BSP15 v Minister for Immigration

[2015] FCCA 3470

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSP15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3470

Catchwords:
MIGRATION – Protection (Class XA) visa – whether tribunal’s decision was affected by jurisdictional error – no jurisdictional error – application dismissed.

Applicant: BSP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 761 of 2015

Judgment of: Judge Jarrett

Hearing date: 18 December 2015

Date of Last Submission: 18 December 2015

Delivered at: Brisbane

Delivered on: 24 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The name of the second respondent be changed to “Administrative Appeals Tribunal”.

2. The application filed on 26 August, 2015 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 761 of 2015

BSP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 26 August, 2015 the applicant seeks that a decision of a refugee review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant to him a Protection (Class XA) visa be set aside.  The applicant seeks the issue of constitutional writs of certiorari and mandamus.

2. The first respondent opposes the application.  The second respondent has entered a submitting appearance.

3. On 19 October, 2015 directions were made to prepare the matter for hearing.  The applicant was given the opportunity to file an amended application setting out his grounds of review and any particulars in respect of those grounds.  The parties were also directed to file written submissions. 

4. The applicant has filed no written submissions.  The first respondent has filed written submissions to which I have had regard.

Background

1. The applicant is a citizen of India.  He arrived in Australia on 4 July, 2009.  He entered Australia on a visa that he obtained as a secondary applicant to his then wife’s student visa application.

2. In June, 2011 and following the expiry of the visa with which he first entered Australia, the applicant lodged his own application for a student visa.  That was refused in July, 2011.  The applicant and his wife divorced in October, 2011.

3. The applicant remained in Australia without a visa.  In October, 2013 the applicant came to the notice of compliance officers employed by the first respondent’s department.  He was working without a visa.   He was detained until November, 2013.

4. The applicant lodged the visa application that is the subject of these proceedings, on 4 November, 2013.

5. The applicant claims that he is a person to whom Australia owes protection obligations.  He claimed in his visa application and before the tribunal that he feared being killed as he had received death threats since December, 2010 from his ex-wife’s brother and cousin as they “desire an honour killing of me to satisfy their shame and anger over Rajwinder and myself’s mutual divorce, as this is against their religion”.  The applicant claimed that “honour killings are well documented” and the Indian authorities would be unable to protect him as the police force is “ill equipped” and the police to population ratio is lower than the international norm.

6. The applicant had a migration agent represent him in his application for the visa.  That representative made submissions to the first respondent (by his delegate) in support of the visa application.  In written submissions made by his representative on 13 January, 2014 the applicant claimed that:

   a)his ex-wife’s family had threatened his life and his immediate family and had made such threats publically known;

   b)his ex-wife’s family had personally sought damages and compensation for the divorce and had instituted Court proceedings that had dragged on for a number of years;

   c)the applicant’s fear of persecution also arose because of his family’s membership of a particular social group (the current opposition party) and his political opinions and beliefs;

   d)the applicant and his father were part of the Congress Party and his ex-wife’s family were involved with the opposing Kalibhajapa Political Party and they had been using their influence to make further threats against the applicant and his family;

   e)the applicant’s membership of the Congress Party put him in direct harm from persecution from “various individuals and various government officials and associates”.

7. On 27 June, 2014 the delegate refused the grant of the visa. 

8. The applicant lodged an application for review by a Refugee Review tribunal on 15 July, 2014.  On 27 May, 2015, the applicant was invited to appear before the tribunal to give evidence and present arguments.  On 15 July, 2015 a hearing took place, at which the applicant was assisted by a Punjabi interpreter.  Although the applicant was represented by a migration agent for the application to the tribunal, the agent did not appear at the tribunal hearing, nor made any submissions on the applicant’s behalf.

9. Before the tribunal, the applicant also claimed that he had been threatened by the Babbar Khalsa, which the applicant claimed was a terrorist group.  He claimed that he had heard that one of his ex-wife’s cousins and a boyfriend were connected to Babbar Khalsa.  However, he conceded that he had not been threatened by the Babbar Khalsa in the past, but feared the cousin and boyfriend could rely on the power from connections to the Babbar Khalsa to harm him if he returned to India.

