FEDERAL COURT OF AUSTRALIA SZLGF v Minister for Immigration and Citizenship [2008] FCA 1369 SZLGF and SZLGG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 442 of 2008 GRAHAM J 15 AUGUST 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 442 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZLGF First Appellant SZLGG Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 15 AUGUST 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 442 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZLGF First Appellant SZLGG Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 15 AUGUST 2008 PLACE: SYDNEY REASONS FOR JUDGMENT The Requirements for the Grant of a Protection Visa 1 Under s 45 of the Migration Act 1958 (Cth) ('the Act'), a person who is not an Australian citizen who wants a visa, must apply for a visa of a particular class. An application for a visa is a valid application if it complies with the requirements of s 46 of the Act. Section 47(1) of the Act requires the Minister to consider valid applications for visas. Section 65 of the Act makes provision for the grant, or refusal, of visas. It relevantly provides: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.' 2 In respect of protection visas s 36(2) of the Act relevantly provides: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; … (b) a non-citizen in Australia who is the spouse … of a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa.' 3 The references to the Refugees Convention and to the Refugees Protocol are references to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (hereinafter collectively referred as 'the Convention'). 4 Whether under s 36(2) Australia has protection obligations to a particular person depends upon whether that person satisfies the definition of 'refugee' in Article 1A of the Convention in the context of other relevant Articles (per Gummow A-CJ, Callinan, Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 ('QAAH') at [37]). 5 In Article 1A(2) of the Convention, 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…' 6 The definition of 'refugee' is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external protection' by the country of nationality, for example, by the provision of diplomatic or consular protection, and not to the provision of 'internal protection' provided inside the country of nationality from which the refugee has departed (per McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 ('Khawar') at [62], cited with approval by Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 ('SZATV') at [16]; see also QAAH). 7 The definition of 'refugee' presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for a relevant Convention reason, which is well-founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition is also satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition (per McHugh and Gummow JJ in Khawar at [61], cited with approval by Gummow, Hayne and Crennan JJ in SZATV at [16]. See also Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ('Chan'), Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 ('Applicant A') at 283 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ('S152') at [19]). 8 Where diplomatic or consular protection is available, a person must show not merely that he is unwilling to avail himself of such protection, but that his unwillingness is owing to his fear of persecution. He must justify, not merely assert, his unwillingness. A claimant's unreasonable refusal to seek the protection of his home authorities would not satisfy the requirements of Article 1A(2) of the Convention (per Gleeson CJ, Hayne and Heydon JJ in S152 at [19]). 9 It is well settled since Chan and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 ('Guo') at 571-2 and 596 that the requirement that the 'fear' be 'well-founded' adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which form the basis of the fear experienced by the particular applicant (per Gummow, Hayne and Crennan JJ in SZATV at [18]). A fear is 'well-founded' where there is a real substantial basis for it (see Guo at 572). The Role of the Refugee Review Tribunal 10 Under s 411(1)(c) of the Act, a decision to refuse to grant a protection visa is an RRT-reviewable decision. Section 412 of the Act provides for the making of applications for review of RRT-reviewable decisions to the second respondent, the Refugee Review Tribunal ('the Tribunal'). Section 414(1) of the Act requires the Tribunal to review valid applications made under s 412 for the review of RRT-reviewable decisions. By s 415 of the Act the Tribunal is empowered to exercise all the powers and discretions that were conferred relevantly, on a delegate of the Minister who has made a decision to refuse to grant a protection visa under s 65(1)(b) of the Act. The powers of the Tribunal include a power to affirm the relevant decision (see s 415(2)(a) of the Act) and a power to set it aside and substitute a new decision (see s 415(2)(d) of the Act.) 11 The appellants in the matter presently before the Court have been identified for the purpose of the proceedings by the pseudonyms SZLGF and SZLGG. SZLGF is the husband and SZLGG the wife. On the hearing of the appeal which is presently before the Court the first appellant has appeared in person. The second appellant did not appear. 12 The first appellant was born in Gujarat in India on 20 June 1972. The second appellant was born in Mumbai on 13 November 1973. They were married on 7 March 2006. The second appellant obtained an Indian passport on 17 April 2006 and the first appellant obtained an Indian passport on 23 May 2006. Following their marriage in March 2006 the appellants travelled quite extensively within Asia visiting Thailand, Malaysia and Singapore. On 16 March 2007 they left India and arrived in Australia on 17 March 2007. 