CHZ15 v Minister for Immigration and Border Protection
[2016] FCA 1593
•2 November 2016
FEDERAL COURT OF AUSTRALIA
CHZ15 v Minister for Immigration and Border Protection [2016] FCA 1593
Appeal from: CHZ15 & Anor v Minister for Immigration & Anor [2016] FCCA 1351 File number: NSD 1009 of 2016 Judge: DOWSETT J Date of judgment: 2 November 2016 Catchwords: MIGRATION – protection visa – whether primary Judge considered if the Tribunal had regard to s 91R of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) s 91R Date of hearing: 2 November 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the First Appellant: The First Appellant appeared in person with the assistance of an interpreter Counsel for the Second Appellant: The Second Appellant did not appear Solicitor for the First Respondent: Mr A Keevers of Sparke Helmore Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS
NSD 1009 of 2016 BETWEEN: CHZ15
First Appellant
CIA15
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
2 NOVEMBER 2016
THE COURT ORDERS THAT:
1.the appeal be dismissed; and
2.the appellants pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DOWSETT J:
This is an appeal from a decision of a Federal Circuit Court Judge, dismissing an application for review of a decision of the second respondent (the “Tribunal”). The first and second appellants are husband and wife respectively. The second appellant’s claim to a protection visa depends upon the first appellant’s claim. The application was lodged on 14 March 2014. On 9 September 2014, the Minister’s delegate refused the application, finding that the first appellant was not a person to whom Australia owed protection obligations, either as a refugee or pursuant to the complementary protection provisions.
The first appellant claimed that he was a businessman and farmer who started his own business, buying and selling crops from local farmers. He became involved in the Congress Party and campaigned for the local Congress Party member in the 2007 elections. The other major party, the “BJP”, forced farmers to pay monthly donations to it. The first appellant, as president of the local co‑operative society, sought to prevent these continuing demands for donations. He organized a rally to condemn the BJP’s local leaders and activities, and their corruption. On the following day BJP members ransacked his house, threatening him and his family. He reported the matter to the police and the local press, but they took no action.
BJP members then accused the first appellant of illegal money lending. The police threatened to arrest him. He gave the police a bribe to avoid arrest. Local BJP members came to his house, demanding payment, “if he wanted to live in India”. He gave them a smaller amount of money, but they were not happy and beat him mercilessly. They also assaulted the second appellant and threatened their children. The second appellant gave them all of the gold which she had. The first appellant promised to give them all that they had demanded. He then made plans to leave India immediately because he did not have the money to pay them.
On 9 September 2014 the Minister’s delegate refused the application. The appellants applied to the Tribunal for review of that decision. The appellants gave evidence and presented their arguments. The Tribunal found that the first appellant was not a witness of truth and that it was not satisfied in relation to critical aspects of his claim, giving detailed reasons for rejecting his evidence. The claim was rejected, both to the extent that it relied upon his alleged status as a refugee, and pursuant to the complementary protection provisions.
The appellants applied to the Federal Circuit Court for review of that decision. The grounds of the application were that the Tribunal had failed to comply with the mandatory requirement under s 424A, read with s 424AA of the Migration Act 1958 (Cth) (the “Act”), that it give the appellants clear particulars of information which it considered would be part of its reason for affirming the decision under review, ensure that the appellants understood why that information was relevant to the review and the consequences of such reliance and invite the appellants to comment upon, or respond to that information. The second ground was that the Tribunal’s decision was unjust, and made without taking into account the full gravity of the appellants’ circumstances and consequences of their claims.
His Honour concluded that there was no substance in ground one and that in relation to ground two, the Tribunal identified the whole of the appellants’ claims and engaged in an orthodox assessment of the appellants’ credibility, making adverse findings which were open on the material. His Honour was satisfied that the appellants had received a genuine hearing. His Honour concluded that the second ground was an impermissible application for merits review.
The appeal to this Court is upon the following grounds:
·that the Circuit Court Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellants’ claims, ignoring the aspect of persecution and harm in terms of s 91R of the Act;
·that (the Tribunal’s failure) to observe the obligation amounted to a breach of statutory obligation; and
·that the learned Circuit Court Judge had dismissed the case without considering the legal and factual errors contained in the decision of the AAT.
There is no merit in ground one. I have perused the reasons of the Tribunal as well as those of the primary Judge. There is nothing manifestly unreasonable in the way in which the Tribunal resolved the matter. It certainly did not ignore the allegations of persecution and harm.
In any event, in view of its rejection of the first appellant’s evidence, the question was irrelevant. The purported reliance on s 91R (which has now been repealed) is misconceived, although it no doubt applied at the time. The claim that the Tribunal failed to observe the requirements of that section is unparticularized and without any apparent basis. As to the second ground it is also unparticularized. There really is little that I can say about it. Before me today the first appellant has said that the s 91R matter had not been heard. I have dealt with that matter. Indeed, in reviewing these reasons I have noted that no such point was raised before the primary Judge. The first appellant also said that he wanted me to give him protection. That is not my function.
The appeal must be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 3 February 2017
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