10. On 22 July, 2015 the tribunal affirmed the decision under review.  The tribunal recorded that:

    a)“The applicant resiled from his claim of fearing an honour killing. He said he did not write those claims and he did not fear an honour killing. He did still fear he would be killed by his ex-wife’s relatives because they were angry at him for divorcing her. He told the tribunal he did not read what his friend had written in the application form before singing it”;

    b)the threats that the applicant claimed to have received from his ex-wife’s family ceased in 2011 when he obtained a new mobile telephone, although there were then threats made to his family.  The applicant provided three affidavits from three individuals in support of those claims, but the tribunal did not place any weight upon them because they provided little detail of the nature of the claimed threats;

    c)the applicant’s evidence about his ex-wife’s family’s connection to a political party in India was inconsistent with information the tribunal had obtained and in particular, there was no registered political party by the name claimed by the applicant.  The applicant blamed the error on his migration agent;

    d)it was plausible that male relatives of the applicant’s ex-wife were displeased by their divorce, but the applicant had exaggerated the risk of harm arising from any dispute between himself and the family of his ex-wife arising from their divorce;

    e)“The migration agent has raised claims that the relatives of the ex-wife have used their political power and false claims that the applicant abused his ex-wife to bring court cases against the applicant. At the hearing, the applicant conceded there were no court cases against him and that neither he nor his family had made any complaints to the police against the relatives of his ex-wife.”;

    f)there were inconsistencies in the applicant’s claims about how his divorce from his ex-wife had come about, and in particular whether she had attempted to extort money from him;

11. The tribunal found that the applicant had exaggerated the threats of harm to him from his ex-wife’s family.  It rejected the claim that there were ongoing threats to him and his family from relatives of his ex-wife.  It went on to find that there was only a remote or speculative chance, and therefore not a real chance, that the applicant would suffer serious harm by the family of his ex-wife.

12. The tribunal also found that the applicant had exaggerated the risk of harm from the Babbar Khalsa, found that the applicant had not been threatened by Babbar Khalsa in the past, and rejected the claim that his ex-wife’s cousin or boyfriend had any connection to Babbar Khalsa.

13. The tribunal was willing to accept that there was a degree of animosity between the applicant and the boyfriend of his ex-wife, however rejected the claims raised at hearing that the boyfriend had asked about the applicant, and considered that there was only a remote or speculative and therefore not a real chance that the applicant would face harm from the boyfriend of his ex-wife if he was to return to India.

14. The tribunal accepted that the applicant had a political opinion in support of the Congress party however, given that the applicant had not demonstrated any high political profile or that he would have same in the future, it considered there to be only a remote or speculative chance the applicant would face harm from opponents to the Congress party.

15. As to the applicant’s claims to protection, the tribunal concluded:

    36.    The tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the is not satisfied the applicant faces a real chance of serious harm by Sikhs generally, the relatives or boyfriend of his ex-wife, Babbar Khalsa or opponents of Congress now or in the reasonably foreseeable future because he is a Sikh who divorced his ex-wife, because of any actual or implied pro-Congress political opinion or membership of the particular social group of his father’s family. The tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason or combination of reasons, now or in the reasonably foreseeable future if he returns to India. Therefore he does not satisfy the requirements of s.36(2)(a). 

16. The tribunal rejected the applicant’s claims for complementary protection on the basis of the factual findings that it had made in relation to the applicant’s claims pursuant to s.36(2)(a) of the Migration Act 1958.

The grounds of review

1. The applicant presses two grounds of review in his application.  The first ground of review is:

   l. The tribunal failed to consider the well-founded fear of persecution from my ex-wife’s family in India in line with Australia ‘s obligations to the Refugees Convention.

   Particulars:

   The tribunal placed too much weight on the meaning of ‘honour killing’ in determining whether there was a subjective fear of harm. My fear of harm arises from a fear that my ex-wife ‘s family will harm me if I return to India. The issue of whether such harm would amount to an ‘honour killing’ is irrelevant.

