AZABX v Minister for Immigration

[2013] FCCA 643

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZABX v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 643

Catchwords:
MIGRATION – Judicial review of decision by Refugee Review Tribunal – ground to vague – no jurisdictional error found – application dismissed – no matter of principle.

Legislation:  
Migration Act 1958 (Cth), s.425

Applicant: AZABX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 65 of 2012

Judgment of: Judge Simpson

Hearing date: 19 June 2013

Date of Last Submission: 19 June 2013

Delivered at: Adelaide

Delivered on: 19 June 2013 (ex temp)

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The applicant’s application file 4 April 2012 is dismissed.

2. The applicant do pay forthwith the first respondent’s costs fixed in the sum of SIX THOUSAND, FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6,471.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 65 of 2012

AZABX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. I have before me an Application for Judicial Review filed on 4 April 2012.  At that time the applicant was represented by solicitors. The solicitors remained on the court file until 22 May 2013 when they withdrew as lawyer for the applicant. 

2. While those solicitors were acting for the applicant the solicitors filed an affidavit of Jane McGrath, a lawyer with the firm, McDonnell Steed McGrath, the solicitors acting for the applicant, and she annexed to her affidavit a copy of the decision record dated 7 March 2012 that we are concerned with in this case.

3. A further affidavit of Ms McGrath was filed on 7 February 2013.  That affidavit annexed the transcript of the hearing before the Refugee Review Tribunal. 

4. The matter came before me on 11 February 2013 at which time Ms McGrath, the solicitor for the applicant, appeared, and the first respondent was also represented.  On that occasion Ms McGrath indicated that an adjournment was needed as counsel that had been briefed in the matter was not available.  The matter was adjourned by me to 19 June 2013 for hearing. 

5. The matter came before me earlier today and the applicant requested an adjournment so that he could earn money that would allow him to brief solicitors. I made a decision earlier today that I would not adjourn the matter for reasons that I gave at that time which included the fact that the applicant was unable to say how long it would take for him to raise the money that he needed to engage a lawyer.  The matter has been in my docket for quite some time now.  The applicant has known that this matter was going to be dealt with today, and, for those reasons and others that I detailed earlier today, I considered that I should not grant the adjournment but get on with the hearing.

6. The applicant had earlier been provided with documents filed in the action. He did not bring those documents with him to Court with the result that the Court lent the applicant a copy of the green book.  The applicant was also provided with the first respondent’s outline of argument. He was given an adjournment so that he had an opportunity to absorb all of that material to be able to put submissions to me later in the day.  It is now 4:10pm and we have just heard the submissions that the applicant wished to make.  The applicant speaks good English and has, he tells me, been assisted by his girlfriend, who has accompanied him to Court today.

7. Turning then to the litigation that has occurred, the Refugee Review Tribunal affirmed a decision of the delegate of the Minister for Immigration and Citizenship not to grant the applicant a protection (class XA) visa. The application filed by the applicant contains only one ground which is in very general terms. That ground states the second respondent committed jurisdictional error in failing to provide the applicant with a hearing as required under section 425 of the Migration Act 1958.

8. The orders that the applicant seeks are, (1), an order in the nature of certiorari to quash the decision of the delegate in DIAC Case 2009/77 CLF 2010/8642 dated 7 March 2012;   (2) an order in the nature of mandamus requiring the respondent to make a decision in relation to the applicant’s application for a protection visa (the visa application) according to law;  (3) an order that the respondent pay the applicant’s costs of this application;  (4) such further or other orders as this honourable Court deems fit.

9. When the applicant put his submissions to me he did not provide any greater particularity of the ground that I have mentioned was in the application.  He puts some brief submissions to me which really sought to suggest that he should have been provided with a visa as sought by him.  He did not focus on any jurisdictional error that might have been committed by the Tribunal.  He mentioned that his brother had been in detention here in Australia for many, many months and, as I understand it, has now been released from detention. He wonders why he is not in the same position.  The applicant need to understand that, each of these matters obviously is dealt with on their own merits.  The evidence that went before whoever made the decision that the applicant’s brother be released from detention will inevitably be quite different from the evidence that is put before the delegate firstly and then the Tribunal in this matter.  So the fact that his brother is in a different position should not surprise the applicant here.

10. The background to the matter has been very helpfully summarised in the first respondent’s outline of submissions. 

11. The applicant is a citizen of Albania, who arrived in Australia in July 2009.  He lodged an application for a protection visa with the Department of Immigration and Citizenship on 30 June 2010.  He claimed to be a Roman Catholic and claimed that he was at risk of persecution due to his membership of the Christian Democratic Party of Albania.  He claimed to fear harm for a political reason at the hands of the Reci family with whom his family had a blood feud.  He asserted that his cousin was shot because of his political – that is, the applicant here – because of the applicant’s political activities.

