SZTVK v Minister for Immigration & Border Protection

Eligibility for a protection visa 8 To grant an applicant a visa of any kind, the Minister must be satisfied that the applicant fulfils the criteria prescribed by the Migration Act and Regulations: Migration Act, s 65. In the case of an applicant for a protection visa, the criteria include those provided for in s 36 of the Act. At the time of the Tribunal's decision, s 36(2) provided that 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 Paragraph 36(2)(a) is commonly known as the "refugee" criterion and 36(2)(aa) as the "complementary protection" criterion. 10 For the purpose of para 36(2)(aa), s 36(2A) provides that a non-citizen will suffer "significant harm" if he or she will be: (a) arbitrarily deprived of life: (b) subject to the death penalty; (c) tortured; (d) subjected to cruel or inhuman treatment or punishment; or (e) subjected to degrading treatment or punishment. 11 The refugee criterion is based on the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together, the "Refugees Convention"). The Refugees Convention commits the contracting states (of which Australia is one) to providing certain rights and benefits to refugees. Article 1A(2) relevantly states that the term "refugee" shall apply 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… 12 At the relevant time, s 91R of the Migration Act provided that Art 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless: (a) the reason or reasons is or are "the essential and significant reason" or reasons for the persecution; (b) the persecution involves serious harm to the person (as defined in subs 91R(2)); and (c) the persecution involves systematic and discriminatory conduct. 13 Moreover, s 90R(3) provided that in determining whether or not the refugee criterion had been met, any conduct engaged in by an applicant in Australia is to be disregarded unless the Minister is satisfied it that it was not done for the purpose of strengthening the applicant's claim to be a refugee. 14 Paragraph 36(2)(aa), which was inserted into the Act in 2011, "represents an attempt to codify Australia's responsibilities not to return people [refoule] to face torture and other serious forms of harm pursuant to the Convention against Torture, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child" (McAdam J, "Australian Complementary Protection: A Step-By-Step Approach" (2011) 33 Syd Law Rev 667, 667-8). 15 Subsection 36(2B) qualifies the operation of the complementary protection criterion. It provides that a non-citizen will not be taken to be at a real risk of suffering significant harm in a receiving country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would be no such risk; or (b) the non-citizen could obtain protection from an authority of that country such that there would be no such risk; or (c) the risk is one faced by the population of the country generally and not the non-citizen personally.

The Tribunal decision 16 The Tribunal accepted the truth of the appellant's account of the death of his grandfather. It also accepted that his father had lodged a complaint against the Congress Party, including a number of individuals in the party. Moreover, it accepted that his father was forced to withdraw the complaint in response to threats received from the party and that his family moved to Punjab the following year. But the Tribunal was not prepared to accept that since 1999 either the appellant or any member of his family had been threatened or seriously harmed by Sikh men associated with the BJP or by the Sikh party, Akali Dal. That was because it did not consider that the appellant's account was "credible or persuasive". 17 The Tribunal's reasons on this aspect are lengthy and detailed. They were summarised by the primary judge at [12] of his Honour's reasons: a) First, the applicant did not claim in the statutory declaration he submitted with his application for a protection visa that his father -- being the only person who could have resumed the complaint against the INC -- had ever been approached or threatened by anyone after 1999. b) Second, before the delegate, the applicant said that his father had only received threats by telephone, and after the interview with the delegate, the applicant provided the delegate with a copy of a complaint purportedly lodged by the applicant's father with the Banur Police of an assault on 19 November 2012. It was not explained to the Tribunal why the applicant's father did not disclose this information to the applicant at an earlier point, and the failure to disclose this information before the applicant's interview with the delegate cast doubt on the veracity of the applicant's claim that his father had been assaulted. c) Third, there was an absence of any persuasive evidence of or explanation for why the applicant's father had not been attacked or approached between 1999 and 19 November 2012. d) Fourth, the Tribunal was unable to find information in any of the sources it consulted that suggested that Akali Dal or Sikh men affiliated with BJP or anyone else have engaged in intimidating, threatening or pressuring victims or relatives of victims of anti-Sikh riots to lodge complaints or reopen complaints for political advantage. e) Fifth, in May 2000 the National Democratic Alliance Government appointed the Nanavati Commission to inquire into the anti-Sikh riots of 1984 in Delhi. It was difficult to believe that any political party or group would put time, effort, and resources into pressuring the applicant's family and others to lodge or resume cases when the Commission has investigated the matter through legitimate means, successfully implicating important INC figures. f) Sixth, the applicant arrived in Australia in July 2009, but did not apply for a protection visa until May 2013. The Tribunal did not find the applicant's explanation for his delay in applying for a protection visa to be satisfactory. 18 The Tribunal appears to have accepted the appellant's claim that, since coming to Australia, he had written poetry against the Indian government, which he posted on Facebook (under a pseudonym). It also accepted that this conduct was not engaged in solely for the purpose of strengthening the appellant's claim for protection. Nevertheless, the Tribunal was not persuaded that there was any reason for him to fear harm on that account. 19 For these reasons, the Tribunal was not satisfied that the appellant faced a risk of serious harm in India based on either his religion or his political opinion. For the same reasons, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to India, there was a real risk that the appellant would suffer significant harm (as defined in subs 36(2A)). Accordingly, the Tribunal was not satisfied that either the refugee criterion or the complementary protection criterion had been met.

