BZAHA v Minister for Immigration and Border Protection

[2015] FCA 942

FEDERAL COURT OF AUSTRALIA

BZAHA v Minister for Immigration and Border Protection [2015] FCA 942

Citation:	BZAHA v Minister for Immigration and Border Protection [2015] FCA 942
Appeal from:	BZAHA v Minister for Immigration & Anor [2015] FCCA 1156
Parties:	BZAHA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL
File number:	QUD 367 of 2015
Judge:	LOGAN J
Date of judgment:	17 August 2015
Catchwords:	MIGRATION – appeal from Federal Circuit Court – alleged error in failing to conclude that Refugee Review Tribunal decision unreasonable – material before Tribunal reasonably supported conclusion reached as to absence of bases claimed for fear of persecution if returned to India – appeal dismissed
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 184 CLR 259 cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Date of hearing:	17 August 2015
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 367 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAHA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	17 AUGUST 2015
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs of the appeal, to be taxed if not agreed.

3.The name of the second respondent is amended by deleting “Refugee Review Tribunal” and inserting instead “Administrative Appeals Tribunal”.

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 367 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

BZAHA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	17 AUGUST 2015
PLACE:	BRISBANE

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. The appellant is a citizen of the Republic of India.  She came with her husband, also a citizen of that country to Australia, in October 2009.  They entered Australia then as the holders of student (temporary) class visas.  In November 2012, the appellant and her husband applied to what is now known as the Department of Immigration and Border Protection for the granting by the Minister of that class of visa under the Migration Act 1958 (Cth) (Migration Act) known as a Protection (Class XA) Visa (protection visa). On 5 August 2013, a delegate of the Minister refused their application for a protection visa.

2. The appellant and her husband then sought the review of that decision of the Minister’s delegate by the Refugee Review Tribunal.  The Refugee Review Tribunal conducted a hearing in respect of the claim of the appellant and her husband for the review of the Minister’s decision on 29 April 2014.  She and her husband each appeared before the Refugee Review Tribunal and the appellant gave evidence and presented submissions that day.  On 7 May 2014, the Refugee Review Tribunal decided to affirm the decision of the Minister’s delegate not to grant to the appellant and her husband protection visas.

3. The appellant then sought a judicial review of the Refugee Review Tribunal’s decision by the Federal Circuit Court.  On 7 May 2015, the Federal Circuit Court dismissed, with costs, her judicial review application.  It is from that judgment that the appellant now appeals to this court. 

4. There is no separate appeal by the appellant’s husband before me.  Neither, so it appears from the appeal book, did he seek, initially, to challenge by judicial review the Refugee Review Tribunal’s decision. 

5. There are two grounds of appeal.  They are:

   1)The FM failed to consider that the tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of section 91R of the Act.  The tribunal failed to observe the obligation ... amounted to a breach of statutory obligation.

   2)The learned judge has determined the case without considering the legal and factual errors contained in the decision of the RRT [sic].

6. As to the first ground of appeal, it was readily apparent in the course of the appellant’s oral submissions that she emphatically disagreed with the conclusion which the Refugee Review Tribunal had reached in respect of the factual foundation of the claim for a protection visa.  Her submission was that her account was “not made up”. 

7. The claim which the appellant and her husband made for a protection visa was based on their being members, so they claimed, of different Hindu castes in India.  The appellant’s claim was that she was born into an upper caste Hindu family and that “her problems started” when she married her husband whom she said was from a lower caste family.  The claim made was that, because the relationship and then marriage between the appellant and her husband were between members of two different castes, her husband’s being a lower caste, her family did not approve of it.  Her claim was that the marriage of her and her husband was not only not accepted by her family but also not accepted by society.

8. Another aspect of the claim for a protection visa was that the Hindu nationalist group, the Bharatiya Janata Party (BJP) or, at least, upper caste people affiliated with the BJP, had threatened to kill both her and her husband.  Her claim was that she and her husband were unable to go to worship at the temple or to family occasions and that they had faced regular threats to their lives from “own-caste people”. 

9. Yet another part of the claim was that government authorities had failed to end caste discrimination and, despite she and her husband trying to get help from the police, the authorities “often ignored our requests”.

10. It was, the appellant said, because of these experiences that she and her husband had decided to leave India.  They had, earlier, had to hide, so she said, in India to avoid persecution. 

