Azaco v Minister for Immigration
[2013] FMCA 228
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AZACO v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 228 |
| MIGRATION – Protection visa – Sikh applicant alleging persecution by Sikh sect – rejection on credibility grounds. |
| Migration Act 1958 (Cth), ss.36, 65, 425, 426 & 476 |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Craig v State of South Australia [1995] HCA 58 |
| Applicant: | AZACO |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 271 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 12 March 2013 |
| Date of Last Submission: | 12 March 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 12 March 2013 |
REPRESENTATION
| Solicitors for the Applicant: | No appearance |
| Counsel for the 1st Respondent: | Mr d’Assumpcao |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for judicial review filed on 2 November 2012 is dismissed.
The Applicant pay the Respondent’s costs of and incidental to this application fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 271 of 2012
| AZACO |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application, pursuant to s.476 of the Migration Act 1958 (“the Act”) for an order by way of judicial review, of a decision of the Migration Review Tribunal, dated 27 September 2012.
That decision affirmed the decision of the delegate of the Minister that the applicant was not entitled to a protection visa or, in other words, that the criteria referred to in s.65 of the Act and then consequently s.36 of the Act had not been satisfied.
The Tribunal was not prepared to allow the application on the papers, and accordingly, the applicant was invited to attend a hearing. The appropriate invitation was given to him. He did not attend. There is no dispute, as I understand it, that he did not attend. The application says in ground 1, that:
I was sick on the day and was not able to attend the hearing.
There is no question of him not having been notified of the hearing.
He has been called today in the precincts of the Court, and has not answered the call. So, he has not attended this hearing and, Mr d’Assumpcao, for the Minister, tells me, he did not attend the directions hearing, before the Registrar, when this hearing was allocated.
Mr d’Assumpcao tells me that, the Minister has written to him, at the address provided in the application, which was a Gilles Plains address. And I see from the court file that, a letter of 18 December 2012, raising with him issues relating to a setting down fee, was returned in an envelope, with the endorsement, “Return. Wrong address. No other address provided”.
Being an application under s.476 of the Act, I need to be satisfied that the decision of the Tribunal has been vitiated by jurisdictional error, before I would be able to make an order of review. That such an error needs to be identified has been clear since the decision of the High Court, in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
As to what constitutes jurisdictional error, there is abundant High Court authority. A seminal authority is the decision of Craig v State of South Australia [1995] HCA 58.
The jurisdictional errors that are contended arise here, are set out in paragraphs 1 and 2 of the grounds of application.
The first ground is simply an assertion that the Tribunal determined the matter without his attendance at the hearing. He complains the Tribunal did not extent the date of hearing, nor did it take his hearing over the phone. And it said that:
This constitutes as “jurisdictional error” in the decision of tribunal.
The second ground refers to the Tribunal’s finding, that it was not satisfied that the claimed fears are due to religion, race, nationality, political opinion, or membership of a particular social group. He goes on to assert in that ground that:
…had (sic) face violence and harm in India for being a Hindu. i.e for my religion. Tribunal failed to realise this fact.
The Tribunal elected to deal with the matter pursuant to s.426A of the Act, which deals with the circumstances of a failure of an applicant to appear before the Tribunal, after an invitation, under s.425 of the Act, has been given. It gives the Tribunal power to make a decision on the review, without taking any further action to allow or enable the applicant to appear before it.
The difficulty, apart from his non-attendance, was the circumstance that there really was a paucity of information provided by the applicant, at any stage of this process, as to the identification of matters which would satisfy the Convention criteria, and therefore provide a basis for the satisfaction required by s.36 of the Act.
Looking at the application itself which starts at page 6 of the court book, paragraph 43, page 23, he asserts that:
I belong to Hindu Community … I left that country because once the Hindu Community … beat me a lot cos they caught me eating beef and poke (sic) …
He says:
my parents pressurise (sic) to me to become traditional but I think all religion and cultural are same. So, that’s why I left that country and I came to Australia
At page 24, he goes on to assert that:
I had attacked on myself (sic) when I was in my home country. I used to eat beef and poke (sic) stuff and once the Hindu Shiv Sena guys caught me and they beat me a lot.
He says, on page 25, that:
If I will go back to my home country (India), I am surely, the Hindu community will harm or mistreat me very badly.
He says:
The politicians is there are already corrupt.
And he says, in paragraph 47, that:
a year ago, The Shiv Sena guys came to my Indian (parents) home …
And that – I am paraphrasing it – they were threatening his parents, and then he says:
Once they beat to my younger brother too after me came to Australia.
It is not clear what is being asserted there.
When he was before the delegate, not unnaturally, he was questioned about the insubstantial amount of information that he provided in support of his application.
The delegate had concerns about the credibility of a number of his assertions. In particular, the delegate did not accept what he said in interview, before the delegate, about having received a telephone call, threatening him whilst he was in Australia, from a politician in India, who asked him when he would be returning to India. At page 43 of the court book. The delegate said:
When questioned as to how he was sure it was a politician from India. The applicant stated the person on the phone said, ‘I’m a politician guy calling on behalf of the Hindu community.’
Unsurprisingly, the delegate did not accept this claim or description of events to be plausible, that is, someone identifying himself as a politician “guy”, calling on behalf of the Hindu community in India. The assertion that someone, a politician, would call on behalf of that community, expressing himself in that way, about someone who had eschewed the practice of not eating meat, suggests that it is a very measured description of that claim to say that it is implausible. In any event, the delegate did not accept that he had been threatened in that way.
The delegate pointed out that really all he had, in terms of specificity or particularisation of his claims, was the reference to the incident in 2008. That is, the incident that claimed he was beaten.
We are proceeding too, as the delegate and the Tribunal were proceeding, on the basis of no country information provided by this applicant, to flesh what he asserts are the views of Hindus in relation to vegetarianism. I am prepared to assume, for the present purposes, that they, or a proportion of them, are non-meat eaters. Certainly, I am prepared to make that assumption. But as to there being any problems associated with persons who eat meat, problems in the sense of persecution, there has simply nothing been provided, in terms of country information and next to nothing provided in relation to this applicant’s own experience of such persecution. The tiny amount of information he did provide, of course, must be seen from the perspective of there being a finding of implausibility, in relation to his assertions about recent threats.
This is a spectacularly thin and non detailed account of persecutory experiences. In my view, with so little information having been provided by the applicant to the Tribunal, and with his not having accepted the opportunity to attend, and to answer questions, and to provide the Tribunal with an opportunity of examining his claims (which would also have provided him with an opportunity of fleshing his claims out). The Tribunal, and my view, was behaving appropriately in deciding to exercise the powers, under s.426A of the Act, to proceed to deal with the matter in his absence.
There was nothing put to the Tribunal to indicate any sickness, there was no request to attend by telephone. The suggestion that the Tribunal should have guessed as to the reasons for the applicant’s non-attendance, and then tried to cater for them, is, with respect, a preposterous one.
Having decided to proceed, the reasoning of the Tribunal, focussing, as it does, upon the scarcity of information in relation to the claim, which I myself have just summarised, is certainly, it seems to me, a conclusion to which the Tribunal, was entitled to come. It is for the applicant to provide the account of his experiences and the supplementary information which grounds the claim to protection. The applicant has fallen substantially short of producing the kind of information, which would enable a state of satisfaction, under s.36 of the Act, to be reached.
Not only is there no jurisdictional error associated with the way in which the Tribunal proceeded, I am unable, in the circumstances, to identify legal error, of any kind or any form of a procedural unfairness associated with the way the Tribunal proceeded.
In those circumstances, the application for review will be dismissed
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 4 April 2013
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