BZAHD v Minister for Immigration

[2015] FCCA 1279

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1279

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), ss.424, 424A(1), 424(3), 426A, 430A

SZAMO v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 943

Applicant: BZAHD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 531 of 2014

Judgment of: Judge Jarrett

Hearing date: 15 May 2015

Date of Last Submission: 15 May 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 June, 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 531 of 2014

BZAHD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application the applicant seeks that an order of a refugee review tribunal that affirmed a decision of a delegate of the first respondent to refuse to grant to her a Protection (Class XA) visa be set aside.  She seeks that her application for review be remitted to a refugee review tribunal to be determined according to law.

2. The first respondent opposes the application and seeks that it be dismissed with costs.  The second respondent enters a submitting appearance.

3. Despite directions having been made a considerable time ago, the applicant has not delivered any written submissions in support of her application.  The first respondent has delivered written submissions in support of his opposition to the application.  The second respondent enters a submitting appearance.

4. At the hearing before me, the applicant was assisted by an interpreter in Mandarin.  She was unable to articulate any grounds upon which the tribunal was said to have made an error.  Her oral submissions in support of her application were very limited.

Background

1. The applicant is a Malaysian national.  Her claim to a Protection (Class XA) visa was made on 7 February, 2013.  In support of her application she claimed that she feared harm from her ex-boyfriend.  She had formed a relationship with him in 2006.  However, she claimed that he treated her very badly.  She claimed that he had raped her but she had forgiven him and had continued their relationship.  In May, 2006 she became pregnant and in January, 2007 her daughter was born.  She remained in a relationship with her ex-boyfriend.  It seems that he and the applicant lived together at the applicant’s parent’s residence.  Her boyfriend stole money from her mother.  She claimed that it turned out that he had a gambling addiction.  He would stay away from her, gambling for days at a time.  He would return and ask her for money and when she would not give it to him he would beat her. 

2. He would also ask her family for money and he had beaten her father when he had refused his requests for money.  Ultimately, she reported him to the police for his physical assaults on her father.  He was arrested by the police and kept in custody for 2 weeks.  After his release he disappeared for about 8 months.

3. The applicant’s ex-boyfriend made contact with her again in August, 2012.  He told her that he owed a lot of debt to a gambling company and asked for money.  He asked the applicant’s parents to give him money as well.  She says that he threatened to kill them if they did not give him any money.  She claims that her parents gave him money and that they asked her to “go overseas in order to avoid a risk of being killed by him”.  She did so and came to Australia.  She made an application for a protection visa.

4. Her application was refused by a delegate of the first respondent.  She sought a review of that refusal by a refugee review tribunal.

5. On 7 April, 2014 the tribunal wrote to the applicant advising that it had considered all of the material before it relating to her application but it was unable to make a favourable decision on that information alone.  The tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 May, 2014.  The invitation to the hearing advised the applicant that if she did not attend the hearing and a postponement was not granted, the tribunal might make a decision on her case without further notice to her.

6. No response was received by the tribunal to the invitation to appear at the tribunal hearing. No contact whatsoever was made by the applicant with the tribunal. In those circumstances, the tribunal determined to proceed pursuant to s.426A of the Migration Act 1958 and to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. The tribunal made its decision on 9 May, 2014. The tribunal accepted that the applicant was a Malaysian national.  After noting the applicant’s claim that she feared serious harm in Malaysia because of her boyfriend, the tribunal also recorded that the applicant had provided no documentary evidence in support of her claims.  She had provided no further information to the tribunal at the time she lodged her review application or at any time thereafter.

8. The tribunal’s reasons provide:

   6.  The claims before the Tribunal are lacking in essential detail. While the applicant referred to a fear for her safety, there is little detail in her application in relation to why she cannot relocate.  The applicant was invited to appear before the Tribunal but did not do so. As a consequence, the Tribunal has been unable to question her further leaving her claims unclarified and the Tribunal’s questions unanswered.  On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that she has a well-founded fear of persecution for reasons of race, religion, nationality, or because of her membership of a particular social group or political opinion if she returns to Malaysia in the foreseeable future. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   7.  Neither does the Tribunal accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm as defined in subsection 36(2A) of the Act.

   8.  The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. From that decision, the applicant brings this application.  Her review application sets out the following grounds of review:

   Grounds of application

   1.  The Refugee Review Tribunal failed to notify the applicant the reason or part of the reasons for affirming the decision.

   2.  The Tribunal failed to provide the applicant with an opportunity to comment upon the information for affirming the decision.

   3.  The Tribunal failed to do so constituted jurisdictional error.

10. It is not clear what the applicant contends by way of ground one of the review.  If she contends that the tribunal failed to notify her of information that the tribunal had that might be the reason or part of the reason for affirming the decision under review, it is clear that the tribunal did not rely on any information which was not otherwise placed before the tribunal by the applicant.  No occasion arose in this matter for the tribunal to write to the applicant in terms of s.424A of the Act. 

11. To the extent that ground one suggests that the applicant was not notified of the tribunal’s reasons for decision pursuant to s.430A of the Act, as the first respondent points out, this proposition is difficult to accept considering the decision was annexed to the applicant’s affidavit accompanying the application for review filed one month after the decision was made. In that respect, there was no breach of s.430A of the Act. In any event, even if such a breach was made out, it would not constitute jurisdictional error: SZAMO v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 943 at [13].

12. Ground two might also be seen as a contention by the applicant that the tribunal had breached s.424A of the Act.  No particulars are given and as I have already indicated, it seems that having regard to the tribunal’s reasons for decision, no occasion arose for the tribunal to engage with s.424A of the Act in this case.

13. Further, I accept the first respondent’s submissions that this ground misconceives the purpose of s.424A.  Subsection 424A(1) provides that the tribunal must give the applicant, clear particulars of the information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, subject to the exceptions set out in s.424(3).  Two such exceptions to the tribunal’s obligations under s.424A(1) are information that the applicant gave for the purpose of the application for review and information that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department.

14. Ground two does not reveal any jurisdictional error in the tribunal’s decision.

15. Ground three adds nothing further to grounds one and two.

Conclusion

1. As the first respondent submits, the tribunal decided that without the benefit of a hearing it was unable to satisfy itself that the applicant met the criteria for the grant of a Protection (Class XA) visa on the evidence before it.  The tribunal’s decision to affirm the delegate’s decision was based upon the applicant’s failure to satisfy the tribunal of the matters required for the grant of a protection visa.

2. The grounds of review reveal no jurisdictional error.  The tribunal’s reasons do not reveal jurisdictional error. 

3. In the circumstances the application filed 12 June, 2014 must be dismissed with costs. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       20 May 2015