11. The Refugee Review Tribunal, in considering this claim and evidence to that effect from the appellant, had other information before it.  The Refugee Review Tribunal, in particular, put the following items of information to the appellant in the course of the hearing.  First; country information before the Refugee Review Tribunal which indicated that she and her husband were from very similar, if not the same, caste.  The appellant rejected this as incorrect at the hearing.  Second, the appellant’s study visa application indicated that her grandfather and father supported her study and living in Australia.  The Refugee Review Tribunal put that this indicated that her family did not wish to harm her but supported her marriage.  The appellant stated, in response, that her grandfather had “wanted to save the family name”, that he had since passed away and that her father only helped her on the basis that she would come back to the family home.

12. The appellant was also taken by the Refugee Review Tribunal at the hearing to information on her student visa file, which indicated that she had been in contact with her father about a bank loan.  The Refugee Review Tribunal invited comment on this as to whether this was inconsistent with her claim that she had had no contact with her father or parents since 2003.  The appellant’s response to this was that contact had been made through a migration agent.

13. It may, of course, be that there are subtleties in relation to the operation of the caste system in India.  An applicant before an administrative review tribunal such as the Refugee Review Tribunal does not bear any formal onus of proof.  Nonetheless, it is always in an applicant’s interest to support, as best he or she can, the outcome for which he or she contends in a review on the merits.  The Refugee Review Tribunal did have particular information apart from that offered by the appellant about the operation of the caste system in her home province in particular.

14. If there were subtleties of the kind I have mentioned about the caste system beyond the detail that the Refugee Review Tribunal had, it was for the appellant to introduce, herself – if she was able or chose – extra information about those subtleties.  As it was, the Refugee Review Tribunal, in reflecting on all of the information which was presented in respect of the review hearing, reached particular conclusions about the credibility of the appellant’s claim.  In doing that, the Refugee Review Tribunal was influenced not just by third-party information concerning the caste system in the appellant’s home province but also by seemingly inconsistent information in the student visa file.

15. The Refugee Review Tribunal’s task was to confront and assess afresh, on the merits, the claim made for a protection visa.  In order to set aside the decision made by the Minister’s delegate, the Refugee Review Tribunal had to be satisfied that the appellant was a person to whom Australia owed protection obligations in terms of the Refugee Convention.  The end result of the Refugee Review Tribunal’s looking at the whole of the evidence was that the Refugee Review Tribunal was not satisfied of the credibility of the claim made by the appellant.

16. The challenge on judicial review included, as a ground, that the Refugee Review Tribunal had not “made the decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Migration Act”. The learned Federal Circuit Court judge considered that this was without merit. It looks to me as if this same basis of complaint is to be found in ground one of the appeal grounds.

17. The difficulty for the appellant is that there was a body of material, to which I have referred, before the Refugee Review Tribunal which reasonably admitted of findings as to an absence of credibility in the appellant’s claim by the Refugee Review Tribunal. 

18. To establish unreasonableness, it is not necessary to show that an administrative decision-maker’s decision, or absence of satisfaction more particularly in this case, was bizarre or irrational: see, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68]. But where there is a body of material which supports, reasonably, an absence of satisfaction, a challenge based on an unreasonableness of ground must fail, see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [194]. See also, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 184 CLR 259. That is this case. There was no error on the part of the Federal Circuit Court in rejecting the unreasonableness-based ground of review.

19. The second ground of appeal is cast at such a level of generality as to be devoid of meaningful content.  If one were to read it as a ground alleging a failure on the part of the Federal Circuit Court to discharge the judicial function consigned to it, it must necessarily fail.  That court dealt with the grounds of review pleaded in the judicial review application.  It exercised the judicial power engaged by the appellant by the filing of that application.

20. If one reads the ground as a complaint, as I suspect in light of exchanges in the course of oral submissions that the appellant intended, that the integers of her claim were not addressed by the Refugee Review Tribunal and that the Federal Circuit Court should have held this, there is still no merit in the ground.  The reason for that is that a study of the Refugee Review Tribunal’s reasons discloses an extremely close and detailed engagement indeed with the basis upon which a protection visa was claimed.

21. There is no doubt that the appellant believes that the Refugee Review Tribunal reached the incorrect decision on the merits of the claim.  But it was the claim as made which was considered, and I am compelled to conclude that the Refugee Review Tribunal’s conclusion was reasonably open.  The Refugee Review Tribunal made no error in relation to the application of s 91R.  Its conclusions in relation to the complementary protection aspect of the claim were unremarkable.

22. The end result is that the appeal must be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate: 

Dated:        26 August 2015