13 On 1 May 2007 the appellants lodged an application for a Protection (Class XA) visa. Part B of the application for a protection visa contained a section providing for signature by 'Applicant 1'. The relevant section included the question 'Do you have your own claims to be a refugee?' and was followed by two boxes. The 'no' box was followed by the words 'you must complete a Part D'. The 'yes' box alternative was followed by the words 'you must complete a Part C'. The first appellant signed the application for a protection visa within Part B checking the 'yes' box. His signature was recorded with the date 1 May 2007. 14 The section referable to 'Applicant 1' was followed by a section referable to 'Applicant 2'. It commenced with the same question 'Do you have your own claims to be a refugee?' which was followed by a 'no' box and an alternative 'yes' box. Once again it was indicated that if you marked the 'no' box, you were required to complete a 'Part D' and if you marked the 'yes' box, you were required to complete a 'Part C'. The second appellant (the wife) signed the section referable to 'Applicant 2' in Part B of the protection visa application form against the date 1 May 2007 having checked the 'no' box. 15 The next section of the protection visa application was Part C. That part was completed by the first appellant alone. In it he claimed to be married and to be an Indian citizen. Question 39 was completed to indicate that the first appellant was seeking protection in Australia so that he did not have to go back to India. When asked why he had left India, in question 40, his response was: 'Applicant claims subject to persecution in the hand of non private agents, "criminals, thugs, extortionists", as a result being "businessmen" and the state refused protection as a result of unwillingness to comply with the unlawful demand of bribes.' 16 In relation to the question 'Who do you think may harm/mistreat you if you go back?' the first appellant indicated 'will provide later'. Part C of the application for a protection visa was signed by the first appellant who made a declaration as required by the form. 17 The next section in the protection visa application form was Part D. It was headed 'Application for a member of the family unit' which was then followed by the words: 'This part is for a member of the family unit who does NOT have their own claims to be a refugee, but is included in this application. If you DO have your own claims to be a refugee, complete a Part C instead.' Part D of the application was completed by the second appellant who indicated that she was married. At the conclusion of Part D the relevant 'Applicant's declaration' was completed and signed by the second appellant. 18 It is clear that the appellants were seeking protection visas on the basis that the first appellant was a non-citizen in Australia who came within the definition of 'refugee' as set out in the Convention and that the second appellant was claiming to be a non-citizen in Australia who was the spouse of a non-citizen who was a refugee within the meaning of the Convention and who held a protection visa. 19 This matter is not on all fours with NAEA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 341 ('NAEA of 2002'), a decision of Gyles J, in which his Honour agreed with a finding of the Tribunal that it had no jurisdiction to hear the application for review in circumstances where the husband, who claimed to be owed protection obligations under s 36(2)(a) of the Act, had died before the Tribunal hearing. His Honour said at [14]: '… it is quite plain that the applicant deliberately applied for a protection visa on the basis that she was a family member of her husband claimant and not in her own right. There is a fundamental difference between the two bases for a protection visa. In my opinion, the Act and the Regulations require separate and specific applications for each. It would not be open for the Tribunal to grant a protection visa to a person who had applied as a family member on the basis that that person was a refugee. …' 20 His Honour agreed with the reasoning of Kenny J in V120/OOA v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 116 FCR 576 at [59]. 21 Whilst the facts may not be precisely the same in the present case, the principle which flows from NAEA of 2002 is of equal application in a case where an applicant husband claiming to fall within s 36(2)(a) of the Act fails to satisfy the Tribunal that he comes within the definition of refugee in the Convention. 22 This case is quite dissimilar from SZGME v Minister for Immigration and Citizenship (2008) 102 ALD 31 ('SZGME'). In that case, a father, mother and daughter were non-citizens in Australia. The only member of the family who claimed to be a refugee within the meaning of the Convention was the daughter. She ticked the box in the relevant form indicating that she claimed to be a refugee and filled in part C of the form. Her father and mother ticked the relevant questions in part B to indicate that they did not have claims to be refugees but failed to fill in part C or part D. At a later point in time, they completed part C forms, i.e. forms which were to be completed by people who wished to submit their own claims to be a refugee, and sent them to the Tribunal. 23 On 19 May 2007, a delegate of the Minister refused the present appellants' protection visa application. On 6 June 2007, they applied to the Tribunal for review of that decision. With their application for review, they forwarded a statement which each of them signed against the date 6 June 2007. Plainly, the statement was one seeking to amplify or correct the claim to refugee status made by the first appellant. It took the form of a letter which read: 'The story which was written by the migrating agent was wrong the real story is that my wife was from the good family. She was in love with a boy, but the boy was fraud and he sell my wife to the market of sex and one day when I went over there she was crying with sad, because after that she could not go to her house. But I liked that girl and thought of marrying the girl because I love her. And after some days we were married, but nobody new (sic) this, and when the people of the market place came to now (sic) they started finding us, and they wanted the girl to be back. But my wife didn't like this, so she did not wanted to go back. Once they put the fire in my house, but we were alive. Then they started putting stones and bad goods to over house. But we were very frighten and was running from one place to another, Even my parents were not accepting my wife to come to my house. We went to many different cities, but they have the contact with someone in that city. At last they tired (sic) to kill me, once they tired (sic) to kill me with knife but I was alive, And at last I have to come to Australia to save our both lifes.' 