BZAGU v Minister for Immigration

[2015] FCCA 1278

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAGU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1278

Catchwords:
MIGRATION – Protection (Class XA) visa – where tribunal’s findings based upon credit assessment of applicant – where tribunal concluded that the applicant’s claims not credible – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(a)

Applicant: BZAGU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 288 of 2014

Judgment of: Judge Jarrett

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Brisbane

Delivered on: 20 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Kelly

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 1 April, 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 288 of 2014

BZAGU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application the applicant seeks orders that a decision of a refugee review tribunal made on 28 February, 2014 be set aside.  He seeks an order that his application to review a decision of a delegate of the first respondent to refuse him a Protection (Class XA) visa be remitted to a refugee review tribunal to be determined according to law.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. Although the application for review filed in this Court specifies three grounds of review, none of them identify a jurisdictional error within the tribunal’s decision.  In my view, the applicant’s claims do nothing but cavil with the tribunal’s findings of fact and the weight that the tribunal decided to ascribe to the evidence before it.  The tribunal’s reasons for decision do not reveal jurisdictional error on the part of the tribunal.   These are my reasons for those conclusions.

Background

1. The applicant arrived in Australia with his wife in August, 2009 from India.  She entered Australia on a student visa and the applicant entered as her dependant.

2. The applicant told the tribunal that he married his wife in February, 2009.  He said that they had met on a bus on which he used to travel to work about a year earlier.  He said that his wife was of a higher caste than he and her marriage to him was not approved by her family.  Her family were so against the applicant’s marriage that he said that they had hired “goons” that had assaulted him after he and his wife had married and whilst they lived in India. 

3. The applicant’s marriage, however, has not lasted.  He and his wife separated in February, 2012 and are now divorced.

4. In his visa application, the applicant claimed that should he return to India, he will be subjected to harm from his ex-wife’s family and from members of her caste.

5. The tribunal did not accept the applicant’s claims.  In its reasons for decision, the tribunal recorded that it found the applicant’s evidence about when he met his wife and his wife’s family very confused.  The tribunal also determined that the applicant’s evidence about his wife’s student visa application was confused.

6. The tribunal had access to the applicant’s ex-wife’s student visa application.  Some of the information on that file was inconsistent with the claims made by the applicant to the tribunal for the purposes of his protection visa application.  In particular, the file contained a Certificate of Registration of Marriage for the applicant and his wife.  That certified that they were married in 2003, some six years prior to the time when the applicant claimed the parties were in fact married.

7. The tribunal obtained the student visa file after it had conducted a hearing with the applicant. After it had obtained the file and determined there was material within it that might be the reason or part of the reason that the tribunal would affirm the delegate’s decision, the tribunal wrote to the applicant and invited him to comment on that material. The applicant, however, did not respond to the tribunal’s invitation.

8. The tribunal recorded in paragraph 44 of its reasons:

   44.    As noted above, the applicant told the Tribunal that he and his wife married at a ceremony a few months prior to their departure from India in 2009. He said that neither his family nor his wife’s family attended the wedding. He said that his wife’s family had refused permission for them to marry, and that when they had been living together for a month after the wedding he was attacked by unknown assailants whom he believed had been sent by his wife’s family. He said that after this attack his wife returned to her family home and they continued to meet in secret while arranging their departure for Australia.

9. The tribunal determined that the applicant’s evidence was evasive and vague.  It did not accept his evidence as credible.  As to the evidence obtained from the applicant’s ex-wife’s student visa file concerning the date of the applicant’s marriage to her, the tribunal said:

   46. In particular the Tribunal notes that the applicant’s claims relate to his marriage to his wife and the problems he claims to have suffered because of their different castes. He claimed in his interview by the Department and in evidence to the Tribunal that this marriage occurred shortly before he came to Australia.

   47. However, the Certificate of Registration of Marriage that was produced by the applicant and his wife to the Department with their student visa application in 2009 stated that they were married on 28 May 2003. The Tribunal gave the applicant an opportunity to comment on this because it appears to mean that the claims upon which his application is founded are false. If he and his wife were married in 2003, they presumably lived together for some six years before coming to Australia, not for one month as he claimed at the hearing. The Tribunal considers this information calls into question all of the applicant’s claims, which 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 sometime after their arrival in Australia. He claims that these problems are due to the difference in the castes of him and his wife.

