AZACS v Minister for Immigration

[2013] FCCA 457

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZACS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 457

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

Legislation:

Migration Act 1958, ss.476 & 424

Commonwealth Constitution, s.75(v)

1951 Convention Relating to the Status of Refugees and its 1967 Protocol

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

Craig v State of South Australia [1995] HCA 58

Applicant: AZACS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 310 of 2012

Judgment of: Judge Lindsay

Hearing date: 13 May 2013

Date of Last Submission: 13 May 2013

Delivered at: Adelaide

Delivered on: 13 May 2013

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Ms Johnson

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application for Review filed on 10 December 2012 is dismissed.

2. The applicant to pay the respondent’s costs of and incidental to this application, fixed in the sum of FOUR THOUSAND, EIGHT HUNDRED DOLLARS ($4,800.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 310 of 2012

AZACS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review in relation to a decision of the Refugee Review Tribunal of 20 November 2012.  The decision of the Tribunal was to affirm the decision of the delegate of the Minister that the applicant was not entitled to a protection visa.  The application was filed in this Court within time on 10 December 2012, and, by ticking the appropriate boxes, it seeks orders that the decision of the Tribunal be quashed.  A writ of mandamus directed to the Tribunal, requiring it to determine the application according to law, is also sought.  Under the heading of grounds of application, there are two grounds identified.  They simply say this:

   (1)I am not satisfied with the decision;

   (2)I gave all the proofs, but not a right decision.

2. On the return date of the application, the Registrar made an order.  It is 18 February 2013.  Unsurprisingly, an order was made giving the applicant leave to file an amended application.  That opportunity has not been taken.  It is expressed, also, in terms of an opportunity, rather than a direction.  But the applicant was given an opportunity to file and serve an outline of submissions, which opportunity also was not taken.

3. The applicant made some brief submissions in support of the application before me this morning.  The Minister’s representative has filed an outline of submissions.

4. The application for review is made pursuant to s.476 of the Migration Act 1958 (“the Act”). That section grants this Court the same jurisdiction as the High Court has under paragraph 75(v) of the Commonwealth Constitution.

5. The jurisdiction, though, while it is the same jurisdiction as the High Court, can only be exercised in relation to migration decisions, as that expression is defined in the Act. Effectively, that means that the review will only lie in relation to a privative clause decision or a purported privative clause decision, which the decision of the Tribunal is.

6. The High Court of Australia, in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, described the circumstances in which review will lie from a decision of a Tribunal in a case of this nature. And, essentially, it means that the review will only lie if the decision of the Tribunal can be shown to have been vitiated by jurisdictional error. Jurisdictional error is an administrative law concept that has been explained in many decisions of the High Court, perhaps most usefully in Craig v State of South Australia [1995] HCA 58.

7. There has been no attempt by the applicant in his application, or in the submissions made before me today, to identify any jurisdictional error associated with the decision of the Tribunal.  In that sense, and if the Court was exercising a different jurisdiction, there would almost an inevitability about a summary determination of the matter, with there having been no attempt made to identify the kind of error that must be shown to have existed in the way the Tribunal went about the exercise of its jurisdiction.

8. It is not the function of the Court to peruse the applications to try to identify some basis for review which the applicant has not even attempted to identify himself.  However, this jurisdiction we are exercising relates to administrative decisions relating to whether or not Australia owes a person protection obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, we always exercise the jurisdiction cautiously.

9. Notwithstanding the matters to which I have referred, the gross procedural difficulties that confront the matter, the Court has taken the opportunity to consider the decision of the Tribunal, to see whether, in the way it went about the process of review, it fell into jurisdictional error.  That obligation for scrutiny was also accepted by the Minister and the Minister’s legal representatives in the outline of responsive submissions that were filed.

10. The applicant arrived in Australia on a tourist visa with his wife at the end of 2011, to visit his son, who was studying in Australia.  There were a number of documents that were provided to the Department of Immigration, of course, at the time that he sought that visa.  Those documents contained significant information about his personal circumstances, which, it turns out, was highly inconsistent with the account the applicant attempted to promote at the time of his application for a protection visa and before the Tribunal.

