HZAAF v Minister for Immigration

[2012] FMCA 684

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HZAAF v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 684

MIGRATION – Application for review of decision of Refugee Review Tribunal to uphold decision not to grant protection visa – no jurisdictional error on part of the Tribunal.

Migration Act 1958 (Cth)

Woods v Migration Agents Registration Authority [2004] FCA 1622

Applicant: HZAAF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: LNG 15 of 2012

Judgment of: Whelan FM

Hearing date: 24 July 2012

Date of Last Submission: 24 July 2012

Delivered at: Melbourne

Delivered on: 24 July 2012

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr Wilson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the Application filed 19 March 2012 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

LNG 15 of 2012

HZAAF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision by the Refugee Review Tribunal (“the Tribunal”)of 22 February 2012. That decision was to affirm a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant the Applicant a protection (Class XA) visa. The Applicant seeks orders that the decision of the Tribunal be quashed and a Writ of Mandamus be issued directing the Tribunal to determine the application according to law.

2. The Applicant is a national of India who arrived in Australia on 8 January 2009 as a dependent spouse of a Class (TU) 572 student visa holder. On 9 March 2011, the Applicant lodged an application for a protection visa. The Applicant’s claim was summarised by the delegate and also by the Tribunal.

3. The Applicant claimed that while he was at school he was harassed, assaulted and discriminated against by Hindu students and received threats of sexual assault and death.

4. To protect himself he joined the All India Sikh Students Federation (“the AISSF”) in 2001. As a member of the Federation, he was involved in activities of the Federation, including assaulting Hindus and rioting. When he finished school and was no longer protected by the AISSF, the intimidation of him grew. He stated that he was bashed by Hindus and was hospitalised on a number of occasions following these bashings. He became actively involved with Sikh movements including the Khalistan movement. He complained to the police who accused him of being a terrorist. He worked for a time on his father’s farm, but was bashed and threatened and was forced to leave his village.

5. The Applicant claimed he then moved to Amristar and joined the local Sikh association. He was injured in rioting there and bashed and arrested and assaulted by police. He states that Hindus have been harassing his family to find out where he is and he believes that if he returns to India he will be killed and his family will be in danger.

6. By letter dated 8 July, the Applicant was invited by the delegate to attend an interview which he failed to attend. On 29 July 2011, the delegate refused to grant the protection visa. 

7. On 18 August 2011, the Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. He was invited to attend a hearing, but in writing on 10 February 2012, he declined to do so. By a decision on 22 February 2011, the Tribunal affirmed the delegate’s decision not to grant the application for a protection visa. On 9 March 2012, the Applicant applied to this Court for a review of the Tribunal’s decision.

The Tribunal’s decision

1. The Tribunal reasons for decision can be summarised as follows:

   ·The Tribunal accepted that the Applicant was a national of India and assessed his claims on that basis.

   ·It noted from country information that there was no information that systematic or institutionalised mistreatment of those involved with Sikh organisations currently takes place or that Sikhs are denied the right to political representation or access to education or employment.

   ·The Tribunal further noted that the Applicant had not attended the departmental interview or the Tribunal hearing where he could have provided more details about his claims and addressed the concerns of the Tribunal.

   ·The Tribunal was not satisfied that the Applicant held a subjective fear of persecution in India and was not satisfied that the Applicant faced a real chance of serious harm capable of amounting to persecution for a convention reason if he was to return to India.

2. For those reasons the Tribunal affirms the decision of the delegate.

Grounds of review

1. The Applicant, in his application, provided the following grounds for review:

   Ground 1. The RRT has not gone into the question of the persecution and other atrocities committed upon the Sikhs within the State of India, the fear is based upon the race and the political opinion as the Sikhs all over the world are struggling for the State of Khalistan . . .  The Applicant has been faced to the serious harms, however all the Sikh organisations are facing the same. The mass killing of Sikhs in the eighties and later on are well-known as many hundred thousand Sikhs were made to disappear. 

   Ground 2. There is a strong motive from the authorities to eliminate the Sikh youths. It is an admitted fact that the Sikhs are facing the state of extreme discrimination. The Sikhs’ Golden Temple was burnt down by the Indian authorities in India. There has been no other kind of brutalities committed so far.

   Ground 3. RRT has failed to point out, as it is a matter of the evidence, that the extreme kind of motivation existed by the authorities to diminish the Sikhs. There is a strong government/authorities that the Sikhs who even take the name of the Khalistan, they are either kept in gaol or they are severely treated by the authorities. The majority of the Hindus are always discriminatory against the Sikhs and the majority of the Hindus stood shoulder to shoulder with the Hindu community to kill the Sikhs . . . but the authorities, themselves are responsible for the killing of the Sikhs and different kind of discriminations.

