BZACN v Minister for Immigration
[2013] FCCA 731
•28 February 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZACN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 731 |
| Catchwords: MIGRATION – Application for protection visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – whether the Tribunal’s decision was illogical – whether the Tribunal afforded the applicant procedural fairness – whether the Tribunal failed to deal with the applicant’s claims – no error in Tribunal’s decision – application dismissed – costs awarded. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 422B, 424A |
| Craig v South Australia (1995) 184 CLR 163 Jia v Minister for Immigration & Anor [2011] FMCA 422 |
| Applicant: | BZACN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 580 of 2012 |
| Judgment of: | Judge Burnett |
| Hearing date: | 28 February 2013 |
| Date of Last Submission: | 28 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 28 February 2013 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application filed on 28 June 2012 be dismissed.
That the applicant pay the respondent’s costs of and incidental to these proceedings fixed in the sum of $5,200.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 580 of 2012
| BZACN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Ex Tempore Reasons)
This application was filed on 28 June 2012 and seeks judicial review of a decision of the Refugee Tribunal made 29 May 2012. In its decision, the Tribunal affirmed a decision of the delegate of the first respondent dated 6 February 2012. That decision was to refuse to grant the applicant a Protection (Class XA) visa. The applicant is a citizen of Jordan and applied for the visa after having been in Australia for some time. He had arrived in Australia on a tourist visa, had overstayed his visa by approximately six months. He then applied for the protection visa on 30 August 2011.
In his application, he claimed that he had entered into a marriage contract with a Jordanian woman named Ibtisam Bakar. He claimed that he subsequently discovered that that woman was not a virgin and that she was known to be a prostitute and a “bad girl”. He alleged that she then orchestrated a situation in which the applicant was caught with her friend, and Ibtisam then claimed that the applicant was cheating on her. It appears that an altercation subsequently ensued, the police were called and the applicant was then taken in into custody overnight.
The applicant says that he tried to withdraw from the marriage contract but was forced by Ibtisam and her family, who had connections, to go through with the marriage on the proviso that they could divorce shortly after the wedding. Although the applicant did indeed divorce Ibtisam shortly after the wedding, he continued to fear harm from her family and claimed that he was threatened, and his house was “shot up.” He claimed that problems with Ibtisam’s family only occurred because he was of Palestinian origin, and that if he were a Jordanian there would not have been a problem.
He also claimed to have been discriminated against in the past because of his Palestinian origin. He says, for example, that he received fourth place in a bodybuilding competition when he properly deserved to be afforded second place. On 6 February 2012, the delegate made a decision refusing to grant the applicant the protection visa he had applied for. Accordingly, on 20 February 2012, the applicant lodged an application with the Tribunal, seeking a review of the delegate’s decision.
By a letter dated 13 March 2012, the Tribunal invited the applicant to attend a hearing before the Tribunal, which was then scheduled for 13 April 2012. There is no suggestion of any procedural irregularity in respect of that matter. The applicant attended the hearing on 13 April 2012 together with his authorised representative and gave evidence. On 26 April 2012, the Tribunal wrote to the applicant, pursuant to s.424A of the Migration Act 1958 (the Act). That letter referred to identified inconsistencies between information that the applicant had given at the delegate’s interview in the statement accompanying his protection visa application and to matters that were raised before the Tribunal.
It also identified two claims made at the Tribunal hearing that were not mentioned in the applicant’s written claims or oral evidence to the Department. The letter explained to the applicant that his failure to raise those claims earlier might cause the Tribunal to doubt that they were genuine or to cast doubt on his credibility. The Tribunal also provided the applicant with a printout that it had obtained from an internet dating site which contained a profile for the applicant. It explained that this information might be considered to be incongruent with the applicant’s claims about his family’s strict and conservative attitudes and his objections to his marriage to Ibtisam.
The letter which was forwarded complied with the statutory requirements set out by s.424A and the procedural requirements that follow. The applicant responded to the invitation on 21 May 2012 through his migration agent, and it is plain from the Tribunal’s decision that it considered his response. The Tribunal delivered its decision by a decision notice dated 29 May 2012. It affirmed the delegate’s decision to refuse his application for a protection visa.
