BZAFN v Minister for Immigration

[2014] FCCA 1171

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFN v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1171

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – whether the Tribunal failed to give consideration to the applicant’s real fear of being harmed – whether the Tribunal made a decision based upon subjective factors – jurisdictional error – reasonableness of Tribunal’s decision – Tribunal’s decision was reasonable – no jurisdictional error made out – application dismissed – costs awarded.

Legislation: 

Migration Act 1958 (Cth) s.36(2A)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Applicant: BZAFN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 779 of 2013

Judgment of: Judge Burnett

Hearing date: 7 March 2014

Date of Last Submission: 7 March 2014

Delivered at: Brisbane

Delivered on: 7 March 2014

REPRESENTATION

Counsel for the Applicant: Mr W.  Brown

Counsel for the Respondent: Ms A. Stoker

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application filed on 4 September 2013 be dismissed.

2. That the Applicant pay the Respondents’ costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 779 of 2013

BZAFN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The applicant applies for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 1 August 2013. The Tribunal had refused his application for review and affirmed the delegate’s decision made on 19 November 2012 to refuse him a protection visa. The applicant contends that the Tribunal engaged in jurisdictional error, particularly by failing to give consideration to his real fear of being harmed if he was returned to India.

2. By way of background, the applicant was a student in Australia from about October 2007.  An event occurred in late 2010, and as a result the applicant was wanted by police in Queensland in connection with an incident of 14 December 2010.  He departed Australia on 15 December 2010 and was subsequently arrested and jailed in India on the basis of an Australian extradition request.  The extradition request was granted by a court in New Dehli on 8 November 2011 with the applicant’s consent, and he was returned to Australia on 14 December 2011 where he was then charged with rape and entering a dwelling with intent.

3. When the matter was heard at the Brisbane Magistrate’s Court on 20 July 2012, the Director of Public Prosecutions offered no evidence after the alleged victim of the rape withdrew her complaint, and the charges against the applicant were dismissed. Following that determination he applied on 2 August for the grant of the protection visa.  In the course of his various applications, commencing with his application to the delegate and subsequently to the Tribunal, he claimed, among other things, for protection because of events that occurred between December 2010 and December 2011 in India.

4. The applicant informed the delegate that he had returned to India in 2010 to visit his mother who was ill, and that he was “without any justice” jailed for 12 months as a result of a request from the Australian Federal Police. He said that while in jail he was tortured, bullied and subjected to racism due to his caste. He said that his name was in the newspapers and he was described as a criminal in Australia and classed as a criminal in all parts of India. He said that he was shown on Indian television as a rapist. He claims that his mother and immediate family members cast him out and that as a consequence he was badly harmed and mentally disturbed.

5. He claims to have a phobia about returning to India.  He says that by reason of these events no company or employer would ever give him work due to the wrongful charges brought against him and his having been jailed. He says that he can never be married in India and that his reputation there has been permanently tarnished. These matters are exacerbated because he is now seen as someone of a low caste, as he has been in jail, and will be treated as a second-class citizen.  He claimed that if he returned to India he would be harmed, possibly by the police, the government and/or criminals, that he would be killed as he walked in the street, or that the police would continue to harass him by picking him up and putting him in jail. He said that the Indian authorities would not help him as he had been jailed and that he would therefore forever be labelled a criminal and rapist. 

6. In addition to those observations, he made these additional remarks to the Tribunal.  He says that he was beaten by police when they arrested him in India at the end of December 2010 and that they photographed him and released the details of his arrest to the newspapers. He contended that rape is regarded as a major crime in India and that he was seen to have damaged India’s international reputation.

7. He says that he has friend in India who has warned him that if he is returned, he will be killed wherever he goes. He says that he cannot relocate in India because wherever he went, members of his community would find him and kill him. The applicant says they would do this because he had insulted their name abroad. The applicant contended that in his culture women are respected and when he was asked about how people might find him in such a large country as India, he just said that they easily would, even if he changed his identity. 

