BZAAO v Minister for Immigration and Citizenship [2011] FCA 1349 (25 November 2011)

Last Updated: 28 November 2011

FEDERAL COURT OF AUSTRALIA

BZAAO v Minister for Immigration and Citizenship [2011] FCA 1349

Citation:		BZAAO v Minister for Immigration and Citizenship [2011] FCA 1349
Appeal from:		BZAAO v Minister for Immigration [2011] FMCA 514
Parties:		BZAAO and BZAAP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		QUD 152 of 2011
Judge:		SIOPIS J
Date of judgment:		25 November 2011
Date of hearing:	21 November 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	31
Counsel for the First and Second Appellants:	The First Appellant appeared in person, on behalf of the First and Second Appellants.
Counsel for the First Respondent:	Mr P Graham
Solicitor for the First Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 152 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BZAAO First Appellant BZAAP Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	25 NOVEMBER 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellants are to pay the first respondent’s costs to be agreed or taxed.
   

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 152 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BZAAO First Appellant BZAAP Second Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SIOPIS J
DATE:	25 NOVEMBER 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate dismissing the appellants’ application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellants a protection visa.

BACKGROUND

2. The appellants are citizens of India who arrived in Australia on 10 May 2010. On 11 May 2010, the appellants lodged an application with the Department of Immigration and Citizenship for a protection visa. The second appellant is the wife of the first appellant. She applied for a protection visa as a member of the first appellant’s family unit.
3. In his statement provided to the Department, the first appellant (the appellant) claimed that his family were supporters of the Congress Party.
4. The appellant claimed that, on 16 April 2006, KP Valsalan, the Chavakkad Municipal Chairman of the Communist Party, was killed in the appellant’s home town. The appellant further claimed that, on 17 May 2006, in an act of retaliation, members of the Communist Party attacked and killed Perumbully Sulaiman, who had been accused of killing the Chairman.
5. The appellant claimed to have witnessed this murder and reported the matter to the police, but no action was taken by the police or the government. The appellant claimed that, as a result of his actions in reporting the matter, he was threatened by Communist Party members. The appellant decided to depart for the United States of America on a tourist visa, which was valid for six months.
6. The appellant claimed that once his visa expired, he was forced to return to India. The appellant claimed that upon his return, he was again threatened by Communist Party members, including over the telephone and by being stopped on the road by Party members.
7. On 20 July 2010, the appellant attended an interview with a delegate of the first respondent, at which he expanded upon his claims and also provided the delegate with a newspaper article concerning the murders of KP Valsalan and Perumbully Sulaiman.
8. On 11 August 2010, the delegate refused the appellant’s application for a protection visa. The delegate determined that the appellant was not owed protection obligations by Australia pursuant to the Refugee Convention, because the harm feared by him was essentially “criminal in nature”.

PROCEEDING IN THE TRIBUNAL

9. On 23 August 2010, the appellants applied to the Tribunal for a review of the delegate’s decision.
10. At the appellants’ request, the Tribunal hearing was conducted by videolink to Rockhampton in Queensland, as the appellants had claimed they would have difficulty travelling to Mackay.
11. At the hearing, the Tribunal took evidence from the appellant and his wife. The Tribunal told the appellant that it had identified inconsistencies between the evidence given by the appellant at his interview with the delegate, and the evidence he gave at the Tribunal hearing.
12. Further, the Tribunal record shows that at the hearing, the Tribunal also informed the appellant of the inconsistencies it had identified in the evidence given by him and that given by his wife. The appellant expressly stated that he did not require further time in which to respond and elected to respond orally to the inconsistencies in evidence put to him by the Tribunal.
13. On 11 August 2010, the Tribunal affirmed the delegate’s decision.
14. Due to the “inconsistencies and contradictions” in his evidence, the Tribunal did not consider the appellant to be a credible witness. Thus, the Tribunal observed that the appellant claimed to have witnessed the murder of Perumbully Sulaiman in 2006, but the newspaper article provided to the Tribunal by the appellant indicated that the murder occurred in 2007. While the Tribunal accepted that the murder of Perumbully Sulaiman took place, it did not accept that the appellant witnessed this murder, or that he was threatened by Communist Party members as a result.
15. The Tribunal also noted a number of discrepancies between the evidence the appellant gave at the interview with the delegate and the evidence he gave at the Tribunal hearing.
16. The Tribunal further found that the appellant’s claims were “so vague and implausible that they were not credible”.
17. The appellant raised an additional claim during the hearing, namely, that if he returned to Kerala, he feared violence during election time. The Tribunal accepted that there had been violence during election time in Kerala in the past. However, the Tribunal noted that the appellant claimed he was a supporter, rather than a member, of the Congress Party, and he did not give any reasons why he might be personally targeted during elections. The Tribunal concluded that, if the appellant was to suffer any harm during election time, it would be as a result of random violence, rather than as a consequence of his political opinion. As a result, the Tribunal concluded that the appellant’s claims did not fall within the scope of the Convention.
18. The Tribunal further found that, in any event, it was reasonable to expect the appellant to relocate within India, since his fear of harm was localised. The Tribunal asked itself whether it was reasonable to expect the appellant to relocate to avoid harm; namely, whether it was reasonable, in the sense of being practicable, for him to relocate to a region where, objectively, there was no appreciable risk of the occurrence of the feared persecution. In concluding that it was reasonable to expect the appellant to relocate within India, the Tribunal took into account the appellant’s ability to speak fluent English, the fact that he owned his own business and his previous relocation to Cochin and Goa in India.