Its decision was based largely upon comprehensive findings adverse to the applicant’s credibility. The Tribunal’s reasons are extensive and traverse all matters that appear to have been raised before it. In conclusion, it found that the applicant was not a witness of truth and it rejected his claims of fear of persecution from Ibtisam or her family. Accordingly, the Tribunal was not satisfied that the applicant’s fear of persecution in Jordan was well founded. It also found on the basis of accepted country information that the chance that the applicant would suffer serious harm on the basis of his Palestinian origins in the reasonably foreseeable future was remote.
Furthermore, it did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Jordan there was a real risk that he would suffer significant harm. As I have noted, the applicant’s findings were largely based upon adverse credibility findings. They were based on factors that were open to it as a sole arbiter of facts and evidence. For instance, the Tribunal found that the applicant had given inconsistent dates and evidence about the timing of events involving the marriage contract, the marriage ceremony and the claimed incident with Ibtisam’s friend, and that he had been unable to satisfactorily explain these discrepancies.
The Tribunal did not accept that the difficulties with the applicant’s evidence could be explained by his not attaching importance to the dates, a matter which he contended even as recently as today in making oral submissions in the application before me. While the Tribunal accepted that the applicant did marry Ibtisam, it did not accept that he objected to her being a virgin or that he was threatened or physically harmed by her family. It did not accept that the incident with Ibtisam’s friend took place and accordingly rejected the claims that flowed from that incident. It also rejected his claim that shots were fired at his home or at his father’s car.
In coming to its conclusion, the Tribunal also noted that the eight month delay in applying for a protection visa after arriving in Australia, or almost nearly six months after his tourist visa has expired, reinforced the Tribunal’s view that the applicant’s claim lacked credibility. Certainly, the Tribunal did not accept the applicant’s explanation that one of the reasons he delayed in making his application was that he was waiting to see if things in Jordan settled down.
In reaching its conclusion, the Tribunal had regard to country information on the treatment of Palestinians in Jordan and found that the chance that he would suffer serious harm on that basis in the reasonably foreseeable future was remote. It did not accept that his coming fourth in a bodybuilding competition was by reason of his Palestinian origin. It was not satisfied that he had a well founded fear of persecution for a convention reason if he was returned to Jordan and, ultimately, that he satisfied the requirements of s.36(2)(a) of the Act.
It was not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of him being removed to Jordan, there was a real risk that he would face significant harm, and it was not satisfied that the complementary protection criteria or other obligations arose. This case is one where it is plain, at least on the face of the Tribunal’s recent decision, that the applicant was not a credible person. It was a matter which was plainly open to the Tribunal.
The applicant, as I have noted, filed his application for judicial review in this Court. The application contained three grounds, which can broadly be characterised as follows. The first ground is that the decision was one that was infected by illogical reasoning. The application itself expressed the grounds upon the basis that the decision was made intentionally and negligently. The respondent correctly notes that this is not a proper ground for review, but determined to address the ground on the basis that it purported to allege bias.
Again, from the material, there is nothing to suggest that there is any question of bias evidenced in the Tribunal’s consideration of the application, nor in the manner in which it has expressed itself. There is nothing to suggest that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the material relevant to the decision. It cannot be said that the Tribunal was not open to being persuaded by a view advanced by the applicant.
The Tribunal took a fresh look at the applicant’s claims, and it is apparent that it adopted that view without any prejudgment. There is, as is submitted by the respondent, no basis to infer that there was bias or prejudgment simply because of the adverse findings made against the applicant.[1] Contrary to the applicant’s submissions, the Tribunal did consider his submissions, and it set out those matters at some length. It also grappled with the content of those submissions in assessing his credibility and the credibility of his claims.
[1] See generally the observations of the court in Jia v Minister for Immigration & Anor [2011] FMCA 422.
I characterised have the first ground as a complaint of illogicality. However, there is nothing illogical in the reasoning of the Tribunal’s decision. It is, as the respondent submits, merely a more emphatic way of expressing disagreement. The Tribunal’s conclusion, in my view, was reasonable, logical and reasonably open to it on the evidence. What the applicant actually seeks in this instance is impermissible merits review of the Tribunal’s decision, with which he is not happy.