   Ground 4. The Applicant has undergone a lot of harassments and the various acts of the persecutions. It is not sufficient to say that India is a great democracy and they are secular. In fact, they are the extremist Hindus involved in the mass killing of the different religions living there. 

   Ground 5. The Applicant had no place in India, the Applicant, in order to save his life, arrived in Australia. The Applicant would have been killed, because of his political activities and the involvement in the formation of the Sikhs independent state.[1]

   [1] Application filed 19 March 2012 at pages 2-3.

2. The Applicant this morning was given the opportunity to address the grounds set out in his application and comment on the response contained in the Respondent’s written submissions. It was pointed out to the Applicant that it was not the role of the Court to reconsider the merits of the Applicant’s case. The Applicant did not wish to add anything to the material he had provided to the Court in his application and affidavit. 

The First Respondent’s submissions

1. In written submissions, the First Respondent addressed grounds 1, 2 and 3 of the application together and submitted that these alleged a failure on the part of the Tribunal to take into account relevant considerations. The First Respondent submits that such a ground is not concerned with the process of making the particular findings of fact upon which the decision maker acts, but with the application of the law.

2. The weight given to the evidence is a matter for the Tribunal, it was for the Tribunal to be satisfied or not as to the merits of the claim. On the material that was supplied to the Tribunal, it was not satisfied of the Applicant’s claim. The First Respondent referred to the Court to various decisions addressing the issue of the role of the Court in the review process. In particular, the First Respondent referred to the decision of Justice Crennan in Woods v Migration Agents Registration Authority [2004] FCA 1622 (“Woods”).

3. In that case, her Honour referred to a number of principles in relation to such a review process.

   ·First, whether the Tribunal failed to give proper consideration to the evidence before it, is a question of fact and not one of law.

   ·Second, where a Tribunal makes a wrong finding of fact within the jurisdiction there is no error of law.

   ·Third, it should only be in exceptional cases, where there is a clear case that there was no evidence to support a particular conclusion that the Court should undertake the exercise of evaluating the evidence.

4. The First Respondent referred to other decisions, which address similar issues. The First Respondent submits that to the extent that the alleged jurisdictional error is a failure to take into account evidence; the Tribunal did take into account the documents before it. Both the choice of and assessment of the weight to be given to information is a matter for the Tribunal. The First Respondent submits that it is clear from the Tribunal’s reasons that it took into account documents provided by the Applicant and also relevant country information. The choice and assessment of the weight of such information is a matter for the Tribunal. 

5. In relation to ground 4, the First Respondent submits that it is not a valid ground for judicial review. No jurisdictional error is alleged and it appears to amount no more than a complaint about the decision arrived at by the Tribunal on the merits of his claim. The First Respondent makes a similar submission in relation to ground 5.

Conclusions

1. The Applicant in this case clearly misconstrues the nature of an application for judicial review. It is not an opportunity for an Applicant to reargue the merits of an unsuccessful claim. Parliament has invested the Tribunal with the role of reconsidering the Applicant’s claim for refugee status and determining if the decision of the delegate should be affirmed or not.

2. The role of the Court is to review the decision-making process to determine if the Tribunal in carrying out its functions, made an error which goes to its jurisdiction. Grounds 1, 2 and 3 of the application deal with the way the Tribunal dealt with the evidence before it, the weight it gave to the Applicant’s claims and to country information. These are matters within the jurisdiction of the Tribunal to determine. 

3. It is not for the Court to evaluate the evidence before the Tribunal, unless it can be said that the Tribunal came to certain critical conclusions on the basis of no evidence or that on the basis of the evidence before it, it could not have reasonably reached the conclusions that it did. The Tribunal took into account the evidence before it. The findings reached by the Tribunal were open to it based on that evidence. 

4. The Tribunal was not satisfied on the basis of that evidence and those findings that the Applicant met the criteria under the Act for the issue of a protection visa. There is nothing in the Tribunal’s conclusions that suggest it made any error of law in doing so. 

5. Grounds 4 and 5 of the application are statements of claim by the Applicant. They do not allege any error on the part of the Tribunal and nor do they disclose any such error. 

6. For these reasons, the application must be dismissed.

7. The First Respondent has made an application to the Court for costs, should the Court dismiss the application. The Applicant will also be required to pay the First Respondent’s costs in the sum of $6471.00.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Whelan FM

Date:  7 August 2012