BZAET v Minister for Immigration

[2014] FCCA 605

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAET v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 605

Catchwords:
MIGRATION – Visa – Protection (class X A) – Refugee Review Tribunal – application for Judicial Review.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425A(4), 426A(1).

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: BZAET

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 578 of 2013

Judgment of: Judge Howard

Hearing date: 10 March 2014

Date of Last Submission: 10 March 2014

Delivered at: Brisbane

Delivered on: 31 March 2014

REPRESENTATION

Solicitors for the Applicant: Self Represented

Solicitors for the First Respondent: Sparke Helmore

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The name of the first respondent be amended to: “Minister for Immigration and Border Protection”.

2. That the application is dismissed.

3. That the applicant pay the first respondent’s costs in an amount to be fixed by the Court on the date of the Judgment is delivered.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 578 of 2013

BZAET

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant was born on 10 July 1983.  He was born in the Punjab in the Republic of India.  He is a member of the Sikh religion.  He is a citizen of the Republic of India.

2. Prior to coming to Australia he was employed as a farmer.  (Court book – page 17 – hereby designated as exhibit 1).

3. The applicant arrived in Australia on 20 November 2008.  At that time the applicant held a student (subclass TU 573) Visa.  The applicant was at that time a dependant of Ms Sarita Bala Sharma (his wife).

4. The applicant and Ms Sharma had been married on 3 August 2008.  The applicant and his wife were divorced in 2011 and the divorce order took effect on 3 September 2011.

5. Some months prior to the divorce order taking effect – indeed on 21 February 2011 – the applicant was sent a notification of an intention to cancel his Visa – as his relationship with Ms Sharma had ceased by that time.

6. On 23 May 2012 the applicant lodged an application for a Protection (class XA) Visa.

7. In his application for a Protection Visa the applicant stated that he was worried for his safety if he returned to India.  He stated that he has no parents.  I also note the following question and answer from paragraph 45 of the applicant’s application for a Protection Visa:-

   “45. What do you fear may happen to you if you go back to that country?

   My in-laws, Because I left my wife.  She actually wanted divorce.”

8. By letter dated 15 August 2012 (that letter appears at page 37 of exhibit 1) the Minister’s delegate invited the applicant to attend an interview in relation to his Protection (class XA) Visa application.  The applicant had the benefit of an interpreter during the interview with the Minister’s delegate.

9. Following that interview – the Minister’s delegate made a decision refusing to grant the applicant a Protection Visa.  That decision was made on 4 September 2012.

10. The decision of the delegate is included from page 43 of exhibit 1.  That decision includes the following paragraphs (note pages 47, 48 and 49 of exhibit 1):-

    “1. DEFINITION OF A REFUGEE – ARTICLE 1A OF THE REFUGEES CONVENTION

    Article 1A(2) of the 1951 Refugees Convention as amended by the 1967 Refugees Protocol, provides that a ‘refugee’ is a person who:

    … owing 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, is unable or, owing to such fear, is unwilling to return to it.

    2. IS THE HARM FEARED FOR A CONVENTION REASON?

    Evidence and Reasons

    The applicant has not claimed persecution in relation to a specific Convention reason.  He fears being harmed by his former in-laws not because of his race, religion, nationality, membership of a particular social group or political opinion, but rather due to a personal family related reason – divorcing his wife.

    Finding

    I am not satisfied that any of Refugees Convention grounds is the essential and significant reason for the harm feared as required by paragraph 91R(1)(a) of the Migration Act.

    3. DOES THE HARM FEARED AMOUNT TO PERSECUTION?

    Evidence and Reasons

    As I am not satisfied that any of the Refugees Convention grounds is the essential and significant reason for the harm feared, it is not necessary to assess whether the harm feared amounts to persecution.

    Finding

    I am not satisfied the harm feared involves serious harm and systematic and discriminatory conduct as required by paragraphs 91R(1)(b) and (c) of the Migration Act. Therefore, I am not satisfied the harm amounts to persecution.

    4. IS THE FEAR WELL-FOUNDED?

    …

    Overall, I am not satisfied that the applicant has a well founded fear of being persecuted within the reasonably foreseeable future of his return to India for any of the reasons set out in Article 1A(2) of the Refugees Convention (as amended by the Refugees Protocol).

    Finding on well-foundedness

    I am not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason.  I therefore find the applicant’s fear of persecution, as defined under the Refugees Convention, is not well-founded.

    5. FINDING UNDER THE REFUGEES CONVENTION

    I am not satisfied that Australia has protection obligations to the applicant, AMARJIT SINGH, under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol. As a result, the applicant does not meet the criteria for the grant of a Protection Visa under paragraph 36(2)(a) of the Migration Act and subclause 866.221(2) of Schedule 2 to the Migration Regulations.

    …”

11. Further, the delegate then considered the so called “complementary protection criterion”.  The delegate concluded:-

    “3. ARE THERE SUBSTANTIAL GROUNDS FOR BELIEVING THAT THERE IS A REAL RISK OF SIGNIFICANT HARM?

