BZAEZ v Minister for Immigration

[2015] FCCA 119

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAEZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 119

Catchwords:
MIGRATION – Protection (Class XA) visa – where tribunal made findings against the applicant’s claims – no jurisdictional error demonstrated – application dismissed.

Legislation:  
Migration Act 1958 s.36(2)(aa)

Applicant: BZAEZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 609 of 2013

Judgment of: Judge Demack

Hearing date: 29 November 2013

Date of Last Submission: 29 November 2013

Delivered at: Brisbane

Delivered on: 22 January 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Ms Kelly of Clayton Utz

ORDERS

1. That the application filed 23 July 2014 be dismissed.

2. That the Applicant pay the First Respondent’s costs of an incidental to these proceedings fixed in the sum of six thousand, eight hundred and twenty five dollars ($6,825).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 609 of 2013

BZAEZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 27 June 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection (class XA) visa.  The applicant’s application contains five grounds, to which I will return.  I think that three of the grounds are essentially impermissible merits review, one is misconceived and the fifth ground, being an allegation of bias, is likewise not established.  For the reasons that follow, therefore, the application will be dismissed.

The materials in the bundle of documents

1. In this particular case, the first respondent filed a bundle of relevant documents, which would ordinarily have been bound in a Court Book.  I will refer to the bundle as a Court Book for convenience.

The materials in the Court Book

1. The applicant’s application for a protection visa is CB 101 to 110 and 87 to 100 respectively.  I note from CB 90 that the applicant appears to have lived in Korea for most of the time from 2000 to 2009 and lived in India from January 2010 until December 2012.

2. At CB 93 to 96 the application answered the question “why did you leave that country?”  The applicant referred to his membership of the Indian National Lok Dal (INLD) and referred to threats made to kill him by members of the Congress Party.  He said that he was attacked during the election campaign in 2000 and left for, firstly, Thailand and then Korea almost immediately, where he stayed until 2009.  The applicant said that he went back to India with “a high hope to have a normal family life” and his family’s pleasure at his return.  He said that after several weeks he was approached by the local INLD leader, who explained the misconduct, to use a broad phrase, of the Congress Party.  The applicant asserted that he was unable to stop himself and engaged in campaigning for the October 2009 election and his activities as an INLD member in that election.  He asserted that the Congress Party could not get a majority and it was a significant loss for them.  It was asserted that they attacked the applicant’s home and threatened his family members and himself.

3. The statement went on to detail asserted threats by Congress Party members to kidnap children and destroy his family, and he made a very difficult decision to leave India to avoid further persecution.  He said that before he left, he had asked police to help protect his family members and himself, but he complained that he did not trust them to do so.

4. It will be noted that the applicant’s claims were put at a level of some generality.

5. The matter was considered by a delegate whose decision is at CB 76 to 86.  It does not appear that the applicant forwarded any further information to the delegate other than his original application, of which I have paraphrased the relevant extracts above.

6. I note at CB 76, the delegate had concerns about the applicant’s identity, which seem to me to have been reasonable in the circumstances, but accepted that the applicant held Indian citizenship.  The delegate recorded that the applicant had applied for protection on 2 February 2012 after arriving in Australia on 17 December 2011.  The delegate recorded the applicant had provided further details of his claims for protection at interview on 30 May 2012.  The applicant’s claims are paraphrased at CB 79 to 80, and essentially turn upon his activities on behalf of the INDL in the 2000 and 2009 Haryana state elections and the harm allegedly perpetrated on him and his family by the Congress Party as a result.

7. I note that the various matters set out at CB 80 relevantly include:

   In his written application, the applicant claimed that after the election members of the INC attacked his home, threatened his family members and threatened to harm him due to their loss of seats in the election. 

   At interview, the applicant claimed that members of the INC attacked him in January 2010.

8. The delegate made findings of fact on credibility at CB 80 as follows:

   I have concerns regarding the credibility of the applicant for the following reasons:

   –    The conflicting identities provided by the applicant in past applications (see para. 6) indicate that the applicant has a willingness to provide false and misleading information to the Department.

   –    The applicant was unable to provide detail or precision when asked direct questions about specific instances of harm or how he had come to be known by members of the INC.  The vague and prevaricated explanations he gave at interview suggest non-genuine claims.

   While the points above lead me to question the credibility of the applicant’s claims, I have provided the applicant with the benefit of the doubt and have not used the information above adversely when assessing the applicant’s claims.

