BZADQ v Minister for Immigration

[2013] FCCA 1325

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZADQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1325

Catchwords:
MIGRATION – Review of Tribunal decision – claims for protection made – assertions made raise credibility issues – dismissal.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 91S, 416, 422B, 424, 424A, 424AA, 437, 438

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: BZADQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1043 of 2012

Judgment of: Judge Coates

Hearing date: 15 July 2013

Date of Last Submission: 15 July 2013

Delivered at: Brisbane

Delivered on: 12 September 2013

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Sparke Helmore Lawyers

ORDERS

1. That the Application filed 28 November 2012 be dismissed.

2. That the applicant pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1043 of 2012

BZADQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is an Indian national and arrived in Australia on 20 December 2007 and studied until 2010 pursuant to a student visa.

2. He remained on bridging visas and on 23 February 2012 applied for a protection visa.

3. The basis of the protection visa was an assertion that in 2008 his father, in India, borrowed money from a private money lender to pay for the study and expenses. Although the loan was repaid in 2009 the money lender demanded and continues to demand further payments, which his father has refused.

4. The applicant asserts that he and his father have been subject to threats and the money lender hired people he described as political thugs and goons to attack the applicant and his family and he fears he would be killed if he returned to India.

5. He asserts that police would not protect him because they were corrupt and involved with the goons.

6. In order to consider the claims, on 8 May 2012 the applicant was invited for an interview on 8 June 2012.

7. The interview was to be held by telephone, but no issue arises as to that format.

8. The evidence is that the delegate conducting the interview could make no contact with the applicant on the telephone number supplied, although the invitation, sent by registered letter, was tracked through the Australia Post system as going to the applicant.

9. The correspondence urged the applicant to attend for the interview and that a decision may be made if he did not attend.

10. The delegate then went ahead and assessed the claims made but could not make a finding that the applicant’s claimed fear of persecution met the Refugee Convention grounds.

11. The evidence is that the assessment, as well as looking at the Refugee Convention grounds, also examined the complimentary protection criteria under the Migration Act 1958 (the Act) – the decision being that the applicant’s evidence did not meet the criteria on the assertions made.

12. The applicant lodged an application with the Refugee Tribunal on 3 July 2012 to review the delegate’s decision.

13. The applicant failed to attend a hearing on 14 September 2012, producing a medical certificate claiming an unspecified illness.

14. The hearing was rescheduled for 12 October 2012 where, according to the evidence, the Tribunal informed the applicant orally of the requirements of the review and the consequences of information relied upon by the Tribunal pursuant to s.424AA of the Act.

15. On the evidence before the court the applicant was offered further time to respond to the information which the Tribunal had – to the effect that the applicant’s father had a good annual income which was inconsistent with the claims that he had borrowed from money lenders and that threats were made – and because of that information the applicant’s credibility may be doubted.

16. No additional time was sought by the applicant and he responded immediately at the hearing.

17. The applicant then brings the following grounds for this application:

    “1. The Tribunal did not give to the applicant before the hearing the independent information that it had about Punjab, India. The Tribunal used this information (RRT decision record pages 8 to 10). This was against section 424A of the Migration Act 1958.

    2. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958.

    3. The Tribunal’s decision was unjust and made without taking into account the full gravity of applicant’s circumstances and consequences of claims.

    4. The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.”

18. Before examining these grounds, the structure of the reasons affirming the decision not to grant the protection visa is as follows:

    a)Paragraphs 1 to 18 unequivocally identifies what the application is about and in my view the relevant law, setting out the requirements pursuant to s.65 of the Act when determining the grant or refusal of a visa. The reasons did so referring to the protection specific provisions from s.36 and encompassed ss.91R & 91S. The reasons identified the four key elements of the Refugee Convention after setting out Articles 1 and 2 of that Convention and then referred to the complimentary protection criteria in s.36;

    b)The manner in which this material is set out explains how the Tribunal considered the claims and explains this in plain language that is comprehensible;

    c)From paragraphs 19 to 56 the Tribunal refers to the applicant’s assertions of possible harm, his failure to attend the first interview and that the hearing conducted by the Tribunal was with the assistance of an interpreter;

    d)The reasons clearly state that the Tribunal outlined the definition of a refugee and the complimentary protection obligations and sought particulars about the assertions;

    e)Paragraphs 27 to 56 are very detailed with regard to the seeking of that information so that, of course, the Tribunal could consider it;

    f)The assertions made by the applicant are that:

    i)Telephone threats were made;

    ii)An agent of the money lender called at his parents’ home asking for the money;

    iii)The threats were continuous and occurred in 2010 and 2011;

    iv)The threats were sometimes once a week or once a month;

    v)His parents had made a report to the police but that police are corrupt and can be bribed;

    vi)The person threatening uses political power with the police and he knew that because the police really did not listen to, I take it, his family;

    vii)He had not been personally threatened but feared such if he returned to India – although that was in conflict with his written statement that he had been directly threatened and when asked about the last threat the applicant said he was threatened two or three times per month;

    g)It was put to the applicant that even if the claims were accepted, nothing had happened in two years which suggested they were empty threats and he was asked why he delayed applying for a protection visa (first lodged on 23 February 2012) when the threats were from 2010 – the applicant’s response was that the family was relying upon the government to protect them;

    h)Of importance in my view, the reasons refer to information obtained by the Tribunal that Australian High Commission officers had spoken to the applicant’s father about funds and he confirmed an annual income of 300,000 rupees, that the source of funds in a term deposit was for another son and that other monies were gathered from the sale of property which was held by a commission agent. The information conflicted with the applicant’s claims of the father’s income. Indicating the information received, the applicant was offered additional time to respond, the reasons stating clearly that such information may be used to affirm the delegate’s decision which it was reviewing;

    i)The decision refers to the country information considered. Such includes:

    i)The Indian Penal Code and legislated punishments for threats of harm and murder;

    ii)UK Home Office 2008 Operational Guidance Note – India regarding police corruption;

    iii)US State Department information regarding corrupt practices and the Human Rights Watch’s Annual Report about police impunity in India;

    iv)The activities of money lenders in the Punjab and extortion from defaulters and particularly debt-ridden farmers;

    v)Newspaper article in The Hindu newspaper on the killing of a local leader who was protesting against the auction of land of an indebted peasant farmer to a money lender;

    vi)A debt swap scheme being conducted by the Punjab National Bank which assisted farmers who had borrowed from private money lenders, and

    vii)A March 2010 article in the Rupee Times about a debt swap scheme to “free the farmers from the clutches of money lenders who harass them by charging propitious rates for loans”;

    There was nothing to suggest that all this information was not considered.

    j)The reasons go to its findings from paragraphs 65 to 88 and refers to relevant decisions including the cautionary note by Foster J in Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 that:

    “ … care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”

    k)Importantly, the findings go to the vagueness and the lack of detail as to the nature of threats, the inconsistent and changed evidence about the reporting of the threats to police, the inconsistent evidence of being directly threatened as he claimed orally which was different from his written application about threats over a telephone (see paragraph 75 of the reasons) and findings that it was not credible that if threats were made continuously to the family, that they would not change their telephone number, despite receiving threats over a period of time;

    l)Further the Tribunal found that since nothing had happened in four years, the timing asserted for the threats, “the Tribunal does not accept they are serious or that the applicant or his family face a real change of harm” (see paragraph 79);

    m)The Tribunal also found that the delay of two years was also inconsistent with the claim that the applicant feared the threats and the reasons referred to Heerey J’s comment in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 that it is legitimate to take into account delay in lodging a protection visa in assessing its genuineness for the claimed fear of persecution;

    n)Based on all of that the conclusion was that the applicant was not a person with respect of whom Australia had a protection obligation under the Convention; and

    o)For completeness I will mention that the reasons also record that the applicant claimed the threats were causing mental harm, although there was no useful material produced by him, to consider.

19. Now to the grounds, the applicant did not have his application in court so I provided the court copy and through an interpreter organised by the court asked whether he had read or had read to him the outline of submission of the Minister and answered in the affirmative.

20. Apart from making claims reaffirming his fears and that he was not properly heard, I attempted to have the applicant address his grounds.

21. As to ground 1 he said he really did not understand it.

22. That leads me to conclude that whoever assisted the applicant either may not have taken his instructions properly or if such instructions were taken properly, relevant issues of law were not explained to the applicant or the ground is merely inserted to see what occurs.

23. The ground appears to be that pursuant to s.424A of the Act the Tribunal did not supply the applicant with the independent information it had about the Punjab in India.

24. Apart from not particularising the error or mistake I gather that the applicant is stating that he was denied procedural fairness in that he did not know what country information would be relied upon or that he was not given clear particulars as required by the section.

