AZADF v Minister for Immigration

[2013] FCCA 1011

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1011

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal to not grant a protection (Class XA) Visa – no jurisdictional error identified – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(aa), 424(A), 424A(2A), 424AA, 424AA(b)(i), 424AA(b)(iii), 44AA & 474

SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affair; ex parte Durairajasingham (2000) 168 ALR 407

Applicant: AZADF

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 349 of 2012

Judgment of: Judge Simpson

Hearing date: 23 July 2013

Date of Last Submission: 23 July 2013

Delivered at: Adelaide

Delivered on: 12 August 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant shall forthwith pay the first respondent’s costs fixed in the sum of FIVE THOUSAND, FOUR HUNDRED DOLLARS ($5,400).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 349 of 2012

AZADF

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application filed on 28 December 2012 in which the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 November 2012.  On that occasion, the Tribunal affirmed a decision of a delegate of the Minister dated 13 June 2012 to refuse to grant a Protection (Class XA) Visa to the applicant.

Hearing

1. When the matter was called on, the applicant appeared in person without legal representation.  The applicant indicated that she was able to understand spoken English, that she spoke English and was able to read English.  The applicant was nevertheless provided with the assistance of an interpreter in Court should she need it as a result of the applicant informing the Registrar who made the trial directions, indicting that she required an interpreter.

2. I questioned the applicant to ensure that she had received the written submissions of the respondent and that she understood all that was in that document.  She indicated that she had a copy of the respondent’s submissions and had read and understood them.  I also did what I could to ensure that the applicant understood the limited role that the Court has and that, unlike the hearing before the delegate and later the Tribunal, this Court could not revisit the merits of her application but rather had to look for jurisdictional error in the Tribunal’s decision.

3. The applicant was given the opportunity to put submissions in support of her application.  Opportunity was given both before and after the oral submissions put on behalf of the respondent.

4. The respondent filed a detailed Outline of Submissions which I have found helpful in preparing these reasons.

Background

1. The applicant is a citizen of India.  She first arrived in Australia on 13 August 2007 as the holder of a student visa. 

2. The applicant took trips back to India in 2008, 2009 and 2011. 

3. On 30 July 2010, the applicant applied for a Class VC (Graduate) Subclass 485 Visa.  On 9 February 2012, the applicant was advised that her application for that visa was unsuccessful.

4. The applicant’s student visa expired on 15 March 2012.  On 16 March 2012 the applicant married Mr Arminder Singh.  Mr Singh was an Indian citizen studying in Australia.  Also on 16 March 2012, the applicant made an invalid application for a further student visa.

5. On 10 April 2012, the applicant applied for a Protection Visa.  The applicant’s written claims for protection were included in her Protection Visa application.  The applicant claimed to fear harm from her parents because they had attempted to force her into an arranged marriage and she had refused.  She said that her parents did not approve of her marriage to Mr Singh.  She claimed that should she have to return to India, she would be the victim of an “honour killing” at the hands of her family.

6. On 8 June 2012, the applicant provided to the Department a copy of an extract from a local newspaper dated 12 May 2012.  The extract stated that the applicant’s mother had “disowned” her because she married without her consent.  The notice relating to the applicant was written in English while the balance of the page was in Punjabi.

The Delegate’s decision

1. The applicant attended an interview with a delegate of the first respondent on 8 June 2012.

2. On 13 June 2012, the delegate made a decision refusing to grant the applicant a Protection Visa.  The delegate did not find the applicant to be a credible witness in light of her visa and migration history, the delays and timing of her most recent visa applications, and her responses to questions at interview.

3. The delegate found that a convention ground was not the “essential and significant reason” for the harm feared by the applicant.  The delegate also found that the applicant would not face a real risk of significant harm if she were to return to India.

4. The delegate concluded that the applicant was not someone to whom Australia owed protection obligations.

The Tribunal’s proceedings

1. On 9 July 2012, the applicant lodged an application with the Tribunal to review the delegate’s decision.  The applicant appointed a migration agent as her authorised recipient for the purposes of the review before the Tribunal.

2. By a letter dated 13 August 2012, the Tribunal validly invited the applicant to attend a hearing before the Tribunal scheduled for 14 September 2012.

3. On 12 September 2012, the applicant requested a postponement of the hearing on the basis that she was ill.  The Tribunal agreed to this request and the hearing was re-scheduled to 2 November 2012.

4. On 31 October 2012, the applicant requested a further postponement of the hearing on the basis that she was ill.  The Tribunal again agreed to this request and the hearing was re-scheduled for 9 November 2012.

5. On 8 November 2012, the applicant made a further request for a postponement of the hearing on the basis that her migration agent was overseas until 28 November 2012.  On 8 November 2012, a Tribunal Officer informed the applicant that this request had been refused and the hearing would proceed as scheduled.

