AZACP v Minister for Immigration

[2013] FCCA 351

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACP v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 351

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision to affirm decision of delegate of Minister not to grant applicant a protection visa – Sikh Indian with disability – no jurisdictional error.

Legislation:

Migration Act 1958, ss.36, 91R & 476

Commonwealth Constitution, s.75(v)
1951 Convention Relating to the Status of Refugees and its 1967 Protocol

Cases cited:
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476

Craig v State of South Australia [1995] HCA 58

Applicant: AZACP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 285 of 2012

Judgment of: Judge Lindsay

Hearing date: 15 April 2013

Date of Last Submission: 15 April 2013

Delivered at: Adelaide

Delivered on: 15 April 2013

REPRESENTATION

Counsel for the Applicant: Self - represented

Counsel for the Respondents: Mr d’Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application for judicial review filed on 19 November 2013 is dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to this application fixed in the sum of $6,471.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 285 of 2012

AZACP

Applicant

And

MINISTER FOR IMMIGRATON & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”). It is an application for judicial review. This Court has the same jurisdiction in relation to judicial review in relation to migration decisions as the High Court has under section 75(v) of the Commonwealth Constitution. This Court only has the jurisdiction in relation to migration decisions. That expression is the subject of a very careful definition in the Act. I am satisfied that the decision of the Refugee Review Tribunal, which is the subject of this application, is a purported private clause decision and, therefore, the kind of migration decision that it is contemplated s.476 of the Act applications will relate to.

2. But, of course, since the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 it has been clear that review will only lie in respect of decisions that are vitiated by jurisdictional error. It is not enough to identify a legal error or a failure to accord procedural fairness unless those errors amount to an error going to jurisdiction – unless they demonstrate that the Tribunal in reaching its determination acted in excess of or in want of jurisdiction.

3. As to what constitutes a jurisdictional error that is a concept that has been explained by the High Court on many occasions, perhaps most clearly in the decision of Craig v State of South Australia [1995] HCA 58. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant the application for a protection visa; in other words, to affirm the decision that the applicant was not a person to whom protection obligations were owed in accordance with s.36 of the Act.

4. Expressed another way, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations arising under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, and the application to this Court is from that decision to affirm the delegate’s decision.  The delegate’s decision was essentially reached, as I read the material in the Court Book, on the basis of written material because the applicant appeared to have failed to attend an interview with Onshore Protection Victoria, but the Tribunal had the benefit of the applicant’s oral evidence in proceeding with its review application.

5. The applicant is someone who arrived in Australia in August 2009 as a dependant of his wife who was studying in Australia.  The marriage ended soon after he arrived in Australia.  The application for the protection visa was made on 24 February 2012.  The applicant’s visa, which was related to his wife’s student visa, as I understand it, expired on 9 November 2011.  His evidence before the Tribunal indicated that he had completed home secondary schooling in India to the year 12 level.

6. He has a disability.  He has only one hand.  And he gave evidence of two occasions in which he says he was the victim of persecution in India on account of his disability.  Those instances are summarised at paragraphs 32 and 33 of the Tribunal’s decision.  There is not a great deal of detail provided in relation to them.  One of them is an incident in 2006 when he says stones were thrown at him when he was playing soccer.  The other relates to an occasion when he was walking home and he was attacked by a number of persons.  They took his money.

7. He reported that matter to the Police.  And he appears to have made it clear to the Tribunal that his understanding was that the attack was motivated by a desire to have his money on the part of the assailants rather than on account of his status as someone with a disability.  He gave evidence too about discrimination generally against persons with disabilities in India.  He does not appear to have supported his application with country information, but the Tribunal of its own initiative made reference to a report from the US Department of State, a 2011 report on human rights practices in India, which dealt with the issue of persons with disabilities. That material is set out at paragraph 36 of the Tribunal’s reasons.