    Evidence and Reason

    At the interview, the applicant stated that he was contacted by his former in-laws on two occasions, and the most recent contact occurred six months ago.  There have been no further incidents.  This puts in question his claim that the adverse interest from his former in-laws still persists.  Even if I am wrong and the impact on the applicant’s safety exceeds mere verbal threats, the applicant, as argued above, is able to avail himself of the state protection and/or relocate to another part of India.  Having made this finding, I conclude that there is no real risk of significant harm occurring as a result of his return to India.

    Finding

    I am not satisfied that Australia has protection obligations to AMARJIT SINGH because there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.

    FINDING UNDER THE COMPLEMENTARY PROTECTION PROVISIONS IN THE MIGRATION ACT

    I am not satisfied that Australia has protection obligations to the applicant, AMARJIT SINGH, under paragraph 36(2)(aa) of the Migration Act. As a result, the applicant does not meet the criteria for the grant of a Protection Visa under paragraph 36(2)(aa) of the Migration Act and subclause 866.221(4) of Schedule 2 to the Migration Regulations.

    …”

12. Following the decision by the Minister’s delegate refusing to grant the applicant a Protection Visa – the applicant then lodged an application for a review of the delegate’s decision.  The applicant sought a review by the Refugee Review Tribunal.  That application for review was lodged on 20 September 2012.

13. The Refugee Review Tribunal sent a letter to the applicant on 15 April 2013 and informed the applicant that the Tribunal was not in a position to make a favourable decision having regard to his application alone. The Tribunal therefore invited the applicant to an interview which was to take place on 21 May 2013. I accept the submission made on behalf of the Minister that the invitation to the applicant complied with section 425A(4) of the Migration Act 1958 (Cth).

14. At page 66 of exhibit 1 there is included a medical certificate from Dr Helen Deshmukh dated 8 May 2013.  Dr Deshmukh certified that the applicant was not fit for his normal work or study from 8 May 2013 to 22 May 2013.  No other details were given as to the applicant’s medical condition.  In any event the Tribunal agreed to delay the hearing.  The hearing was then rescheduled.  I note page 71 of exhibit 1 includes a letter dated 21 May 2013 from the Tribunal to the applicant informing the applicant that the 21 May 2013 hearing was postponed until 19 June 2013 at 3:00pm.

15. I note page 75 of exhibit 1 which notes a medical certificate – this time provided by Dr Singh.  This medical certificate was dated 10 June 2013 and noted that the applicant was unable to continue his normal duties from 10 June 2013 to 21 June 2013.  No further detail was provided in the medical certificate as to the medical reason or diagnosis which would explain the inability of the applicant to attend at the hearing.  When the Tribunal received that medical certificate on 14 June 2013 the Tribunal contacted the applicant by telephone.  An interpreter assisted.  The applicant was informed that the hearing would not be rescheduled on the basis of the second medical certificate.   The applicant was informed that a detailed medical report diagnosing a specific medical condition (containing reasons why the applicant would not be able to attend a hearing) was necessary to support an application for an adjournment.  The applicant informed the representative of the Tribunal that he would attempt to obtain such evidence.  He further advised that if he is not able to obtain that evidence that he would in any event attend the hearing.  I note page 79 of exhibit 1 in this regard.

16. The applicant did not appear at the rescheduled hearing on 19 June 2013.  The applicant did not contact the Tribunal in order to explain his non-attendance at the rescheduled hearing.  The Tribunal proceeded to make a decision.  The Tribunal noted that there was no evidence of any diagnosed specific medical condition.  The decision of the Tribunal is included in exhibit 1 and states inter alia:-

    “The Tribunal advised the applicant that it would not reschedule the hearing on the basis of the medical certificate he had provided.  The Tribunal advised the applicant that it would only consider rescheduling the hearing if the applicant provides a detailed medical report which diagnoses a specific medical condition and which indicates that the applicant would be unable to attend the hearing to answer questions.  No further medical certificate or report was provided.

    The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.  He did not contact the Tribunal regarding his failure to attend the hearing.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.”

17. Accordingly, pursuant to s.426A(1) the Tribunal was empowered to proceed to make a decision without taking any further action. The Tribunal made the following findings and conclusions:-

    “FINDINGS AND REASONS

    The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.  Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant’s case for him or her.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    In this case, on the basis of all the evidence before it, the Tribunal finds that the applicant is a Sikh male from the Punjab, India.  Without the benefit of a hearing the Tribunal is unable to satisfy itself that the claims he raised in his application …. are well-founded.  The Tribunal is also not able to satisfy itself that the claims raised have a Convention nexus i.e. that they occurred for reasons of the applicant’s political opinion, race, religion, nationality, or membership of a particular social group, or that he would be unable to access protection.

    After considering all the evidence the Tribunal is unable to satisfy itself that the applicant faces a real chance of serious harm in the reasonably foreseeable future in India for one of the reasons specified in the Refugees Convention.  Therefore The Tribunal finds, on the evidence before it, that the applicant does not have a well-founded fear of persecution for a Convention reason.

