HZAAB and HZAAC v Minister for Immigration - [2011] FMCA 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HZAAB & HZAAC v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 666

MIGRATION – Application for review of a decision of the Refugee Review Tribunal – applicants had made claims for protection (Class XA) visas – no jurisdictional error by Tribunal – application dismissed.

Migration Act 1958 (Cth), s.36(2)(a)

W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679
NAHI v Minister for Immigration and Multicultural and IndigenousAffairs [2004] FCAFC 10

Applicants:

HZAAB & HZAAC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

LNG 13 of 2011

Judgment of:

Whelan FM

Hearing date:

11 August 2011

Date of Last Submission:

11 August 2011

Delivered at:

Melbourne via videolink to Launceston

Delivered on:

11 August 2011

REPRESENTATION

The Applicants

In person

Counsel for the Respondents:

Mr D. Wilson (solicitor)

Solicitors for the Respondents:

Australian Government Solicitor's Office

ORDERS

The application filed on 8 April 2011 be dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT LAUNCESTON

LNG 13 of 2011

HZAAB & HZAAC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

This is an application under the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 4 March 2011. The Applicants seek orders that the application for review be allowed, and the Tribunal be directed to reconsider the decision to uphold the decision of the delegate of the Minister. That decision was to refuse their applications for protection visas.

Background

The Applicants are Indian nationals who arrived in Australia on 8 July 2008 as holders of TU 573 student visas. The Second Applicant was the primary visa holder, and the First Applicant held a dependent visa. In accordance with the visa, the Second Applicant studied a Certificate III course between July 2008 and May 2009 and a Diploma course between May 2009 and April 2010. On 4 June 2010, the Applicants lodged an application for a protection (Class XA) visa. The First Applicant claims protection on the basis that in 1987 he and other members of his family were assaulted by members of the Khalistan Movement, and that “[u]p till (sic) now”[1] he was still receiving threats from them. The Second Applicant claims protection as a member of the First Applicant’s family.
[1] Applicants’ Submissions, page 2.
The First Applicant was invited to attend an interview on 24 November 2010 with the Department, but did not do so.

On 30 November 2010 a delegate of the Minister refused the applications. On 23 December 2010 the Applicants applied to the Refugee Review Tribunal for a review of the delegate’s decision. They were invited to attend a hearing, but declined to do so, and on 4 March 2011 the Tribunal affirmed the delegate’s decision.
On 8 April 2011 the Applicants applied to this court for a review of that decision. The grounds for the application are as follows.
(1)That the Applicants submitted evidence by way of the claim and the first information report which clearly indicates that the Applicant has fulfilled the requirements in section 36(2)(a) of the Act.
(2)That by not taking the evidence into account it can safely be said that the Respondent has committed a jurisdictional error which is also clear from the country information given in the decision of the Refugee Review Tribunal.
(3)That the Applicant falls into the category of being killed or has a real danger to his life by the Khalistan terrorist groups. It is clear from the country information that the Applicant has a real chance of being killed by the hands of terrorists, and the Applicant therefore fits into the definition of being a refugee.
The application for protection was supported by a statement by the First Applicant. The relevant parts of that statement can be summarised as follows. The First Applicant’s father has a grocery business, and after completing school, the First Applicant assisted in that business. The Khalistan Movement had a strong hold in the area, and the First Applicant, despite pressure to join the Khalistan Movement, did not do so. The leaders of the Khalistan Movement wanted his family to support them financially, but he, his father and his uncle refused to do so. On 27 June 1987, members of the Khalistan Movement attacked his family in their house demanding gold or cash and injured his father and uncle. A report was made to the police. The First Applicant continued to receive threats that they would take away his life. He was also attacked while on his way to his village, but fortunately there were other persons who came to his rescue. The First Applicant has received many death threat calls, but the police told him it was impossible to give him protection. The application was supported by a copy of a report made to the police at the time of the attack on the First Applicant’s father.
The delegate of the Minister considered that the Applicant’s claim was that he feared harm by the Khalistan terrorists in India. He dealt with the application on the basis that the claim was in relation to a fear of harm due to imputed political opinion and membership of a particular social group. He determined that the First Applicant did not meet the definition of membership of a particular social group, and had not suffered persecution on that basis.
The delegate considered the country information, and found that there were militant Khalistan groups proscribed as terrorist organisations. Any actions taken by these groups would be dealt with by laws of general application in the context of domestic criminal law.

