BZAHP v Minister for Immigration

[2014] FCCA 3013

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAHP & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3013

Catchwords:
MIGRATION – Protection (Class XA) visa – where tribunal made findings against the applicant’s claims – no jurisdictional error demonstrated – application dismissed.

Minister for Immigration v SZIAI (2009) 83 ALJR 1123

First Applicant: BZAHP

Second Applicant: BZAHQ

Third Applicant: BZAHR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 806 of 2014

Judgment of: Judge Jarrett

Hearing date: 10 December 2014

Date of Last Submission: 10 December 2014

Delivered at: Brisbane

Delivered on: 10 December 2014

REPRESENTATION

The First Applicant appeared in person

No appearance by the Second or Third Applicants

Counsel for the First Respondent: Mr Richardson

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application be dismissed.

2. The First, Second, and Third Applicants pay the First Respondent’s costs of an incidental to these proceedings fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 806 of 2014

BZAHP

First Applicant

BZAHQ

Second Applicant

BZAHR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. By their application filed on 12 September, 2014 the applicants seek review of a decision of a refugee review tribunal that was made on 13 August, 2014.  That decision affirmed an earlier decision of a delegate of the first respondent to refuse to grant to the applicants a Protection (Class XA) visa.

2. The application for review is opposed by the first respondent; the second respondent enters a submitting appearance. 

3. The applicant’s application was prosecuted by the first applicant on behalf of his wife, the second applicant, and their daughter, the third applicant.  The second and third applicants did not appear separately and advanced no arguments or submissions in support of the application for review.  It was only the first applicant who did that.

4. The grounds of the application are threefold, and I will refer to them separately shortly.

5. The reasons for decision of the tribunal reveal that the applicant came to Australia in August, 2009 as a dependant on his wife’s student visa. Prior to that he lived in India seemingly at the same address for a number of years.  Whilst in Australia, the first and second applicants became parents to the third applicant who was born in January, 2012. 

6. The second applicant, whilst she was in Australia, and on 31 December, 2012 applied for a Regional Skilled Migration Scheme visa.  That coincided with the cessation of her earlier student visa.  The first applicant and the second applicant were granted Bridging visas when the Regional Skilled Migration Scheme visa was sought.  However, the application for the Regional Skilled Migration Scheme visa was withdrawn by the second applicant in June, 2013. 

7. Shortly prior to that, the applicants travelled to Fiji where the second applicant applied for a subclass 457 visa.  The first applicant was a secondary applicant in relation to that visa.  That application too was subsequently withdrawn in July, 2013.  Before that application was withdrawn, however, the first applicant made an application for a Protection visa.  The second and third applicants joined that application as a member of the first applicant’s family group.  The second applicant and the third applicant did not advance any additional claims to protection than those advanced by the first applicant.

8. The application for the protection visa went before a delegate of the first respondent.  The applicant’s claim for the visa did not succeed.   

9. The delegate determined that it could not believe the claims made by the first applicant based upon his political activities in India.  His application was refused and the application found its way to a refugee review tribunal.

10. In the tribunal’s reasons for decision, the background, which I have very briefly set out in these reasons, is set out in considerably more detail.  At paragraph 15 of the tribunal’s reasons, the tribunal records the claims made by the applicant when the application was before the delegate.  It is but a summary, but there is no suggestion that the summary of the claims is inaccurate.  The first applicant did not submit to me that the tribunal member misunderstood any of the claims that he had made about his political activity when he lived in India.

11. The tribunal conducted a hearing with the first applicant and the second applicant because the tribunal could not be satisfied on the material before it that the relevant criteria for the grant of the visa were met.  The hearing took place on 31 July, 2014.  The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  It was conducted by video link with the applicants in Queensland, and the tribunal and interpreter in Sydney.

12. At the hearing, the second applicant confirmed that she had no claims of her own for protection.  She, in answer to a direct question from a  tribunal member, asserted that she had no concerns herself about her return to India saying: “It’s not me, it is my husband.”

13. The first applicant said to the tribunal that he was concerned about returning to India as “law and order is very tough.  Anything can happen.  The BJP party is ruling.  Political graft is going down, but lesser powers can harm their political rivals.”

14. His case was that, as a student and thereafter, he had campaigned and was a member of the Congress Party, the political opposition to the ruling BJP party in India.  His case seemed to be that not only was he at risk of harm from people who were members of, and, supported the BJP Party, but he was also at risk of harm from his own party because that party had done poorly in the 2009 elections and there were people in his party that considered him as one of the reasons for the party’s loss.

