Bzaip v Minister for Immigration

[2015] FCCA 2095

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAIP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2095

Catchwords:

MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error – application dismissed – costs.

Legislation: 

Federal Circuit Court Rules 2001, r.13.03C(1)(e)
Migration Act 1958 (Cth), ss.65, 424AA

First Applicant: BZAIP

Second Applicant: BZAIQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1 of 2015

Judgment of: Judge Vasta

Hearing date: 29 July 2015

Date of Last Submission: 29 July

Delivered at: Brisbane

Delivered on: 29 July 2015

REPRESENTATION

There being no appearance by or on behalf of the Applicant.

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the Court proceed with the matter pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001.

2. That the Application filed 5 January 2015 be dismissed.

3. That the Applicant pay the First Respondent’s costs of and incidental to the Application fixed in the sum of $6,825.00.

4. That the name of the Second Respondent be replaced with “Administrative Appeals Tribunal”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 1 of 2015

BZAIP

First Applicant

BZAIQ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. In this matter, I have been assisted by the affidavit of the Applicant and his application, submissions from the First Respondent and the Court Book. Having regard to everything contained therein and the fact that the Applicant has not filed the submissions that I had ordered to be filed when this matter came before me on the first court date on 2 March 2015, I still feel that I have sufficient material with which to proceed with the matter and I will proceed with it pursuant to Rule 13.03C(1)(e) of the Federal Circuit Court Rules 2001.

2. Technically, there are two Applicants, BZAIP and BZAIQ though BZAIQ, being the wife of BZAIP, has not filed any material nor was she present at the time of the Refugee Review Tribunal (“RRT”) hearing.  In this matter, the Applicant filed on 5 January 2015 an application to review a decision of the RRT of 19 December 2014.  That decision affirmed an earlier decision of the delegate for the Minister to not grant the Applicants a protection visa.

3. The chronology seems to be this:  the First Applicant was born in India in 1985. He was, in effect, living in the city of Ahmedabad in India in 2006. There were riots in that town in 2002. The perpetrators were inflicting violence upon their fellow citizens along religious lines. That is, the Hindus who lived in that area were fighting with the Muslims and the Muslims were retaliating. The Applicant at that time was around 16 years of age and was going to school there.

4. It seems that he finished his schooling.  He was able to leave the area and work in Mumbai for a number of years and then he went back to his original area and was married.  In December of 2008, he arrived in this country pursuant to a student visa.  In 2012, he made an application for a protection visa.  That visa was refused in 2013 and he then asked for a review of that decision through the RRT. 

5. In short compass, he says that he was, even at the age of 16, involved in that violence that occurred in his village. He says that even though he was a Hindu, he knew Muslim people and that there were Hindu people who were going to damage a shop that was owned by friends of his who were Muslim. He said that he tried to stop these people and he then complained to the police that this attack upon the shop was going to happen. After that, he said that he was the subject of adverse attention by the political party group Bajrang Dal and he gave quite a deal of detail as to the consequences for him as a result of this action in 2002.

6. It is because of what happened in 2002 that he says that if he returned to India he would be the subject of violence, torture and persecution and this would occur wherever he went.  The RRT thoroughly assessed his claims.  Not surprisingly, they found that there were quite a number of internal inconsistencies with the report that the Applicant had made and did not accept that he was a witness of truth and credibility. The RRT found that he was not a person to whom Australia owed protection under the Refugee Convention nor complementary protection. 

7. The grounds 1 and 2 of review are:  

   “1. The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material and without giving the applicant the opportunity to be heard in respect of those matters.

   2. The Tribunal’s decision was unjust and made without taking        into account the full gravity of the applicant’s circumstances and consequences of claims.  The Tribunal did not consider the applicant who had been under immense and intimidating     pressure from Hindu extremists.”

8. I mention those two grounds together because, in effect, they are dealing with exactly the same point. When one goes through the reasons of the Tribunal, it is quite obvious that the Tribunal put to the Applicant a number of times that there were credibility issues with his story and asked him to explain matters. Of course, in those explanations there were further inconsistencies but the fact was that the Tribunal had done what it was supposed to do pursuant to s.424AA of the Migration Act 1958 (Cth) even though that may not have always been the way in which the Tribunal predicated the evidence before it in giving their reasons.

9. To my mind, it is quite obvious that they did give the Applicant ample opportunity to answer these claims. 

10. The second aspect of these grounds is that applications to this Court cannot be merit reviews. The conclusion that I must come to, if I were to find a jurisdictional error, is that the Tribunal could not have come to the conclusion that it did. Questions of reasonableness do not come into it.  It is clear that for a jurisdictional error to occur in a fact finding matter, it must be that the findings made by the fact finder just simply were not open.

11. Having looked at the reasons of the Tribunal, it is very difficult to find anything other than those findings were certainly open to the Tribunal; in fact, on the evidence, it is difficult to see how the RRT could have reached any other conclusion.

12. So therefore, with regard to Grounds 1 and 2, I find that there is no merit.

13. Ground 3 is:  

    “3. The tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the provision of the Migration Act.”

14. Section 65 of the Migration Act 1958 (Cth) does not talk about reasonable satisfaction; it simply talks of satisfaction; and there is ample reason to see why the Tribunal was satisfied.  So there is no substance in that ground.

15. Ground 4:  

    “4. The Tribunal failed to investigate the applicant’s claims, specifically the grounds of persecution in India.  Therefore, the Tribunal decision dated 27 June 2013 was effected by actual bias constituting judicial error.”

16. I adopt the submissions made by the First Respondent in regard to this aspect and I find that there are no grounds at all to find actual, or even apprehended, bias in the attitude of the Tribunal. 

17. There are matters in the reasons of the Tribunal which show that they did accept the Applicant on some points.  The most cogent example of that is that they have accepted that he is a supporter of the Congress Party.  But there is actually very little evidence to ever suggest that the Applicant is, or was, a supporter of the Congress Party, yet the Tribunal has accepted such a claim. If the RRT were biased, or it was apprehended that they had been acting with bias, the finding that the Applicant was such a supporter would never been made. 

18. I cannot see that any part of the Tribunal’s decision making that has been the product of bias. So I do not find that there is any substance in that ground.

19. When one looks at the whole of the decision, there does not seem to be any jurisdictional error at all.  The real aspect of the grounds seem, to my mind, to be suggestive of a merits review rather than one based in law.  That is not the function of this Court.  As I say, there is no jurisdictional error. 

20. Therefore, I dismiss the application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  5 August 2015