BZAGB v Minister for Immigration and Border Protection
[2014] FCA 977
FEDERAL COURT OF AUSTRALIA
BZAGB v Minister for Immigration and Border Protection [2014] FCA 977
Citation: BZAGB v Minister for Immigration and Border Protection [2014] FCA 977 Appeal from: BZAGB v Minister for Immigration and Border Protection & Anor [2014] FCCA 948 Parties: BZAGB v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): QUD 166 of 2014 Judge(s): DOWSETT J Date of judgment: 7 August 2014 Date of hearing: 7 August 2014 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Solicitor for the Appellant: The Appellant was self-represented Counsel for the First Respondent: Mr B McGlade Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 166 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: BZAGB
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
7 AUGUST 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.the appeal be dismissed; and
2.the appellant pay the first respondent’s costs, to be taxed if not agreed.
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 166 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: BZAGB
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DOWSETT J
DATE:
7 AUGUST 2014
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The appellant is an Indian citizen by birth. He claims to be Hindu by religion and to belong to the Patel ethnic group. He arrived in Australia on 27 March 2009 as a dependant of his wife, who held a student visa. They separated in July 2011. On 20 July 2012, the appellant applied for a protection visa. On 28 November 2012, a delegate of the Minister declined the application. The appellant applied to the Refugee Review Tribunal for review of that decision. He was unsuccessful. He sought review of that decision in the Federal Circuit Court and was, again, unsuccessful. He now appeals to this Court against that decision. The appellant’s claim to fear persecution or serious harm for a convention reason arises out of the circumstances in which, as he says, he married his wife. At paragraph 39 of the Tribunal’s reasons, it said:
The applicant’s claims centre on the problems which he claims to have experienced and which he continues to fear should he return to India as a result of his marriage to his wife, from whom he separated some time after their arrival in Australia. He claims that these problems are due to the difference in the castes of himself and his wife.
The Tribunal had serious doubts about the appellant’s evidence. Such doubts appear from the Tribunal’s reasons and are clearly in connection with matters of substance. At numerous points in its reasons, the Tribunal recorded that it had put inconsistencies in his evidence to the appellant for comment. See paras 41, 51, 63, 64 and 67.
The Tribunal made numerous specific findings about his evidence. At paras 45 and 46 it said, concerning his marriage:
The Tribunal found the applicant’s evidence about the circumstances of their meeting and their development of their relationship not credible, particularly given the applicant’s own evidence of the attitudes to inter-caste marriage, as well as the available country information. The Tribunal also considers that the applicant’s inability to answer basic questions about his wife’s age, her family, and her studies make it very difficult to accept that theirs was a genuine marriage.
The applicant’s evidence about his life with his wife in Australia raises further concerns for the Tribunal about the nature of their relationship and his credibility in general.
The Tribunal then set out various examples of matters about which it had concerns. The appellant claimed that his wife is of the Brahmin caste, while he is of the Patel caste, and that this had caused hostility from his wife’s family. He claimed to fear harm instigated by his wife’s family in the event that he returned to India. The Tribunal concluded that the country information did not support the appellant’s claim that the Patels are a low-ranking caste in Gujarat. I do not understand the Tribunal necessarily to have rejected the proposition that the Brahmins are a higher caste than the Patels. Indeed, I would have thought that the high status of the Brahmin caste was a matter of common general knowledge. The Tribunal seems to have understood the appellant to have asserted that the Patels were particularly low in the hierarchy of castes, whereas the country information suggested that this was not so. The difference is one of emphasis and degree. However it is clear that the Tribunal understood that the appellant’s claim was that his marriage between the two different castes was the cause of his fear of persecution or harm.
At paras 70 ‑ 74 of its reasons, the Tribunal summarised its findings as to the credibility of the appellant’s claims. In particular, at para 71 it found:
Because of these inconsistencies in his evidence, the Tribunal does not find the applicant to be credible. It does not accept his evidence that he is from a lower caste than his wife, that he experienced persecution in India because of his marriage, or that he will face a real chance or risk of harm in the future for that reason.
In his application to the Federal Circuit Court for review of the Tribunal’s decision, he identified three grounds as follows:
1.The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act [1958 (Cth)].
2.The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of the claims. The Tribunal did not consider the applicants who had been under immense and intimidating pressure for their inter-caste marriage.
3.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.
Concerning ground 1, the Circuit Judge said:
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 at in accordance with the provisions of the Act. Accordingly, this ground fails.
As to ground 2, the Circuit Judge said:
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.
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.
As to ground 3, the Circuit Judge said:
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 caste to his wife and the impact that had upon his position in India.
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.
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.
Given the unparticularized nature of the grounds upon which review was sought in the Federal Circuit Court, this Court has little option but to accept the Circuit Judge’s account of the appellant’s submissions in that Court. It is not suggested that the Circuit Judge gave other than a fair account of the submissions made before him. Nonetheless, the appellant appeals against that decision, the grounds being:
1.The judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2.The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.
The Minister submits that ground 1 was not taken in the Circuit Court. That observation seems to be correct. The question of unreasonableness was not canvassed in his Honour’s reasons. The appellant has not suggested that he raised the matter in the Circuit Court. In those circumstances, I see no reason to allow him to raise that ground in these proceedings. It probably does not matter very much. Before me, the appellant has simply restated his claimed fears and the grounds for them. He has not sought to particularize in any way the grounds which he seeks to raise by his notice of appeal. It is plain to me that the Circuit Judge did not act in a manifestly unreasonable way when dealing with the appellant’s claim, and did not ignore the aspects of persecution and harm raised by the appellant. I also see no justification for the assertion that the Tribunal failed to observe obligations imposed on it by statute, or that the Circuit Judge ought to have dealt with that matter in any way other than as set out in his reasons.
In the absence of any identification of the legal or factual error alleged in ground 2, it is impossible to say anything about that ground. However it is clear that the Circuit Judge fully understood the nature of the issues raised before the Tribunal and dealt with them appropriately.
Out of an abundance of caution, counsel for the Minister has dealt with the various grounds which were raised before the Circuit Judge. I shall make only a few short remarks concerning those grounds. As to ground 1, it is clear that the Tribunal’s decision was based upon a careful examination of the evidence put before it by the appellant. I see no basis for the assertion that the decision was “not arrived at in accordance with the provisions of the Migration Act”.
As to ground 2, it is more a comment upon the Tribunal’s decision than the expression of a basis for attacking that decision. If anything it is an application for merits review. As to ground 3, the extent to which the Tribunal should put to an applicant, inconsistencies in his or her evidence, will vary from case to case. In this case, it is clear that the Tribunal afforded the appellant an opportunity to respond to many of the matters about which it had concerns. In the absence of any suggestion that a particular matter was not put for consideration, it is difficult to say much more about that ground.
In the circumstances, it is clear that the procedure in the Tribunal did not miscarry. Nor was there error in the Circuit Judge’s reasons or his Honour’s decision.
The appeal must be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 9 September 2014
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