The hearing below 20 In his show cause application in the Circuit Court, the appellant pleaded seven grounds of review. The primary judge rejected each of them. Most raised complaints about the merits of the Tribunal's findings and, as the primary judge held, did not allege anything that could conceivably involve jurisdictional error. There are two notable exceptions: the contention in ground 3 that the Tribunal denied the appellant natural justice and the contention in ground 7 that the Tribunal erred in law in not considering evidence which was significant and critical to the decision under review. 21 No written submissions were apparently made and the appeal book includes no transcript of the hearing in either the Circuit Court or the Tribunal. This Court is therefore reliant on the summary of the oral submissions provided by the primary judge in his reasons and the Tribunal's account of the hearing of the review application appearing in its decision record. 22 In support of ground 3 the appellant complained that the Tribunal did not translate all the documents he had submitted and that he was unable to obtain all the documents in relation to his grandfather's death and the attacks he, himself, had suffered. 23 The primary judge held that the Tribunal was under no duty to translate documents the appellant provided to it and, given the letter the Tribunal sent to the appellant, which stated that any documents sent to the Tribunal should be in English or translated by a translator accredited by NAATI (the National Accreditation Authority for Translators and Interpreters), the appellant could not reasonably have believed that the Tribunal would do so. 24 His Honour held that the appellant's inability to put before the Tribunal the information he had requested of the Indian police did not result in a denial of natural justice. 25 In relation to ground 7, the primary judge said: 28 At the hearing I asked the applicant to identify the evidence he claimed the Tribunal did not consider. As I understood the applicant, the evidence he claims the Tribunal did not consider included the documents to which I refer in paragraph 20 of these reasons. As I have already concluded in relation to those documents, the Tribunal was under no obligation to have the documents translated. That was the applicant's responsibility. 29. In addition, however, the applicant referred to a report which purports to describe an attack on his father. That appears to be the complaint by the father of an attack on him to which I have referred in paragraph 10 of these reasons. As I note in paragraph 12(b) of these reasons, the Tribunal referred to and considered the information contained in that document.

The appeal 26 The appeal is in the nature of a rehearing. That means that it is necessary for the appellant to be able to show that the primary judge made an error when he refused his application: see, for example, SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. In his notice of appeal the appellant does not point to any such error. His grievances are directed at the Tribunal, rather than the primary judge. He does not allege that the primary judge made any error. 27 The notice of appeal contains three grounds. They are pleaded in the following way (without alteration): 1 the Tribunal misapplied the test of whether there was a real risk of significant harm to the applicant if returned to his country of nationality. 2 There is a well founded fear of persecution for the applicant in India because of the events in the past involving continuous threats to the applicant's family and also murder which is denied by the RRT and the delegate 3 the genuineness of the evidence and documents were discarded based upon just assumptions and country information. 28 No submissions were filed. At the hearing, the appellant made some oral submissions, assisted by an interpreter in the Punjabi language. I will refer to those submissions in the contexts in which they were advanced.