24 The first appellant was sent a letter on 14 June 2007 inviting the appellants to a hearing before the Tribunal on 11 July 2007. The letter indicated that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. Both appellants were invited to attend the hearing to give oral evidence and present arguments. On the same day, namely 14 June 2007, a letter was sent by the Tribunal to the first appellant inviting comment on information that would be the reason or part of the reason for deciding that the first appellant was not entitled to a protection visa. The first appellant provided a response to hearing invitation indicating that he wished to come to the hearing but, effectively, that his wife did not. 25 On 10 July 2007, a letter and an accompanying medical certificate were sent by the first appellant to the Tribunal. The medical certificate suggested that the first appellant was unfit for work for a period of one day from 9 July to 10 July 2007 due to a sprain which affected his left leg. The accompanying letter indicated that the first appellant was sorry that he could not go to the hearing 'because I am not well, I had problem with my leg, my left leg had sprinkle (sic) and I can't walk'. 26 By letter dated 10 July 2007, directed to the first appellant, the appellants were invited to attend a hearing to give oral evidence and present arguments to the Tribunal on 26 July 2007. On 24 July 2007, the Tribunal received a response to hearing invitation from the first appellant indicating, again, that he wished to appear but effectively, his wife did not. As it transpires, both the appellants attended a hearing before the Tribunal constituted by Kira Raif on 26 July 2007. The hearing would appear to have been interrupted. It apparently commenced at 8.40 am and ran for about 15 minutes, and then resumed shortly after midday and continued until about 1.45 pm. 27 The Tribunal handed down its Statement of Decision and Reasons, signed on 1 August 2007, on 21 August 2007. That decision affirmed the decision of the Minister's delegate not to grant the appellants Protection (Class XA) visas. 28 The Statement of Decision and Reasons of the Tribunal made it clear that the second appellant became ill during the course of the hearing. She stated that she could not give evidence. The Tribunal offered to adjourn the hearing to enable her to give evidence at a later date but she indicated that she did not want to return on another day. According to the findings and reasons of the Tribunal, she gave some evidence to the Tribunal and stated that she had nothing further to add and that she was relying on the evidence of her husband. 29 The Tribunal's Statement of Decision and Reasons occupied some 13 pages. Some seven of those pages recorded, in closely typed script, matters which had been the subject of evidence at the hearing on 26 July 2007. These were recorded under the sub-headings 'Applicant husband' and 'Applicant wife'. The first appellant plainly gave evidence that he had been married on 7 March 2006 and the Statement of Decision and Reasons records 'The Tribunal noted that his spouse's passport was issued on 17 April 2006'. The spouse referred to was, of course, the second appellant. 30 The Statement of Decision and Reasons also recorded: 'The applicant [referring to the first appellant] asked for some time to survive, both he and his wife have mental torture and if they go back, it is not good for them and there is a danger to their lives. They request to be given some time and protection.' 31 Under the heading, 'Applicant wife' the Tribunal recorded: 'The applicant wife said that she was not feeling well and that she could not give evidence … She requested the Tribunal to consider her husband's evidence. …' 32 It is clear beyond argument that the Tribunal accepted that the second appellant was the spouse of the first appellant and hence fell within s 36(2)(b) of the Act, subject to the first appellant's claim to refugee status being accepted by the Tribunal in accordance with s 65(1) of the Act when taken with s 36(2)(a) and the Convention. 33 The findings of the Tribunal were adverse to the claims made by the first appellant. In the circumstances, the Tribunal said in the 'FINDINGS AND REASONS' section of the Statement of Decision and Reasons: 'In the light of this finding, it is unnecessary for the Tribunal to consider whether the claimed persecution is Convention-based and whether the applicants belong to a particular social group.' 34 The Tribunal found that the first appellant was not a credible witness. The statement included: '… The applicant's [referring to the first appellant] entire oral evidence was vague and unresponsive. He could not remember the dates of any of the events and he could not provide details of these when questioned. His evidence was confused and changed frequently. For example, he initially stated that he worked in his occupation until he came to Australia. He subsequently stated that after he was attacked, he ceased working and he was supported by his friend. He stated initially that he lived at one address in Bombay for twenty years and he expressly stated that he had not changed address and had not lived anywhere else for even a month. He subsequently stated that he went into hiding and that he lived with a friend. The applicant stated initially that he returned to Bombay from Poonam because he had no money and had to support himself, however he later stated that when he returned to Bombay, he did not initially work and he returned only because he had a friend there who was willing to support him. The Tribunal finds that the applicant was not credible and this causes the Tribunal to question the authenticity of the applicants' claims.' 