DZADX v Minister for Immigration
[2014] FCCA 2650
•17 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZADX v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2650 |
| Catchwords: MIGRATION – Judicial review – application for protection visa – applicant alleges Tribunal applied wrong test – no reviewable error found – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| SZLPI v Minister for Immigration & Citizenship [2008] FCA 1841 Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 |
| Applicant: | DZADX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 16 of 2014 |
| Judgment of: | Judge Harland |
| Hearing date: | 17 October 2014 |
| Date of Last Submission: | 17 October 2014 |
| Delivered at: | Darwin |
| Delivered on: | 17 November 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Nanson of Australian Government Solicitor |
ORDERS
That the application is dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001 (Cth).
That the applicant shall pay the costs of the respondents fixed at $6,646.00 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 16 of 2014
| DZADX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant filed an application for a protection visa on 7 January 2013. He was invited to attend an interview with the Delegate. The applicant says he could not afford to travel from Alice Springs to Darwin before the interview. Before the interview was scheduled to take place, the applicant was informed by telephone that he could supply further documents and information prior to the interview date and that material would be considered along with the additional material. The applicant sent an untranslated news article from the Indian paper.[1] The Delegate issued a decision on 27 August 2013 refusing the applicant’s application.
[1] Court Book p100 [5]
The applicant applied for a review of the Delegate’s decision and the Tribunal’s decision affirming the decision not to grant the applicant a visa was made on 16 April 2014.
The applicant arrived in Australia on a tourist visa on 17 February 2012. He was granted a further tourist visa which expired on 17 August 2012. The applicant overstayed his visa and did not apply for a protection visa until 7 January 2013.
In the week leading up to the final hearing the applicant applied to appear at the hearing by telephone. His application was refused because the Court was concerned that he would not be able to participate in the hearing in a meaningful way particularly as he required a Punjabi interpreter to assist him. There are no Punjabi interpreters in the Northern Territory. Therefore the interpreter had to appear by telephone. The applicant did attend the final hearing in person and the hearing proceeded.
The applicant did not file any written submissions. The applicant claimed that he had a well-founded fear of serious harm or persecution by reason of his involvement with Dera Sacha Sauda (DSS) and because he was a member of the Dalit community. The applicant claims that he was involved in two incidents which occurred on 8 July 2009 and 26 November 2011 involving conflicts between the DSS and Sikhs.
At the hearing before the Court the applicant complained that he was not asked to provide documents. This is plainly incorrect as not only was there an offer to provide documents but he did so in the form of an untranslated news article. This is referred to both in the Delegate’s decision and the Tribunal’s decision.[2]
[2] Court Book pp71 and 100 [5]
The applicant filed an amended application on 18 July 2014 and set out one ground. He claimed that the Tribunal made an error and failed to apply the correct test. He said the Tribunal was satisfied that the applicant was at a real risk of significant harm and because of this the Tribunal was required to consider whether or not it was reasonable for him to relocate to another part of the country. He said the Tribunal failed to consider whether or not a DSS member in India was at risk of harm and unable to access effective protection.
The difficulty with the applicant’s complaint was that the Tribunal did not make a finding that the applicant was at a real risk of significant harm. To the contrary the tribunal rejected the applicant’s claim and found that they were not credible.
At the hearing before the Tribunal the applicant confirmed that his fear of harm was based on his involvement with the DSS and not for any other reason. The Tribunal accepted that there is some conflict between the DSS and the orthodox Sikh community. The issue the Tribunal then had to consider was the applicant’s involvement with the DSS.[3]
[3] Court Book p100
The Tribunal did not accept the applicant’s evidence about his involvement with DSS. The Tribunal found that the applicant was not a credible witness. The Tribunal put the inconsistencies in his evidence to the applicant.[4] The Tribunal also raised with the applicant his delay in applying for a protection visa.
[4] These concerns are detailed at Court Book pp100 and 101
The Tribunal found that the applicant did not have any involvement with DSS in India or Australia and did not accept that he participated in or was harmed as a result of any meetings or protests.[5] The Tribunal found that the applicant did not have a well-founded fear of serious harm or persecution because of his and/or his family’s involvement with DSS.
[5] Court Book p104
Having rejected the applicant’s claim and finding that he did not meet the refugee criterion set out in s.36(2)(a) of the Migration Act 1958 the Tribunal then considered the complementary protection criterion. The Tribunal was not satisfied that the applicant was at real risk of significant harm if he returned to India. It found that the applicant did not meet this criteria either as it was satisfied that he did not have a well-grounded fear of serious harm or persecution due to his or his family’s involvement in DSS. The Tribunal noted that the applicant did not raise any other basis for fear of harm or persecution upon being returned to India.
As a consequence of that finding it was not necessary for the Tribunal to consider whether or not it was reasonable for the applicant to relocate within India.[6]
[6] SZLPI v Minister for Immigration & Citizenship [2008] FCA 1841 at [25]
At the hearing the applicant was not able to expand on his complaints. Really the effect of what he was saying is that he thought the decision was wrong and wanted what he referred to as a proper decision to be made. Although he did not state this what he really wants is a merits review which is impermissible. The findings the Tribunal made about the applicant’s credibility is a matter for the Tribunal and not for judicial review.[7]
[7] Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
The Legislation
The Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows
The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.
It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).
The Act provides for classes of visas: s 31. Visas may be permanent or temporary: s 30. One class of visa is a protection visa: s 36(1). The criterion for a protection visa is provided for in s 36(2). It relevantly provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.
Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.
If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order. First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.
Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.
Conclusion
It is clear from the Tribunal’s reasons that it properly considered the applicant’s claim and applied the relevant legislation and statutory tests. The applicant did not satisfy the criterion in s.36(2). I find the Tribunal did not make any jurisdictional error.
I will dismiss the applicant’s application and order him to pay the Minister’s costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 17 November 2014
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