15. He gave some evidence before the delegate that he relied upon before the tribunal, about some threats that had been made to him and an assault.  He maintained before the tribunal that politics in Punjab was “dirty” and parties killed members of opposing parties.  He relied on one episode in particular which occurred in September, 2013 recounted by the tribunal in its reasons.

16. He told the tribunal that he had not been involved in politics at all since coming to Australia in 2009 and he had no enduring interest in politics in India. 

17. The tribunal asked the first applicant why, even if he was concerned about returning to his local area in the Punjab, he could not relocate to another part of India.  It does not seem to be in contest that the first applicant and the second applicant are well educated and well qualified.  They are seemingly intelligent people.  They speak Hindi, Punjabi and English. 

18. The first applicant’s response was simply that it was not very easy to find a job.  The tribunal put to the first applicant its concerns about the first applicant’s claims and the tribunal specifically raised with the first applicant that given the chronology of events, the way in which the Protection visa application was made, it seemed opportunistic.  The first respondent’s response was that, “Before that, that is before the Protection visa application, we thought we would get permanent residency from our student visa and (457) applications.  Our migration agent spoiled our lives and demanded we do it like this.”

19. The first applicant was unable to prove to the tribunal’s satisfaction, because he had no evidence, that he was a member of the Congress Party at any time or that he was in any way involved in that party or its activities. 

20. The tribunal, in its reasons, recorded that it had regard to information referred to in the reasons as “country information” or “independent information” that was available to the delegate which bore upon the political situation in India.  The applicant provided no additional country information or independent evidence in support of his claims to the tribunal. 

21. In paragraph 27 of the tribunal’s reasons, the tribunal recorded that it did not accept the first applicant’s claims that he had membership and involvement in the Congress Party and its student wing.  In particular, the tribunal did not accept his claim that his cousin had told him that that he was still of adverse interest to the BJP and other groups.  The tribunal did not accept that he had been a member of the Congress Party or its student wing because there was no documentation to prove any such membership.

22. The tribunal considered that given the chronology and the fact that the applicant and his wife had been planning to depart from India on a student visa for Australia well before any elections in the Punjab in 2009, it was unlikely that the first applicant was in any way involved in those general elections or the Congress Party.  The tribunal considered that the applicants plans to leave India for Australia on student visas was inconsistent with the notion that the first applicant was involved in in India’s elections as he claims to have been.

23. The tribunal did accept the first applicant’s claims that he has no interest in politics in India because the tribunal considered that he has never had any interests in politics in India; at least, not in the way in which the first applicant claimed.

24. The tribunal attached significance to the circumstances in which the Protection visa application came to be made, and formed the view that the application for the Protection visa was “opportunistic.” 

25. In paragraph 28 of the reasons, the tribunal summarised its findings as follows:

    28.    Overall, I find the applicant is not a credible witness.  I do not accept that he was involved in the Congress Party or any other party in such a manner that he was of adverse interest to anyone from any rival political party.  I find he has made those claims so as to advance his claims for a Protection visa.  Whilst I accept he has had a general fear of harm in relation to specific and isolated instances of violence in India, I do not accept that he has a profile that would cause him to be targeted or harmed by anyone.  He has no other claims.

    29.    Further, and as discussed with him, even if he did fear harm in his local area for any reasons, he can reasonably relocate to another part of India.  He is well educated and has skills.  He is able to speak Hindi, Punjabi and English.  His wife is also well educated and skilled.  He has no ongoing interest in Indian politics.  Whilst I appreciate his concern that it would be difficult to find a job, I do not accept that concern is a reasonable one, given his level of education and experience.  Overall, I find that it would be reasonable for him and his family to relocate to another area of India if they wished to.

26. The tribunal concluded that the first applicant was not a person to whom Australia had protection obligations under the relevant Convention and the tribunal determined that the applicants were not persons in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act - the complementary protection provisions.  The tribunal affirmed the decision under review. 

27. I have been assisted in the consideration of this matter by the detailed written submissions that have been delivered on behalf of the first respondent. 

28. It became apparent when the proceedings commenced this morning that the applicant had only just received a copy of those submissions.  He had not filed his own written submissions as he was directed to by an order that was made by this Court to prepare this matter for the final hearing and it seems that after filing his application, he changed his address for service and did not notify the first respondent of that change. Hence he only became aware of the first respondent’s written submissions this morning.  I asked him if he wished time to consider them, but he declined that opportunity. 