9. I note that the delegate was troubled by the fact that the applicant had not left India for two years and two months after his alleged involvement in the 2009 state election.  Despite claiming to receive threats from the Congress Party approximately every two months after the election, his first attempt to leave the country (after the 2009 election) was via an application for an Australian tourist visa lodged seven months after the state election.  The delegate noted at CB 82, likewise, that the applicant had made no attempt to relocate internally during this time and began working on the family farm, a location not likely to provide anonymity for him.  For these reasons, the delegate found that the applicant did not hold the subjective fear of harm at any point in time after the 2000 or 2009 elections.

10. In those circumstances, it is scarcely surprising that the delegate rejected the applicant’s claim for convention protection and any possibility of a claim made pursuant to the complementary protection regime set out in section 36(2)(aa) of the Migration Act 1958.

The Tribunal’s Decision

1. The applicant applied for review to the Refugee Review Tribunal and the Tribunal’s decision is at CB 6 to 19.

2. The Tribunal set out details of the application and the relevant law at CB 7 to 9 in terms that, in my view, do not give rise to any criticism.

3. The Tribunal considered Claims and Evidence at CB 9 to 11.  I note that the hearing before the Tribunal was by video from Tully with the assistance of an interpreter.

4. The Tribunal noted at CB 9 to 10, paragraph 23, that the applicant travelled to Australia on a temporary business visa arriving on 18 December 2011 and that he had no difficulties in obtaining Indian travel documents.  The Tribunal noted that the applicant had been in Korea from 27 May 2000 until 2 January 2004 and again from 17 February 2004 until February 2009 for work and that he had visited Thailand from 25 to 27 May 2000.

5. The Tribunal recorded at paragraphs 28 to 29 the following claims:

   The applicant claimed protection so that he does not have to return to India.  He claims to be an active member of the Indian National Lok Dal (INLD) and worked very hard for a party candidate.  In 2000, the INLD won the assembly election.  In 2005, Indian National Congress Party (Congress) won a landslide victory in the legislative election.  He was threatened with death by Congress.  They attacked him during the election campaign.  He was shocked and worried about his life.  He left the country immediately.  He went to Thailand first and moved to Korea where he stayed until February 2009.  He returned to India in 2004 to see the conditions, but could not stay for a long time.  After staying a long time in Korea, he thought everything had returned to normal in his area.  After a couple of weeks, the local INLD leadership approached him and explained to him that Congress was corrupt statewide.  Congress leaders were imposing illegal political donations on every business.  The government in Haryana state did not govern in the interests of all people.  The leaders are corrupt and use their political power for their own benefit.  The applicant engaged in campaigning for the October 2009 election.  He made a very clear agenda for party members to spread information about Congress’ state-wide corruption all over the community.  A local Congress member warned him about the consequences if the applicant made a significant difference to the election result.  Congress captured only 40 seats compared to 67 seats in 2005.  INLD won 31 seats compared to nine seats in 2005.  Congress could not get the majority.  It was a significant loss for them.  They attacked his home, threatened his family member and threatened to harm him.

   Haryana state is the battleground for Congress and INLD.  Congress are trying to eliminate those who played a main role in the 2009 election and will be a future threat.  The applicant has tried to stay in India after spending a long time outside the country, but could not because Congress members threatened to kidnap his children and destroy his family.  He made a very difficult decision and chose to leave the country to avoid further persecution.

6. The Tribunal went on at CB 11 to 14 to record what took place at the hearing.  The applicant made a number of specific claims which  are set out at paragraphs 51 to 53 as follows:

   He was attacked in 2010 by the other party.  His wife is still receiving phone calls from them.  They ask where he is.  Whenever he talks to his wife, she is very scared.  He is very confused about what to do.

   In January 2010, he was coming back from watering his land on a motorbike.  A car came and stopped him and beat him and broke his motor bike’s headlight.  There were four people:  one driver and three attackers.  He was riding along.  They were standing in the way.  They stopped him and said he was trying to be smart.  They said one or two things to the applicant and from that he thinks they were from the Congress Party, because he has no enemy over there. 

   They slapped him and hit him with wooden rods.  They also called him on the phone and said that he must have learnt his lesson and do not interfere in the future.  From that, the applicant was pretty sure those people were from the party.  They called him so many times.  In the local area where he went with his party for meetings, they’ve called him on the phone and said to him that he was doing the same things.

