HZAAB v Minister for Immigration and Citizenship

[2011] FCA 1460

FEDERAL COURT OF AUSTRALIA

HZAAB v Minister for Immigration and Citizenship [2011] FCA 1460

Citation:		HZAAB v Minister for Immigration and Citizenship [2011] FCA 1460
Appeal from:		HZAAB & HZAAC v Minister for Immigration & Anor [2011] FMCA 666
Parties:		HZAAB and HZAAC  v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		TAD 55 of 2011
Judge:		MARSHALL J
Date of judgment:		16 December 2011
Date of hearing:	24 November 2011
Place:	Hobart
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	11
Counsel for the Appellants:		The first appellant appeared for the appellants with the assistance of an interpreter
Counsel for the Respondents:	Mr D Wilson
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	TAD 55 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

HZAAB
First Appellant

HZAAC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	16 DECEMBER 2011
WHERE MADE:	HOBART

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants pay the first respondent’s costs of the appeal to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	TAD 55 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

HZAAB
First Appellant

HZAAC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	16 DECEMBER 2011
PLACE:	HOBART

REASONS FOR JUDGMENT

1. The appellants appeal from a judgment of Whelan FM in the Federal Magistrates Court. Her Honour dismissed their application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had rejected the appellants’ applications for protection visas when considering a merits review of a decision of a delegate of the respondent Minister. That decision was adverse to the appellants.

2. The appellants are citizens of India. They entered Australia as holders of student visas. The second appellant was the primary visa holder and the first appellant held a dependent visa. The second appellant engaged in study in Australia between July 2008 and April 2010. The appellants applied for protection visas on 4 June 2010.

3. The first appellant claimed to fear persecution if returned to India in the reasonably foreseeable future by reason of his political opinion. The second appellant’s claim is based on membership of the first appellant’s family. The appellants declined to attend an interview with the delegate. They declined the Tribunal’s invitation to attend at a hearing of their merits review.

4. The grounds of review before her Honour essentially alleged that the Tribunal failed to take into account country information relied on by the appellants which they described as “the first information report”. The first information report is a document provided by the appellants to the delegate. It is a complaint made to the police about a violent attack carried out at the first appellant’s home in India. It was made by the first appellant’s father. It says that the first appellant’s father was shot in the knee and suggests that the intruders were fought off. It does not identify the assailants as belonging to any particular political group, such as the Khalistan Movement, from which the first appellant claimed to fear persecution.

5. In its decision the Tribunal noted that the “first information report” was before it. It summarised its effect. The Tribunal relied on country information concerning political violence in India. It recognised the claim of the first appellant that he had been subjected to violence and threats of violence from a separatist Sikh organisation known as the Khalistan Movement. The first appellant claimed that he would be killed if returned to India because he refused to join the Khalistan Movement.

6. At [34] of its reasons for decision the Tribunal noted that the only evidence relied on in support of the claim for protection visa was the first information report. It said that the report’s failure to mention the Khalistan Movement caused it to doubt the first appellant’s claim as to the motivation for the attack. It then considered country information which referred to Indian security forces brutally and successfully repressing the Khalistan Movement.

7. The Tribunal doubted that the Khalistan Movement presented an ongoing threat to the first appellant given its comprehensive defeat.

8. The Tribunal accepted the accuracy of the first information report but said that, in the absence of further information, it was not satisfied that the robbery and violence were politically motivated. It did not accept that the first appellant was ever threatened by members of the Khalistan Movement or holds any subjective fear of persecution in India.

9. Given the Tribunal’s acceptance of the first information report it defies rational analysis to contend that that evidence was not taken into account. Her Honour correctly rejected that submission. She was also correct in rejecting the submission concerning the Tribunal’s reliance on the country information before it. It was open for the Tribunal to rely on that country information in coming to its decision.

10. The notice of appeal from her Honour’s judgment contains a discursive complaint about the merits of the Tribunal’s decision. It fails to identify any appealable error in the judgment of Whelan FM or any jurisdictional error in the decision of the Tribunal. It accuses the Tribunal of not providing country information to the appellants. It was up to the appellants to put whatever material they wished to before the Tribunal. They failed to attend the hearing before the Tribunal. The Tribunal had no opportunity to ask the first appellant about the country information referred to in its decision.

11. The appeal is devoid of any substance or merit and is dismissed, with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       16 December 2011