8. He also informed the Tribunal and others that there were gangs consisting of up to 300 members who would kill people.  These gangs were criminal in nature.  He contended that he would die within two or three months of returning to India, either by being killed or committing suicide.  When asked who might kill him, he said it was:

   “… ‘normal’ people or organisations that are opposed to crime such as Babbar Khalsa, Shive Sena or Aam Aadmi, a newly formed party which encouraged the police to take action against criminals.”

9. He confirmed to the Tribunal that he did not fear harm in India for any reason other than the fact that he had been detained in prison and charged with rape. He said that people would remember who he was, and he said that people do not easily forget news and they would remember his history if, for instance, he tried to do something as simple as rent a room. 

10. He acknowledged that he had never been charged with a criminal offence or convicted of one, but he said that these facts were not accepted irrespective of their truth.  The applicant said police would continue to arrest him and make false claims or charges against him, noting that if someone was jailed they would have to join a criminal gang or face being returned to jail. 

11. It was put to him that although there was evidence before the Tribunal that there were problems with corruption and discipline in Indian police forces, the police would nevertheless be able to provide him with protection. He contended that murderers have criminal links and the courts and police therefore leave them alone, but he did not fall into that class. When it was suggested by the Tribunal that he would relocate to a place where he may not be known, on the basis that the Tribunal thought it seemed difficult to believe that anyone would know anything about him, he contended that it would be hard for him to find a job or accommodation because of his prison record. He contended that his background would prevent him from entering into a marriage. 

12. They are the broad matters raised by the applicant concerning the basis for his application for a protection visa. In his application for review, the applicant contended that the ground advanced is that the Tribunal failed to give consideration to the applicant’s real fear of being harmed if he was returned to India. His counsel has today conceded and accepted that this is the only proper ground being pursued.

13. The applicant’s counsel correctly concedes that the remaining four grounds are merely factual instances that are contended in support of the applicant’s application. It was further conceded that the Tribunal’s alleged failings were limited to its conclusions in respect of the complementary protection claim, and not the convention claim. Again, I think that this was a reasonable concession, particularly given the Tribunal’s conclusions concerning the protection claim, where it stated:

    “16. [The applicant] does not identify any Convention ground for this feared harm and, having considered his claims, I am not satisfied there is any reason to believe it has a connection with the grounds of race, religion, nationality or political opinion.  I have considered whether a Convention nexus might arise through his membership of a particular social group or groups formulated to embrace, in some combination, the elements of ‘males in India who are believed to be rapists or who have been detained in prison.’ There is, however, nothing in the information before the Tribunal to indicate that such a group or groups do in fact exist in India in the sense of being sufficiently identifiable by characteristics or attributes common to all their members, other than a shared fear of persecution, which distinguish them from society at large. While it seems obvious that persons exist whose individual circumstances include the elements suggested above, I am unable to be satisfied that this demonstrates the existence of relevant particular social groups in India to which they, or the Applicant, belong.

    17. In the light of the information before the Tribunal I find that the harm the Applicant claims to fear in India – arising from his record of detention and a mistaken belief that he is guilty of rape – relates to his personal circumstances. I am not satisfied he has a well-founded fear of persecution for a Convention reason …”

14. That leaves only the complementary protection claim. When pressed concerning that claim, the applicant’s counsel submitted that the applicant’s complaint is that the member made a decision based not on relevant information but rather on matters personal to the member himself. Expressed another way, the applicant’s counsel effectively said that the decision was infected by the fact that the Tribunal had extrapolated its own views and circumstances to the situation in India.

