HZAAA v Minister for Immigration
[2011] FMCA 567
•25 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HZAAA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 567 |
| MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error. |
| Migration Act 1958 (Cth), s.65 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v WuShan Liang (1996) 185 CLR 259 |
| Applicant: | HZAAA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | LNG 10 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 18 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2011 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr Wilson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application for judicial review filed 29 March 2011 is dismissed.
The applicant pay the costs of the first respondent which are fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
LNG 10 of 2011
| HZAAA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 29 March 2011, the applicant made an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 March 2011. By that decision, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (“the Minister”) made on 29 October 2010. The delegate had refused to grant the applicant a protection (Class XA) visa under s.65 of the Migration Act 1958 (“the Act”).
The applicant is a citizen of India who arrived in Australia on
31 January 2010 on an Indian passport and as the holder of a 572 student visa. On 3 March 2010, the applicant lodged an application for a protection (Class XA) visa. The delegate refused to grant the visa on
29 October 2010 on the basis that the applicant is not a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (together, the “Refugees Convention”). The applicant applied to the Tribunal on 29 November 2010 for review of the delegate’s decision. By a letter dated 17 January 2011, sent by registered post to the applicant’s address for correspondence as disclosed in his application to the Tribunal, the applicant was invited to appear before the Tribunal for a hearing on 28 February 2011 and to give oral evidence. In that correspondence, the Tribunal advised the applicant that it had considered all the material before it relating to his application, but that it was unable to make a favourable decision on that information alone.The applicant claimed, initially, to have not received that invitation, but on the hearing of this matter indicated, when put to him that he had completed a response to the hearing invitation dated 23 February 2011, that he had received such correspondence. The applicant advised that he would not take part in the Tribunal hearing and subsequently did not attend the hearing on 28 February 2011. He had not attended a departmental interview to discuss his protection visa application at an earlier stage. By a decision dated 28 February 2011, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa and thereafter the applicant applied to this Court for judicial review.
The applicant fears persecution in India on the basis of the Refugees Convention ground, political opinion. He fears harm from the Khalistan Movement People due to his association with the Hindu Sheve Sana Party. The applicant claims that he is on a “hit list” and he will be killed if he returns to India. He also claimed in his statement of claim enclosed with his protection visa application that his family was very religious and some members were extremist Hindus. His additional claims more specifically were; (a) he was an active member of the student wing of the Hindu Sheve Sana Party, which had clashed with the Khalistan Student Federation; (b) he was known to the Khalistan Student Federation, had been warned that his name was on a Khalistan Student Federation hit list and attempts had been made to raid his home in order to get him; (c) he had moved from place to place to avoid the Khalistan Student Federation (although he had completed his HSC and a university degree then taught in schools for several years); (d) he had obtained a student visa so as to leave India to escape from the Khalistan Student Federation; and (e) he feared he would be killed if he returned to India.
Section 65 of the Act provides that where the Minister is satisfied that the relevant criteria for a particular class of visa are satisfied, the Minister is to grant the visa and if not so satisfied is to refuse to grant the visa.
Tribunal’s Decision
The Tribunal accepted that the applicant was a 28-year old single male, who was born in India on 13 February 1983. The Tribunal accepted that he both spoke, read and wrote English, Punjabi and Hindi.
The Tribunal accepted that the applicant was issued with a passport on 23 September 2004 at the passport office in Chandirgah. The Tribunal accepted the applicant’s statement that “from birth till coming to Australia he had lived at Jaspal Colony, Bhawanigarh Road, Nabha, in the Punjab.” The Tribunal accepted the applicant’s information that he had undertaken education in India for 16 years from 1995 to 2004 and that he had been an English teacher in different schools from 2004 to 2009, earning 7500 Indian rupees a month.
