FEDERAL COURT OF AUSTRALIA BQT15 v Minister for Immigration and Border Protection [2017] FCA 685 Appeal from: BQT15 & Ors v Minister for Immigration & Anor [2016] FCCA 3186 File number: NSD 2203 of 2016 Judge: BURLEY J Date of judgment: 19 June 2017 Catchwords: MIGRATION – application for Protection (Class XA) visa by minor child – dependant applications by parents and sibling – whether parents and sibling prevented from relying on same criterion considered in previous applications – whether Tribunal acted unreasonably, failed to consider all aspects of alleged persecution or failed to consider full circumstances of the claims – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 91R, 48B, 417 Federal Court of Australia Act 1976 (Cth) s 24 Federal Court Rules 2011 (Cth) Division 9.6, r 9.63 Cases cited: BQT15 & Ors v Minister for Immigration & Anor [2016] FCCA 3186 Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 Date of hearing: 24 May 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 39 Counsel for the First, Second and Fourth Appellants: The Second Appellant appeared on behalf of the First and Fourth Appellants Counsel for the Third Appellant: The Third Appellant appeared in person Solicitor for the First Respondent: Ms N Blake of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS NSD 2203 of 2016 BETWEEN: BQT15 First Appellant BZQKP Second Appellant BZQKQ Third Appellant BZQKR Fourth Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BURLEY J DATE OF ORDER: 19 JUNE 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The second and third appellants pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BURLEY J: 1. INTRODUCTION 1 The first appellant is a minor, born in Australia in 2011. The fourth appellant is also a minor. She was born in India in 2006. Their father is the second appellant, and their mother is the third appellant. All are citizens of the Republic of India. 2 The second appellant arrived in Australia in February 2006 on a subclass 457 (Long Stay Business) visa. The third appellant followed with their daughter in March 2008, as holders of subclass 457 visas, granted on the basis of their dependence on the second appellant. 3 Before the birth of the first appellant, the second, third and fourth appellants applied for protection visas in January 2011 (2011 Visa application). A delegate of the first respondent (Minister) refused that application and that refusal was affirmed by decision of the Refugee Review Tribunal in June 2011. A subsequent application for judicial review was dismissed by the Federal Circuit Court of Australia (FCCA), and in December 2011 an appeal to a Full Court of the Federal Court of Australia was dismissed. In August 2012 the High Court dismissed an application for special leave to appeal from the decision of the Full Court. The second, third and fourth appellants subsequently sought, but were refused, Ministerial Intervention pursuant to ss 48B and 417 of the Migration Act 1958 (Cth) (Act). 4 The first appellant in the present proceedings applied for a protection visa on 28 February 2013. This was permissible because he had not been born by the time of the 2011 Visa applications mentioned above. The second, third and fourth appellants applied for protection visas as members of the same family unit as the first appellant. 5 In the present proceedings, the appellants appeal from the judgment and orders made by the FCCA dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed the decision of a delegate (Delegate) of the Minister not to grant the appellants protection visas pursuant to s 36 of the Act. 6 The appellants rely on the following grounds of appeal: 1. The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant[s'] claim and ignoring the aspect of persecution and harm in terms of section 91R of the Act. The Tribunal failed to observe [that] the obligation amounted to a breach of Statutory Obligation. 2. The Federal Circuit Court failed to take into consideration that the Tribunal's decision was unjust and was made without taking into account the full gravity of my [that is, the first appellant's] circumstances and consequences of the claim. 7 The hearing was listed on 24 May 2017 and the second and third appellants attended in person, but were not legally represented. They were aided by an interpreter in the Bengali and English languages. At the outset of the hearing, and with the consent of the second appellant, I made an order appointing him the litigation representative of his two children, the first and fourth appellants, pursuant to r 9.63 of the Federal Court Rules 2011 (Cth) (FCR), and otherwise dispensing with the need for formal compliance with Division 9.6 of the FCR. 8 The Minister filed written submissions in advance of the hearing, which were translated to the second and third appellants prior to the hearing. 2. BACKGROUND 2.1 The Delegate's decision 9 In a decision dated 1 August 2014 the Delegate found that the first appellant was born in New South Wales as the child of the second and third appellants and that by virtue of s 3 of the Citizenship Act of the Republic of India, is himself a citizen of India. The Delegate considered whether, as a non-citizen in Australia, the first appellant is a person to whom Australia owes protection obligations pursuant to s 36(2)(a) of the Act under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol (Convention). The Delegate also considered whether Australia owes the first appellant protection obligations pursuant to s 36(2)(aa) of the Act because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there is a real risk that he will suffer significant harm. 10 The basis of the first appellant's claims for a protection visa, in broad terms, arose from claims that his parents faced discrimination amounting to serious harm, and that he would also, as a result of being in a caste which is the subject of discrimination in India. The appellants also claim to fall within the criterion set out in s 36(2)(aa) of the Act, substantially on the basis set out in the evidence provided in support of the 2011 Visa application. The Delegate rejected these claims, was not satisfied that Australia owed protection obligations to the first appellant and refused the first appellants claim for a protection Visa. The delegate also refused to grant protection visas to the second, third and fourth appellants. 