FEDERAL COURT OF AUSTRALIA

BZD15 v Minister for Immigration and Border Protection [2016] FCA 654

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

RANGIAH J:

1    This is an appeal against a judgment of the Federal Circuit Court, given on 21 January 2016. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 September 2015. The Tribunal affirmed a decision of a delegate of the first respondent to refuse the appellant a Protection (Class XA) Visa.

2    The appellant is a citizen of India. He arrived in Australia in 2009 on a student visa. He remained in Australia unlawfully for two years until he lodged his application for a protection visa in November 2014. The delegate refused the grant of the visa on 30 January 2015.

3    Before the Tribunal, the appellant claimed that in 2002 his family purchased land from a man in his village. The appellant claimed that the vendor’s sons brought legal proceedings against the appellant’s family disputing the sale. He claimed that the court case and subsequent appeals were resolved in his family’s favour in 2012 or 2013. He claimed that the vendor’s family was unhappy with the Court’s decisions and hired “goons” to occupy the property. He said that his family sold the property to a third party from the city in 2013. The appellant claimed that the vendor’s family had attacked his father and brother and had attempted to kill him just before he left India. He also claimed that his family home had been attacked by the vendor’s family about six weeks prior to the hearing before the Tribunal. The appellant claimed that he fears that he would be harmed or killed by the vendor’s family if he returns to India.

4    The Tribunal found that the appellant claimed to fear harm from the vendor’s family because of a private dispute with his family over a piece of land. The Tribunal noted that a family can constitute a particular social group under Art 1A(2) of the Refugee Convention. However, the Tribunal concluded that under s 91S (now s 5K) of the Migration Act 1958 (Cth) it was required to disregard the appellant’s claimed fear of persecution based on his family’s non-Convention-based fears. Therefore, the appellant was not a person to whom Australia owes protection obligations within s 36(2)(a) of the Migration Act.

5    As to the complementary protection criterion in s 36(2)(aa), the Tribunal accepted that there had been animosity between the two families over a piece of land. However, the insults, threats and pushing claimed by the appellant did not amount to significant harm for the purposes of s 36(2A) of the Migration Act. The Tribunal noted the appellant’s claims that his father and brother had been attacked and that the vendor’s family had attempted to kill him were abandoned by him at the hearing. The Tribunal found that significant parts of the appellant’s evidence were fabricated. In particular, the Tribunal did not accept that there had been an attack on the appellant’s family earlier in 2015. The Tribunal found that there is no real risk that the appellant will suffer significant harm if he returns to India. The Tribunal decided that the appellant is not a person to whom Australia owes protection obligations under s 36(2)(aa) of the Migration Act.

6    Before the Federal Circuit Court, the appellant’s grounds of review contended that the Tribunal had failed to comply with s 424A and s 424AA of the Migration Act and that the Tribunal had failed to exercise its jurisdiction by giving no weight to documents which the appellant claimed supported his claims.

7    The primary judge found that there was no evidence that there was a matter which should have been put to the appellant under ss 424A or 424AA of the Migration Act. His Honour considered that the appellant’s real complaint was about the factual findings made by the Tribunal. In rejecting the appellant’s second ground, the primary judge found that the Tribunal had referred to the documents provided by the appellant and had considered the content of those documents. The primary judge went on to consider a ground raised in the appellant’s supporting affidavit to the effect that the Tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the Migration Act. The primary judge rejected that ground on the basis that the appellant simply sought impermissible merits review. Accordingly, the primary judge dismissed the application with costs.

8    The notice of appeal before this Court raises the following grounds.

1.     The Hon Judge failed to consider that the second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act 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.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91 R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

9    The appellant appeared at the hearing of the appeal and made oral submissions with the assistance of an interpreter. He was invited to address the grounds of appeal contained in the notice of appeal, but his submissions did not engage with those grounds. His oral submissions were confined to saying that he and his family believed that his life would be in danger if he returns to India.

10    The appellant’s first ground of appeal is identical to the first ground raised before the Federal Circuit Court. The appellant has not identified the information which he says should have been the subject of particulars provided to him pursuant to ss 424A or 424AA of the Migration Act. I cannot identify any error in the way in which the primary judge dealt with the ground.

11    To the extent that the appellant may be submitting that the Tribunal should have put its doubts about his credibility to him, it is well established that “information” does not include the existence of doubts, inconsistencies or the absence of evidence: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]. The Tribunal was not required to put to the appellant its subjective thought processes arising from the appellant’s evidence.

12    As to the second ground, in SZSHM v Minister for Immigration and Border Protection [2014] FCA 213, where a ground identical to the present second ground was pleaded, Rares J observed at [8]:

The grounds of appeal in this court are template grounds. They do not reflect the grounds argued below, nor any engagement with the decision of his Honour in any substantive or intelligible way.

13    Similarly, in this case the appellant has not provided any particulars or submissions to explain the second ground. The ground was not raised before the Federal Circuit Court. In AAX15 v Minister for Immigration and Border Protection [2015] FCA 1206, the appellant raised a ground identical to the second ground. In respect of that ground Griffiths J said at [18]:

The FCCA cannot be criticised for failing to consider whether the Tribunal acted in a “manifestly unreasonable way” when no such contention was advanced before it to that effect by the appellant. In any event, it is evident from [25] of the FCCA’s reasons for judgment that the primary judge correctly understood and applied s 91R of the Act.

14    In any event, the Tribunal referred to the relevant legislation, and specifically to s 91R (now s 5J) of the Migration Act. It considered the appellant’s claims and evidence by reference to that legislation. It did not ignore the appellant’s claims of persecution and harm. It did not ignore the requirements of s 91R of the Migration Act. The Tribunal’s findings were open to it and were not manifestly unreasonable.

15    The appellant’s oral submissions to this Court suggest simply that he disagrees with the findings of the Tribunal. This Court has no jurisdiction to conduct a merits review of the Tribunal’s reasons: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. For these reasons, the appellant has not established error in the judgment of the Federal Circuit Court. The appeal must be dismissed, with costs.

Associate:

Dated:    14 June 2016