BZAHA v Minister for Immigration

[2015] FCCA 1156

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1156

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – whether jurisdictional error established – no jurisdictional error established.

Legislation:
Migration Act 1958, s.424AA

Applicant: BZAHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 480 of 2014

Judgment of: Judge Jarrett

Hearing date: 24 April 2015

Date of Last Submission: 24 April 2015

Delivered at: Brisbane

Delivered on: 7 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Mr Hawker

Solicitors for the First Respondent: Sparke Helmore

The second respondent entered a submitting appearance.

ORDERS

1. The application filed on 27 May, 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 480 of 2014

BZAHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application to review a decision of a refugee review tribunal made on 7 May, 2014.  By that decision the tribunal affirmed a decision of a delegate of the first respondent made on 5 August, 2013 not to grant the applicant a Protection (Class XA) visa.

2. The grounds of review stated in the application are very general.  They are:

   1. The tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant in India was at risk of harm from members of the community, and not able to access effective protection.

   2.  The applicant satisfy the key elements of Convention definition as detailed in the tribunal decision.  The tribunal has not considered this aspect therefore committed factual and legal error.

   3. 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.

3. On 2 July, 2014 the applicant was directed to file and serve any amended application giving complete particulars of each ground of review upon which she intended to rely by 24 July, 2014.  The parties were to file and serve written submissions in support of, or against, the application as the case might be.

4. The applicant did not file an amended application, nor has she filed any submissions in support of her application.  I have written submissions filed on behalf of the first respondent.

5. The applicant is a citizen of India who arrived in Australia on 4 October, 2009 on a student visa with her husband.  On 19 November, 2012 she lodged an application for a Protection (Class XA) visa. The applicant’s husband applied for protection as a member of the applicant’s family unit.

6. The applicant claimed that she was born into an upper-caste Hindu family and her “problems started” when she married her husband.  He is from a lower-caste family.   Her family did not approve of her inter-caste relationship.  Moreover, the applicant claimed that her marriage was “not accepted by the society” and that upper-caste people threatened to kill both the applicant and her husband.  The applicant and her husband decided to leave India to “avoid persecution” and have not returned to India after arriving in Australia due to their “fear of persecution”.

7. The applicant said that “the Hindu nationalist group threatened to kill” both she and her husband and that they were “abused” by upper-caste people affiliated with the Bharatiya Janata Party.  She claimed that they had attacked the applicant and her husband and threatened to kill them.  The applicant claimed that they were unable to go to their temple for family occasions and faced “regular threats” to their lives from their “own caste people”.  She stated “people belonging to my own caste and family have threatened to kill my husband if he did not leave me they had given an ultimatum or to be ready to face death.”  She stated that they had to hide in India to avoid persecution.  She also stated that government authorities had failed to end caste discrimination and that despite them trying to get help from the police, the authorities “often ignored our requests.”

8. After the delegate refused the applicant’s claim to a protection visa, she applied for a review of that decision by a refugee review tribunal.  The tribunal invited the applicant and her husband to a hearing.

9. They accepted the invitation and on 29 April, 2014 the applicant and her husband attended to give evidence and present arguments. 

10. The tribunal raised with the applicant a number of concerns as to inconsistencies in her evidence. It put those concerns to her at the hearing pursuant to s.424AA of the Migration Act 1958 (Cth). The applicant provided a verbal response to each concern raised by the tribunal.

11. In its decision made on 7 May, 2014 the tribunal found that the applicant and the applicant’s husband were not from an inter-caste marriage.  It found that the applicant’s husband was not from a lower caste than the applicant.  The tribunal had information, that it ultimately accepted, that the families of the applicant and her husband were of the same caste.  The tribunal put that information to the applicant for her comment.  She denied the matters put to her by the tribunal.