The delegate was satisfied that there was no independent or credible evidence that the Indian Government had failed to provide or had denied the Applicant protection accorded to other nationals, and that the First Applicant could have sought police protection if he felt his life was in danger.
The delegate also made findings concerning the police report in 1987, the fact that the First Applicant’s family and his son continued to reside in India, and the delay in applying for a protection visa. The delegate also considered the capacity of the Applicants to relocate within India. The delegate was not satisfied that the First Applicant would face persecution for a Convention reason if he was to return to India or that he had a well-founded fear of harm should he return there.
The Applicants provided no additional material in their application to the Refugee Review Tribunal for a review of the delegate’s decision.
The Tribunal considered that the country information concerning the history of militant organisations in the Punjab and, in particular, the following:
This is the 14^th consecutive year the State has remained relatively free of major political violence after the widespread terrorist secessionist movement for Khalistan was comprehensively defeated in 1993.[2]
[2] Court Book at page 84, paragraph 35.
The Tribunal noted that the only evidence in support of the First Applicant’s claims was the police report in relation to an attack on the Applicant’s family home in 1987. That report describes the incident in considerable detail, but makes no reference to the assailants having any connection with the Khalistan Movement. The country information also indicates that Indian security forces successfully repressed the Khalistan Movement. The absence of any mention of the movement in the March 2010 United States Department Report on Human Rights Practices in India suggests it now has little influence.
The Tribunal also considered that the fact that the First Applicant continued to reside at the same address after 1987, prior to coming to Australia, cast doubt on his claim to have been the subject of ongoing death threats. The Tribunal was not satisfied that the robbery in 1987 had any political motive or that the Applicant was ever targeted or threatened by members of the Khalistan Movement. The Tribunal was not satisfied that the First Applicant faced a real chance of serious harm amounting to persecution for a Convention reason or for any reason should he return to India.

The Applicants’ submissions

The Applicants provided written submission to the Court in this case. The Applicants state that the matter submitted by the Applicants by way of statement was not considered as per the guidelines laid down by the UNHCR and was disposed of in an arbitrary manner. They further contend that no country information was taken into consideration, and that the guidelines laid down by the Refugee Handbook were not taken into consideration. The submission goes on to state that the letter from the Tribunal, which gave the Applicants an option to attend the hearing, was done in a confused manner. The submission then repeats the original submission made by the Applicants in support of their application for protection visas.

The First Respondent’s submissions

The First Respondent submits that none of the grounds raised by the Applicant raise an arguable case for relief or disclose any jurisdictional error by the Tribunal. The First Respondent has assumed that the Applicant’s ground 1 and 2 should be read together as an allegation that the Tribunal failed to consider the material in the First Applicant’s claim, and in the 1987 complaint to the police. The First Respondent reads this to be an allegation that the Tribunal failed to take relevant material into account. The First Respondent points out that it is not the role of the Court to evaluate the evidence before the Tribunal or to determine if it agrees with its findings. The weight given by the Tribunal to the evidence before it is a matter for the Tribunal.[3]
[3] W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679.
Ground 2 makes a reference to the use of country information. Both the choice and assessment of the weight to be given to country information is also a matter for the Tribunal.[4] The First Respondent submits that it is clear from the Tribunal’s reasons for decision that it took into account both the documents provided by the Applicant and the country information. It was for the Tribunal to be satisfied or not as to the merits of the claim, and the material before the Tribunal failed to satisfy it of the Applicant’s claim. The First Respondent submits that ground 3 does not allege any jurisdictional error, and appears to be a complaint about the decision reached by the Tribunal on the merits.
[4] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.

Conclusions

In order to meet the requirements for a protection visa to be granted, the Minister must be satisfied that the Applicant is a person for whom Australia has protection obligations under the Refugee Convention. Article 1A(2) of the Convention provides the definition of a refugee for the purposes of the Convention.
As the First Respondent has pointed out, it is not the role of the Court in judicial review proceedings to reconsider the material which was before the decision-maker and to come to its own view of the facts. It is not the role of this Court to determine whether or not the Applicants fulfil the requirements of section 36(2)(a) of the Act and meet the definition of being a refugee.
The Applicants submitted their claims as set out in the documents at pages 36 and 37 of the Court Book. They also provided a copy of the First Information Report in relation to the armed attack on the First Applicant’s family residence in 1987 when he was 13 years old.
On 3 November 2010, the First Applicant was sent a letter notifying him of interview arrangements. The letter also advised him that if he did not attend the interview his application may be assessed without any further delay based on the information already held.[5]
[5] Court Book at pages 54 and 55.
Following the lodgement of the applications to the Refugee Review Tribunal, the Applicant was sent correspondence on 2 February 2011. That letter said:
The Tribunal has considered the material before it, but is unable to make a favourable decision on this information alone. You are invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in your case. Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.[6]
[6] Court Book at page 74.
The Applicants were given the opportunity to present their case both to the delegate and to the Tribunal. They were content to rely on the written material provided to the delegate and contained in the Court book. Again, before this Court, they relied on the same material. It is clear from the statement of decision and reasons that the Tribunal gave consideration to that material and to relevant country information. The Tribunal found that the Applicants did not satisfy the criteria set out in s.36(2)(a) for a protection visa. It cannot be said that the Tribunal made that finding on the basis of no evidence or that the finding was manifestly unreasonable or illogical.
I am unable to discern any jurisdictional error in the approach taken by the Tribunal. The applications must therefore be dismissed. In the circumstances of the case, I am of the view that the application should be dismissed with costs. The Orders therefore of the Court are that the applications in this matter be dismissed and that the Applicants pay the costs of the First Respondent in the sum of $6,240.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date: 26 August 2011