BZD15 v Minister for Immigration

[2016] FCCA 250

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 250

Catchwords:
MIGRATION– Review of Refugee Review Tribunal decision – status – refugee status – refusal – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth): s.424A and s.424AA

N/A

Applicant: BZD15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 898 of 2015

Judgment of: Judge Vasta

Hearing date: 21 January 2016

Date of Last Submission: 21 January 2016

Delivered at: Brisbane

Delivered on: 21 January 2016

REPRESENTATION

The Applicant appearing on their own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 898 of 2015

BZD15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 28 September 2015, the Applicant BZD15 seeks judicial review of a decision of the Administrative Appeals Tribunal which itself affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa. 

2. The Applicant, who is a citizen of India, arrived in Australia on 28 April 2009 as the holder of, in effect, a student visa. He was granted a further student visa on 2 April 2011. He, it seems, did not fulfil the criteria of that visa anymore and became an unlawful non-citizen on 2 July 2012. On 3 November 2014, he lodged an application for a protection visa, which is the subject of these proceedings. 

3. What he says now is that he fears returning to India as he would be killed in relation to a land dispute.  In short compass, he claims that his family had bought farming land from a village farmer a few years prior to his arrival in Australia in 2009.  The value of the land, he claims, has risen exponentially since the sale and the vendor wanted the land back.  The vendor instituted Court proceedings which were decided in favour of the family of the Applicant. 

4. This then caused the vendor to do a number of unlawful acts, including hiring thugs to occupy the land; threatening to kill all of the family members, having the vendor’s youngest son engage a fight with the Applicant; and causing an attack on the father and the brother of the Applicant.  The Applicant claims that ultimately the vendor had attempted to kill the Applicant prior to his departure.

5. The Applicant claims that the police are corrupt and that he can achieve no protection from the police for any of the institutes which are there to promote order and uphold the rule of law.  However, that does seem to fly in the face of the fact that there was able to be a Court proceeding in regard to this matter, but that is really by the by. 

6. The land has since been sold by the family of the Applicant to a third party.

7. It really seems not of any great surprise that the delegate refused to grant the visa on 30 January 2015.  It was on 27 February 2015 that the Tribunal received the application for review and they heard the matter on 7 August 2015 before giving a decision on 4 September 2015 affirming that decision to refuse to grant the Applicant a visa. 

8. In that decision, the Tribunal has gone through the claims and gone through them in a very thorough way.  What also happened at that hearing was that the Applicant came up with some new evidence that suggested that, just before the hearing in August, the Applicant’s family had been attacked again by these people.  It struck the delegate as being extremely odd that, 13 years after the sale of land, which has then gone through a Court case and has, in fact, now been on-sold by the family of the Applicant to a third party, that the vendor would institute an attack. 

9. Such a claim did seem, to the delegate, to be somewhat opportunistic and having regard to a number of matters, the delegate was not convinced that such an incident had occurred.  The delegate, whilst being in a situation where he did not doubt that there were disputes over the land, was not convinced that the Applicant would be killed by these people if he returned to India.

10. It is trite to say that, obviously, a situation such as this would not invoke the Refugee Convention Criteria and may only marginally invoke the Complementary Protection Criteria, even if all the claims of the Applicant were accepted to be true. 

11. But, as I say, the Tribunal did not accept those claims.  Having a look at all the evidence that the Tribunal looked at, it seems to me that there is no doubt that such a conclusion was open on the evidence. 

Ground One

1. Ground One of this review is as follows:

   “1.That the second respondent failed to comply with a mandatory requirement under section 424A (read with section 424AA) to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information. 

   Particular

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.”

2. There has been no further particular given and when asked, the Applicant conceded that the Tribunal did actually ask all the right questions, it’s just that they came to the wrong conclusion according to him. 

3. I cannot see that there was any information that the Tribunal was obliged to put under s.424AA that it did not put. Nothing stands out from the record and the Applicant has not been able to assist.

4. It would seem that someone else has written these grounds for the Applicant and done so in a very generic way because, as I have said to the Applicant, this is not a merits review process. It is a process to ascertain whether there was a jurisdictional error, but not having any evidence that there was a matter that should have been put under s.424A or s.424AA, it seems there is no substance in that ground at all.

Ground Two

1. The Second ground is:

   “2. The Tribunal constructively failed to exercise its jurisdiction:

   Particular

   The applicant provided evidence to the delegate to corroborate his claims. The delegate and Tribunal ultimately gave the document no weight on the basis of credit findings.  It was an error for the Tribunal to place no weight on the documents without engaging to the contents of those documents.  It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the document corroborated his claim.”

2. It seems to me that that is not what happened at all.  The Tribunal looked at all the material.  Whilst the Tribunal did not reiterate the substance of what was in that material, there is no need for the Tribunal to do that.  They have made reference to the documents and I cannot see how it could be inferred that they failed to have regard to those documents. 

3. Notwithstanding that, it would seem, even if one did have regard to the documents, it is clear that the documents would have very little evidentiary weight in any event.  But it does seem that the Tribunal did talk about the contents of the affidavit, if one looks at paragraphs 40 and 41 of its decision.  So, I cannot see that there is any merit in Ground Two.

4. What was raised in the affidavit, that was filed in support of the application, was a claim in the affidavit, though not in the grounds, that the Tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act 1958 (Cth). Again, I cannot see how this allegation, if it were a ground, could be substantiated.

5. At the hearing today, the Applicant simply reiterated that everything that he said was true and he does think that his life is in danger if he goes back to India. In effect, he has simply asked for a merits review, which, as I say, is impermissible. 

6. He did give to me a letter written by his father together with a number of photographs.  The letter stated that on Christmas Day 2015 (that is some period less than four weeks ago) that someone came to the house in the night and broke the windows.  The father has made the extraordinary conclusion that this must be the same group of people who want to kill the family and therefore, if his son comes back to India, he will be killed. 

7. Again, this seems to be somewhat eerily similar to the claims that were made before the Tribunal and it is somewhat strange that these seemingly random attacks only occur upon the eve of Court matters in this country.  This was not evidence that was before the Tribunal and, even if I had any stock in its credibility, it is not evidence that I could look at because I’m only looking at the evidence that was before the Tribunal to ensure that they have exercised their jurisdiction in a proper way.

8. Therefore, having a look at the matter overall, I cannot find that there has been any jurisdictional error made by the Administrative Appeals Tribunal.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:11 February 2016.