11. The inconsistencies in the account he gives of his life in India to the Tribunal, and in support of this application, as I say, are significantly different from the account that he gave in the documents that supported his application for the tourist visa.  That formed a significant part of the Tribunal’s response to his application before it.

12. The applicant is of Sikh background.  He was born and lived and conducted business in the Jalandhar district of the state of Punjab.

13. His application for a protection visa focused upon what he said was his experience of persecution by Indian authorities because of his Sikh religion; in 1984, in the wake of the assassination of Prime Minister Indira Gandhi by a Sikh person.  He alleged that since that persecution,– and his account of that persecution was not fleshed out, neither in his documents in support of his application or before the Tribunal, they were allegations of a very generalised nature and that was another matter that concerned the Tribunal.  He alleged he was, as it were, on the run from the authorities.

14. He said he spent some time living and working in Germany from 2001 to 2007, and also in the United Arab Emirates.  He was recorded by the Tribunal in paragraph 32 of its Reasons as saying that he had been living outside of India, in the United Arab Emirates, since the early 1980s and only returned to India for one month, shortly prior to departing to Australia.  That must be seen as subject, of course, to what he was saying about living in Germany for an extensive period of time, and he repeated that.  He confirmed that before me today, he maintained that position, notwithstanding the other developments before the Tribunal which cast significant doubt upon the truthfulness of that account.

15. In his application, he also referred to some experiences of a persecutory nature in India in 2011.  He says he was tortured by the Indian police.  That recent persecutory experience was a matter that he neglected to mention to the Tribunal when giving his account of his experiences which grounded his application for the protection visa.  That was another matter that was of great significance to the Tribunal.  His credibility manifestly was not accepted by the Tribunal.

16. That being the case, the Tribunal was not prepared to accept his account of his experiences.  It rejected his contention that he had suffered persecution.  It rejected his contention that there was a real chance of him being persecuted if he returned to India.  It rejected his account that he was at risk of serious harm if he returned and, cumulatively, was not satisfied that he was owed protection obligations.  On account of its wholesale rejection of his account of his experiences, the Tribunal was also not satisfied that he was entitled to the complementary protection provisions described in section 36(2)(aa).

17. To the extent that his application was based upon more generalised assertions as to the position of Sikhs in India, there was an analysis of country information by the Tribunal which led to the Tribunal not accepting even that generalised claim, that Sikh persons, particularly Sikh persons who live in Punjab, were at risk of persecution either because of their religion or on account of any other matter.  So the contentions were rejected both as they were framed in relation to his particular circumstances and also in relation to his more general circumstances.

18. As indicated earlier in these Reasons, the Tribunal had access to information that he provided in support of his tourist visa application.  It included a written statement.  This is summarised at paragraph 42.  In that written statement, he said he was the owner and operator of a catering canteen business called Anapurnakana in India for many years.  He said that his wife is self‑employed and operates her own boutique in the name of Jasdi Boutique.  The Tribunal sets out a specific passage from his statement which says this:

    We are all very well settled in India and have spent all the precious moments of our life in our motherland.  We will definitely come back to India before my visa gets expired, because there is nobody after us to take care of our business and family.

    Now, that information was put to the applicant and he was given an opportunity to respond to it. What facilitated the putting of that information to him was s.424AA of the Act. With the information being put to him orally, the Tribunal was therefore not obliged under s.424A(2A) of having to put the application to him in writing. It may be that the Tribunal went further than it should have in giving him the opportunity to respond to that material, either because it was information provided by him or because there is an element of the Tribunal disclosing its thought processes for comment to him, which, of course, it is not obliged to do.

19. In any event, if the Tribunal fell into any error in relation to that, it is something that enhanced the fairness associated with the conduct of the proceedings, rather than otherwise.  So there is nothing in the circumstance of the utilisation of s.424(AA), in those circumstances, which grounds any allegation of jurisdictional error.

20. Having considered the applicant’s case and the materials presented in support of it, and then having considered, in the light of his case, how the Tribunal discharged its obligations to conduct the review, I am not satisfied that there has been any error at all in the way it has gone about its work, let alone a jurisdictional error.  In those circumstances, the application will be dismissed.

21. It is appropriate that costs follow the event, and the amount sought is less than the scheduled fee, and that is for the reasons Ms Johnson has told me.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Date:  5 June 2013