2.2 The Tribunal's decision 11 The appellants lodged an application for the review of the decision of the Delegate by the Tribunal, which conducted a hearing on 2 June 2015. The second and third appellants appeared before the Tribunal, gave evidence and presented arguments with the assistance of an interpreter in the Bengali and English languages. The Tribunal considered the first appellant's application against both ss 36(2)(a) and 36(2)(aa) of the Act. It considered the application for protection visas made by the second, third and fourth appellants only against s 36(2)(aa), on the basis of the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235. 12 On 17 July 2015, the Tribunal affirmed the decision of the delegate not to grant the visas. 13 The Tribunal considered the first appellant's claims (set out in his visa application filled out on his behalf by the second and/or third appellants) to the effect: (a) that he fears harm because his parents faced harm as members of their caste and that if he were to go to India he would be denied access to education, social services or employment; (b) that his parents had some experience of physical violence in India and that he would be discriminated against in school and socially because of his low caste background; (c) that he fears being killed by members of the higher caste who "hate his caste"; (d) that he does not have any place to live in India and that it is very difficult to find a rental house as a member of a lower caste; and (e) that the Indian authorities are discriminatory, and do not provide protection to persons of his caste. 14 The factual basis for the first appellant's claims was predominantly based on the experiences of his father, the second appellant, as set out in his evidence. The second, third and fourth appellants also relied predominantly on the evidence of the second appellant. 15 The second appellant claims that he was born in a lower caste Hindi family in West Bengal and had been the subject of discrimination from the beginning of his school life. He left school in 1988 and started work as a kitchen hand and graduated to a tandoori chef. He worked in a hotel in Goa, India, and then in various restaurants and hotels for about nine years before working as a chef in Bahrain for a year. He returned to India and worked in a different hotel in Goa from 2002 until 2003 when he moved to Singapore and worked as a chef until July 2005. He arrived in Australia in February 2006. 16 The second appellant further claimed that he was sponsored to come to Australia by a restaurant in Sydney. He started work on the same day that he arrived and worked in excess of 80 hours a week without receiving wages or other employment entitlements. His employer threatened to have his visa cancelled when confronted about his conditions. The second appellant went on to work in other restaurants, but conditions did not improve. In October 2012 he sought to apply for a permanent residency visa through his then employer who responded by asking him to pay $20,000. He was unable to pay this amount because the employer had not been giving him his proper wages and in response to his complaints the employer asked him to leave the restaurant, withdrew his Visa application and forced him to cease his employment at the restaurant. It was after this series of events that the 2011 Visa application was lodged. 17 The second appellant also claimed that he and the third and fourth appellants have nowhere to go if they return to India, that he fears that as known members of a scheduled class his children will face the same discrimination and trauma that he experienced and that both he and the third appellant have been harmed in the past. Other broad details of the harm that he and his wife claim to have suffered are apparent from the summary set out below of the Tribunal's findings. 18 The Tribunal relevantly stated at [14]: … the Tribunal has considered the claims made by his parents in regard to the past harm that they have suffered in order to assess whether there is a real chance that the applicant will suffer serious harm as a result of his status as a member of a scheduled caste. In considering the claims made by [the parents], the Tribunal is not satisfied that they have been truthful about past harm that they claim to have suffered. Whilst the Tribunal accepts that they have been discriminated against as members of the scheduled caste, the Tribunal considers that their claims have become increasingly elaborate as to the harm that they have previously suffered and their claims their children will have "no life" and be unable to live or survive in India are not supported by either their own circumstances or the independent evidence. … 19 The Tribunal then set out a number of reasons why it considered that the second and third appellants' claims of past harm were not credible, including the rejection of claims that; the second appellant had experienced violence in the past; that the third appellant had suffered humiliations whilst giving birth; and that the second appellant's cousin or brother was burnt alive or that his shop had been burnt down due to his caste. The Tribunal found what it characterised as "significant inconsistencies and increasing embellishments" in relation to the second appellant's claims of past harm that caused it to have considerable doubts that he has experienced serious harm at all in the past due to his caste. Furthermore, whilst the Tribunal accepted that as members of his caste, it is likely that the first appellant's parents experienced some discrimination in India, including in employment and education and their ability to attend temples, it did not accept that the first appellant's parents suffered assaults or threats of harm. The Tribunal concluded that the first appellant's parents have attempted to misrepresent