AZADM v Minister for Immigration and Anor
[2013] FCCA 1668
•16 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZADM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1668 |
| Catchwords: MIGRATION – Application for protection visa – RRT affirms decision of delegate not to grant the visa – whether RRT decision vitiated by jurisdictional error. |
| Legislation: Migration Act 1958 |
| Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 MZYAA v The Minister for Immigration and Citizenship (2009) FCA 1303 |
| Applicant: | AZADM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | ADG 80 of 2013 |
| Judgment of: | Judge Lindsay |
| Hearing date: | 16 September 2013 |
| Date of Last Submission: | 16 September 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 16 September 2013 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the First and Second Respondents: | Ms Johnson |
| Solicitors for the First and Second Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the first respondent be amended to Minister for Immigration, Multicultural Affairs and Citizenship.
The Application filed on 5 April 2013 do stand dismissed.
The applicant pay the Minister’s costs of and incidental to these proceedings fixed in the sum of FIVE THOUSAND FOUR HUNDRED DOLLARS ($5400.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 80 of 2013
| AZADM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to section 476 of the Migration Act1958 (“the Act”) for orders by way of review in relation to a decision of the Refugee Review Tribunal, dated 5 March 2013. The decision of the Tribunal was to affirm the decision of the delegate of the Minister that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention or Protocol, or, put another way, that he was not someone who was entitled to a protection visa under the Act.
This Court has the same jurisdiction as the High Court of Australia in relation to reviews of this kind but the review only lies to this Court in respect of a migration decision. That expression “migration decision” is the subject of some close attention in the Act and effectively means for the purposes relating to this application, a privative clause decision or a purportive privative clause decision, and I am satisfied that the decision of the Tribunal is such a decision.
But the review will only lie if the decision of the Tribunal can be shown to have been vitiated by jurisdictional error. Jurisdictional error is a concept explained in a number of High Court decisions, perhaps most usefully in Craig v the State of South Australia [1995] HCA 58, but the subject of specific High Court attention in respect of these kinds of applications under the Act by the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. So review will only lie in relation to the decision of this Tribunal if I am satisfied that the decision was made in excess of or for want of jurisdiction or, as a subset of those matters, if the decision was one in which the applicant was not afforded procedural fairness.
The applicant is a citizen of India of the Sikh faith, who arrived in Australia on 31 August 2008 with his wife and it was his wife who was the recipient of a student visa in Australia. He divorced from his wife in December of 2011. He lodged his application for a protection visa in August of 2012 and the basis of his claim to be entitled to a protection visa was his fear of persecution for a Convention reason from persons he described as radical Hindus, Sikhs and the government, who were threatening to kill him in India because he had become a follower of a spiritual organisation known as Dera Sacha Suada, which I will refer to hereafter in these reasons as DSS.
He had returned to India from Australia in 2011. He travelled back and forth to India from Australia in 2011. He said that during that visit, local Sikhs had threatened to kill him if he continued to be a member of DSS. And supplementary to his claim was a claim that the Indian authorities were unable or unwilling to provide adequate protection to him. His claim for a protection visa was rejected by the delegate of the Minister, as I have noted, and it lead to the application before the Tribunal.
He was invited to give evidence before the Tribunal and accepted that invitation. At the hearing before the Registrar in April of this year both parties were given an opportunity to provide any relevant transcript of the hearing before the Tribunal upon which they proposed to rely. The applicant has not taken that opportunity. The Minister has but only in respect of a specific part of the transcript which, in fact, relates to an issue that is not agitated in any of the Grounds of Review.
The applicant’s claim was rejected by the Tribunal for credibility reasons.
The issues relating to credibility were, firstly, his ignorance of an aspect of the behaviour or the conduct of the leader of the DSS, which the Tribunal chose to cross-question him about during the course of the hearing and I will come back to that in a moment. Secondly, the account the applicant gave as to how he became a member of the group was a matter that also clearly concerned the Tribunal. His having become involved in the group as a consequence of being told about it by friends in India but him not knowing or having contact with anyone in Australia associated with the group was another problem, and, again, I will return to that.
The inconsistency of his account in his application for a protection visa with the evidence given before the Tribunal in respect of the reasons as to why his wife had left him and, in particular, the absence of any reference in his oral evidence, when given an opportunity to explain why that had happened, to her concern or her reaction to him having become a member of DSS, was another matter that troubled the Tribunal. Then there was the failure of the applicant to mention his fears of persecution in a previous request for ministerial intervention; and perhaps most tellingly of all, though I have got to be careful I am not bringing my own judgment to bear on the relative importance of these various credibility concerns –there was a serious concern on the part of the Tribunal as to his delay in lodging a protection visa, that is, his not having lodged it until nine months after his return from India and after the experiences he said he underwent there at the hands of Sikh militants in November 2011.
