SZVYS v Minister for Immigration and Border Protection

1. INTRODUCTION 1 In these proceedings the appellants appeal from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal). The Tribunal had affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the appellants Protection (Class XA) Visas (Visas) under s 36 of the Migration Act 1958 (Cth) (Act). 2 The appellants are both nationals of India. The first appellant is the husband of the second appellant and it is upon his claims for protection that the second appellant relies, as a member of the same family unit. Broadly speaking, the appellants claim entitlement to the Visas on the basis that if they return to India they will be subjected to persecution in the sense set out in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Convention). 3 In the present proceeding the appellants were not legally represented. The first appellant appeared with the assistance of an interpreter in the Gujarati and English languages, on his own behalf, and on behalf of the second appellant. They relied upon the following grounds of appeal:
   1. The [primary judge] failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the [appellants'] claims and ignoring the aspect[s] of persecution and harm in terms of section 91R of the [Migration] Act. The Tribunal failed to observe the obligation amounted to a breach of statutory obligation.
   2. The [primary] judge dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 4 The respondents filed written submissions in answer to the appeal on 26 April 2017. The appellants filed no written submissions.

2.1 The Visa applications and the decision of the Delegate 5 On 27 June 2013 the appellants obtained visas to enter into Australia, the first appellant securing a Business Visitor Stream visa and the second appellant a Tourist Stream visa. They entered Australia on 2 July 2013 using Indian passports. On 16 August 2013 the Department of Immigration and Citizenship (as it was then known) received the appellants' applications for their Visas. 6 In a decision dated 7 February 2014 the Delegate accepted the first appellant's claims that he had borrowed money from a person in his local area, that he had been unable to make repayments, that the lender threatened him, that he went to the police in relation to the threats but that they did not take any action, that he moved to Ahmadabad where he lived and worked for 11 months, and that he then departed India to avoid him. However, the Delegate considered that the first appellants fears as a result of being unable to make loan repayments amount to a personal dispute which does not constitute a fear of harm for any Convention reason.