Misapplication of the test of risk of significant harm (ground 1) 29 In terms, ground 1 was not raised in the court below. But when I invited the appellant to explain how the Tribunal had misapplied the test he said that the Tribunal failed to consider documents which were provided to it, particularly documents relating to his mother's accident. When pressed to explain how this was a misapplication of the test, he replied: Tribunal said that I was not a credible witness and I was not telling the truth, but I told them what I had provided. That was actually true and correct, but I asked them to make queries in relation to those documents, but they failed to do so. Yes. There is a problem. In fact, there is a real fear of persecution if I return to my home country, but the question is it is really difficult to prove that, so how could the authorities in Australia say that there is no fear of persecution for me at all without looking at the documents or verifying these documents properly. 30 The gravamen of this complaint is that the Tribunal should have looked at the documents and made inquiries to verify what they said. The appellant pointed to a telephone number on one of them which, he observed, the Tribunal could have called if it had a concern about the authenticity of the documents. 31 This is not a complaint that the Tribunal misapplied the statutory test and there is nothing in the Tribunal's reasons to suggest that it did so. 32 Furthermore, there is no evidentiary foundation for the submission that the Tribunal did not look at the documents and no legal support for the proposition that it should have made inquiries about them. I shall explain why shortly, but first it is necessary to say something about the documents. 33 Following the appellant's interview with the Minister's delegate and before the Tribunal hearing, the appellant's representative (an advisor, solicitor and registered migration agent) submitted to the Department's case officer three documents. One was a copy and accredited translation of a medical record dated 30 December 2008 purportedly certifying that the appellant had lost the second toe of his left foot resulting in a 5% permanent disability. The document contains no history to explain the loss of the toe. The second was a copy and accredited translation of a police report dated 5 July 2013. This was the document which included a telephone number. It indicated that the appellant and his family had asked for copies of the "FRIs" or ("FIRs" as the Tribunal referred to them) (First Information Reports or First Instant Reports) of attacks on them from 1984 to the present but advised that the information could not be provided because flooding in July 2010 had caused damage to the records and they were illegible. The third document was a copy and accredited translation of a police report of an assault upon the appellant's father on 19 November 2012 apparently made by the appellant's father the following day. 34 Annexed to the appellant's submission to the Tribunal were a number of other documents created whilst he was in immigration detention. They included accounts he had given the immigration authorities and a psychologist since coming to Australia of threats to, and assaults upon, him. Subsequently, the appellant's representative forwarded additional documents purporting to be poems the appellant had written and posted on Facebook. None of these documents was translated into English. 35 After the Tribunal hearing, in response to the Tribunal's request that the appellant provide evidence to corroborate his claim that he had posted anti-government poetry and songs on the internet, the appellant's representative sent the Tribunal screenshots of a Facebook page (purportedly belonging to the appellant but under a pseudonym), anti-government poetry posted on that Facebook page, an anti-government poem also posted on Facebook, and from YouTube purportedly containing one of the appellant's anti-government songs. Only the last two documents were accompanied by English translations. 36 The Tribunal referred to most of these documents in its reasons. The only documents to which it did not refer were incapable of shedding any light on the truth or reliability of the appellant's claims. 37 In relation to the police report of an attack and assault upon his father, the Tribunal noted that it "merely states that the [appellant's] father had reported an incident to the police and lacks any other evidentiary value or verification in establishing that an attack had, in fact, occurred". The Tribunal said that, having regard to the reasons it had already given and its findings concerning the appellant's credibility, it did not give any weight to the contents of the document. 38 In relation to the other police record, the Tribunal said that the letter did not establish that complaints had been made or FIRs were lodged or "exited" before the flooding and it would not attach any weight to it to support the appellant's claims that he and members of his family had been attacked for the reasons he had provided or that any reports had been made to the police before 2010. 39 The Tribunal noted that the appellant had made claims to the psychologist, but said that as it "has already rejected these claims, it [did] not consider the report to lend any weight to the [appellant's] evidence". In other words, the claims of threats and assaults recorded in the psychologist's report were no more than self-serving statements which, given the Tribunal's view of the appellant's credit, were worthless. 40 Later in its reasons the Tribunal referred to the screenshot from the appellant's Facebook page including his poetry and the songs and poems allegedly posted on YouTube. It accepted that these were the appellant's work but in the case of the publications on Facebook it was not satisfied that they were accessible to anyone other than the appellant's friends. It concluded as follows: 54 On the basis of the information before it, if he were to return to India and continues to express his views at the level he has in the past, the Tribunal is not satisfied that there is a real chance that the applicant will face arrest, detention or serious harm at the hands of the authorities or anyone else for the reason of his express or imputed political opinion, religion or any other Convention reason. 55 Having regard to the Tribunal's findings above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. The Tribunal, therefore, is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act. 41 The Tribunal did not fall into jurisdictional error by failing to make further inquiries. While it certainly could have made inquiries of other people (see Migration Act, s 424) or caused inquiries to be made (Migration Act, s 427), there was no obligation to do so in this case. The Court was not taken to any evidence to suggest that the appellant requested the Tribunal to obtain oral evidence from anyone else (see Migration Act, s 426). As the High Court emphasised in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25], the duty imposed on the Tribunal by the Migration Act is a duty to review. The Court accepted 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", but I am not satisfied that in the present circumstances any such duty arose. As in SZIAI, there was nothing on the record to indicate the utility of any inquiry (see SZIAI at [26]). Moreover, the inquiries the appellant submitted should have been made were inquiries into the authenticity of the documents. He repeatedly referred to the Tribunal alleging that the documents were "fake". But the Tribunal did find that the documents were "fake". Rather, the Tribunal found that they did not provide independent evidence corroborating the substance of the appellant's claims to fear harm for the reasons he proffered.