The Tribunal’s finding in respect of credibility was quite frankly expressed at [104] of the reasons as a finding that he had concocted his claims at the eleventh hour solely for the purposes of gaining a visa to remain in Australia. The Tribunal’s decision has lead to this Application for Review in this Court and the applicant has, for the reasons he gave me a short time ago, not taken the opportunity to file any outline of submission in respect of his explication of his grounds.
There are three grounds. Ground four, really, just brings the first three grounds together and says that they constitute jurisdictional error. The first of the three grounds relates to the finding of the Tribunal to be found at [94] and [95] of the reasons for decision as to his lack of knowledge of anyone in Australia being involved in the DSS and having no contact with persons in that organisation. – that, coupled with the brief nature of his association with the group itself. At [95], the Tribunal notes that his only claimed involvement with it was that he visited the group’s centre when he returned to India in 2011.
And it is in that context that the failure of the applicant to become involved in any other members of the group within in Australia that that observation or that finding is made by the Tribunal. The way in which the ground is set out contains further information in support of the applicant’s application; he makes the observation that there is a website for DSS and that he can access that and that the guru of that organisation can be listened to from overseas; although, having made that observation, the applicant then goes on to acknowledge when he says that “I just answered what I was being answered” – and I think that should be “asked” – “by the Tribunal member”.
That is really an acknowledgment of the fact that that is not an assertion that was made during the course of his evidence or in support of his application at any stage. The way in which the ground itself is expressed, I think, indicates that this is really a challenge to the factual finding of the Tribunal, the fact that it chose to form the view it did in relation to the significance of his very limited contact with the organisation, both physically and temporally. And the factual basis for those findings are really not controversial.
It is not the function of this Court upon an application for review to ask itself whether it agrees with the reliance by the Tribunal upon uncontroverted factual material. That is the function of the Tribunal. This hearing is not a merits review. I am unable to identify in the way that the Tribunal dealt with this particular issue anything indicative of error, let alone jurisdictional error, and I am not satisfied that ground 1 has been made out.
The second ground relates to the cross-questioning of the applicant by the Tribunal in relation to certain activities of the leader. That is set out at [57] – [62]. As [57] records, the Tribunal asked him what it was that the head of the DSS had done that was unusual for the past four years, and that it was not related to his position as head of a charity but was significant. The answer the applicant gave was that the head guru had dressed in a way that was similar to a way a Sikh guru had dressed, and that this had offended certain parts of the Sikh population in India, and as the Tribunal points out at [59], by reference to some country information, that assertion by the applicant was quite correct.
That is, he was referring broadly to an incident in 2007 when the head of the DSS had imitated certain Sikh religious ceremonies performed by one guru, Gobind Singh, who was a well-respected Sikh guru, and that this was considered an insult to the Sikh community. It was not what the Tribunal had in mind, it turns out as we read the Tribunal’s reasons, when it asked the question. What it had in mind was rather the activities of the leader of the DSS in the past four years related to his having become a pop star and producing pop songs, and the applicant agreed that he was aware that the leader of the organisation liked singing.
The answer the applicant gave to the Tribunal’s cross-questioning in this regard was about something outside of the time-frame of the question. In other words, information was provided that was outside of the timeframe that the Tribunal had itself imposed, but not far outside of that timeframe, and against the background of the other credibility concerns that the Tribunal had, this failure to mention when given the opportunity the particular activities – albeit unusual activities – of a guru that the Tribunal had in mind is perhaps not the most significant of the credibility concerns that emerged during the conduct of the hearing before the Tribunal. It may be that a differently constituted Tribunal or a member of this Court, if it had been a function of this Court to conduct such hearings, would have taken a different view of the significance or relevance of the question and the answer.
But once again, I think even just the positing of the ground in these terms – and I have explicated the ground obviously in more detail than the applicant himself has provided, because he has not given a written submission – but just explicating it in those terms I think indicates that we are once again embarking upon matters relating to merit review. Goldberg J of the Federal Court, sitting as a Court of Appeal from a decision of a Federal Magistrate, in relation to a review of this kind in MZYAA v The Minister for Immigration and Citizenship (2009) FCA 1303 was dealing with a review from a decision of the Tribunal rejecting a Nigerian applicant’s claim as to conversion to Christianity and certain fears of persecution arising from his return to Nigeria that were a consequence of that conversion.