their circumstances in India to present themselves as more economically and socially disadvantaged than they in fact were. It also found that the second appellant had deliberately provided untruthful evidence about the whereabouts of his siblings in an attempt to respond to the Tribunal's concern is that it appears his family, who are also members of the same caste, appear to be residing in India without suffering any harm. 20 In addition, the Tribunal rejected the second appellant's claims that he came to Australia because he feared harm and was unable to return to India following his arrival in 2006 to see his family as a result of fear of that harm. Instead, it found that the evidence indicates that he travelled to Australia on a business visa and pursued that visa and a permanent business visa for some time, and that it was only when those applications were unsuccessful that he sought to lodge a protection visa application. 21 In considering the claims that the first appellant would suffer future harm, the Tribunal accepted that there is considerable persecution of vulnerable children in India, including child labour, trafficking and commercial sexual exploitation. The Tribunal also accepted that the appellants have resided in Australia for several years and are well-settled and that their return to India will be a difficult adjustment and that they are very anxious about the prospect of returning to India. However, the Tribunal did not accept that there is a real chance that the first appellant will be killed or assaulted in India, or that he will otherwise suffer serious harm. It found that the first appellant's parents were not as socially or economically disadvantaged as they have attempted to establish; they have been educated and the first appellant's father was employed and able to travel to Singapore and subsequently Australia for work purposes. The Tribunal observed that the second appellant was unable to explain, when asked a number of times during the hearing, why his son or daughter would be harmed, given that he has several siblings in India who appear to be living safely. 22 Ultimately, the Tribunal was not satisfied that the appellants will face serious harm amounting to persecution, for reasons of their race, religion, nationality, membership of a particular social group or for any other Convention reason, in the event that they return to India. The Tribunal was not satisfied that any discrimination that they might experience as members of their caste were sufficient to establish that the first appellant would suffer serious harm upon his return to India. Accordingly, the Tribunal found that grounds were not made out for entitlement to a protection visa pursuant to ss 36(1)(a) or (aa) of the Act. 2.3 The decision of the FCCA 23 On 7 August 2015 the appellants filed an application for review of the decision of the Tribunal. The grounds relied upon were as follows: 1. The Tribunal member failed to consider an integer of the Applicant's claim, in failing to consider whether or not a lower caste (regardless of their past persecution) in India was at risk of harm from higher caste, and not able to access effective protection. 2. The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Migration Act 1953. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon their return to India. 3. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived [at] in accordance with the requirements of the Migration Act. 4. The applicants satisfy the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error. 24 The primary judge recorded that the appellants were not legally represented at the hearing, but that each of the second, third and fourth appellants made submissions, none of which addressed the grounds of review. His Honour's decision is recorded at BQT15 & Ors v Minister for Immigration & Anor [2016] FCCA 3186. 25 The primary judge summarised the oral submissions made. In this regard, the second appellant submitted broadly that the Tribunal's decision was not fair, that he did not have a lawyer and that he told the truth to the Tribunal. The third appellant submitted that she and her husband came from a lower caste and that is why she was unable to get educated, that she wanted her children to have an education, that they have been in Australia for nine years and that this period of time was why they could not obtain supporting documentation for the case. The fourth appellant submitted that she would like to stay in Australia because she would not be able to study in India. 26 The primary judge observed that none of the submissions made suggest that the Tribunal made any jurisdictional error. His Honour found that the Tribunal did not accept the evidence put forward on behalf of the appellants and that it was reasonably open for it to do so. Turning to each of the four grounds of review, the primary judge found that none were made out. In relation to the first, his Honour found that the Tribunal's reasoning demonstrated that it did consider the integer of the first appellant's claim concerning the effect of his membership of a lower caste. In relation to the second, the primary judge found that the Tribunal had asked the correct question as to whether there were substantial grounds for believing that as a necessary and foreseeable consequence of their return to India, there is a real risk of the appellants suffering significant harm. In relation to the third, the primary judge found that this broadly expressed ground was not made out as the Tribunal had correctly understood the claims made by the appellants and addressed their evidence. Finally, in relation to the fourth ground, the primary judge found that the Tribunal was correct to assess the second third and fourth appellants' claims only against the complementary criterion provided for in s 36(2)(aa) of the Act, citing Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366 (SZVCH). Further, the primary judge found that, insofar as ground four asserted that the Tribunal failed to identify the elements of the criterion specified by s 36(2)(a), that claim must also fail because the Tribunal considered whether the first appellant had a well-founded fear of persecution because he is a member of a schedule caste. 