BZAEV v Minister for Immigration

[2013] FCCA 2326

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAEV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2326

Catchwords:
MIGRATION – Protection (class XA) visa – Malaysian national – claim to visa made on the basis that she was a risk of harm from her ex-boyfriend – tribunal affirmed delegate’s decision not to grant visa – no error demonstrated in tribunal’s decision.

Legislation:  
Migration Act 1958 ss.424A, 426A

SZAYG v Minister for Immigration and Multicultural  and Indigenous Affairs [2005] FCA 90

Applicant: BZAEV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 583 of 2013

Judgment of: Judge Jarrett

Hearing date: 5 December 2013

Date of Last Submission: 5 December 2013

Delivered at: Brisbane

Delivered on: 5 December 2013

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Kelly

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 18 July 2013 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 583 of 2013

BZAEV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. The applicant was found by a refugee review tribunal to be a Malaysian national. On 7 February, 2013 she lodged an application for a protection (class XA) visa. On 21 March, 2013 a delegate of the first respondent refused to grant that visa. On 23 April, 2013 the applicant lodged an application for review by a refugee review tribunal. The tribunal, as it usually does, considered all of the material that was before it relating to the application but found that it was unable to make a favourable decision on that information alone.

2. Consequently, on 10 May, 2013 the tribunal wrote to the applicant, inviting her to appear at a hearing and give oral evidence and present arguments to the tribunal. The tribunal gave the applicant notice that if she did not attend the hearing, the tribunal might make a decision on her case without further notice. The applicant did not respond to the hearing invitation, nor did she attend the hearing. In those circumstances, the tribunal determined to proceed, pursuant to s.426A of the Migration Act1958, as it was entitled to do. 

3. On 19 June, 2013 the tribunal wrote to the applicant, advising her that it had decided to affirm the decision of the first respondent’s delegate to refuse her visa.  The applicant claimed that she had a well founded fear of being persecuted in Malaysia on the basis that if she remained in Malaysia her life was in danger because her ex-boyfriend was trying to kill her.  Her statement in support of her claim for a visa set out the fears that she had and what she claimed were the experiences of members of her family. 

4. The tribunal determined that, on the evidence before it, the applicant’s claims were lacking in essential detail, nor was there any explanation in her application as to why she could not relocate within Malaysia. 

   RECORDED : NOT TRANSCRIBED

   The tribunal further found that, on the evidence before it, it was not satisfied that the applicant had suffered persecution as defined in the Convention. 

5. In her application to this Court the applicant claims that the tribunal was in error because it failed to carry out its statutory duty.  She claims that it did not put adverse information to her and in making the decision that it did, the tribunal made a “judicial error”.

6. In my view, the applicant does not establish that the tribunal failed to carry out its statutory duty.  The tribunal carried out its statutory duty to determine the applicant’s application on the material before it.  The reasons of the tribunal do not suggest that it asked itself the wrong questions.  The reasons of the tribunal suggest that the tribunal was simply unable to reach the level of satisfaction required to grant the visa.  As the first respondent points out, the tribunal was not required to uncritically accept the applicant’s claims.  There is an onus on the applicant to present evidence and make arguments so that the tribunal can decide the application in the applicant’s favour. 

7. I accept the first respondent’s argument that it is difficult to understand the claim that the tribunal did not comply with s.424A of the Act. No information that the tribunal had in its possession and which it considered would be the reason, or a part of the reason, for affirming the decision that is under review was identified by the applicant.

8. It is well settled that s.424A does not require the disclosure by the tribunal of subjective appraisals, thought processes or determinations. Nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps.

9. In my view, the tribunal’s reasons do not demonstrate that the tribunal has committed any jurisdictional error and the application for review must be dismissed.

10. It is not the function of this court to carry out a review of the merits of the tribunal’s decision.  As was stated by the now Chief Justice of the Federal Court, in SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 at [6]:

    The Migration Act and the Judiciary Act provide for judicial review of the Tribunal’s decision. That judicial review is the application that was brought to the Federal Magistrates Court. It is important to understand that the application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence, to decide whether or not a visa should be granted. It is a review by the Court of the decision of the Tribunal, in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression “to ascertain whether the Tribunal has committed any jurisdictional error.”

11. In my view, the tribunal has acted lawfully. 

    RECORDED : NOT TRANSCRIBED

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 5 December, 2013.

Deputy Associate: 

Date:  22 January 2014