The Tribunal noted that the basis for the applicant’s protection visa application was information provided by him. The Tribunal found that information “scant and vague” and noted that without the opportunity to explore his claims of persecution at a hearing, the Tribunal was:
“… unable to be satisfied on the evidence before it that the applicant has a well-founded fear of being persecuted for reason of his political opinion.”
Having regard to all the evidence before it, the Tribunal was not satisfied that the applicant faced a real chance of serious harm for reasons of political opinion or any other Refugees Convention-related reason should he return to India now or in the reasonably foreseeable future. The Tribunal was not satisfied the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention definition and thus was not a person to whom Australia had protection obligations under the Refugees Convention. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
Consideration
The applicant’s application identified three grounds for relief, they are correctly summarised in the submissions of the first respondent, being:
Ground 1:
“The applicant has completed all the criteria’s to be a refugee.”
Ground 2:
“The applicants matter was not dealt with in accordance with the natural justice, as such there is an [sic] legal error in deciding the applicants case.”
Ground 3:
“The case of the applicant is a case which has lots of evidence, and the same was not dealt with in accordance with the law.”
As to the first ground, no jurisdictional error is alleged, but rather dissatisfaction with the decision reached by the Tribunal as to the merits of the claim. As to the second ground, there are no particulars of the alleged denial of natural justice constituting a legal error, and nor is there any basis for such an allegation. The applicant did not take the opportunity to attend the interview with the delegate, nor to attend the Tribunal hearing, despite being invited to do so, and being warned by the Tribunal that the material before it was insufficient for a favourable decision.
The applicant chose to provide no additional material to support his claim, and the processes of and proceeding before the Tribunal involved no denial of natural justice to the applicant. As to Ground 3, there are again no particulars as to how the Tribunal allegedly failed to deal with the evidence in accordance with the law. The Tribunal considered the evidence that was placed before it, and the weight given to such evidence was a matter for the Tribunal. The Tribunal considered the law, and in particular as set out in paragraphs 36, 37 and 38 of the reasons.
Those paragraphs are as follows:36:
“In Chan v MIEA (1989) 169 CLR 379 the High Court of Australia established in Australian law that a fear of persecution will be well-founded if there is a “real chance” that it will occur. This is the objective component of the requirement that an applicant must have a ‘well-founded fear’. A person holds a ‘well-founded fear’ of persecution under the Refugee Convention if they have a genuine fear that is based on a “real chance” of persecution on a Convention ground. A “real chance” excludes a remote or insubstantial or far-fetched possibility. It also means that a person may have a ‘well-founded fear’ of persecution even where the possibility of persecution is below 50 per cent.”
37:
“A fear of persecution however is not ‘well founded’ if it is merely assumed or if it is mere speculation. In MIEA v Guo (1997) 191 CLR 559 at 572 and also in MIEA v Wu (1996) 185 CLR 259 at 293, the court found that conjecture or surmise had no part to play in determining whether a fear was ‘well-founded’. The court determined that a fear would only be ‘well-founded’ when there was a factual basis to it, and that no fear could be ‘well-founded’ for the purpose of the Refugees Convention, unless there was evidence to substantiate that the applicant was at risk of persecution. Where there was no evidence to suggest the person was at risk, the converse must be assumed to exist.”
38:
“The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’, or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it merely assumed or if it is a mere speculation. A decision maker is not required to make the applicant’s case for him or her. Nor is the decision maker required to accept uncritically any or all the allegations made by an applicant. In MIEA v Guo (1997) 191 CLR 559 at 572 and also in MIEA v Wu (1996) 185 CLR 259 at 293, the court found that conjecture or surmise had no part to play in determining whether a fear was ‘well-founded’.”
It was for the Tribunal to be satisfied or not as to the merits of the claim, and the applicant failed to satisfy the Tribunal of his claim.
It was open to the Tribunal to reach the conclusion that it did and no jurisdictional error accompanies the decision.
The application filed 29 March 2011 is dismissed and costs should follow the dismissal of the application.
I certify that the preceding (13) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date: 25 July 2011
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