to return as truthful. It did not accept that they faced a risk of serious harm at the hands of the first appellant's ex-husband, extended family or the broader Muslim community in Mauritius. It concluded that the appellants were not eligible for protection under the Refugees Convention criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa). 14 The Tribunal also rejected the claim that there was a real chance that the third appellant may suffer harm because of a high crime rate in Mauritius and because kidnapping of children is common. The Tribunal considered that the risk of harm to the third appellant was no greater than the risk anywhere else and considered that any such risk was random and remote. 15 Before the Federal Circuit Court, the appellants relied upon the following grounds of appeal: