BZADQ v Minister for Immigration and Border Protection
[2013] FCA 1392
FEDERAL COURT OF AUSTRALIA
BZADQ v Minister for Immigration and Border Protection [2013] FCA 1392
Citation: BZADQ v Minister for Immigration and Border Protection [2013] FCA 1392 Appeal from: BZADQ v Minister for Immigration and Citizenship & Anor [2013] FCCA 1325 Parties: BZADQ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: QUD 665 of 2013 Judge: RANGIAH J Date of judgment: 26 November 2013 Catchwords: MIGRATION –Application for a protection visa – application for constitutional writs in the Federal Circuit Court – appeal to the Federal Court of Australia – whether appealable error by the Federal Circuit Court – Indian national Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 424A(1) and 424A(3)(a) Date of hearing: 26 November 2013 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 665 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: BZADQ
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
26 NOVEMBER 2013
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs as agreed or assessed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 665 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: BZADQ
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE:
26 NOVEMBER 2013
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The appellant appeals from a judgment of Judge Coates of the Federal Circuit Court given on 12 September 2013. His Honour dismissed an application for constitutional writs in respect of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a Protection (Class XA) visa.
The appellant is a citizen of India who arrived in Australia on 20 December 2007 on a student visa. On 23 February 2012, the appellant applied for a protection visa.
The appellant claimed that his father had borrowed money in India to pay for the appellant’s study and expenses in Australia. He claimed that, after the loans had been repaid, the money lender demanded further payments. The appellant said that the money lender hired thugs to harm the appellant and his family members and that threats were made against them. He said the thugs are professional killers who receive 50 per cent of the proceeds. He says that this is a common scenario in India. The appellant reported the matter to the police. He says the police would not protect him because they are corrupt and involved with the thugs. The appellant claims to fear that he will be killed if he returns to India.
In a decision dated 8 June 2012, the respondent’s delegate refused the appellant the grant of a protection visa. On 3 July 2012, the appellant lodged an application with the Tribunal to review the delegate’s decision.
The appellant attended a hearing on 12 October 2012. At the hearing, the appellant was questioned and he provided further information about his claim. The Tribunal gave information to the appellant that would be part of the reason for affirming the decision. It was information that suggested the appellant’s father had a good income and no need to borrow large sums of money. The Tribunal explained how the information was relevant to the review and the consequences of the information being relied on by the Tribunal. The Tribunal told the appellant that such information could cause the Tribunal to disbelieve him.
In a decision dated 1 November 2012, the Tribunal accepted that part of the appellant’s funds for his study was a loan from a money lender, although a significant part of the appellant’s study was funded by his father and brother through bank loans. The Tribunal did not accept that the money lender requested the additional payments because the appellant’s evidence about the threats was “vague, lacking in detail and inconsistent” and “not credible”.
The Tribunal noted that the appellant did not give an account of his actual experience concerning the nature of the alleged threats and concluded that he “was making up the account as he went along”. It found that the appellant’s evidence about reporting the threats to the police “was inconsistent and changed”. It found that his oral evidence about whether he was directly threatened was inconsistent with his written application. It found that his two year delay in applying for protection was inconsistent with his claimed fear of harm as a result of threats made by the money lender since 2010.
Having regard to all the evidence, and given the appellant’s “vague, inconsistent and implausible explanations of the threats”, the Tribunal found that the appellant was not telling the truth about the money lender and the threats. The Tribunal did not accept that the appellant met the criteria in s 36(2)(a) of the Migration Act 1958 (Cth) or the complementary protection criteria in s 36(2)(aa).
The appellant filed an application for judicial review in the Federal Circuit Court on 28 November 2012. It contained four grounds of review, as follows:
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.
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.
As to the first ground, Judge Coates considered that the independent information was not specifically about the appellant or another person. Accordingly, it fell within s 424A(3)(a) of the Migration Act as an exception to the rule under s 424A(1) requiring disclosure of information that the Tribunal considers would be part of the reason for affirming the decision under review.
As to the second ground, Judge Coates noted that the ground was simply an unparticularised assertion. His Honour considered that, in any event, the Tribunal did correctly address what the application was about and what it had to consider. Further, to the extent that the ground may have alleged a denial of natural justice, his Honour found that the requirements of the Migration Act had been complied with.
Judge Coates interpreted the third ground as either alleging that relevant considerations had not been taken into account or seeking merits review of the decision. His Honour concluded that all relevant considerations had been taken into account and the Court had no power to undertake a review of the merits of the decision.
As to the fourth ground, Judge Coates considered the ground to be merely an attempt to obtain another merits review. Further, his Honour considered that the requirement to provide natural justice is limited to the obligations provided for under the Migration Act. His Honour had earlier decided that the natural justice obligations under the Act were complied with.
The appellant appeals to this Court on the following grounds:
1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2.The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.
The first ground of appeal does not explain what aspect of s 91R the appellant is referring to or what it is that the Tribunal is supposed to have ignored. There is no basis for concluding that the Tribunal acted in a manifestly unreasonable way in the sense of a want of logicality in the Tribunal’s reasoning. Neither was the decision so unreasonable that no reasonable person could have come to it. The appellant’s description of the Tribunal’s reasoning as being manifestly unreasonable should be viewed merely as an emphatic way of expressing disagreement with it. Such a complaint fails to reveal any jurisdictional error on the part of the Tribunal, or any appealable error on the part of the Federal Circuit Court.
As to the second ground of appeal, his Honour’s reasons show that detailed consideration was given to the Tribunal’s reasons and findings. His Honour considered the appellant’s grounds of review and found that they failed to reveal jurisdictional error in the Tribunal’s decision.
In oral submissions, the appellant stated that he wanted to remain in Australia because he fears for his life if he returns to India. He claims that the money lender is using political power to extract more money from his father. In substance, the appellant asks this Court to undertake a review of the merits of the Tribunal’s decision. This Court, like the Federal Circuit Court, has no power to engage in that exercise. His Honour was correct to rule that the Federal Circuit Court had no power to set aside the decision of the Tribunal in the absence of a jurisdictional error being demonstrated. His Honour was correct to decide that the appellant had not demonstrated any jurisdictional error in the Tribunal’s decision.
The appeal must be dismissed with costs. I will order that:
(a)The appeal be dismissed.
(b)The appellant pay the first respondent’s costs as agreed or assessed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 19 December 2013
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