BZAGB v Minister for Immigration

[2014] FCCA 948

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGB v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 948

Catchwords:

MIGRATION – Judicial review – Refugee Review Tribunal – Protection (Class XA) visa – whether the tribunal’s decision was not arrived at in accordance with the Migration Act 1958 (Cth) – whether the tribunal failed to take into account the full gravity of the applicant’s circumstances – whether the tribunal denied the applicant procedural fairness – no error demonstrated by tribunal – application dismissed – costs awarded.

Legislation:  

Migration Act 1958 (Cth)

Applicant: BZAGB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1116 of 2013

Judgment of: Judge Burnett

Hearing date: 10 April 2014

Date of Last Submission: 10 April 2014

Delivered at: Brisbane

Delivered on: 10 April 2014

REPRESENTATION

The Applicant appeared on his own behalf.

Solicitors for the Respondents: Clayton Utz

ORDERS

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

2. That the Applicant pay the Respondents’ costs fixed in the sum of $6000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 1116 of 2013

BZAGB

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”) affirming a decision of a delegate of the Minister made on 28 November 2012. On that occasion the delegate refused to grant the applicant a Protection (Class XA) visa which he had applied for on 20 July 2012. The Tribunal undertook a merits review of the delegate’s decision. It considered both Australia’s convention obligations and the complementary protection ground obligations provided for under the Migration Act 1958 (Cth) (“the Act”).

2. The Tribunal noted that the applicant had arrived in Australia on the 29 March 2009 as a dependant of his wife, who then held a student visa, but that they had separated in about July 2011.  The Tribunal noted that both before the delegate and it the applicant’s basis for concern was an alleged well-founded fear of persecution on the basis of his membership of a particular social group, that being persons who had married someone from a higher caste.

3. The Tribunal noted the applicant’s written statement in which he stated that he had been born into a lower caste family in India (Patel). He had met and married his wife, who he says was of a higher caste, and that the marriage occurred without the acceptance or consent of her family. He claimed that it had given rise to issues in his local area resulting in personal threats to him and attacks upon his family. He said that this was partly why he decided to move to Australia.

4. The matter came on before the Tribunal after it had issued the applicant an invitation to appear. The applicant appeared before the Tribunal to present arguments and give evidence at a hearing on 18 October 2013.

5. At the hearing he was assisted by an interpreter. Following the hearing, the Tribunal in its reasons came to a conclusion that the applicant was an evasive and unconvincing witness.  It found particular aspects of his claim to be not credible and rejected his contention that his wife, being a Brahman, was of a significantly higher caste than the Patels, which he said were way down in the caste hierarchy. The Tribunal based that conclusion on the country information before it, which said that the Patel caste was actually one of the higher castes in Gujarat.

6. Given the particularly discrete ground advanced by the applicant concerning his persecution, this finding was critical to the Tribunal’s determination. Ultimately it concluded commencing at paragraph 71 of its reasons that, because of the inconsistencies in his evidence, it did not find him to be a credible witness. Nor did it accept as a matter of fact his evidence that he was from a lower caste than his wife, that he had experienced persecution in India because of his marriage, or that he will face a real risk of harm in the future for that reason.

7. In fact, it concluded that he had provided inconsistent and conflicting stories to the delegate and Tribunal as to whom he claims was responsible for attacking him.  For that and other reasons the Tribunal found that the applicant was not a credible witness. Having rejected the applicant’s evidence, the Tribunal concluded that it was not satisfied that he faced a real chance of serious harm for a Convention reason,[1]  nor that he was entitled to protection under the complementary protections provisions because he faced a risk of significant harm should he return to India.

   [1] Convention relating to the Status of Refugees.

   Grounds for review

8. In his application for judicial review the applicant identified three grounds.

   “Ground 1: 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.”

9. When called upon to address this matter, the applicant in his oral submissions advanced questions in respect of the Tribunal’s finding concerning castes. In essence he was seeking to reargue the merits of the Tribunal’s determination. It is apparent from the reasons of the Tribunal that it approached the resolution of this issue correctly. That is, it identified the need to establish a Convention basis or complementary protection reason, and it clearly understood the alleged Convention basis or complementary protection reason asserted by the applicant. It considered that matter and addressed it in its determination. In my view, the Tribunal’s decision was arrived in accordance with the provisions of the Act. Accordingly, this ground fails.

   “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 who had been under immense and intimidating pressure for their inter-caste marriage.”

10. The Tribunal’s decision reveals a lengthy and detailed consideration of this very issue. It did not have to, and obviously did not, accept the applicant’s claims uncritically. It was careful not to conflate prevalence and acceptance and it considered the particular regional situation in weighing the applicant’s claims. It turned its mind to the relevant issues in reaching its conclusion. 

11. Ultimately, this complaint is in respect of the Tribunal’s conclusions, rather than the process. What he really seeks is an impermissible merits review. As such, this ground also fails.

    “Ground 3: 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.”

12. Again, in his oral submissions in respect of Ground 3 the applicant’s complaint was that the Tribunal did not understand him properly in respect of his allegations relating to the caste issue and, in particular, his being of a lower cast to his wife and the impact that had upon his position in India.

13. It is apparent from the Tribunal’s reasons, particularly at paragraph 71, that it had an acute appreciation and clear understanding of the case he was advancing. 

14. Ultimately, what the applicant seeks is an impermissible merits review. The Tribunal considered and understood his application, but simply did not accept his evidence. This ground also fails.

Costs

1. The respondents seek costs in the sum of $6000.00. The applicant’s only submission in response is that he does not have the means to pay. Impecunity is not an adequate defence to a costs order. I will order that the applicant pay the respondents’ costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:  9 May 2014