2. As I have recorded above, the tribunal raised with the applicant his claim that he would be the victim of an honour killing by his ex-wife’s family.  The applicant resiled from the claim.  In paragraph [21] of its reasons, the tribunal recorded that:

   The tribunal accepts the applicant is a Sikh and that divorce is looked down upon in the Sikh religion. However, as the applicant has told the tribunal he does not have a subjective fear of being subject to an honour killing from the relatives of his ex-wife or the Sikh community generally, the tribunal has had no further regard to this claim.

3. However, thereafter, the tribunal considered the applicant’s claims to fear harm from his ex-wife’s family in a wider context.  So much appears from paragraphs [22] – [27] of the tribunal’s reasons.  For the reasons that I have summarised above, the tribunal rejected those claims.

4. The tribunal returned to the issue of honour killings when considering the complementary protection criteria.  It noted that it had found that the applicant did not have a subjective fear of being harmed in an honour killing and therefore did not have a well-founded fear of persecution. It then again noted certain country information and found that there would be only a remote or speculative chance of significant harm of an honour killing from the Sikh community generally because he divorced his wife.

5. In the context of the applicant’s claims to complementary protection, the tribunal considered the risk of significant harm to the applicant by reason of the threats from relatives of his ex-wife.  The tribunal relied on its previous findings in relation to the risk of harm and rejected his claim for complementary protection on this ground.

6. I accept the first respondent’s submission that it is clear that the tribunal did not misunderstand the applicant’s claims or “place too much weight on the meaning of ‘honour killing’”. Instead, it appropriately considered the two claims separately.

7. No jurisdictional error is revealed by this ground.

8. The second ground pressed by the applicant is:

   2. The tribunal took an irrelevant consideration into account in failing to give me an opportunity to give evidence in rebuttal.

   Particulars

   Country information was too broad in nature to be relevant to the facts of the case in question.  My fear from my ex-wife ‘s family and country information does not cover individual circumstances which may give rise to Australia ‘s complimentary protection criterion.

9. This ground makes little sense.  It seems to conflate two ideas.  First is the idea that the tribunal took into account something which it should not have taken into account.  Second, is the idea that the applicant was denied procedural fairness because he was not allowed to put further material to the tribunal “in rebuttal”.

10. As to the first matter, it has not been established that the tribunal took into account any irrelevant consideration.  As the first respondent’s submissions point out, to constitute an irrelevant consideration a consideration must be one that either expressly, or by implication, a decision maker is forbidden or prohibited from taking into account.

11. The particulars take issue with the country information relied upon in respect to his fear of harm from his ex-wife’s family under the complementary protection criteria.  It is well established, however, that the selection of and weight given to country information is a matter for the tribunal. 

12. I accept the first respondent’s submission that in the circumstances, it cannot be maintained that the country information constituted an irrelevant consideration.

13. As to the second of the matters I have identified that might come out of this ground, there is nothing to suggest that the tribunal did not afford the applicant the opportunity to put further material before it if he wished to do so.  The tribunal discussed both the country information that it had, and its concerns about the applicant’s claims with him.  He was provided with the opportunity to respond to those claims.  There is nothing to suggest that the applicant sought and was refused further time to place material before the tribunal.

14. At the commencement of the hearing before me, the applicant made what I interpreted as a request for an adjournment so as to obtain further material or documents from India.  I refused his request on the basis that I was obliged to determine the application on the basis of the material before the tribunal and so, nothing was to be gained from the adjournment.

15. He also asked for time for the preparation of a transcript of the tribunal’s hearing, but for what purposes was not clear.  I declined to allow more time for the preparation of a transcript on the basis that the application had been commenced in August and directions, which when I made them the applicant had told me he understood, required him to provide such material before the hearing.  No explanation for his failure to attend to those matters before the hearing was given.

16. In my view, the applicant does not demonstrate either that the tribunal has taken into account an irrelevant consideration, or denied him procedural fairness.  This ground represents an impermissible attempt to seek merits review of the tribunal’s decision.

17. No jurisdictional error is revealed by this ground.

Conclusion

1. The application does not reveal any jurisdictional error in the tribunal’s reasons. The decision is a privative clause decision for the purposes of s.474 of the Migration Act and not susceptible to review in this court.

2. The application must be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 December, 2015.

Associate: 

Date: 24 December 2015