7. The Tribunal traversed a number of matters with the applicant, recorded CB 13 to 14.  It is not necessary to traverse them in any detail save that I note the applicant was unable to name the constituency in respect of which he had allegedly performed the work that led him into danger (paragraphs 69 to 73, CB 14).  The Tribunal also raised with the applicant the delay from 2009 until 2011, when he left India, and that he was not seriously harmed in that period.  The applicant did not apparently directly respond to that assertion.

8. The Tribunal’s findings and reasons are at CB 15 to 18.  The Tribunal summarised the applicant’s claims for protection, in my view, it would appear correctly, at paragraphs 77 to 80, CB 15.  The Tribunal also set out the history of the applicant’s visa applications and consequential travel and educational qualifications.  Relevantly, for these purposes, the Tribunal made findings at paragraph 89 and following as follows:

   The Tribunal is not satisfied that the applicant played any role in the elections in 2000 and 2009.  He did not know the number of people in the electorate, which the Tribunal finds is inconsistent with his claimed degree of interest and activity in the election.  Elections are about how many votes are needed to win which determines how election campaigns are run.  The applicant’s answers to questions about the name of the electorate were initially unresponsive to the question.  First, he said the local people, and then he said Shersingh Bersami, the name of the village.  He then said Shersingh was the name of the person who was elected.  He then said the electorate was called Kurukshetra and maintained that position.  His evidence was clear in relation to both elections in which he claimed to have been involved, that they were State Assembly elections.  The Tribunal finds that the applicant did not know the name of the electorate for which his candidate was standing, which is inconsistent with his claimed role in the election campaign and political activities.  The Tribunal gave the applicant to provide information to support his evidence.  None has been provided. 

   The Tribunal finds his claims to have been attacked and threatened after the 2009 elections when he claims the INLD won and Congress lost are inconsistent with his claim that before leaving India, the applicant asked the police for protection for his family and himself but they took no action and he does not trust Indian police because they often act as informers for the ruling party to gain promotion and other benefits.  If the ruling party was INDL, then on his evidence, the police would act in their own interests and protect him.  In making that finding, the Tribunal takes into account the applicant’s evidence that the candidate told him nothing would happen, but the applicant cannot have security looking after him all the time.  That did not address his evidence that the police took not action when he asked them to.  The Tribunal does not accept that the applicant was attacked and threatened after the 2009 elections.

   The Tribunal is not satisfied that the applicant was threatened when he returned to India in 2004 as he claimed.  His clear evidence was the he intended to turn to ROK when he left that country and that he returned to India because he had a visa to return to ROK.  The Tribunal does not accept that the returned to India in 2004 to see what the conditions were like as he claimed, which suggests that he was considering remaining there.  His return is consistent with his visiting India to see his family while he could do so legally, having worked in ROK for some years. 

   The applicant claimed he was attacked once in January 2010 following the September/October 2009 election.  Thereafter, he claimed that there were many telephones calls and his wife continues to receive calls.  As the Tribunal does not accept that he played any role in the 2009 election or that he was attacked or threatened after the 2009 election, the Tribunal does not accept that there were many telephone calls and his wife continues to receive calls.  In making that finding, the Tribunal takes into account the claim in the application that his home and family members had been attacked.  However, the Tribunal is not satisfied that he was so for the same reasons.  The Tribunal’s finding is reinforced by the fact that he did not make that claim at the hearing. 

   The Tribunal finds that the applicant’s evidence that he and members of his family have not been harmed since January 2010 is inconsistent with his claims that Congress members will harm him if he returns to India. 

   The Tribunal finds the delay between the claimed attack in January 2010 and departing for Australia in December 2011 is also inconsistent with the applicant’s living with the threat of harm from members of Congress as he claimed.  When asked about the delay, the applicant provided no explanation beyond what he had already said. 

   Although the applicant denied leaving India to earn money to support his family, and saying that he is able to manage, the Tribunal is not satisfied that is true.  He was farming in India until he left in 2000 because he had been unable to find a job based on his education qualifications.  He worked in ROK for nine years, although he claimed that he did not have any spare money.  From 2010, he was finding his financial situation difficult, following the distribution of land between him and his brother.

9. The Tribunal went on, scarcely surprisingly, to find that the applicant who had had no involvement in politics as claimed, was not likely to face persecution for a Convention reason were he to return to India. It dismissed his claim accordingly. It likewise dismissed his claim pursuant to the complementary protection criterion pursuant to s.36(2)(aa) of the Act.

The submissions made at Court

1. The applicant had but little to say before the Court.  Entirely understandably, he had not filed any additional submissions, although the orders made by Jarrett J on 14 October 2013 permitted him to do so.  At P-6 of the transcript at line 1, he said, relevantly:

   I think that the decision that the Tribunal has taken is not right and so I would like to make the application for the decision to be in my favour.

