BZAHB v Minister for Immigration

[2015] FCCA 2087

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2087

Catchwords:
MIGRATION – Protection (Class XA) visa – whether refugee review tribunal’s decision infected by jurisdictional error – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.425, 474(2), 476

Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877
Minister for Immigration v SZIAI (2009) 259 ALR 429

Applicant: BZAHB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 510 of 2014

Judgment of: Judge Jarrett

Hearing date: 16 June 2015

Date of Last Submission: 16 June 2015

Delivered at: Brisbane

Delivered on: 7 August 2015

REPRESENTATION

The Applicant appeared in person.

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

1. The name of the second respondent be amended to the “Administrative Appeals Tribunal (formerly known as the Refugee Review Tribunal)”.

2. The application filed on 5 June, 2014 be dismissed.

3. 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 510 of 2014

BZAHB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 9 May, 2014 whereby the second respondent affirmed a decision of a delegate of the first respondent to refuse to grant a Protection (Class XA) visa to the applicant.

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

3. Despite a direction that permitted the applicant to file an amended application more fully particularising the grounds of review and a direction requiring written submissions in support of the application to be filed and served, the applicant has done neither.

4. The first respondent has filed written submissions to which I have had regard.

Background

1. The applicant first arrived in Australia on 23 October, 2008 when she came to Australia as her spouse’s dependent who was on a student visa.  She has since separated from her spouse and is now divorced.

2. The applicant lodged an application for a protection visa on 13 March, 2013.  In the application she claimed protection “so that I do not have to go back to India”.  She claimed to fear that she would be raped, beaten and harassed if she returned to India.  She claimed that her ex-boyfriend and his family would harass her if she went back to India.  She explained her reasons for her fears in her visa application as follows:

   Q. 47 Why do you think this will happen to you if you go back? Before I came to Australia and before I got married to my ex-husband I was in a relationship with a guy who was not from our community of religion. The relationship was very close and we were intending to get married. Same intentions were advised to my family who refused to accept our relationship due to religious and community differences. Due to this my family decided to get me married as soon as possible. I married to my ex-husband and soon after that we came to Australia where he wanted to study further. Obviously I was upset my family due to their quick action of marrying me to a person who was not of my choice. I understood that things cannot be reversed now as marriage is once-in-a-lifetime decision in our culture and community. I decided to come to terms with my married life and started supporting my ex-husband. Things were all right between me and my husband. But my ex-boyfriend back home was not able to come to terms that I was now married and settled in Australia. He started calling me and started becoming abusive. He asked me to leave my husband and go back to him. Initially he was saying all this in the normal manner but then he became more aggressive. I was not able to hide this from my husband.  As soon as my husband found out about my previous relationship he was very upset me and started treating me differently. He was not as affectionate as he used to be. It seemed like he wanted to get rid of me from his life. My ex-boyfriend even called my husband and told him everything about our relationship. This was bad for our relationship. He made his intentions clear that he wanted to leave me. Even his family back home said that I made their son’s life hell due to my previous relationship. We ended up having a divorce. I thought of not marrying again and I never want to get married in my life again. My ex-boyfriend threatens me that his life is wasted due to my step of getting married and he will see that I do not have a good life when I go back. Even my ex-husband and his family is thinking same and they have made my parents life hell within our community. Due to this my parents are not even happy with me. I think I have more enemies than friends. I will not be treated appropriately if I go back and everyone is seeking revenge from me and no one thinks that what I have gone through my life and in this young age.

3. The applicant stated in her protection visa application that since arriving in Australia she has returned to India once in 2010.   She returned with the full knowledge of the authorities of her country.  She re-entered India legally and was issued with an Indian passport.

4. The applicant attached to her protection visa application a “Notification of decision to grant a Tourist (Class TR) Subclass 676 visa” granted by the department. The email was addressed to the applicant at her Queensland address. The email indicated that the visa was granted on 27 March 2012 following her lodging an application for a tourist visa in Brisbane. 

5. The applicant claimed that her parents are “not happy” with her and that she has “more enemies than friends”. She claimed that she will “not be treated appropriately” if she goes back and that “everyone is seeking revenge” and that “no one thinks that what I have gone through in my life and in this young age”.  The applicant stated that she did not trust the authorities to protect her because “everyday girls are rapped (sic) and killed”.

6. The applicant did not attend the interview with the delegate of the first respondent, despite the interview being re-scheduled to suit her convenience.  On 29 November, 2013 a delegate of the first respondent refused to grant the applicant a protection visa. 

7. On 23 December, 2013 the applicant applied for review of that decision by a refugee review tribunal. 

8. The tribunal invited the applicant to a hearing pursuant to s.425 of the Migration Act 1958 (Cth) and on 30 April, 2014 the applicant attended the hearing, gave evidence and presented arguments in support of her application for review. The tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

9. The tribunal conducted a thorough hearing in relation to the applicant’s claims.  The details are set out in the tribunal’s decision record and I will not repeat them.  There were a number of inconsistencies in the applicant’s claims.  The tribunal drew those to her attention so that she might comment upon them.