6. The applicant attended the hearing on 9 November 2012.  The Tribunal received evidence from the applicant’s husband.  During the Tribunal hearing the applicant claimed for the first time that she and her husband were followers of a religious sect called “Dera Sacha Suada” (“DSS”).  The applicant claimed that as a follower of that religious sect this would cause her and her husband difficulty in India and that her family would not accept them.

7. At the hearing the Tribunal embarked on a course of oral disclosure of information pursuant to s.44AA of the Migration Act 1958.  The particulars of that information were inconsistent with the evidence that the applicant had given to the delegate about her and her husband’s religion and aspects of her husband’s oral evidence to the Tribunal.  The Tribunal also put to the applicant that her husband had said that he wanted to remain in Australia because he had a good job and had applied for a permanent visa and that if he was unsuccessful both he and the applicant would return to India.

8. In accordance with s.424AA(b)(i) the Tribunal explained to the applicant that the information was relevant because it was inconsistent with her claim that she could not return to India because she feared harm. In accordance with s.424AA(b)(iii) the Tribunal asked the applicant if she needed additional time. The applicant chose to respond immediately. The applicant told the Tribunal that she was not claiming that she would never go back to India but she did not want to go back at present due to the situation with her parents.

9. As the Tribunal complied with the requirements of s.424AA the exception in s.424A(2A) applied and there was no obligation on the Tribunal to invite the applicant to comment on information in writing in accordance with s.424(A).[1]

   [1]     SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415

10. On 16 November 2012 the applicant provided to the Tribunal a copy of her Certificate of Marriage and provisional marriage booking together with a number of articles on the topic of honour killings in India. 

11. In a decision dated 26 November 2012 the Tribunal affirmed the Delegate’s decision to refuse the applicant’s application for a protection visa. 

12. The Tribunal accepted that the applicant was born in Punjab, travelled to Australia on a student visa and married Mr Singh on 16 March 2012.  The Tribunal otherwise comprehensively rejected the applicant’s claims on the basis of strong adverse credibility findings.  The Tribunal did not believe that the applicant genuinely feared harm should she return to India.

13. In particular, the Tribunal found that the applicant gave vague evidence about the threats made by her family and was unable to say when the threats were made or by whom.  The Tribunal found that the applicant had provided false evidence in her protection visa application dated 10 April 2012 which referred to a newspaper article that she intended to provide.  The Tribunal found that as the subsequently provided newspaper article post dated her protection visa application, it had been fabricated to support her application. 

14. The Tribunal also identified inconsistencies in the applicant’s evidence in relation to her religion.  The Tribunal found that the applicant had stated in her protection visa application, and at the Delegate’s interview, that she and her husband were both Sikh, but gave oral evidence to the Tribunal that they were DSS followers/supporters.  The Tribunal found that she was unable to explain why she had not mentioned this originally and rejected the applicant’s claims that she had been threatened because of her and her husband’s religious beliefs. 

15. The Tribunal also found that Mr Singh’s evidence to the Tribunal did not support the applicant’s claims, because he stated that he wanted to stay in Australia because he had a good job and had applied for permanent residency, that if he was unsuccessful he and the applicant had discussed that they would return to India. 

16. On the basis of its adverse credibility findings, the Tribunal did not accept that the applicant had suffered harm in the past or would suffer harm in the future because of her marriage to Mr Singh.  The Tribunal also did not accept that the applicant or her husband were supporters and/or followers of the DSS and accordingly did not accept that they would suffer harm in the future on this basis.

17. The Tribunal was also not satisfied that the applicant met the complementary protection criteria in s.36(2)(aa). It based this conclusion on its earlier rejection of the applicant’s key claims.

18. The Tribunal was not required to accept the applicant’s claims at face value and, given the concerns and deficiencies it identified in her evidence, was entitled to reject them for the reasons that it gave.  The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact finding function.  These findings were open to the Tribunal on the evidence before it and the Court cannot review the merits of the Tribunal’s decision.[2]

    [2]     Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR259 at 281-282

The Application to this Court

1. The applicant filed an Application for Judicial Review in the Federal Circuit Court on 28 December 2012.  Despite orders made on 5 February 2013 allowing the applicant until 5 March 2013 to file an amended application and any affidavit evidence, nothing further has been filed. 

2. The Application for Judicial Review contains two grounds.  They are as follows:

   1.Tribunal in its decision (Finding 65) claimed that I provided false evidence in my protection visa application.  Tribunal made this assumption on the basis that article dated 12/05/12 written in English and article postdates my written claim.  Tribunal failed to investigate if the material provided by me was false.  It did not investigate or put enquiry regarding the newspaper article.  It just claimed that it is false evidence. My parents already disowned me and had put this in writing in newspaper. This doesn’t mean that evidence provided was false.  As Tribunal failed to put weight on material provided and failed to investigate the material provided before making decision hence the Tribunal’s decision has “jurisdictional error”.