25. The country information is stated in the decision from pages 8 to 10 of the reasons and I accept the Minister’s submission that pursuant to s.424A(3)(a) the information is not specifically about the applicant or another person and so it is an exception to the rule that the applicant needs to know what any general adverse information is so that he can respond to it.

26. In reality the information used, as I read it in the reasons, is that information generally available to people in any case and especially the newspaper articles, which would be information to be considered in the applicant’s favour. The Tribunal considered this information and there is nothing to suggest that it was used unfairly in that the applicant was denied opportunity to know the case which he had to meet.

27. Now perhaps that is the reason why the applicant stated he did not understand the grounds.

28. In my view, paragraph 63 of the reasons is an analysis of relevant country information – that a bank scheme is being implemented to assist farmers repay money lenders on an interest rate reduced from 36 percent to 9.75 percent. The paragraph is clearly a consideration of the information the Tribunal sought, as required by s.424, and is of such a general nature that it is subject to s.424A(3)(a), wherein the Tribunal is not required to inform the applicant that the information may be used to affirm the decision under review. However, I will also point out that the general information, especially in relation to assistance to farmers to repay loans, is at variance to the applicant’s claims that it was extra money being demanded of his father for a loan otherwise fully repaid. It is country information of the nature which falls within the exception of s.424A(3)(a).

29. There is no case identified on ground 1.

30. As to ground 2 – that the Tribunal had no jurisdiction to make the decision because it was not arrived at in accordance with the Migration Act 1958 – is an assertion without particulars said to be a ground of review. In my view the ground is misstated, because the Tribunal did address at the very outset what the application was about and what it had to consider, referring in detail to the Act and Refugee Convention.

31. Further, the Minister refers me to s.422B of the Act and what is required by natural justice in relation to these decisions as stated in Division 7A of the Act and in particular ss.416, 437 & 438 of the Act.

32. Paragraph 15 of the reasons is a statement that the protection obligations would be assessed as at the time of the decision and in relation to “the reasonably foreseeable future”. That the Tribunal considered the foreseeable future, which it then did at paragraph 82, and that it stated the evidence and analysed the evidence, demonstrates that it was aware of the requirement for natural justice.

33. The Tribunal found against the applicant on credibility grounds, aware that such an approach should not be an over stringent approach, referring to the decision in the Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445.

34. I accept that the rights afforded to the applicant were those as stated in s.422B of the Act and there is nothing to suggest that these rights were not afforded to the applicant, either on the evidence, his submissions or in my reading of the decision.

35. While it could perhaps be asserted that many similar decisions address similar material that would be a mistake in my view because the body of the reasons, that is the reasoning, goes to assessing the facts asserted here and applying the law to those facts.

36. There is no case identified on ground 2.

37. As to ground 3 – that it was unjust because the decision did not account for the full gravity of the applicant’s circumstances and the full consequences, which I imagine is a claim whereby the applicant states that relevant facts have not been taken into account or something of that nature – that case simply cannot be made out.

38. I agree with the Minister’s written submissions that the reasons are comprehensive and that the Tribunal was careful in analysing and assessing the assertions and as the applicant said in court, he was not satisfied with the decision.

39. This is simply a case where the applicant wants a merits review and this court has no power to undertake such a review.

40. Consequently no case is identified on ground 3.

41. As to ground 4 – which is a claimed denial of procedural fairness because of adverse conclusions that the claims were implausible and such conclusions were not open – there is no particularisation in support of the ground.

42. I accept that this is merely another method of attempting to obtain a merits review and the rights given are those as stated in the Act, not common law natural justice, even though some of the terms applicable to common law natural justice may be referred to in the course of this type of decision-making.

43. Claims for protection under the refugee convention must be considered seriously to avoid an injustice. There is nothing to suggest that the Tribunal did not take its role seriously to test the applicant’s assertions. Given that he was offered time to respond because of the information in the Tribunal’s possession about his father’s financial position, and considering the credit issues raised by inconsistent statements, including the written and oral versions of direct threats, and given that the Tribunal is empowered to make adverse findings if such are open,  there can be no doubt on the facts which I have referred to that the applicant was afforded every opportunity to be heard at all stages of his application for a protection visa.

44. He has failed to provide proper evidence of the position he claims to exist, and no jurisdictional error has been shown in this matter.

45. I must dismiss the application.

46. The Minister asks for costs in the fixed sum of $5,000.

47. Costs will follow the event and the applicant will be ordered to pay $5,000.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Coates

Associate: 

Date:  12 September 2013