10. In its decision given on 9 May, 2014 the tribunal recorded that it did not accept the applicant’s claim that she was in a close relationship with a boy in India whom she now fears will harm her if she returns to India because she married someone else instead of him.  The tribunal was concerned with the significant inconsistencies between the claims made by the applicant in her protection visa application and her claims at the tribunal’s hearing.  For example, in the former, she claimed that her family was well aware of her relationship with her ex-boyfriend and that they intended to marry.  Her family, she said, was unhappy about that and resolved to have her married to an acceptable person as soon as they could.  That led her to marrying her husband.  However, at the tribunal’s hearing, her claims were put on the basis that her family did not learn about her ex-boyfriend until much later and after she had come to Australia.  The tribunal also thought that the applicant’s return to India at the end of 2010 was inconsistent with her claimed fear of returning to India.

11. The tribunal did not think that the applicant was a ‘witness of truth’.  The tribunal did not think that the applicant’s claims that she was in a close relationship with a boy prior to marrying her ex-husband were credible.  The tribunal did not accept as credible that she was forced to marry her ex-husband because her family did not approve of her relationship with her ex-boyfriend.  It did not accept that she had received threatening phone calls from her ex-boyfriend or that her ex-boyfriend had contacted her ex-husband and told him about their previous relationship.  The tribunal did not accept as credible the claim that the applicant’s ex-husband divorced her because he found out about her relationship with her ex-boyfriend.

12. The tribunal did not consider that there was a real chance that the applicant would suffer serious harm, or any harm at all, from her family, her ex-boyfriend or her ex-husband or his family if she returned to India. 

13. Further, the tribunal did not consider that there was a real chance that the applicant would suffer serious harm for reason of her membership of a particular social group, namely divorced women, if she returned to India.

14. The tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations or that the applicant was a person to whom Australia has protection obligations pursuant to the complementary protection criterion.

The Grounds of Review

1. The applicant relies on the following grounds:

   The Tribunal failed to consider an integer of the applicant’s claims in failing to consider whether the applicant was at risk of significant harm from her ex-boyfriend and husband and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

   10.2 The Tribunal has 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.

   10.3 The Tribunal has failed to investigate the applicant’s claims, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 12 May 2014 was effected by actual bias constituting judicial error.

2. As the first respondent submits, the applicant’s grounds of review are set out in a general way and provide little particularity to the assertion that the tribunal has fallen into error.  I accept the first respondents’ submission that ground 1 of the application effectively amounts to an impermissible plea for the Court to engage in a merits review of the tribunal’s decision.  The tribunal considered, at length, whether the applicant was at risk of significant harm from her ex-boyfriend and her ex-husband and was not able to access effective protection in India.  That was the central feature of the tribunal’s reasons.  However, the applicant’s claims about those matters failed because the tribunal did not accept the applicant’s claims about those matters.

3. The tribunal made findings with respect to the lack of a risk of harm from her ex-boyfriend, from her ex-husband and from her own family such that it cannot be said that it failed to consider an “integer of the applicant’s claims”.

4. Ground 1 establishes no jurisdictional error.

5. I accept the first respondent’s submissions that ground 2 is a formulaic ground lacking in any particulars which has been given no content by the applicant’s submissions. In my view, the tribunal conducted the review according to the requirement of the Migration Act. The tribunal’s findings were clearly open to it for the reasons it gave.

6. Ground 2 establishes no jurisdictional error.

7. As the first respondent points out, ground 3 is in essence two separate grounds.  First, it is alleged that that the tribunal failed to investigate the applicant’s claims.  Second, it is alleged that there was actual bias on the part of the tribunal.

8. As to the first aspect of this ground, the circumstances of this case do not enliven the principle discussed in Minister for Immigration v SZIAI (2009) 259 ALR 429. The tribunal, exercising its power of review under the Act, does not have a “duty to inquire”, but rather it has a “duty to review”. In SZIAI the High Court determined that it was only where there was a failure to make an “obvious inquiry of a critical fact, the existence of which is easily ascertained” could an argument be made that a jurisdictional error may have occurred if that enquiry had not been made: see SZIAI at [24].

9. Here, the applicant pointed to no obvious inquiry of a critical fact that might have been made by the tribunal.  No particular enquiry that should have been made by the tribunal is obvious.  It is clear, on the face of the reasons of the tribunal that each of the applicant’s claims was considered.  The applicant was given ample opportunity to raise all that she wished to raise.

10. The tribunal did not have a duty to make further enquiries merely because it could not be satisfied on the basis of the material presented by the applicant that her claims were genuine.

11. As to the second matter, actual bias requires “proof that the decision maker was biased and that the decision maker approached his/her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision maker, the decision maker’s predetermined decision would not vary”: Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877 at [59].

12. As the submissions for the first respondent point out, bias is a serious allegation to make and the basis of such an allegation must be firmly and distinctly made and clearly proven.  The applicant has not done so. I accept that on any fair reading of the reasons for its decision there is no basis for the submission that the tribunal prejudged the applicant’s claims.

13. I accept the first respondent’s contention that no jurisdictional error arises in respect of either aspect of ground 3.

Conclusion

1. Having considered the grounds of review raised by the applicant, I cannot conclude that the tribunal’s decision is affected by jurisdictional error.  Nor can I come to that conclusion based upon my own consideration of the tribunal’s reasons.

2. As no jurisdictional error can be established by the applicant the decision is a privative clause decision for the purposes of s.474(2) of the Act and is not reviewable under s.476 of the Act. The application must be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       7 August 2015