2.2 The Tribunal's decision 7 The appellants lodged an application for the review of the decision of the Delegate, which was heard by the Tribunal on 9 December 2014. Each of the appellants appeared on that date and, with the assistance of an interpreter in the Gujarati and English languages, both appellants gave evidence. The second appellant indicated that she was not making any of her own claims and was dependent on her husband's claim. 8 On 10 December 2014 the Tribunal affirmed the decision of the Delegate not to grant the Visas. 9 The claims made by the first appellant appear in a statement that he signed and which accompanied his application for the Visa. They may be summarised as follows: (a) in 2001 he started a diamond cutting and polishing business in Gujarat. In order to do so he had to borrow money from a private lender at a high interest rate. He approached Mr P who agreed to lend him money at a rate of 17%; (b) at the beginning he paid Mr P, but in early 2012 his business slowed down, some of his clients disappeared without paying him and he missed a few months of payments; (c) in June 2012 Mr P came to his house with "goons" and asked to be paid 10 lakhs in rupees. They threatened to set fire to his house and ransacked it. The second appellant was very worried and gave all of her jewelry to them but it was not enough. They asked the first appellant to sign a blank paper, which he did because he thought that they were going to kill him. He had no idea how his loan became 17 lakhs and when he asked on the telephone he was told that Mr P had evidence for it and threats were made; (d) the first appellant got very worried and went to the police station to report the matter, that the police refused to take action because Mr P is very close to senior political figures in the Bharatiya Janata Party; (e) when the first appellant returned from the police station he received a phone call asking why he had been there. A few hours later two people came to the appellants' home and asked the first appellant to go with them. He refused to go and called the police. The people left, but after the incident the first appellant decided not to stay in one place; (f) the first appellant was losing money in his business because he could not go to the market, and after he moved out of his house his neighbours told him that people had come to look for him many times; (g) Mr P sent some people to his parents-in-law's house to look for him and told them that he had borrowed 20 lakhs and asked them to tell the first appellant that if he did not pay the money he would kill all of his family members; (h) the first appellant lost all of his contractors and his business and knew that if he was caught by Mr P he would force his family to come up with the money or be killed. Mr P threatened to kidnap his children so the appellants had stopped them from going to school; (i) the first appellant sold his house quietly and arranged to travel to Australia; (j) he is disturbed and worried for his life and continues to experience ongoing psychological effects as a result of the worry. 10 The Tribunal did not accept the claims made by the appellants in relation to the loan being made to them, and the threats made against them or their family. It found that the appellants had fabricated all of their claims for the sole purpose of applying for protection within Australia. The Tribunal gave several reasons for reaching this conclusion, some of which are set out below. 11 First, the Tribunal did not find credible the evidence given by the appellants as to why they left their children, aged 10 and 16, with the first appellant's parents-in-law in the face of the first appellant's claims that he and his wife were threatened, and that their children were threatened with kidnapping. The Tribunal did not accept that in such circumstances the appellants would travel to Australia and leave their children in India, apparently in harm's way. It did not accept the appellant's explanation for not bringing them, which was that their children did not have passports. 12 Secondly, the Tribunal did not accept that the appellants would not consider relocating, or were not able to relocate within India if the threats made against them were true. The Tribunal noted that when queried about this, the first appellant said that he had only lived in two places in India and that he could not relocate anywhere further within India. The first appellant also claimed that he had been threatened when he lived in Ahmadabad. The Tribunal did not find this evidence to be credible in light of the stated evidence of the appellants that their own lives and the lives of their children were at risk and that, instead of relocating within India, the appellants had travelled to Australia, a country where they did not speak the language, had no employment or family support and proposed to start a new life. Rather, this evidence suggested to the Tribunal that the appellants are capable of relocating within India. 13 Thirdly, the Tribunal found it implausible that the first appellant had borrowed the amount of 10 lakhs (being 1 million rupees or AU $19,451) in light of the first appellant's overall claims of poverty. 14 Fourthly, the Tribunal found that in several respects there were discrepancies or otherwise unsatisfactory aspects of the appellants' evidence. One was a discrepancy between his written statement that the first appellant was forced to pay 17% interest on his loan when during the Tribunal hearing he stated that it was 1.7%. When confronted with this discrepancy, the first appellant affirmed the rate was 1.7% but did not explain the contradiction. The Tribunal noted that the first appellant contended that he could read and write English and considered that the discrepancy indicated that the first appellant had fabricated his evidence in order to pursue his refugee claim. In another, the Tribunal considered that the appellants' were apparently unwilling to provide basic evidence in response to basic questions such as details about their financial circumstances in Australia. This, the Tribunal found, cast doubt on the veracity of the appellants' story. 15 Fifthly, the Tribunal did not accept that the appellants would not take steps to repay or reduce the debt they owed to Mr P if they believed that it existed in India and/or their children's lives were under threat due to such a debt. Their evidence was that they had not repaid any money to India since they had entered Australia in July 2013. 16 In the result, the Tribunal was not satisfied that the first appellant is a person in respect of whom Australia has protection obligations and found that there is not a well-founded fear of serious harm or persecution in the foreseeable future on the part of the appellants for a Convention reason, were the appellants to return to India.

2.3 The decision of the FCCA 17 The appellants filed an application for review of the decision of the Tribunal on 6 January 2015 and the hearing was conducted on 1 December 2016. 18 The grounds upon which the appellants relied were as follows: (1) The Tribunal committed jurisdictional error by failing to address the applicants' claims in the way that they were made; (a) the applicant stated in his protection visa that he was a businessman; (b) the applicant borrowed 10 lakhs; (c) the Tribunal did not consider the applicants' claims. (2) The Tribunal failed to comply with the mandatory requirement under section 424A of the Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of it being relied upon, and to invite the applicant to comment upon or respond to that information. (3) The Tribunal's decision was unjust and made without taking into account the full gravity of the applicants' circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from [his lender]. 19 The primary judge summarised the background facts and the Tribunal's decision and reasons, and then addressed each of the grounds raised. 20 In relation to ground one, the primary judge found that the Tribunal understood and considered each of the itemised claims made by the first appellant in his Visa application and that there was no evidence that the first appellant had made any broader claim to fear harm purely on the basis that he was a businessman. The primary judge found that the Tribunal had considered the first appellant's claims that he had borrowed 10 lakhs for the running of the business, but did not accept the truth of that claim. In the circumstances, the primary judge considered the allegation that the Tribunal failed to consider the appellants' claims was not well-founded and that, to the extent that the ground amounted to a broader complaint that the Tribunal ought to have accepted the first appellant's claims, it was an impermissible merits review. Accordingly, ground one was dismissed. 21 The primary judge found that ground two was not made out. Although the ground contends that there was a failure on the part of the Tribunal to comply with s 424A of the Act, the primary judge observed that there was no particular information which enlivened the obligation under the section. When asked by the primary judge, the appellants could not identify any information which they contended should have been put to them. Accordingly, ground two was dismissed. 22 The primary judge, construed ground three to be a contention that the Tribunal erred in failing to accept the first appellant's claims. He rejected this ground on the basis that it seeks an impermissible merits review. 23 In the result, the primary judge rejected the application for review and ordered that the appellants pay the costs of the first respondent.