So much, I think, was consistent with the oral submissions that were made by the applicant before me today when called upon to address the matters giving rise to his complaints on Ground 1. In my view, Ground 1 should be dismissed.
The second ground goes to questions of procedural fairness. Here the applicant complains that the Tribunal denied him procedural fairness and natural justice. This particular complaint lacked any appropriate particularisation.
This process was a process which was strictly governed in part by s.422B of the Act. That provision applied, and by reason of it, the Tribunal was not required to afford the applicant common law natural justice. The applicant was only entitled to the rights afforded to him under Part 7 of the Act, and there is nothing in the material to suggest that the Tribunal failed to comply with the statutory procedural obligations imposed upon it.
The applicant, however, contended that the Tribunal failed to make a proper, genuine and realistic assessment of the risk of serious harm in light of the country information. I agree with the submission of the respondent that this assertion was simply another attempt by the applicant to invite the court to embark upon impermissible merits review. The choice and assessment of country information is a factual matter for the Tribunal. The Tribunal’s reasons were open to it for the reasons it gave, and, as I have earlier noted, it is not the role of this Court to embark upon a merits review of the Tribunal’s decision. When the applicant was invited to indicate specifically what country information he had a complaint concerning, he was unable to identify any particular matter. His response to my inquiry confirms my assessment that there was no error in the Tribunal’s review of the country information.
Finally, when he was invited to make any other comments in relation to Ground 2, he simply stated that the Tribunal sought to judge people about whom it did not know anything. I do not accept that broad complaint. The Tribunal assessed the information provided to it by him, and it assessed the country information in the manner that was open to it. There was, in my view, no error enlivening any entitlement to judicial review, at least in terms of the principles provided for in Craig v South Australia (1995) 184 CLR 163. Ground 2 also fails.
The third ground appears to be directed to a complaint concerning the Tribunal’s application of the s.424A invitation. The applicant asserts that the Tribunal did not deal with his claim to have an actual political opinion “because of the government attitude against Palestinians in Jordan.” The Tribunal did deal with that claim, and it noted that the applicant had claimed that because he was Palestinian he feared expressing his freedom of speech and referred to the targeting of Palestinians involved in demonstrations.
However, the Tribunal found that the applicant did not have any genuine interest in involving himself in such activities in Jordan and that the chance of him getting persecuted for reasons of his actual or imputed political opinion were remote. It follows that I accept the respondent’s submission there was no failure by the Tribunal to deal with this claim.
He also complained that the Tribunal failed to address a question of state protection, or denial of state protection. As the respondent submitted, and I accept, the question of whether effective state protection is available or not arises if the Tribunal accepts that the applicant has a well founded fear of harm from non-state agents. The Tribunal concluded that the applicant’s fear was not well founded and that there was no ensuing obligation upon it to consider the question of whether effective state protection was available to him.
Finally, in terms of the invitation to comment or the regularity of the s.424A invitation, there is nothing to support that particular ground. When I invited the applicant to explain what he meant by this matter in the course of oral submissions, he simply responded that he was fearful that if he was returned to Jordan, he would be subject to harm. Again, plainly, he was simply seeking for this Court to embark upon impermissible merits review. In my view, the s.424A invitation was clear and informative in relation to the information before the Tribunal and the potential relevance of it to the Tribunal’s decision.
As the respondent submitted, although it is arguable that some of the information that was the subject of the s.424A letter did not contain, in its terms, a rejection, denial or undermining of the applicant’s claim, there was no error in the Tribunal adopting that cautious approach and putting additional matters to the applicant. It was apparent, as the respondent submits, that the applicant was able to provide a meaningful response to the invitation to his migration agent, and it follows, in my view, that no error is established on that ground. It follows that the application ought be dismissed.
The respondent seeks costs. There is no reason why costs ought not follow the event. The applicant raises the issue of impecuniosity; that is a matter for enforcement, not a matter relevant to the imposition of a costs order. I will direct that the applicant pay the respondent’s costs fixed in the sum of $5200.00.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burnett.
Date:13 September 2013
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