3. THE PRESENT APPEAL 27 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 protection 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 visas to the appellants. The jurisdiction of the FCCA is limited to considering only whether the Tribunal's decision to refuse to grant the appellants protection 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) 83 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 section 24 of the Federal Court of Australia Act 1976 (Cth). 3.1 Ground one 28 In ground one the appellants contend that the primary judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellants' claim, and ignored an aspect of persecution and harm in terms of section 91R of the Act. The content of this ground is perhaps best explained by reference to the relevant article of the Convention and the content of (then current) s 91R of the Act. 29 Article 1A(2) of the Convention relevantly defines a "refugee" as 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. 30 Subsection 91R(1) relevantly provides that in order to come within the definition in Article 1A(2), the persecution which a person fears must involve "serious harm" to the person and "systematic and discriminatory conduct". Subsection 91R(2) states that "serious harm" includes a reference to any of the following: a threat to the person' s life or liberty; significant physical harassment of the person; significant physical ill-treatment of the person; significant economic hardship that threatens the person's capacity to subsist; denial of access to basic services, whether denial threatens the person's capacity to subsist; denial of capacity to earn a livelihood of any kind, where denial threatens the person's capacity to subsist. 31 For present purposes, taking into account the fact that the appellants are self-represented, it is appropriate to consider that ground one is broadly encompassed within ground four as raised before the FCCA (failure to consider key elements of the Convention). 32 Subsection 36(2)(a) 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 under the Convention. Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant is 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. 33 I am satisfied that the Tribunal considered the applicability of each of the considerations set out in ss 36(2)(a) and (aa) and that in doing so, had regard to the factors applicable pursuant to Article 1A(2) of the Convention and (former) s 91R of the Act. The Tribunal expressly rejected, on the basis of the claims advanced, that there is a real chance that the first appellant will suffer serious harm upon his return, or that the second, third or fourth appellants would suffer such harm upon their return. It also considered at [32] that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the appellants being removed from Australia to India, that there is a real risk they will suffer significant harm. Furthermore, I accept the submission of the Minister that the decision of the Full Court in SZVCH indicates that it was in any event not necessary for the Tribunal to consider the claims of the second, third and fourth appellants against the criterion set out in section 36(2)(a), although it is apparent from its reasons that the Tribunal did so in any event. 34 In my view, no error has been demonstrated in the approach taken by the primary judge to ground four, below, or (to the extent that they are different) in the approach of the Tribunal to the matters raised in ground one in the present appeal. Accordingly, I dismiss ground one of the appeal. 3.2 Ground 2 35 In ground 2 the appellants contend that the primary judge erred in failing to take into consideration that the Tribunal decision was unjust and made without taking into account the full gravity of the first appellant's circumstances and the consequences of the claim. 36 This ground has no equivalent in the grounds raised before the primary judge, and accordingly leave to rely upon it is necessary; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 – 400. It is wholly unparticularised and amounts to little more than a general complaint that the Tribunal ought to have made a different decision. At the commencement of this part of my reasons I indicated that this Court does not have the power to reconsider, on a merits basis, the decision of the Tribunal. Furthermore, the findings adverse to the first appellants' claim, based on the Tribunal's conclusions as to the credit of the second and third appellants, cannot, in my view, be characterised as reflecting jurisdictional error. Accordingly, I can see no basis upon which this ground of appeal could be made out. I decline leave to advance this ground. 37 Each of the second and third appellants made oral submissions in support of their appeal. The second appellant submitted, broadly, that he had come to Australia on a visa and that his sponsorship had been withdrawn without any notice and without any fault of his own. Since then he has supported his family and the first appellant was born here. Now his daughter is 11 and attending school in Sydney. He submits that having been away from India for approximately 11 years and 9 years respectively, he and his wife are in no position to obtain proof from India in support of their claims and that the Tribunal was wrong to impugn his credibility. The third appellant submitted that she wanted the "birthright" of her son to be vindicated in the sense that having been born in Australia he is a "citizen by birth". 38 Regrettably for the appellants, none of the matters the subject of their submissions go to or reflect the making of any jurisdictional error on the part of the Tribunal or error on the part of the primary judge in reaching his conclusions. Accordingly, the appeal must be dismissed. 4. DISPOSITION 39 I dismiss the appeal and order that the second and third appellants pay the first respondent's costs. 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. Associate: Dated: 19 June 2017