AZADH v Minister for Immigration

[2013] FCCA 1561

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADH & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1561

Catchwords:
MIGRATION – Ex Indian army soldier claims fear of persecution if returned to India – claim rejected by Refugee Review Tribunal – whether jurisdictional error.

Legislation:  

Migration Act 1958

Craig v State of South Australia [1995] HCA 58
Plaintiff S157/2002 v Commonwealth [2003] HCA 2

First Applicant: AZADH

Second Applicant: AZADI

Third Applicant: AZADJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 9 of 2013

Judgment of: Judge Lindsay

Hearing date: 26 August 2013

Date of Last Submission: 26 August 2013

Delivered at: Adelaide

Delivered on: 26 August 2013

REPRESENTATION

Counsel for the First Applicant: In Person

Counsel for the Second and Third Applicants: No appearance

Counsel for the First Respondent: Ms Johnson

Solicitors for the Respondent: Sparke Helmore Lawyers

Counsel for the Second Respondent: No appearance

ORDERS

1. That the name of the first respondent be amended to Minister for Immigration, Multicultural Affairs and Citizenship.

2. The application filed on 21 January 2013 be dismissed.

3. The applicants pay the costs of the first respondent fixed in the sum of FIVE THOUSAND FOUR HUNDRED DOLLARS ($5400.00)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 9 of 2013

AZADH

Applicant

AZADI

Applicant

AZADJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before me this morning is an application pursuant to s.476 of the Migration Act1958 in which the applicant seeks an order by way of review of the decision of the Refugee Review Tribunal (“the Tribunal”), which decision affirmed the decision of the delegate of the Minister that the applicant was not entitled to protection visa.

2. The review was also made by members of the applicant’s family who had applied for protection visas as being a member of the applicant’s family.

3. The application was brought within the time prescribed by s.477 of the Migration Act.  This Court has the same jurisdiction as the High Court has in relation to reviewing decisions of the Refugee Review Tribunal save that this Court’s jurisdiction is confined to – can only be exercised in relation to migration decisions.  That expression “migration decisions” is the subject of some careful definition in the Migration Act and effectively means, for all relevant purposes related to today, a privative clause decision or a purported privative clause decision and the decision of the Tribunal falls into that category.

4. That is not the end of the matter though.  The High Court has made plain as long ago as 2003 (Plaintiff S157/2002 v Commonwealth [2003] HCA2) that the review can only lie in respect of those decisions of the Tribunal that are vitiated by jurisdictional error.

5. As to what jurisdictional error is and how it is to be identified, that is the subject of extensive High Court authority, perhaps most usefully explained in the decision of Craig v State of South Australia [1995] HCA 58.

6. The applicant’s review gives four grounds in which it is said that the Tribunal fell into jurisdictional error.  When the application came before the Registrar, the applicant was given leave to amend his application and he was directed to file and serve an outline of submissions 10 days prior to the hearing.  He has not filed either document.

7. In the matters that he put to me this morning, I discerned that the applicant was, somewhat indirectly but nevertheless in a way that I was able to perceive, promoting an application for an adjournment of this hearing, upon the basis that he wanted to put further documents before the Court.  However he was unable to indicate to me what the benefit of the adjournment would be and that principally is because he was unable to explain why it was that he has not been able to put whatever documents he seeks to rely upon in this application before the Court in the eight months he has had since the application was filed.

8. It was not at all apparent to me, from what the applicant said in support of the application for the adjournment, that a further adjournment of the matter would see those documents produced.  He was referring to the unavailability of family members in India to provide him with the documents.

9. It was not suggested in what way, if the matter were adjourned, that problem – the unavailability of family members to assist him in providing the documents – would be addressed during any subsequent adjournment.

10. I was not satisfied that an adjournment would put the applicant in any better position to argue his case.  Accordingly, I refused the application for the adjournment.

11. The applicants are citizens of India.  He is a follower of the Sikh religion.  He served with the Indian army until 2006 and his service with the Indian army took him to Jammu and to Kashmir and he said that following his discharge from the army he continued to assist persons in that area who were associated with the JKLF and in general were persons who were supportive or promoting the independence of Kashmir and his application for a protection visa was grounded upon what he said was the awareness  by the army now that he had had this association with that group and with those persons in Jammu and Kashmir.

12. He said that were he to be returned to India, he would be persecuted and the persecution, he said, would relate to a Convention reason, namely his association with this political group and, of course, it is upon the basis of his alleged fears of persecution for a Convention reason that his family say that they are entitled to protection visas.

13. The applicant gave evidence before the Tribunal, as did his wife.  The Tribunal rejected the applicant’s claim for a protection visa on credibility grounds.