   48. The applicant told the Tribunal that he and his wife met in 2008 on a bus on which he travelled to work each day, as his future wife used to travel on the same bus to college each day. He said that they first discussed marriage after about 7-8 months of meeting on the bus, by which time they ‘knew each other very well’.  He told the Tribunal that he met his wife’s family once to discuss his marriage proposal, but they refused. He said that this was about four months before he came to Australia, and about three months before they married.

   49. Clearly in the Tribunal’s view if the applicant and his wife were married for six years before coming to Australia, all of these claims are simply false.

10. The tribunal rejected the applicant’s claims about his ex-wife’s family’s attitude to their marriage, his claim to fear retribution for proceeding with that marriage despite their refusal to consent and his claim that he and his wife were able to live together for only one month before he was attacked and beaten by people he believed to have been sent by her family.  The tribunal considered that those claims were at odds with the evidence of the marriage certificate which indicated that they had been living as husband and wife in India for 6 years.  The tribunal also took into account the applicant’s failure to provide any explanation for the concerns that the tribunal raised with the applicant following the tribunal hearing.

11. Consequently, the tribunal was not satisfied that the applicant faced a real chance of serious harm for a convention reason or that he was a person in respect of whom Australia had protection obligations under the Refugees’ Convention.  The tribunal also determined that the applicant did not meet the criterion for complementary protection, primarily because it had rejected the factual matters upon which the applicant had advanced his claims for protection.

12. The grounds of review relied upon by the applicant are set out in his application as follows:

    Grounds of application

    1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s91R(2)(a) of the Migration Act(which is mandatory jurisdictional requirement for the Tribunal to do), if he asked to go back to India.

    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 application who had been under immense and intimidating pressure from his ex-wife family.

    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, with  giving the applicant the opportunity to be heard in respect of those matters.

Ground 1

1. The reasons for decision delivered by the tribunal demonstrate that the tribunal in fact considered the risk of whether the applicant would suffer serious harm “as per s91R(2)(a) of the Migration Act”. Because the tribunal determined that the applicant’s claims were not credible, there was no basis upon which the tribunal could be satisfied that there was a risk that the applicant would suffer serious harm as he contends. As the first respondent points out, the tribunal considered the evidence before it including the materials that it was required to consider in accordance with Ministerial Direction 499. It considered the material on the department’s file and the material available to it as set out in paragraphs 18 and 19 of the tribunal’s decision.

2. This ground reveals no jurisdictional error in the tribunal’s decision.

Ground 2

1. It is clear from the tribunal’s reasons for decision that the tribunal considered the substance of the applicant’s claims that he was attacked on account of his membership of a lower caste than that of  his wife.  The tribunal simply did not accept those claims because of the view that it had formed about his credit based upon, amongst other matters, inconsistencies in the applicant’s evidence.  The findings of fact made by the tribunal and the weight accorded by the tribunal to the evidence before it were matters entirely for the tribunal.  Those matters are within the jurisdiction and the discretion of the tribunal and in the context of these proceedings, the approach of the tribunal to its fact finding function demonstrates no jurisdictional error.

Ground 3

1. There is nothing within the tribunal’s reasons for decision or the other material placed before this Court for the purposes of this hearing which demonstrates that the tribunal denied the applicant procedural fairness.  The tribunal raised with the applicant at the tribunal hearing the difficulties that it had at that point with the applicant’s claims.  The applicant was provided the opportunity to respond.  After the tribunal hearing and after the tribunal became seized of material from the applicant’s ex-wife’s student visa application, the tribunal put to the applicant, in writing, the matters arising from that material that were of concern to the tribunal.  For reasons which are not explained, the applicant did not take up the opportunity to respond to those matters.

2. There is nothing to suggest that the tribunal denied the applicant procedural fairness in the way in which it conducted the review in this case.

Conclusion

1. The tribunal was not required to accept uncritically any and all claims made by the applicant. The tribunal assessed the evidence before it and made findings and reached conclusions based upon that material. In the circumstances of this case those findings and conclusions included adverse credibility findings against the applicant. That was a matter entirely for the tribunal. Those adverse credibility findings were critical to the tribunal’s ultimate determination that he was not a person to whom Australia had protection obligations under the Refugees’ Convention. The tribunal determined that the applicant did not satisfy s.36(2)(a) of the Migration Act1958.

2. The applicant has not demonstrated that the tribunal’s decision is affected by jurisdictional error.  In the circumstances, his application filed on 1 April, 2014 must be dismissed with costs. 

3. I make the orders set out at the commencement of these reasons.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       20 May 2015