8. The Tribunal rejected the claim for entitlement to a protection visa for a number of reasons. Firstly, it found that the persecution alleged by the applicant did not constitute serious harm, as that expression is used in section 91R(1)(b) of the Act. That section explicates the application of the Convention criteria and makes specific provisions as to what constitutes persecution.

9. Section 91R of the Act provides that for the purposes of the application of the Act to a particular person that the Convention as amended by the Protocol does not apply in relation to persecution for one or more of the reasons mentioned unless: firstly, the reason for the persecution must be the essential and significant reason for it; secondly, the persecution must cause serious harm to the person and, thirdly, that the persecution involved systematic and discriminatory conduct.

10. The Tribunal was not satisfied that the persecution alleged amounted to serious harm or that it amounted to systematic and discriminatory conduct.  Those matters are addressed at paragraph 41 of the Tribunal’s reasons.  The Tribunal also found at paragraph 42 of its reasons that the applicant’s claims to fear persecution were not well-founded and it did so on the basis of the country information to which I have referred and those matters are summarised, as I say, at paragraph 42.

11. At paragraph 43 the Tribunal asked itself whether the applicant’s claims individually and cumulatively amounted to a real chance that he will be persecuted for a Convention reason if he were to return to India in the reasonably foreseeable future and based on the material before it found that there was not such a real chance. And even though it was not invited to do so the Tribunal then went on to consider the complementary protections provisions of s.36(2)(aa) of the Act and found that there was no material before it which indicated that the applicant would suffer significant harm as defined in subsection (2A) of s.36 of the Act if he were returned to India.

12. Having made those findings the Tribunal dismissed the review application. 

13. The applicant promotes four grounds of review in his application.  He has not filed any outline of submissions as he was directed to do.  We have gone on to deal with the application notwithstanding that.  He attempted to explain why he had not filed an outline of submission.  I did not find the explanation satisfactory.  It may be that it relates to his difficulty with the English language and the unavailability of legal assistance.  I think there is a reasonable basis for me inferring that the difficulties with service of material upon him from the Minister, in particular the outline of the Minister’s submissions, is a function of his having failed to serve his notice of address for service filed in February of this year upon the Minister’s legal representatives.

14. But, in any event, through the intervention of the interpreter this morning, who was good enough to read to him the outline of submission of the Minister’s legal representatives, that was remedied and the applicant has made some oral submissions to me this morning.  The oral submissions, unsurprisingly for a person who is self-represented, did not come to terms with the legal obligation to demonstrate a jurisdictional error associated with the Tribunal’s decision and despite my invitation did not address or augment or amplify the matters that were set out as grounds in the application itself.

15. The first of the four grounds is that the Tribunal denied him procedural fairness by reaching adverse conclusions that were implausible, being conclusions that were not obviously open on the known material without giving him the opportunity to be heard in respect of those matters.  As I say, nothing was put in amplification of that ground this morning.  The evaluation of this ground must be seen in the context of the limited information that was put by the applicant, in any event, to the Tribunal.

16. He gave evidence, a very brief compass, as to his experience of persecution, and indeed there were really only two incidents that were referred to. There was a generalised assertion about discrimination in relation to persons with disabilities. And so any agitation of a ground relating to a denial of procedural fairness must be seen in that context, that there was very limited scope provided by the evidence for the arguments that were being promoted by the applicant. The Tribunal, it seems to me, turned its attention towards that limited information, and assessed whether they met the requirements of the Convention, and the explication of the obligations under the Convention in section 91R, and determined that it did not.

17. There was nothing in that exercise, it seems to me, which raised material, or arguments or information, which needed to be put to the applicant, and in respect of which his response needed to be sought.  It was a mental process, and a mental process of some short compass, which the Tribunal undertook, and I am unable to identify any issues relating to the denial of procedural fairness in respect of any of the conclusions the Tribunal came to with respect to those key matters – those key matters of serious harm, systematic and discriminatory conduct, well founded fear, or significant harm in terms of the complementary protection provisions.  So I am not satisfied there is anything arguable, let alone persuasive, in respect of ground 1.