   2.Tribunal in its decision (Finding 66,67,71) claimed that I provided false evidence in my protection visa application and I am not follower of Dera Saccha Sauda.  Firstly, Tribunal failed to investigate if the document provided to them is false or right.  Secondly, Tribunal claimed that I am not supporter or follower of DSS religion.  Tribunal failed to realise the fact that DSS is not the religion.  Dera Sacha Sauda is a socio-spiritual organization that preaches and practices humanitarianism and selfless service to others.  Tribunal member is under the view that DSS is a religion which is not right.  The decision made by the tribunal has “jurisdictional error’”.  I am a sikh and follow and support DSS tribunal cannot decide I am supporter or not of DSS on the personal view of member.  Whole basis of the decision was that Member was under impression that DSS is a religion while as it is is a socio-spiritual organization.”

Respondent’s submissions

Ground 1

1. The respondent submits that the first ground of the application seeks to cavil with the Tribunal’s factual finding that the newspaper article she had provided to the Department was fabricated.  They submit that the ground also alleges that the Tribunal failed to “investigate if the material provided” was false. 

2. To this the respondent submits that the Tribunal was not required to accept the applicant’s claims at face value and that the weight to be given to her claims and evidence was a matter for the Tribunal to assess as part of the fact finding function.  They refer to the case of Wu Shan Liang, earlier referred to, at pages 281 and 282.

3. The respondent continues its submissions by pointing out that the Tribunal’s conclusion that the newspaper article submitted by the applicant was not credible was a finding of fact for the Tribunal par excellence[3]. They submit that such a finding was plainly open to the Tribunal on the evidence before it for the reasons that it gave and that the Court can not review the merits of the Tribunal’s decisions.  They submit further that this is not one of the limited circumstances in which the Tribunal was under a duty to enquire in the sense that there was a failure to make an enquiry about a critical fact, the existence of which was easily ascertained.  They submit that the applicant was on notice from the Delegate’s decision of identified concerns over the authenticity of the newspaper article and that the Tribunal also put its concerns about the genuineness of the article to the applicant at the Tribunal hearing and allowed her the opportunity to respond.  They submit that for those reasons ground 1 cannot succeed.

   [3]     The respondent refers to the case of Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at paragraphs 67

Ground 2

1. In relation to ground 2, the respondent submits that the ground expresses disagreement with the Tribunal’s rejection of the applicant’s claim to be a DSS follower and contends that the Tribunal erred by treating DSS as a religion.  The respondent submits that the applicant’s claim to be a DSS follower was made for the first time at the Tribunal hearing and that according to the Tribunal’s summary of what occurred at the hearing, which is the only evidence before the Court, the applicant expressly claimed she had become a follower of a “religious sect called Dera Sacha Sauda”.  The respondent submits that when it was put to the applicant by the Tribunal that she had never mentioned that she and her husband were followers of the DSS and that she had previously claimed they were both Sikhs, the applicant then told the Tribunal that she was not a follower but was “interested in their beliefs”.  The applicant maintained that her husband was a follower and that this would cause her difficulty in India.  The respondents point out that the Tribunal’s decision also records that the applicant’s husband was asked about his religion and that he responded that he came from a “Sikh family” but became a follower of the DSS before he came to Australia.

2. The respondent submits that it was plainly open to the Tribunal in light of both the manner in which the applicant presented this claim, and the evidence of her witness, to treat DSS as a religion.  That it is submitted, was the basis of the applicant’s claim and the manner in which it was described by the applicant.  The respondent further submits that the Tribunal’s factual finding that the applicant was not a follower or supporter of DSS was open to it for the reasons it gave and that this Court cannot review the merits of the Tribunal’s decision.  For those reasons the respondent submits that ground 2 is not made out.

3. Finally, they submit that as no jurisdictional error in the Tribunal’s decision is to be found, it is a privative decision within s.474 of the Act and that as a result, the application ought to be dismissed with costs in the fixed amount.

Decision

Ground 1

1. The Tribunal was entitled to make the finding of fact that it did in paragraphs 65 of its reasons that the newspaper article had been fabricated. The Tribunal had no obligation to make enquires about its authenticity. It was for the applicant to put material before the Tribunal to persuade the Tribunal that the newspaper article was authentic. She failed to do so.

2. Ground 1 of the application is without merit as no jurisdictional error is disclosed.

Ground 2

1. This ground complains about certain findings of fact made in paragraphs 66, 67 and 71 of the Tribunal’s reasons. In particular the Tribunal’s finding that the applicant and her husband were not followers and supporters of the DSS religion was challenged by the applicant as a “jurisdictional (sic) error”.

2. Jurisdictional error was not made out.  The Tribunal was not guilty of any error when it made the finding that it did.  It was open to it to make such a finding.

3. Ground 2 of the application is also without merit.

4. The application should be dismissed with costs.

5. I make the order to be found at the beginning of these reasons.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  12 August 2013