    The Tribunal then considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.  However, without the benefit of a hearing the Tribunal is unable to satisfy itself in this regard.”

18. Therefore the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations pursuant to the Refugees Convention. Accordingly the Tribunal concluded that the applicant did not satisfy the criterion that are set out in s.36(2)(a) of the Migration Act. Further, having concluded that the applicant does not meet the refugee criteria referred to in s.36(2)(a) – the Tribunal then went on to consider the alternative criteria which appear in s.36(2)(aa) of the Migration Act. However the Tribunal also concluded that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations pursuant to s.36(2)(aa).

19. Accordingly the Tribunal affirmed the decision not to grant a Protection Visa to the applicant.

20. The applicant filed an application for Judicial Review of the decision of the Refugee Review Tribunal.  That application was filed in the Federal Circuit Court of Australia on 17 July 2013.  The grounds of the application were stated as follows:-

    “1. The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at risk of harm from his ex-wife’s family members, and not able to access effective protection.  The Tribunal decision was fundamentally influenced by not receiving evidence from the applicant at hearing.  Therefore the Second Respondent’s decision is not decision at all in law.

    2. The applicant satisfy the key elements of Convention definition as detailed in page 2, 3 and 4 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.”

21. As to the first ground of review stated by the applicant – to the extent that this ground invites this Court to conduct a review on the merits of the applicant’s application – such a review is impermissible.  I note the decision of the High Court of Australia in the Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Court stated at page 272:-

    “… any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.  For example, it was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

    “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.” 

22. Another aspect of the first ground of review stated by the applicant needs attention.  The second sentence in ground number one states:-

    “The Tribunal decision was fundamentally influenced by not receiving evidence by the applicant at hearing.”

23. The Tribunal must accord the applicant procedural fairness.  In my view the Tribunal did accord procedural fairness to the applicant.  The first date allocated for the hearing before the Refugee Review Tribunal was 21 May 2013.  That is also referred to as the date of the “interview” which was to take place between the Tribunal and the applicant.  The applicant submitted a medical certificate from Dr Deshmukh (page 66 of exhibit 1).  That medical certificate was dated 8 May 2013.  As noted earlier – Dr Deshmukh had certified that the applicant was not fit for his normal work or study from 8 May 2013 to 22 May 2013.  The medical certificate was brief and did not provide details as to the applicant’s medical condition.  As noted earlier herein – the Tribunal agreed to delay the hearing.  The hearing was rescheduled and the new date was provided – namely 19 June 2013.

24. The applicant then sent to the Tribunal the further medical certificate.  The further medical certificate was signed by Dr Singh.  That medical certificate was dated 10 June 2013 and (as noted earlier) certified that the applicant was unable to attend his normal duties from 10 June 2013 to 21 June 2013.

25. The Tribunal in fact received that second medical certificate on 14 June 2013.  The Tribunal then contacted the applicant by telephone – with the assistance of an interpreter.  As noted earlier herein in these Reasons for Judgment – the applicant was clearly informed that the hearing would not be rescheduled on the basis of that second medical certificate.  The applicant was told that he would need to provide a detailed medical report diagnosing a specific medical condition.  The applicant was told that the detailed medical report should contain reasons why the applicant would not be able to attend a hearing.  He was told what was needed and he was told what was necessary to support an application for an adjournment.  Further, the applicant then informed the representative of the Tribunal (on the telephone and with the assistance of the interpreter) that he (the applicant) would attempt to obtain such evidence.  The applicant also told the representative of the Tribunal that if he is not able to obtain such further evidence – that he (the applicant) would, in any event, attend the hearing.

26. The applicant did not provide any detailed medical report as requested by the Tribunal.  The applicant did not attend at the Tribunal hearing on 19 June 2013.  The applicant did not contact the Tribunal in order to explain his non-attendance at the rescheduled hearing.  Accordingly, as noted above, the Tribunal proceeded to make a decision.

1. To my mind, the conduct of the Tribunal shows very clearly that the applicant was accorded procedural fairness in the process.

2. I have had regard to ground number two as stated by the applicant in his application filed in the Federal Circuit Court of Australia on 17 July 2013.  The applicant seems to be asking the Court to conduct an impermissible merits review.  As noted above – that is not possible (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (supra)).  The Tribunal, in its decision, has considered the important and key elements relevant to Australia’s obligations under the 1951 Refugee’s Convention (and the relevant provisions of the Migration Act1958 (Cth).

3. The matter came on for hearing in the Federal Circuit Court of Australia on 18 February 2014.  The applicant had not requested an interpreter.  However it was apparent to the Court that the applicant needed an interpreter.  The matter was then adjourned to 10 March 2014 and the Court organised for the attendance of an interpreter.  The interpreter attended and assisted the applicant during the hearing before the Federal Circuit Court of Australia on 10 March 2014.

Conclusion

1. I have come to the conclusion that the applicant has not demonstrated any jurisdictional error affecting the decision of the Refugee Review Tribunal. 

2. The application should be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Howard

Associate: 

Date: 31 March 2014