The appellant has a well-founded fear of persecution in India because of continuing threats to his family "and also murder which [was] denied by the [Tribunal] and the delegate" (ground 2) 42 Ground 2 is similar to grounds 2, 4 and 5 below and takes issue with the Tribunal's factual conclusions. It does not disclose any jurisdictional error.

The Tribunal "discarded" the genuineness of the appellant's evidence and documents based only on assumptions and country information (ground 3) 43 Ground 3 is equally unmeritorious. 44 The appellant argued that the Tribunal did not accept either his evidence or his documents as genuine because it assumed the documents were fake. 45 The first problem with this ground is that the Tribunal made no assumptions. It had concerns about whether the appellant's contentions were genuine. It raised those concerns with the appellant, giving him an opportunity to answer them. His representative sent the Tribunal a submission containing the appellant's response. The Tribunal took into account all the matters raised in that submission. There is no reason to believe that the Tribunal's decision was based on anything other than the appellant's own account and the independent country information to which it referred. 46 Secondly, as I have already observed, the Tribunal did not treat the documents as fake. 47 The Tribunal committed no error in having regard to the country information. In conducting its review, the Tribunal may acquire any information it considers relevant, in which case it must have regard to it: Migration Act, s 359(1). See, too, Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, 216 ALR 1 at [7]-[10] (Gleeson CJ).

Two other matters 48 In an affidavit filed at the same time as the notice of appeal, the appellant contended that the Tribunal was in error because it denied him "procedural fairness and natural justice" and that the delegate and the Tribunal failed to consider the relevance of his evidence and "decided them to be fraudulent without proper investigation". 49 Neither complaint is captured by the notice of appeal. As the appellant was unrepresented, I considered it reasonable to treat these allegations as proposed additional grounds of appeal. On this basis (and with the Minister's consent) I granted the appellant leave to amend his notice of appeal to add them. They did not improve his prospects of success. 50 The complaint about procedural unfairness was the same complaint he made to the primary judge. For the reasons given by the primary judge it should be rejected. It should be noted that procedural fairness (also known as natural justice) has two features or limbs: the right to be heard before an adverse decision is made and the right to an impartial hearing. In the case of the second limb, the appellant made no complaint of bias, actual or imputed. In the case of the first limb, commonly known as the hearing rule, the Migration Act contains a code. Part 7 Division 5 is to be taken as "an exhaustive statement of the requirements of [that] rule in relation to the matters it deals with". The appellant did not suggest that the Tribunal failed to do anything required of it by Pt 7 Div 5. To the extent that the matters the appellant raises go beyond the matters with which Pt 7 Div 5 deals, the Tribunal was not obliged to arrange for documents to be translated and the appellant was on notice that it would not do so. On the assumption that, but for the flooding of the station, the local police would have had documents that would have corroborated the appellant's claims, the appellant's inability to obtain them, as the primary judge held, does not amount to a denial of procedural fairness or natural justice. It is his misfortune. 51 Turning to the second additional complaint, the delegate's decision can be put to one side. It is no more than a matter of historical interest. That is because it was the Tribunal's decision, not the delegate's, that was the subject of the review application in the Circuit Court. As for the Tribunal, there is no substance in the proposition that it failed to consider the relevance of the appellant's evidence. The Tribunal had regard to the evidence. It did not reject the evidence because it was irrelevant. It rejected it because it did not believe critical parts of the appellant's account and did not consider the documents took the matter any further. Nor did the Tribunal reject the evidence without proper investigation. It tested the appellant's account in various ways, including by questioning him and by considering his account against the country information. The appellant did not point to any particular investigation which the Tribunal ought to have carried out. There is no general duty to investigate; any more than there is a general duty to inquire. The Tribunal's duty, as I have already observed, was a duty to review. The Tribunal fulfilled this duty, albeit that the appellant is understandably unhappy with the result.

Conclusion 52 In these circumstances, the appeal must be dismissed. Costs should follow the event. 53 The Minister applied for a fixed costs order under r 40.02(b) of the Federal Court Rules 2011 (Cth) ("Rules"). The amount he sought was $3,500. He relied on an affidavit affirmed by his solicitor, Mark Wiese, on 15 May 2015 in which Mr Wiese detailed the work that had been carried out on the Minister's behalf in relation to the appeal and the professional costs he had incurred and was likely to incur. On the basis of that information, I am satisfied that it is both appropriate and desirable to make the order sought. It is appropriate to do so because the sum proposed appears reasonable and is at the lowest end of the range the Minister's solicitor considers would be recovered if costs were taxed. It is desirable to do so because it is efficient and cost effective and would thereby promote the overarching purpose of the civil procedure provisions of the Federal Court of Australia Act 1976 (Cth) ("FCA Act") and the Rules: see FCA Act, s 37M. 54 There will be orders accordingly. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.