At [26] of the Reasons, His Honour has this to say in dealing with one of the grounds of review:
Counsel for the appellant accepted that the Tribunal had to be satisfied that the appellant was a genuine convert, and criticised the Tribunal for not asking one question during the hearing about the appellant’s knowledge of Christianity. It was submitted that the Tribunal misdirected itself by focusing on how the appellant came to Australia and the circumstances surrounding his occupational training visa.
It followed, said counsel for the appellant, that the Tribunal could not have been in a position to be satisfied that the appellant was not a genuine convert without having examined that fundamental issue. This submission, even if it be correct, as a matter of factual analysis of what the Tribunal did, does not give rise to a jurisdictional error on the part of the Tribunal. The fact-finding and assessment of credibility is quintessentially the task for the Tribunal. It is not for the court on review to dictate to the Tribunal the method by which it is to undertake its factual analysis and assessment of the credibility of an applicant.
And his Honour goes on at [27]:
The Tribunal may not have asked a specific question about a specific aspect of the appellant’s knowledge of Christianity, but what is clear from a reading of the transcript of the hearing and listening to the audio recording of the hearing is that the Tribunal asked the appellant questions relating to his activities and actions as a Christian. The Tribunal asked the appellant whether and when he was baptised as a Christian, when he converted to Christianity, and what was involved in the classes to which he went for preparation to be baptised. In short, this submission of the appellant is no more than a claim to obtain merits review.
The situation is no different here, though the complaint, as I understand it, is not about the failure to ask a question at all so much as the asking of a particular question. The question that was asked was in the context of a testing of the knowledge of the applicant in relation to the activities of the particular guru, and it is perhaps unsurprising that the Tribunal would reach first for what was, on the material available to the Tribunal, an interesting or noteworthy or newsworthy aspect of the conduct of the head of the DSS in the preceding four years.
It was, as His Honour pointed out in the passage, for the Tribunal to make its question choice, and provided the question choice can be seen to be relevant and it is a question that can rationally relate to an assessment of the credibility or coherence of the account of the applicant’s membership of an organisation, for me to be invited in that context to assess the weight to be given to the applicant’s answers is to be invited to engage in a merits review, and as I have indicated previously in these reasons, that is not the function of this Court. There is no merit in ground 2, and it must fail.
The third ground I think can be dealt with more briefly. It again is a matter that goes to the merits of the Tribunal’s decision, but on this occasion in a way that does not appear to me to have any apparent merit even as a complaint in relation to a factual matter. It relates to the Tribunal’s reference to the different accounts given by the applicant as to why it was that he separated from his wife. At [96], the applicant is noted as having had in his written claim stated that his wife left him because of his association with the DSS, but at the hearing before the Tribunal he gave an account where, when asked to explain his separation from his wife, or the demise of the marriage, he said that they parted because of a disagreement over a bank account and that she was involved in a relationship with another man.
The ground as it is articulated relating to this topic uses the following expression. The applicant says:
The member in his decision moulded my words in a different way, and stated that my wife left me because she was with someone else in his decision, while as she found someone else after we got separated.
So there appears to be a contention that the member has misunderstood or given a distorted interpretation to the evidence that the applicant gave. However, these sorts of contentions in the context of hearings of this nature can only be properly promoted if the transcript is made available, short, of course, of getting a concession from the Minister that the distortion is there. No part of the transcript relating to this topic is before me, and even if it were the case – which I am not in a position to make any kind of finding about – that there had been a misrepresentation of the evidence in relation to when it was that the wife had entered into a relationship with another man, I am not sure that it would have had any bearing on the finding.
The importance of the finding is the absence of the reference to the membership of the DSS as being a reason for separation. That is the most significant aspect. That is inherently the relevant aspect of the matter as it goes to the credibility of the applicant’s account, and that would remain. The applicant acknowledges in his articulation of this ground that he did state that he and his wife had had an argument about a bank account, but he says that the reason for the separation was she did not want him to follow the DSS. That is not the Tribunal’s finding. Nothing has been put to me to indicate that the Tribunal’s finding was other than based upon evidence the applicant actually gave. There is no merit in that ground, and it is not made out.
As I have already indicated, ground 4 is just a reference to the aggregate effect of the three grounds already mentioned, the aggregate effect being one of jurisdictional error. Having not identified any jurisdictional error in any of the grounds, the aggregate effect of the grounds itself is not indicative of jurisdictional error either. There being no merit in any of the grounds, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Lindsay
Associate:
Date: 21 October 2013