BZAEZ v Minister for Immigration and Border Protection

[2015] FCA 625

FEDERAL COURT OF AUSTRALIA

BZAEZ v Minister for Immigration and Border Protection [2015] FCA 625

Citation:	BZAEZ v Minister for Immigration and Border Protection [2015] FCA 625
Appeal from:	BZAEZ v Minister for Immigration & Anor [2015] FCCA 119
Parties:	BZAEZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	QUD 54 of 2015
Judge:	DOWSETT J
Date of judgment:	26 May 2015
Date of hearing:	26 May 2015
Place:	Brisbane (via Video Link to Cairns)
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	13
Counsel for the Appellant:	The Appellant appeared via Video Link
Counsel for the First and Second Respondents:	Ms A Stoker
Solicitor for the First and Second Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 54 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAEZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	26 MAY 2015
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.the appellant pay the first respondent’s costs of the appeal; and

3.there be liberty to apply in relation to the calculation of costs.

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 54 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAEZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DOWSETT J
DATE:	26 MAY 2015
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Circuit Court Judge, refusing judicial review of a decision of the second respondent (“the Tribunal”).  The Tribunal affirmed a decision by the first respondent’s delegate, refusing the appellant’s application for a Protection (Class XA) visa.  The Tribunal submits to any order which the Court may make in the proceedings, but wishes to be heard on the question of costs.

2. The Tribunal summarized the appellant’s claim as follows:

   77.In summary, the applicant seeks protection in Australia because he claims that he was an active member of the India National Lok Dal (INLD) political party and worked very hard for a party candidate in the 2000 and 2009 elections.  In 2000, the INLD won the assembly election.  Members of the Indian National Congress (Congress) Party attacked him during the election campaign and threatened him with death.  He left the country immediately, going first to Thailand and then to the Republic of Korea (ROK) where he stayed until February 2009, except for returning to India in 2004 to see what the conditions were.

   78.In 2009 he returned to India because he thought everything had returned to normal.  After a couple of weeks the local INLD leadership approached him, explained that Congress was corrupt state-wide and the leaders were using power for their own benefit.  The applicant campaigned for the October 2009 election.  Local Congress members warned him of the consequences if his activities made a significant difference to the election result.  The Congress candidate lost and the INLD candidate won.  The local candidate was an MLA, a Member of the Legislative Assembly, in Haryana.  They attacked his home, his family members, threatened to kidnap his children and destroy his family.  He was attacked in January 2010 when he was returning at night on his motor cycle from watering a field.  They hit him with wooden rods.  They telephoned him and said that he must have learned his lesson and not to interfere in the future.  They called him many times, including when he went with his party to meetings.

   79.The applicant left the country to avoid further persecution.  Congress are trying to eliminate those who played a main role in the 2009 election and will be a threat to him in the future.  His wife is still receiving phone calls from them asking where he is.  She is very scared.

   80.Before leaving India, the applicant asked the police for protection for his family and himself but they took no action.  He does not trust Indian police because they often act as informers for the ruling party to gain promotion and other benefits.

3. The Tribunal made the following findings:

   ·the appellant is a citizen and national of India;

   ·in February 2000 he applied unsuccessfully to the United States of America for a tourist visa;

   ·on 25 May 2000 he travelled to Thailand, and then on 27 May 2000, he travelled to South Korea on a business visa;

   ·in 2004 he visited India for about six weeks and then returned to South Korea;

   ·when he returned to India in 2004 he intended to return to South Korea; and

   ·in February 2009 he returned to India and remained there until he left for Australia on 17 December 2011, travelling on a business visa.

4. The Tribunal was satisfied that municipal elections were held in the appellant’s region of India in March/April 2000, March/April 2005 and May and December 2010.  State Assembly elections were held in January/February 2000, January/February 2005 and September/October 2009.  The appellant claimed to have been active in the 2009 State elections in an electoral district known as “Kurukshetra”.  However the Tribunal found that it was not an electoral district for the purposes of those elections.

5. The Tribunal was not satisfied that the appellant had played any role in the elections in 2000 or 2009.  This conclusion was apparently based upon the appellant’s unsatisfactory answers to questions concerning the elections.  In particular he did not know the number of people in the relevant electorate.  His “answers to questions about the name of the electorate were initially unresponsive to the question”.  He did not know the name of the electorate for which his candidate was standing.  The Tribunal considered that this ignorance was inconsistent with his claimed role in the election campaign and in other political activity.  The Tribunal also rejected his claim to have been attacked and threatened after the 2009 elections.  The claim was inconsistent with his claim that before leaving India, he had asked the police for protection, and that they had taken no action.  The Tribunal appears to have thought that as INLD had won the election, the police would have protected him. 

