BZAHP v Minister for Immigration and Border Protection
[2015] FCA 488
•20 May 2015
FEDERAL COURT OF AUSTRALIA
BZAHP v Minister for Immigration & Border Protection [2015] FCA 488
Citation: BZAHP v Minister for Immigration & Border Protection [2015] FCA 488 Appeal from: BZAHP & Ors v Minister for Immigration & Anor [2014] FCCA 3013 Parties: BZAHP, BZAHQ and BZAHR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: QUD 6 of 2015 Judge: GILMOUR J Date of judgment: 20 May 2015 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – application for protection visa – fear of persecution on basis of involvement in political activities in India – whether decision of the Tribunal was unreasonable – consideration by the Tribunal of s 91R of the Migration Act 1958 (Cth) – leave to appeal in terms of a new ground of appeal refused – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), (b) & (c), 91R Date of hearing: 18 May 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Appellants: The appellant appeared in person Counsel for the First Respondent: Mr B McGlade Solicitor for the Respondents: Clayton Utz Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 6 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: BZAHP
First AppellantBZAHQ
Second AppellantBZAHR
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
20 MAY 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.Leave to appeal in terms of ground 1 of the Notice of Appeal be refused.
2.The appeal be otherwise dismissed.
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 6 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: BZAHP
First AppellantBZAHQ
Second AppellantBZAHR
Third AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GILMOUR J
DATE:
20 MAY 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The appellants are Indian citizens. They appeal from a judgment of the Federal Circuit Court of Australia delivered on 10 December 2014 affirming a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), made on 13 August 2014. That Tribunal decision, in turn, had reaffirmed a decision of the delegate of the first respondent (Minister) refusing to grant the appellants a Protection (Class XA) visa.
The second respondent filed a submitting appearance.
The first appellant is the husband of the second appellant. The third appellant is the infant child of the first and second appellants.
On 1 July 2013 the appellants applied for protection visas.
The first appellant claimed to fear persecution on the basis that, when he was in India, he was a member of, and was involved in, the National Student Union of India - which was the student wing of the Indian National Congress Party (Congress Party).
The first appellant claimed that, if he were forced to return to India, he would be persecuted or harmed by members of political parties who were rivals of the Congress Party - namely Shiromani Akali Dal members and Bharatiya Janata Party members.
The second and third appellants did not claim to be entitled to protection visas because they were refugees. Rather, they sought protection visas on the basis that they were members of the same family unit as the first appellant: Migration Act 1958 (Cth) (the Act), s 36(2)(b) and (c).
On 13 January 2014, a delegate of the Minister (delegate) refused the grant of the protection visas.
On 11 February 2014, the appellants applied to the Tribunal for a review of the delegate's decision.
On 13 August 2014, the Tribunal affirmed the delegate's decision.
The Tribunal rejected the first appellant's claims because it did not consider his assertion that he was a member of, and involved with, the Congress Party when he was in India to be true. The Tribunal did not accept that the first appellant was involved in the Congress Party in such a manner that he was of adverse interest to any member of a rival political party.
The primary reason that the Tribunal came to this view was because it did not find the first appellant to be a credible witness.
Given that the Tribunal rejected the first appellant's claims it necessarily followed that the second and third appellants’ claims were rejected.
In September 2014, the appellants applied to the Federal Circuit Court for an order that the Tribunal's decision be quashed and for an order that a writ of mandamus be issued, directed to the Tribunal, requiring it to re-determine the matter according to law.
On 10 December 2014, the learned primary judge dismissed the appellants' application, and in January 2015, the appellants lodged an appeal against this decision.
Ground 1
Ground 1 of the notice of appeal provides:
1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
(Transcribed without amendment.)
This ground was not the subject of the grounds raised before the primary judge. It is being raised for the first time in this appeal. Leave is required.
The Minister submits that leave should be refused in circumstances where there is no adequate explanation provided by the appellants for not raising this ground before the primary judge and where the ground is without merit.
No such explanation was forthcoming. The Minister also submits that there is no merit. I agree.
As to unreasonableness this is a general contention made without content unless, properly understood, the appellants by this ground mean to say that the decision of the Tribunal was unreasonable in that it ignored the provisions of s 91R of the Act. If it be the former, it has no merit because it has no content. If it be the latter, the fact that the Tribunal did not make specific mention in its reasons of s 91R of the Act is unsurprising in circumstances where it rejected the first appellant’s claim to fear persecution. The Tribunal did not believe “the reasons” advanced by him in support of his claim.
As the Tribunal stated in its conclusion at [28] of its reasons:
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.
This conclusion was based on its finding that the first appellant was not a credible witness and that his evidence concerning the reasons for his fear of persecution was untrue. Accordingly, there was no need to mention or to consider the provisions of s 91R of the Act. The factual threshold to trigger such consideration had not been met.
I will refuse leave to raise this ground.
Ground 2
Ground 2 of the notice of appeal provides:
2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.
(Transcribed without amendment)
The primary judge considered and rejected each of the asserted legal and factual errors in the Tribunal's decision which the appellants raised before him.
The first appellant, in his oral submissions, in effect sought a merits review of the facts, stating that all that he had told the Tribunal was true as to his fear of persecution. The Tribunal found that the first appellant was not a credible witness, explaining clearly why it came to that conclusion. It did not believe his claims which were central to his asserted fear of persecution. The primary judge considered the Tribunal’s conclusions in these respects in a careful and detailed manner as is disclosed by his Honour’s reasons. No jurisdictional error was evident. I find no error by the primary judge in so concluding.
This ground also fails.
Orders sought
Accordingly there will be orders that leave to appeal in respect to the first ground of appeal be refused and that the appeal be otherwise dismissed. The appellants are to pay the Minister’s costs as to which I will hear further submissions.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 20 May 2015
0
1