15. The Tribunal, in assessing the complementary protection claim, commenced its analysis of the relevant facts at [21], stating that in assessing an applicant’s claim for protection past experiences in his or her country of reference may provide generally persuasive evidence for the likelihood or otherwise of future harm on return.  The Tribunal proceeded to state that it had reasons to doubt that the applicant’s unfortunate experience of harm in India would indicate a sufficient risk of future harm, and then listed seven such reasons: 

    a)The harm that the applicant suffered in India was brought about by very particular circumstances which no longer applied, that is, he was no longer under charge and being detained under charge;

    b)That he was held in prison only for extradition purposes, not for any other purpose;

    c)Concerning the complaint that police would target him, the Tribunal concluded that those complaints were not plausible;

    d)Concerning the complaint that he was at risk of being killed, the Tribunal concluded that the complaint was not plausible;

    e)Concerning the likelihood that some of this history would be known to at least those members of the village of Dholan, of which he was a former resident, while accepting that this was possible the Tribunal was not satisfied that that matter alone would be more likely to occasion vigilante attacks;

    f)The Tribunal concluded that it was not plausible that members of terrorist organisations, such as Babbar Khalsa, would have an interest in killing or harming him; and

    g)Other forms of harm that the applicant claimed to fear did not appear to readily fall within the categories of significant harm defined exhaustively in s.36(2A) of the Migration Act 1958 (Cth).

16. In seeking to impeach the Tribunal’s conclusion in relation to complementary protection, and by way of illustration of its contention that the Tribunal sought to invest its own subjective rather than objective conclusions against the weight of evidence, the applicant referred particularly to points one and five.

17. Point one concerned the Tribunal’s conclusion that the harm the applicant suffered in India was brought about by a very particular set of circumstances which no longer applied. In respect of that complaint the Tribunal, having understood the complaint, proceeded to observe that if the applicant were to return to India he would not be a person who was under a shadow of guilt in Australia and he could produce documentary evidence to demonstrate that. It continued:

    “I note his claim that nobody would believe these documents, apparently on the basis that false documentation is readily available in India but I am not satisfied this is more than simply speculative.”

18. There was particular emphasis in the application on those observations.  The conclusion of the Tribunal on that point, of course, is a matter for it and is to be assessed by notions of reasonableness.  It continued:

    “Further, the claim that, for this reason, he could not rely on exculpatory documentation does not sit comfortably with his claim that everywhere he went people would readily believe documentation implicating him as a rapist with a prison record.”

    Again, this matter relates to a conclusion drawn by the Tribunal based upon the material considered by it. 

19. Point five concerned the Tribunal’s statement that it accepted that there is a greater likelihood that in his village it would be known that he had been arrested, detained and then extradited to Australia.  The complaint there was again that there was an undue element of subjectivity in the conclusion of the Tribunal, particularly where it stated:

    “However, I am not satisfied this indicates that inhabitants of his village or members of his community would be any more liable to resort to vigilante attacks on him for this reason than would other members of the Indian population at large.”

20. It was contended that this conclusion was one that was infected with undue subjectivity or the investment of the Tribunal’s personal views upon the exercise of the fact-finding.

21. Ultimately, these are matters for the Tribunal.  As French J, as his Honour then was, said in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.” 

22. That is simply one of any number of authorities that can be drawn upon for what is regarded as, in this jurisdiction, a relatively trite proposition. More important, however, is the way in which the Tribunal proceeded to undertake the exercise of giving such weight to the evidence proffered. That factor was addressed in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 when the High Court revisited the application of the Wednesbury unreasonableness test[1] in the context of decision making. At [72], their Honours said:

    “The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that “all these things run into one another.” Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is “manifestly unreasonable.” Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.”

    [1] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

23. That, of course, invites an application of the Wednesbury test. In simple terms, the test invites the Court to review the decision by reference to whether or not the findings are so unreasonable that no reasonable decision-maker could have made them.  In my view, having regard to the information that was provided to the Tribunal, the Tribunal did draw conclusions which were reasonably open and available for it to draw based upon the material before it.

24. It is well settled that this Court cannot engage in impermissible merits review.  The applicant has not demonstrated that there has been any jurisdictional error on the part of the Tribunal. It follows that the application fails and must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:5 June 2014