2. He continued later on the same page at line 21:

   So I have filed this application, because I think that I have told the Tribunal of the fear that I face if I go back to India.  But in spite of telling all that the decision was not in my favour;  hence I would like to appeal for this in this court.

3. The applicant went on to assert that the local leader in India for whom he still worked had been put in jail by the Congress Party.  At P-6, again, he went on to say at line 35:

   So along with that leader, 55 more party workers have also been put in jail; so they are serving jail time right now.  The police had also come to inquire a few times at my place, but I wasn’t there at the time

   … So the party leader for our party, who was Mr Ombricash, he was also serving jail time right now;  he has been punished.

4. At P-8 of the transcript at line 6, the applicant asserted about this information:

   And this information that I just gave the Court about all these people being in jail, I came to know about that in January, whereas my hearing in front of the Tribunal was in the month of December.

   He went on to assert he would be put in jail if he returned.

5. Counsel for the Minister, unsurprisingly, pointed at out that this matter, on any view of the evidence, was not before the Tribunal.

Ground 1:  the Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claim 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.

1. The applicant has not made any request to put before the Court the transcript of the proceeding before the Tribunal.  The applicant has not suggested, in his application or his oral submissions, that the Tribunal’s decision is in any way inaccurate insofar as it records what took place at the Tribunal hearing.  In these circumstances, this Court is obliged to accept the Tribunal’s record as accurate unless it is blaringly inherently improbable, which it is not.

2. The reality is that the applicant failed to succeed before the Tribunal essentially for the reasons that I have extracted and set out above.  His claims were of risk of harm, essentially, because of his political activity.  He was unable to name the constituency in respect of which he said he had acted as a party member and had no idea of the size of the electorate.  The Tribunal’s conclusion that he had not been politically active was, contrary to the ground asserted, a conclusion wholly open on the material as it then stood.

1. As the first respondent submits, and the applicant’s oral submissions that I have paraphrased above make clear, this is simply a matter of dissatisfaction with the conclusion the Tribunal reached.  That conclusion was plainly open to it on the materials and no jurisdictional error is shown.

Ground 2:  the Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims.  The Tribunal did not consider the applicant to have been under immense and intimidating pressure from opposition.

1. The Tribunal was clearly aware of the applicant’s claims which it paraphrased correctly.  Once again, this is quite clearly an endeavour to review the decision on its merits, which is simply not a function for this Court in these circumstances.  Moreover, the ground asserts a matter which the Tribunal expressly rejected.  The Tribunal did not accept that the applicant had been under immense and intimating pressure from the opposition (i.e. the Congress Party).  This ground is devoid of merit.

Ground 3:  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.

1. The applicant has not articulated any matters in support of this ground of application.  The first respondent’s written submissions point out, correctly in my view, at paragraphs 23 to 24, that it is not incumbent upon the Tribunal to uncritically accept the applicant’s claims and that the onus is on the applicant to present evidence and make arguments to enable the Tribunal to decide that he satisfied the relevant elements of the definition of refugee.  He did not succeed.  There was no error or want on the part of the Tribunal in making that finding and the Tribunal was plainly acting within its jurisdiction when it did so.  This ground fails.

Ground 4:  the applicant satisfied the key elements of the 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.

1. This ground wholly misstates what the Tribunal did.  The Tribunal was well seized of what the definition of Convention and complementary protection were.  It examined the applicant’s claims and decided decisively against him.  The Tribunal did consider what the applicant refers to as “this aspect,” but he was not successful.  The Tribunal’s finding was clearly, on any view, open to it on the materials before it and this is simply impermissible merits review.

Ground 5:  the Tribunal failed to investigate applicant claim, especially the grounds of persecution in India.  Therefore, the Tribunal decision dated 27 June 2013 was affected by actual bias constituting judicial error.

1. As already mentioned, the applicant has not sought to put a transcript or audio recording of the hearing before the Court.  The Tribunal’s decision shows that it did investigate the applicant’s claims and in my view the materials filed by the applicant are properly and appropriately paraphrased and dealt with in the Tribunal’s decision.  There is nothing in the Tribunal’s decision that would lead a fair-minded lay observer to a conclusion that the Tribunal was affected either by apprehended bias or still less, actual bias.  This ground fails.

Conclusion

1. For the above reasons, none of the grounds of application have merit and the application will be dismissed.

2. Costs follow the event.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Demack

Date:  22 January 2015