PROCEEDING IN THE FEDERAL MAGISTRATES COURT

19. On 8 December 2011, the appellants filed an application for judicial review in the Federal Magistrates Court. The appellants relied on the following grounds:
    1. The Tribunal failed to provide the applicant with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of section 425(1).
       

Particulars:

1. Section 425 mandates an oral hearing at which both the Applicant and the Tribunal are physically present (giving the word “before” its natural English meaning, in the context, of “in front” of) in the one place, in order that the appellants may present their case.
   
2. The Tribunal was not physically present at the hearing, because the Tribunal was in Melbourne and thus applicants did not “appear before” the Tribunal.
   

2. The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
   
3. The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 10 November 2010 was affected by actual bias constituting judicial error.
   

20 On 8 June 2011, the Federal Magistrate dismissed the appellants’ application for judicial review, on the basis that none of the above grounds established jurisdictional error in the Tribunal’s decision.

APPEAL TO THIS COURT

21. On 29 June 2011, the appellants applied to this Court for judicial review. Their notice of appeal contained the following grounds:
    1. The Hon FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with [the appellant’s] claims 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 a Statutory Obligation.
       
    2. The Hon FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.
       
22. The first ground of appeal, relates to a claim that was not raised in the Federal Magistrates Court. I would, therefore, refuse leave to raise this ground of appeal for the first time in this Court, on the basis that it has no reasonable prospect of success.
23. As to the contention that the Tribunal acted “in a manifestly unreasonable way”, paras [6]-[13], [15]-[17] and [35]-[60] of the Tribunal’s reasons, show that the Tribunal understood and considered all the claims advanced by the appellant in support of the application for a protection visa. Further, the findings made by the Tribunal were open to it. This complaint is plainly untenable.
24. As to the contention that the Tribunal ignored “the aspect of persecution and harm” claimed by the appellant, pursuant to s 91R of the Migration Act 1958 (Cth), paras [70]-[79] of the Tribunal’s reasons, show that the Tribunal understood the meaning of “persecution” and “harm” in s 91R of the Migration Act. However, because the Tribunal did not accept the appellant’s claims to have been threatened by members of the Communist Party, there was, therefore, no occasion for the Tribunal to consider whether the harm the appellant said he feared, fell within the ambit of s 91R.
25. As to the appellant’s claim to fear election related violence, the Tribunal did not address the question of whether such violence comprised harm within s 91R of the Migration Act, because it found that the appellant’s fear of such harm was not Convention related. This finding was open to the Tribunal, because the appellant did not show that he was anything more than a supporter of the Congress Party, and he did not satisfy the Tribunal that there was a reason why he would be specifically targeted, beyond facing the same risk of violence faced by other members of the population.
26. For the above reasons, the first ground of appeal is dismissed.
27. The second ground of appeal must also fail. The characterisation of the Tribunal’s decision as “unjust” does not give rise to a jurisdictional error. It merely invites an impermissible merits review of the Tribunal’s decision.
28. Insofar as the second ground of appeal contends that the Federal Magistrate erred in finding that the Tribunal had conducted a “fulsome review” and had given detailed consideration to the material placed before the Tribunal, that contention is not accepted. The Tribunal gave consideration to the integers of the claim made by the appellant, but rejected the claim on credibility grounds. It was open to the Tribunal to do so. The Federal Magistrate did not err.
29. In his oral submissions before the Court, the appellant said that he had not had enough time to prepare before the Tribunal hearing. This was also a claim made before the Federal Magistrate and the Federal Magistrate rejected this claim. There is no ground of appeal complaining about the manner in which the Federal Magistrate dealt with this contention.
30. However, in my view, even if this complaint had been raised as a ground of appeal, the ground of appeal would have failed. The Federal Magistrate rejected the appellant’s complaint on the basis that the appellant had not demonstrated that the Tribunal had disposed of the matter with undue haste or that the appellant had been denied sufficient time to put materials before the Tribunal. Before this Court, the appellant did not point to any error in the Federal Magistrate’s findings.
    
31. The appeal is dismissed.
    

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 25 November 2011