29. I have considered whether I ought to adjourn these proceedings of my own motion so that he can properly consider those submissions, even though he has not asked for that adjournment, but ultimately I have concluded that to grant an adjournment in the circumstances of this case would be futile.  There would be no point in granting an adjournment because, in my view, the applicants’ grounds of review have no merit. 

30. The first ground of the application is this:

    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.

31. That is a formulaic ground which is not particularised in any way, shape or form.  The first applicant made no attempt to explain what he meant by it.  As the first respondent’s submissions demonstrate, the tribunal clearly did have jurisdiction to make the decision that it did.  The real question before the Court is whether it fell into jurisdictional error when it made that decision.  To the extent that that ground might suggest that the tribunal did not make its decision in accordance with the provisions of the Migration Act 1958 (Cth) because it did not follow something that it was obliged to follow that is set out in the Act or acted in a way which was contrary to the provisions of the Act, the material before me does not bear that out.

32. The tribunal conducted the review before it according to the provisions of the Act.  The first applicant and the second applicant on behalf of the third applicant were all offered the opportunity to provide material to the tribunal to assist it to reach the level of satisfaction required to grant the visa.  It was not suggested that, for example, the tribunal did not put to the applicant material or information which the tribunal considered would be the reason or part of the reason for affirming the decision under review and seek the applicant’s comments on it. 

33. The tribunal in fact did just that in respect of the conclusions that the tribunal ultimately reached about the opportunistic nature of the application for the protection visa.  In my view, the first ground of review does not reveal any jurisdictional error.  It has no merit. 

34. The second ground of review is expressed in these terms:

    The tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of the claim.

35. On its face, that ground looks plainly like an argument with the merits of the tribunal’s decision.  That is not something in respect of which this Court can interfere.  This is not a merit-based review process.  This Court can only interfere with the tribunal’s decision if the Court concludes that there has been some form of jurisdictional error. 

36. The tribunal, in my view, referred to all of the claims made by the applicant and considered them.  They were not extensive claims, and the tribunal was fully aware that the first applicant claimed that if he returned to India his physical safety was at issue.  The tribunal understood, it seems to me, the gravity of the applicant’s claims, and it seems to me that the tribunal understood the consequences for the applicant if what the applicant was saying might have been true, but the problem for the applicant is that the tribunal just did not believe him. 

37. It is the tribunal’s task to make determinations about those matters; it is not the task of this Court.  It is the tribunal’s task to find the relevant facts and to make assessments about the credibility of the claimants and the claims that are being made to support the application for the visa.

38. To the extent that ground number 2 suggests that the tribunal did not properly engage with the country information before it, in my view, the tribunal did just that. 

39. The tribunal considered the matters in a relatively brief statement of reasons but nonetheless considered the matters that were relevant in all of the circumstances.  No jurisdictional error is revealed by the second ground of the application. 

40. The third ground of the application is in these terms:

    The tribunal has failed to investigate the claim, especially the grounds of persecution in India; therefore, the tribunal’s decision dated on  was a judicial error.

    (faithfully reproduced)

41. Leaving aside the difficulties with the phrasing of that ground, the first respondent submits that the ground seeks to agitate that the tribunal’s decision was infected by jurisdictional error because the tribunal did not investigate the applicant’s claims.  Indeed, the applicant repeated that before me this morning.  It is not suggested by the applicant, however, how the tribunal might have gone about further investigating his claims. 

42. In any event, the tribunal’s obligation is one of review.  The tribunal does not have a duty to inquire.   The decision of the High Court of Australia in Minister for Immigration v SZIAI (2009) 83 ALJR 1123 makes it clear that the tribunal’s obligation is one of review. There is no positive obligation on the tribunal to make its own inquiries, save where it might be suggested that there is an obvious inquiry about a critical fact, the existence of which is easily ascertained. But beyond that, the tribunal is entitled, and, indeed, some might say obliged, to decide the review on the material before it at the time the review is undertaken.

43. Ground number 3, in my view, again seeks to cavil with the merits of the tribunal’s decision. 

44. It does not identify any jurisdictional error in the tribunal’s decision.  The ground has no merit. 

45. None of the grounds advanced by the applicant demonstrate jurisdictional error on the part of the tribunal.  Accordingly, the application filed on 12 September 2014 must be dismissed.

RECORDED:  NOT TRANSCRIBED

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Deputy Associate: 

Date:  23 December 2014