18. Ground 2 says that the Tribunal had no jurisdiction to make the decision because its reasonable satisfaction was not arrived at in accordance with the provisions of the Act. The argument is not fleshed out. I have some difficulty frankly in understanding what is being put. It is a generalised assertion as to a failure to meet the requirements of the Act but no specific section of the Act is identified. I do not think it is incumbent upon this Court to try to provide the particularity that is missing from the application itself. In the circumstances of the failure of the applicant to explicate that ground to any point at which this Court is able to understand the proposition that is being put the ground can not be made out.

19. Ground 3 says the Tribunal’s decision was unjust and was made without looking into the full gravity of the applicant’s circumstances and the consequence of the claim. Often in exercising its jurisdiction under s.476 of the Act, the Court has recourse to the observation that an argument presented by an application is an invitation to engage in merits review. I think we have got to be careful about not responding to arguments reflexively by using that expression, but it seems to me that it is manifest in the very articulation of the ground itself that that is what we are being invited to do here. I am being invited to take a different view of the gravity of the applicant’s circumstances than the Tribunal itself took. That is not the function of these kinds of hearings. I am not satisfied that there is anything of substance in ground 3.

20. Ground 4 says that the applicant satisfied the Convention definition, and that the Tribunal has not considered this aspect and therefore committed factual and legal error. Again it is a very generalised argument. I am unable to apprehend how it is that it can be said the Tribunal has not considered the Convention definition; I think I have already indicated where it has. And not only the Convention definition, but the application of the Convention definition as mediated by section 91R of the Act. I am not satisfied there is anything in this ground either.

21. The applicant did not agitate any issue with respect to the way in which the Tribunal dealt with the complementary protection provisions in s.36(2)(aa) of the Act. He has not raised any issue about this here, except, as it were, to say that they are part of the generalised assertions about not complying with the relevant provisions of the Act. The Tribunal found that none of the criteria for significant harm as set out in sub-s.(2A) of s.36 were applicable here. There was no contention that he would arbitrarily be deprived of his life, or subject to the death penalty or torture, or cruel or inhuman punishment, to a degrading treatment or punishment.

22. Indeed what the Tribunal knew of the applicant’s circumstances, notwithstanding his disability and treatment of persons with disabilities not being optimal in India, enabled it to be satisfied that he would receive a level of support from his father, and his ability to subsist would not be threatened. I note here that in considering the issue of significant harm in terms of sub-section (AA) of section 2, as that expression is used there, inferentially it appears to have gone to the definition of serious harm that is found in section 91R, subsection (2), rather than to the definition of significant harm referred to in subsection (2A) of s.36 of the Act.

23. But I am not satisfied that any such crossover, as it were, of consideration of the relevant legislative provisions has been to the detriment of the assessment of the applicant’s claims. The Tribunal was finding that the lesser hurdle of serious harm referred to in section 91R, subsection (2) had not been crossed, a fortiori the higher hurdle referred to in subsection (2A) of s.36 was not crossed.

24. In all of the circumstances I am unable to identify any matter which would indicate that the Tribunal fell into jurisdictional error.  On the contrary, the material available to me indicates that the Tribunal understood its obligations once it had undertaken the review.  It had regard to the relevant Convention criteria and the relevant legislative provisions, and it discharged those obligations in a way that did not involve jurisdictional error.

25. For those reasons the application for review will be dismissed.

26. There is an application for costs. My obligation at the moment is only to determine whether there should be an order for costs, not to specify terms for the payment of any costs ordered. In my view there should be an order for costs; costs should follow the event.  There will be an order that the applicant pay the respondent’s costs of and incidental to these proceedings fixed in the sum of $6,471. 

27. I am not making any order in relation to time to pay.  The Minister’s counsel has heard what the applicant has had to say about his circumstances and will no doubt take that into account in executing the order for costs.  It may be that the applicant has more significant issues in any event to deal with in the light of this determination.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Date:  23 May 2013