3. THE PRESENT APPEAL 24 The first appellant appeared at the hearing for himself and the second appellant, with the assistance of an interpreter in the Gujarati and English languages. 25 I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellants satisfy the criteria for the grant of the Visas or to grant the appellants a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal's decision to refuse to grant the Visa to the appellants. The jurisdiction of the FCCA is limited to considering only whether the Tribunal's decision to refuse to grant the appellants the Visas is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth). 26 I now turn to the specific grounds of appeal that are raised.

3.1 Ground one: Tribunal acted in a manifestly unreasonable way 27 In ground one the appellants contend that the primary judge erred by failing to consider that the Tribunal acted unreasonably when dealing with the appellants' claims and ignoring the aspect of persecution and harm in terms of s 91R of the Act. This, the appellants contend, amounted to a breach of statutory obligation. 28 The principles of Wednesbury unreasonableness in administrative decision-making have been explained in such cases as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [43] - [52]. In submissions for the Minister, it was noted that no ground of review before the FCCA raised the question of whether the Tribunal had failed to consider s 91R of the Act. Accordingly, it was submitted that the appellants should be confined to the grounds of appeal raised before the Court below, citing Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71. 29 Section 91R of the Act has now been repealed. The presently applicable provision is subsection 5J(1) of the Act which provides that, for the purposes of the application of the Act, a person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and if there is a real chance that, if the person returned to their country, the person would be persecuted for one or more of those reasons. The real chance of persecution must also relate to all areas of their country. 30 The definition arises in the context of the present application pursuant to Article 1A(2) of the Convention, which provides that a refugee is a person who: … [O]wing 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 31 The appellants' application for the Visas is made in reliance on s 36(2)(a) of the Act, which provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. 32 The Tribunal's decision to reject the applications of the appellants arose from the fundamental rejection of the basis upon which the first appellant advanced his claims, which informed the conclusion that the appellants did not have a well-founded fear of serious harm or persecution in the foreseeable future for a Convention reason if they were to return to India. 33 It follows that the Tribunal did not ignore the question of whether the appellants would face persecution or serious harm upon their return to India and was not, in any event, obliged to consider whether any prospective harm would satisfy the s 91R threshold, as it did not accept that any harm would befall the appellants upon their return to India. 34 In these circumstances, it is apparent that the primary judge did not err by failing to consider that the Tribunal acted unreasonably or ignored an aspect of persecution and harm raised in the appellants application. 35 Ground one was not raised before the FCCA. Leave to do so on appeal is required; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 - 400. On the basis of the matters that I have addressed above, it is apparent that there are insufficient prospects for this ground of appeal to succeed to warrant the grant of leave. Accordingly, I refuse leave to rely on ground one.

3.2 Ground two: primary judge dismissed the case without considering legal and factual errors 36 In ground two the appellants submit, with no particulars provided, broadly that the Tribunal made legal and factual errors and that the primary judge erred in failing to consider those errors. 37 In my summary of the decision of the primary judge I have identified each of the grounds of review that were advanced before her Honour, and the conclusions that she reached. For each ground, the primary judge correctly summarised its legal effect, correctly and appropriately taking into account the fact that the appellants were self-represented. Having done so, the primary judge applied the relevant legal principles to consider and resolve each ground. I have indicated in the paragraph at the commencement of this part of my reasons that it is not open to the FCCA to conduct a merits review of the decision of the Tribunal, and the primary judge (correctly) did not do so. 38 In my view, the appellants have not established that the primary judge failed to consider any relevant legal or factual errors made by the Tribunal and I dismiss this ground of appeal.

4. DISPOSITION 39 I dismiss the appeal and order that the appellants pay the costs of the first respondent. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.