35 A number of matters were considered by the Tribunal to be implausible and a number of inconsistencies were identified. The Tribunal then said: 'The combination of these matters causes the Tribunal to find that the applicant husband was not truthful in his evidence. The Tribunal rejects the applicant husband's claims. As the applicant wife's claims arose from the same facts as her husband's claims and since she relied on her husband's evidence, the Tribunal also rejects the applicant wife's claims. … … The Tribunal rejects all of the applicants' claims arising from the applicant wife's alleged involvement in prostitution. As no other claims were made by the applicants, the Tribunal finds that there is no real chance that the applicants will face serious harm if they return to India now or in the reasonably foreseeable future.' 36 It may be that the Tribunal failed to differentiate the first appellant from the second appellant in respect to the claims to refugee status. The first appellant was claiming to be a refugee himself, the second appellant was not claiming to be a refugee herself but rather she claimed that her husband was a refugee thus entitling her to a protection visa under s 36(2)(b) of the Act. 37 The Tribunal concluded that it was not satisfied that the appellants were persons to whom Australia had protection obligations under the Convention. Accordingly the appellants did not satisfy the criterion set out in s 36(2)(a) for a protection visa nor could they satisfy the alternative criterion in s 36(2)(b) and therefore could not be granted protection visas. 38 The grounds of appeal contained in the Notice of Appeal were: '1. The Honourable Federal Magistrates Court erred in interpreting the construction of s424A of the Migration Act 1958 … 2. His Honour failed to determine that the purpose of s424A was not served in the proceeding of this applicant. 3. The Honourable Court also erred in law determining that the Refugee Review Tribunal … was in a breach of procedural fairness.' 39 When invited to speak to the Notice of Appeal and amplify what was covered by the grounds as recorded in the Notice of Appeal, the appellant said that he had nothing to say about the matter. He indicated that he believed the Tribunal had not considered his claim properly and that the appellants did not get proper justice from the Tribunal. He confirmed that his wife was included in his application and that she had no separate application. 40 It is plain that there is no basis on which the Court could find jurisdictional error in respect of the findings of the Tribunal. 41 In the Federal Magistrates Court the learned Federal Magistrate said that he could not discern jurisdictional error in the Tribunal's decision record as it related to the decision on the application for a protection visa made by the first appellant. 42 In relation to the second appellant, the learned Federal Magistrate summarised his findings as follows at [79] (see SZLGF & Anor v Minister for Immigration & Citizenship) [2008] FMCA 254): '79. The applicant wife also applied for a protection visa. She did so on a basis separate to that of her husband. Namely, she did not put forward claims to be a refugee in her own right in her application for a protection visa, but applied as the member of the family of the applicant husband [in fact as the spouse] … I find that the Tribunal did not deal with the applicant wife's claim consistent with the basis on which the application for a protection visa was made by her. It did not assess the applicant wife's claim for a protection visa as against the relevant criterion applicable to her given the basis of her application. … the Tribunal's decision record, insofar as it relates to the decision made in relation to the applicant wife, does reveal jurisdictional error on the Tribunal's part.' 43 With great respect to the learned Federal Magistrate, I am unable to see how the Tribunal failed to assess the second appellant's clam for a protection visa as against the relevant criterion applicable to her. The sole matter that was personal to her was whether or not she was the spouse of the first appellant. The Tribunal clearly addressed this and found that she was. In the circumstances, her claim for a protection visa had to rise or fall with the success of the first appellant's claim to be a refugee within the meaning of the Convention. 44 Nothing in the statement that was provided with the Application for Review lodged by the appellants with the Tribunal on 6 June 2007 converted the second appellant's claim for a protection visa from one made under s 36(2)(b) of the Act into one under s 36(2)(a) of the Act. This case does not fall to be decided by reference to the judgments of the Court in SZGME. 45 The learned Federal Magistrate proceeded to find that the decision of the Tribunal member referable to the second appellant was affected by jurisdictional error, however, in the exercise of the Court's discretion he declined to order that any relief be granted. In my opinion the learned Federal Magistrate incorrectly concluded that the decision of the Tribunal referable to the second appellant was affected by jurisdictional error and accordingly it was unnecessary for him to deal with her claim on a discretionary basis. 46 In my opinion the appeal should be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 4 September 2008 The First Appellant appeared in person. The Second Appellant did not appear. Counsel for the First Respondent: S B Lloyd Solicitor for the First Respondent: Clayton Utz The Second Respondent filed a submitting appearance. Date of Hearing: 15 August 2008 Date of Judgment: 15 August 2008