12. A delegate of the Minister refused the application on 22 August 2011.  On 14 September 2011 the applicant applied to the Tribunal for review of the delegate’s decision.  On 20 October 2011 the Tribunal invited the applicant to appear before it.  The applicant’s representatives subsequently sought an adjournment which the Tribunal granted under cover of letter dated 15 December 2011.  In that letter the Tribunal again invited the applicant to appear before it.  However, on 12 January 2012 the Tribunal sent a third letter inviting the applicant to give evidence and present arguments relating to the issues arising in the case.  That letter rescheduled the hearing because of difficulty the member had with the earlier hearing date.

13. On 31 January 2012 the Tribunal conducted a hearing at which the applicant was present and responded to a number of concerns the Tribunal raised with the evidence.  The applicant was also represented by his migration agent on that occasion.  On 7 March 2012 the Tribunal affirmed the delegate’s decision.  On 4 April 2012 the applicant filed the present application for judicial review. 

14. Turning then to the reasons of the Tribunal.  The Tribunal set out in its reasons the applicant’s claims before the delegate, the interview by the Department, and the sequence of events at the Tribunal hearing.  As mentioned by me just previously, the Tribunal recorded a number of perceived concerns it had with the applicant’s evidence.  As I will discuss shortly, those concerns ultimately proved to be dispositive of the application.  The Tribunal also recounted a portion of country information relating to the Christian Democratic Party of Albania and Christians in Albania which it also used as a basis to reject some of the applicant’s claims.

15. In its “findings and reasons” the Tribunal accepted that the applicant is a national of Albania.  It referred to his claim of being a member of the Christian Democratic Party of Albania and to his fear of persecution at the hands of the Reci family.  It was not satisfied, however, that the applicant had a well-founded fear of persecution within the meaning of the Convention if he were to return to Albania.  The Tribunal found that the applicant’s claim to be vague and implausible insofar as his claims arose out of the alleged membership of the Christian Democratic Party of Albania.  It had this to say:

    “The accumulation of the concerns outlined above has led the Tribunal to find that the applicant is not a member of the PDK, as claimed.  The Tribunal finds that the applicant was not involved in political activities on behalf of the PDK.  The Tribunal finds that the applicant was not threatened by members of the Reci family or anyone else as a result of involvement with the PDK and nor were threats made against him by his father as claimed.  The Tribunal also considers that it is implausible that if the applicant feared harm as a result of his political activities that the agents of such harm would be restricted only to members of one family”.

16. Because the Tribunal rejected the claim that the applicant was a member of the Christian Democratic Party of Albania it then rejected the claims upon which its acceptance depended.  It also found that the applicant was not a practising Catholic and that there was no other motivation behind the claimed threats of the Reci family.  As such, it did not accept that the applicant was threatened or is at risk of harm from the Reci family.  The Tribunal considered corroborative material provided by the applicant, but placed no weight on it.  It concluded that there was not a blood feud.  It rejected a claim that the applicant’s brother was shot on the basis that it was vague and that the applicant would have raised it in an earlier opportunity if it was significant.

17. Finally, the Tribunal considered whether the applicant might also have a well-founded fear of persecution for reason of religion from a source other than the Reci family, but concluded that he did not.  Accordingly, the Tribunal affirmed the delegate’s decision.  It is apparent to me from the reasons that the Tribunal’s determination turned upon the lack of detail and that certain claims were vague and implausible.  Put another way, the Tribunal found that the applicant’s claims were not credible.  No attack is made to those findings by the applicant.

18. The Minister submits that they involved questions of fact which are unimpeachable in this proceeding.  I agree with that assessment.  The substantive problem for the applicant in relation to the application to this court relates to ground 1.  As I have mentioned earlier in these reasons, the particulars in that ground were very vague and not clarified in any submissions that were put to me.  In my opinion, there is no substance to the ground alleged.  

19. The Tribunal issued notices under s.425 of the Migration Act. The applicant was invited to attend a hearing for the express purpose of being heard as to the issues in relation to the review. He did attend. Unless it is suggested that there was an issue which was not put to the applicant, it is the Minister’s submission that this ground is baseless. I agree with that assessment. In my opinion, the Tribunal has discharged its obligations under section 425 by first inviting the applicant to appear before it and then addressing all relevant issues with the applicant at the hearing.

20. In these circumstances, ground 1 of the application cannot stand and the application should be dismissed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  26 June 2013