14. As the Tribunal indicates at [66] of its Reasons, it accepted that he had been a member of the Indian army, that he had retired in 2006.  It accepted that he had been stationed in Jammu Kashmir as part of his military service but then had this to say in the last sentence of [66]:

    Beyond this issue, however, the Tribunal does not believe any of the claims made by the applicant or that he genuinely holds fear of any harm should he return to India.

15. That is quite comprehensive rejection of almost the entirety of the applicant’s claims on the topic of whether he had a genuine fear of persecution for a Convention reason.

16. The specific aspects of his account of his experiences and his account of the reasons for his fear of persecution are set forth in some detail by the Tribunal and I do not propose to summarise them in these reasons.  Rather I will focus upon the reasons as they relate to the grounds of review promoted by the applicant.

17. The first ground of review relates to [67] of the Reasons where the Tribunal found that it did not accept that the applicant has suffered harm in the past or will suffer harm in the future because of his actual and imputed political beliefs as a supporter of JKLF.

18. The applicant says, in ground 1, that he did not face any harm in the past and therefore, if I understand the ground correctly, he is suggesting that misunderstanding of his case coloured the Tribunal’s dealing with the issue of whether he would suffer harm in the future.

19. But the finding by the Tribunal at [67], in my view, is unexceptional.  In fact it is part of the task of the Tribunal in assessing whether a fear of persecution is genuine to evaluate the applicant’s past experiences as part of the process of evaluating whether he is at risk of persecution for a Convention reason in the future.

20. I am unable to discern in the way that the Tribunal carried out that evaluation of the applicant’s past experiences, any error of any kind, let alone a jurisdictional error and ground 1 is not made out.

21. The second ground relates to the finding of the Tribunal at [69] of the Reasons and in that paragraph the Tribunal made a finding that the applicant’s profile as a long-serving retired Sikh soldier was inconsistent with someone who would support the Muslin basked JKLF seeking independence in Kashmir.

22. The finding that the JKLF was Muslin based arose from the Tribunal’s consideration of the country information and that finding is, itself, not the subject of any criticism by the applicant; neither could it be in the light of that country information.

23. But what is complained of is that for the Tribunal to make the finding of the inconsistency of a retired Indian solider of the Sikh faith supporting a Muslim separatist group in Kashmir was not open to it and, in fact, the applicant suggests in ground 2 that such a finding of inconsistency is itself consistent only with the applicant having brought prejudgment or bias to of what personal view to bear in respect of the evaluation of that issue.

24. I am unable to identify any jurisdictional error associated with the Tribunal’s evaluation of this issue.  The Tribunal’s finding was referenced to the country information.  There is no quibble with the Tribunal’s reliance on the country information in respect of the finding that, as I say, the separatists were predominantly Muslim and neither is there any quibble with the finding that the killings carried out by the JKLF over the last 20 years were directed at minorities such as persons of the Sikh faith and retired soldiers.

25. The finding by the Tribunal of the inconsistency between the applicant’s profile and the support of a Muslim separatist organisation with that history is, again, in my view, unexceptional and is a finding that was open to the tribunal and open on the country information.  In other words it was, in my view, manifestly a view that it was entitled to come to on that information and it is not one that was necessarily and only explicable in terms of a bias or predisposition or an idiosyncratic view on the part of the Tribunal as to these matters.

26. As the Minister’s representatives point out in their summary of argument, it will be a rare case where the court will find that a Tribunal has exhibited bias and therefore not accorded the applicant procedural fairness simply by drawing inferences from the Reasons itself.

27. That is certainly not the case here and apart from that inference it was said I should draw from what was said to be the inconsistency of the finding, there was no other evidence before me indicative of prejudgment or bias, whether actual bias or apparent bias.

28. Such a ground could really only have been promoted if I were to be taken to the transcript of the tribunal’s hearing.  The applicant was given an opportunity by Registrar Christie in March to file a transcript of the proceedings and elected not to do so.

29. So in the absence of transcript and looking only at the terms of the Tribunal’s findings, which is what I am invited to do, I am unable to identify any error which would indicate a want of or excess of jurisdiction by the Tribunal and that ground is not made out.

30. Ground 3 is another quibble with a factual finding of the Tribunal.  This time the finding is found at [73] and it appears to be a finding that relates to the evidence given by the applicant in an interview which is set out at [38] of the Tribunal’s Reasons and it arose from questioning in relation to how it was that the applicant, as a soldier in the Indian army, came to adopt or support the views of the JKLF and the applicant, when asked about that, made reference to his having witnessed an Indian soldier on the border of, I assume India and Pakistan, obtaining weapons and shooting a militant and obtaining praise for that action.

31. The Tribunal asked the applicant why it would be that the solider would be obtaining weapons from across the border when he would be issued with, that is the solider would be issued with, his own weapons and the applicant answered that the weapons were not for the soldier but that he, the solider, was acting on instructions from those in authority.