12. The tribunal did not accept that the applicant’s family or others in the community threatened to harm or kill the applicant and her husband or either of them.  It did not accept that the marriage was disapproved of because there is a shortage of girls in the applicant’s caste and community as claimed by the applicant.  Nor did the tribunal accept the applicant’s claims that she had no contact with her parents since 2003.   The tribunal put three separate pieces of information to the applicant which the tribunal thought might undermine the applicant’s credibility.  Those pieces of information came from the applicant’s file when she and her husband applied for student visas.  The information demonstrated support from the applicant’s grandfather and father for her and her husband’s student visa applications.  The information was inconsistent with her family disapproving of her relationship and marriage to her husband and her claim that there had been no communication with her parents since her marriage in 2003.

13. The tribunal did not accept that the applicant’s parents and other family members were against her marriage and threatened to harm her and her husband.  It did not accept that the applicant and the broader community did not approve of her marriage and that her relatives had chased her down a laneway when she and her husband were going to their temple. 

14. The tribunal did not accept that the applicant received threatening phone calls or that members of the BJP in Gujarat have threatened to harm the applicant or her husband.

15. The tribunal determined that the applicant was not a truthful or credible witness and had fabricated her claims in order to apply for protection in Australia.  It said:

    66.    After assessing all the evidence the Tribunal does not accept that the applicant and her husband are in an inter-caste marriage.  As this is the basis of their claims for protection, the remainder of their claims are significantly undermined by this finding.  After considering all the evidence the Tribunal finds that the applicant is not a truthful or credible witness; rather she has fabricated her claims in order to apply for protection in Australia.

    67.    The Tribunal finds on the evidence before it that the applicants do not face a real chance of serious harm in India.  Their claimed fears of persecution in India are therefore not well-founded.  

    68.    The Tribunal finds accordingly that the applicants are not persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act. 

16. The tribunal considered the applicant’s claim to complementary protection and said:

    69.    The Tribunal went on to consider the applicants’ claims under s.36(2)(aa) – the complementary protection criterion.  Accordingly the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that the applicants will suffer significant harm, as it is defined in s.36(2A) and s.5(1).

    70.    The Tribunal relies on the findings of fact as outlined in the preceding paragraphs and finds accordingly that the applicants do not face a real risk of significant harm in India.  The Tribunal finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm.

17. The tribunal affirmed the decision not to grant the applicant and her husband a Protection (Class XA) visa.

18. I have set out the applicant’s grounds of review above.

19. I accept the first respondent’s submission that the grounds do not reveal any jurisdictional error in the tribunal’s decision.  They appear to constitute nothing more than a pro forma application alleging jurisdictional error.  The applicant could not advance any explanation of the grounds at the hearing before me.

20. I accept the first respondent’s submission that to the extent the grounds may be a purported mechanism to seek further merits review, that course is impermissible.

21. In relation to the first ground, the tribunal set out and considered each of the claims made by the applicant.  I can identify no claims made by the application that were not addressed by the tribunal.  The tribunal made findings that were open to it on the basis of the evidence that was before it.  Its ultimate finding about the applicant’s credit was clearly open to it.

22. The tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm if the applicant and her husband returned to India. It is also clear the tribunal considered whether the applicant was at risk of significant harm from her family, the community and the BJP if she and her husband were to return to India. As a result of finding that there was not a real chance that the applicant would suffer serious harm if she was to return to India, the tribunal was not required to consider whether or not she was able to access effective protection in respect of that harm in India.

23. The second and third grounds, lacking in particulars as they are, do not identify any jurisdictional error on the part of the tribunal.  The tribunal set out in its reasons the issue it had to consider:

    20.    The issue in this case is whether the applicants face a real chance of serious harm or a real risk of significant harm because they are in an inter-caste marriage and the first applicant’s family and others in the community do not accept their marriage. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

24. Framed as it was by reference to the circumstances of the application before it, that was a correct statement of the issue before the tribunal.

25. Moreover, I can discern no defect in the procedure adopted by the tribunal in its conduct of this review.

Conclusion

1. The application must be dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 May, 2015.

Associate: 

Date:         7 May 2015