AZABV v Minister for Immigration
[2012] FMCA 1115
•19 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZABV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1115 |
| MIGRATION – Judicial review of decision of the Refugee Review Tribunal – application for review dismissed. |
| Migration Act 1958 (Cth) |
| Applicant: | AZABV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 53 of 2012 |
| Judgment of: | Simpson FM |
| Hearing date: | 19 October 2012 |
| Date of Last Submission: | 19 October 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 19 October 2012 |
| Settled on: | 26 November 2012 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 23 March 2012 is dismissed.
The applicant do pay the first respondent’s costs in the sum of three thousand dollars ($3,000).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 53 of 2012
| AZABV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Reasons given ex-tempore and settled from the transcript)
I have before me an application for judicial review of a decision of the Refugee Review Tribunal made on 24 February 2012. The Tribunal affirmed the decision of the delegate of the first respondent made on 10 October 2011 in which the delegate refused to grant a protection (class XA) visa to the applicant.
The applicant is a citizen of India who arrived in Australia on 25 November 2008 on a Student Subclass 573 Visa. He was later granted a Subclass 570 Student Visa which expired on 28 June 2011.
On 27 June 2011 the applicant applied to the Department of Immigration and Citizenship for a Protection Class XA Visa. The applicant claimed to fear harm in India because he was a Sikh and a member of the All India Sikh Students’ Federation (“AISSF”) which supported the Khalistan movement and an independent state of Khalistan. He claimed that he was interrogated and followed by government agencies and accused of having links with the Pakistani inter-services intelligence. He also claimed that his brother was brutally beaten.
When the matter came on before me earlier this morning the applicant was assisted by an interpreter. The interpreter has informed the applicant of all that has been said by myself and by the counsel for the respondent. The applicant indicated that he had had the opportunity of reading the respondent’s Outline of Submissions and I gave the applicant the opportunity of saying whatever he wished to say in support of his application.
The applicant indicated that he relied on his affidavit that had been filed on 23 March 2012. I have taken that into consideration.
The applicant was unable to assist greatly with any submissions in support of his application.
The applicant has had the opportunity of reading the Outline of Submissions that was provided by the respondent.
I have found the respondent’s Outline of Submissions very helpful. It provides details of what happened when the matter was dealt with by the delegate and the delegate’s decision.
It also provides information about the proceedings before the Tribunal and the decision that was made by the Tribunal. I do not propose to repeat details of those paragraphs of the Outline of Submissions. The applicant does not challenge any of those findings or any of the information that has been provided in the Outline of Submissions. I indicate that I rely on the Outline of Submissions in giving these reasons.
The applicant filed his Application for Review in this Court on 23 March 2012. It is noted that despite there being orders made on 8 May 2012 permitting the applicant to file and serve an Amended Application or any further evidence by 5 June nothing has been filed. The Application for Review was filed on 23 March 2012. The grounds of the application are as follows. I read verbatim what is in the document:
(1)The Tribunal did not give to the applicant before the hearing the independent information that it had about AISSF, India.
I interpose to say that the AISSF is the organisation that I mentioned a little earlier in my reasons, namely, the All India Sikh Students’ Federation. I return to ground 1:
The Tribunal used this information. This was against section 424A of the Migration Act 1958.
Ground 2 is in these terms:
The Refugee Review Tribunal fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal.
Ground 3 is in these terms:
The applicant satisfies 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.
So they are the grounds. I will deal with each of these grounds in turn.
Ground 1 alleges that the Tribunal failed to comply with s.424A of the Act. Section 424A of the Act is in these terms. I read subparagraph (1):
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reasons, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
So there is an allegation that that section was not complied with because the Tribunal did not put to the applicant for comment the information before it relating to the AISSF. In my view, this ground is misconceived. The information in question was not specifically about the applicant or another person, but was rather about a class of persons of which the applicant claimed to be a member. Accordingly, there was no obligation of the Tribunal to put this information to the applicant for comment pursuant to s.424A(1) by reason of the exception contained in s.424A(3)(a). That subparagraph reads as follows:
(3)This section does not apply to information (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.
For those reasons, in my view, ground 1 is not made out.
I turn then to the second ground. Ground 2 is fairly vague. It says that:
The Tribunal fell into jurisdictional error in so far as it made findings that were not open on the evidence before the Tribunal.
As is submitted by counsel for the respondent that the applicant seems to be alleging that there was no evidence to support the Tribunal’s findings. In my view, this ground is also misconceived for a number of reasons.
To succeed on a ‘no evidence’ ground the applicant must show that there was no evidence at all, - I stress those words - no evidence at all upon which the finding of a jurisdictional fact could have been based.
The question is not whether the Court on judicial review would have reached the same finding on conflicting evidence. In the present case the Tribunal’s finding that the applicant did not satisfy the criterion for a protection visa set out in s.36(2)(a) was clearly open to it on the evidence before it. Namely, the evidence provided by the applicant in his protection visa application and orally at the Tribunal hearing, as well as the ICI before the Tribunal.
For those reasons, in my view, ground 2 is not made out.
I turn finally to ground 3.
Ground 3 is in a form of submissions and appears to be a bland assertion of error on the part of the Tribunal without there really being any meaningful particulars. In my view, this ground fails also. The ground itself recognises that the Tribunal detailed the four elements of the Convention. It did so at pages 2 and 3. That is paragraphs 9 to 18 of its reasons, and at paragraphs 72 to 82 there were findings made that, in my view, addressed those elements.
So that ground fails also.
As none of the grounds have, in my view, any merit the application should be dismissed with costs. There will be orders accordingly.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Simpson FM
Date: 26 November 2012
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