32. The Tribunal notes in relation to that, at [73], that this, what was, on the applicant’s case, a seminal incident in terms of his beginning to support the JKLF.  It says:

    The Tribunal notes that despite the claimed significance of the event, the applicant was unable to provide answers to important questions such as why would the Pakistani army sell weapons to an Indian solider or why would an Indian army soldier need to secure weapons in a fight against terrorists in the volatile Jammu Kashmir region.

33. And the applicant’s claim in ground 3 is that rather than his being unable to provide an answer to those questions, he had indicated that the Indian army killed innocent civilians and put Pakistani arms with dead bodies to prove that the person was terrorist.

34. That is not at all what the applicant said to the Tribunal.  In other words, that answer is an answer the applicant gives in his application to this Court, and in particular in his articulation of ground 3 but it is not an answer or the detail of that answer is not one that was provided by the applicant to the Tribunal.

35. And, again, if he says that he did say that and it is not recorded by the Tribunal in its Reasons that could only have been a matter that he would have been able to promote if he had taken up the opportunity to obtain a transcript.  So in my view no issue arises here of the Tribunal not addressing itself to the case that the applicant did in fact provide.

36. It does appear, however, that the Tribunal has not expressed itself necessarily clearly in relation to the topic in this sense, that rather than the applicant not having provided an answer at all or rather than the applicant being unable to provide an answer to the questions, some form of answer appears to have been given as recorded in paragraph 38.  In the last sentence of [38] the Tribunal says:

    The applicant said that the weapons were not for the soldier.  That he was acting on instructions from those in authority.

37. Now, that is not the answer the applicant says in ground 3 that he gave but it is an answer.  In that sense, the Tribunal’s summary of the matter at [73] is less than fully accurate.  It appears to be a case of the applicant having given an answer but an inadequate one.  To that limited extent, the Tribunal appears, in its Reasons, to have not articulated accurately the applicant’s response.

38. I hesitate to call the mistake by the Tribunal a mistake of fact.  It is a mistake in respect of a characterisation of the applicant’s answer.  In other words it is a suggestion there was no answer when it was clearly regarded by the Tribunal as an inadequate answer.

39. There will be circumstances where a Tribunal, misapprehending an inadequate answer for no answer, will have committed an error going to jurisdiction.  I can conceive the possibility of that in different circumstances but I am unable to see that it arises here.

40. Even if the matter could be characterised as a mistake, in fact if we went further and called it an erroneous factual finding, there is ample High Court authority to indicate that that can still be an error within jurisdiction and I am satisfied that what I have described as the error in the articulation as to the applicant’s response on this topic, is such an error within jurisdiction and it is not an error that is in any way demonstrative of a want of or excess of jurisdiction.  Ground 3 is not made out.

41. Ground 4 relates to the finding in [76] of the Tribunal’s Reasons as to an opportunity not taken at an earlier time, for the applicant to promote his application for a protection visa in a safe third country and it relates to the applicant having had the opportunity to travel to the United States.  He has a valid visa for travel to the United States and had an earlier opportunity to promote his applicant for a protection visa there if he had undertaken such travel.

42. His explanation for not having done that, because it was put to him by the Tribunal during the course of the hearing, was that the reason he did not was because his daughter did not have a visa to travel to the United States.

43. Clearly, in [76], the Tribunal has understood the answer he was giving to the Tribunal’s concern in that regard but the Tribunal goes on to note that it was not convinced by the answer.  The Tribunal says, in the last sentence of [76]:

    The Tribunal would have expected that the applicant to travel to the USA –

    so there is a grammatical error there –

    and apply for a protection visa if his life was in imminent danger rather than face the uncertainty and time waiting for the grant of a tourist visa to Australia.

44. Another Tribunal may have taken a different view of that particular topic.  Another Tribunal might not have found that to be a matter that could be relied upon in coming to the conclusion that it did that the applicant did not fear persecution for a Convention reason within India.

45. It may not have been a view to which I would have come had I been sitting as the Tribunal member but that is not the function of the proceedings before me.  It is not appropriate for me to review the factual findings of the tribunal and to be invited or to undertake myself the task of ascertaining whether I would have come to the same view.

46. I certainly have to be satisfied that, first of all, that the matter was raised with the applicant and that he was given an opportunity to comment on it and manifestly that was the case and I also have to be satisfied that the applicant’s answer was in fact addressed and again that is clear from [76].

47. The Tribunal has explained why it was not persuaded by the applicant’s answer and I am unable to identify any error going to jurisdiction in the tribunal coming to that view.

48. None of the grounds of alleged jurisdictional error have been made out and in those circumstances the application will be dismissed. 

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

Associate: 

Date:  8 October 2013