6. The Tribunal was not satisfied that the appellant had been threatened when he returned to India in 2004.  It also rejected his claim as to the reason for his return.  It inferred that he had returned for the purpose of visiting his family.  The Tribunal rejected his claim to have been attacked in January 2010, that there were thereafter many telephone calls and that his wife continues to receive such calls.  The rejection of this evidence depended upon the Tribunal’s finding that he had not played any role in the 2009 election.  There were also inconsistencies between his previous claims and those articulated at the hearing.  The Tribunal considered that the absence of any suggestion of harm since January 2010 was inconsistent with his claim that Congress Party members would harm him if he returned to India.  The Tribunal also commented upon the delay between the claimed attack in January 2010 and his departure for Australia in December 2011, suggesting that it was inconsistent with his living with the threat of harm from members of the Congress Party.  He offered no explanation for the delay.

7. Overall, the Tribunal was not satisfied that the appellant had been involved in politics.  It was not satisfied that he was an active member of the INLD, had any role in the 2000 and 2009 election campaigns or was threatened or attacked in 2000, 2004 or after the 2009 election.  It was also not satisfied that should he return to India, Congress Party supporters would threaten or harm him because of his past political activities.  The Tribunal was not satisfied that he had a political opinion which might lead to his involvement in politics with INLD or any other political party.  Given that the Tribunal was not satisfied as to his past political activity, it was also not satisfied that he would be involved in political activity in the future.  The Tribunal was not satisfied that if he returned to India, there was a real chance that he would suffer serious harm in the reasonably foreseeable future.  It was not satisfied that he had a well‑founded fear of persecution for a Convention reason.  Nor was it satisfied that there was a real risk that he would suffer significant harm.  Thus the Tribunal was not satisfied that the appellant was a person to whom Australia owed obligations pursuant to the Refugee Convention 1951.  These findings also disposed of any claim to rely upon the complementary protection criteria.

8. In his application for judicial review in the Federal Circuit Court the appellant identified five grounds, namely:

   1.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.

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

   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.

   4.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.

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

   In his oral submissions at the hearing in the Federal Circuit Court, he said little that went beyond these grounds.

9. As to the first ground the Federal Circuit Court Judge concluded that the appellant had failed before the Tribunal simply because it rejected his claim to fear harm for reason of his political activity.  The appellant had not sought to demonstrate a failure to afford him procedural fairness, by reference to the record or otherwise.  As to ground 2 her Honour considered that the Tribunal had clearly understood the nature of the appellant’s claim but had not been willing to act on his evidence.  As to ground 3 the Federal Circuit Court Judge observed that the appellant had not articulated any basis for his complaint.  It was unfortunate that her Honour referred to “onus”.  However, it is clear that her Honour was speaking in the context of the Tribunal’s refusal to act on the appellant’s evidence.  Her Honour seems to have understood the ground to mean that the Tribunal, itself, did not conduct further enquiries.  In that context the reference to onus probably only meant that had the appellant wanted the Tribunal to consider other evidence, it was for him to say so.  In reality, this ground is meaningless.  As to ground 4 the Federal Circuit Court Judge considered that it misstated the Tribunal’s approach.  The Tribunal had examined the appellant’s claims and decided against him.  As to ground 5 the Federal Circuit Court Judge considered that the Tribunal had investigated the appellant’s claims, and that there was no basis for any finding of perceived or actual bias.

10. The appellant’s notice of appeal states no grounds, save that he claims to want a protection visa.

11. At the commencement of the hearing I pointed out that there were no grounds of appeal.  The appellant replied that he felt that his application should have been successful.  He also referred to an incident said to have occurred in December 2012.  He had referred to this incident in an email sent to the Court on 15 May 2015.  He said, I think based on newspaper reports, that 55 of his fellow party members had been imprisoned, and that he was the next target.

12. He said that he was really afraid of them, presumably the Congress Party.  I pointed out that the 2012 incident had not been raised before the Tribunal.  He replied that the incident had occurred after the proceedings in the Tribunal.  I pointed out that the Tribunal’s reasons were dated 27 June 2013.  He then said that the incident must have occurred after that date.  In any event there is no admissible evidence of the incident, nor is there any basis upon which such evidence could properly be received in these proceedings.  The appellant has added nothing to remedy the absence of any specified grounds of appeal.  He has made no submissions concerning the Federal Circuit Court Judge’s decision, which submissions could be said to identify any arguable ground of appeal.  I have considered the Tribunal’s reasons and those given by the Federal Circuit Court Judge.  I see no error in the latter.  The appeal must be dismissed.

13. I order the appellant to pay the respondent’s costs of the appeal.  I give the parties liberty to apply as they may be advised insofar as concerns the basis upon which the costs are to be calculated. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:        26 May 2015