FEDERAL COURT OF AUSTRALIA

AZABV v Minister for Immigration and Citizenship [2013] FCA 173

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

1    This is an appeal from an order made by the Federal Magistrates Court on 19 October 2012. On that day, the Federal Magistrates Court made an order that the appellant’s application for judicial review be dismissed (AZABV v Minister for Immigration and Anor [2012] FMCA 1115).

2    The appellant is a citizen of India. He arrived in Australia on 25 November 2008. He applied for a Protection (Class XA) visa on 27 June 2011. His application was refused by a delegate and he was advised of the delegate’s decision on 10 October 2011. He made an application for review by the Refugee Review Tribunal on 8 November 2011. The Tribunal held a hearing on 31 January 2012. The Tribunal made a decision to affirm the decision not to grant a protection visa to the applicant on 27 February 2012. The appellant issued his application for judicial review in the Federal Magistrates Court on 23 March 2012.

3    The appellant made various claims in support of his application for a protection visa. His claims were summarised by the Tribunal and they are as follows. He claimed he was an active member of the All India Sikh Students Federation (“AISSF”). He claimed to be a supporter of the Khalistan movement and that he believed in an independent state of Khalistan through a peaceful process. He claimed that government agencies interrogated him and followed him accusing him of links to the Pakistani Inter-Services Intelligence. He claimed that his brother was interrogated and beaten and his family asked him to leave India because of the gravity of the situation. He claimed that Indian authorities abused the law and have arrested and detained members for months and years without trial. He claimed that some members had disappeared at the hands of the “Security Forces”. He claimed that he feared that if he returned to India, he would be identified and targeted as a “sympathiser” of the Khalistan movement, with links to the Sikh groups such as the Khalistan Liberation Force. He claimed that he risked detention, interrogation and torture if he returned to India.

4    The Tribunal found that the appellant arrived in Australia on 25 November 2008 on an Indian passport as the holder of a Class TU Subclass 573 visa, which was valid until 15 March 2011. On 30 July 2010, he applied for a Class TU Subclass 570 visa stating his intention to study a Certificate III in English Proficiency. On 14 October 2010, the Department granted the appellant a student visa which was valid until 28 June 2011.

5    The Tribunal rejected the appellant’s claims. It noted that the appellant arrived in Australia in November 2008, but did not lodge his application for a protection visa until 27 June 2011. The Tribunal said that it considered that if the appellant had genuinely feared returning to India, he would have taken action sooner to avoid returning to India. The Tribunal found that the appellant had not received any further threats from Hindu students since 2009. The Tribunal found that the appellant had exaggerated important parts of his claims in his application for a protection visa. In particular, the Tribunal found that the appellant was not an active member of AISSF. It found that he was a member with limited knowledge of, and involvement in, that organisation. The Tribunal rejected the appellant’s claims that he had been accused of having links to the Pakistani Inter-Services Intelligence or that he may be perceived as having such links and that he will be identified and targeted as a sympathiser of the Khalistan movement with links to Sikh groups such as the Khalistan Liberation Force. The Tribunal found, based on the appellant’s oral evidence and the country information, that the appellant’s Sikh religion and membership of the AISSF are not “the essential and significant reason for the persecution he fears in India”. The Tribunal found that the appellant’s fear of harm was the result of his brother’s involvement in criminal conduct and was not for the reason of the appellant’s race, religion, nationality, political opinion or membership of a particular social group. The Tribunal found that there was no real chance of the appellant being persecuted by the Hindu students or any other person if he was to return to India now or in the reasonably foreseeable future.

6    There were three grounds of the appellant’s application for judicial review. They were dealt with in turn by the Federal Magistrate. The Federal Magistrate rejected the first ground to the effect that there had been a failure to comply with s 424A of the Migration Act 1958 (Cth) in that the Tribunal did not give the appellant the independent information that it had about AISSF before the hearing. The Federal Magistrate rejected this ground on the basis that the information fell within the exception in s 424A(3)(a). The second ground was that the Tribunal fell into jurisdictional error insofar as it made findings that were not open on the evidence before the Tribunal. The Federal Magistrate described this ground as “fairly vague”. He considered the ground raised an allegation that there was no evidence to support the Tribunal’s findings. The Federal Magistrate rejected this ground. The third ground was that the Tribunal had not considered the fact that the appellant satisfied the four key elements of the Convention definition and that it therefore committed factual and legal errors. The Federal Magistrate considered that this ground was in the form of a submission and appeared to be what he described as a “bland assertion of error on the part of the Tribunal without there really being any meaningful particulars”. The Federal Magistrate found that the Tribunal was aware of the four elements of the Convention and that it made findings in relation to each of those elements.

7    The grounds of the appeal to this Court (without correction) are as follows:

1.    The FM failed to consider that the Tribunal had denied the applicant procedural fairness reaching adverse conclusions that applicant claims were implausible, being conclusions that were not obviously open on the known material.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. The Tribunal has failed to investigate Applicant claims, specially the grounds of persecution in India.

8    On the appeal, the appellant appeared in person. He had the assistance of an interpreter. The appellant had not filed any written submissions and his oral submissions were very brief. They were to the effect that the Federal Magistrates Court had not considered his claims.

9    There appears to be no substance in the first ground of appeal. It does not seem to have been a matter raised in the Federal Magistrates Court, but, in any event, it is without merit. It appears from paragraphs 49 to 55 of the Tribunal’s reasons that the appellant was given the opportunity to comment on information the Tribunal considered adverse to him.

10    There is no substance in the second ground of appeal. Leaving aside the formulaic aspect of it, there is nothing to suggest that the Tribunal failed to investigate his claims. It did consider his claims and it did address the grounds upon which he said he would be persecuted if he returned to India. In the event it rejected those claims.

11    As the appellant was unrepresented I have considered the Tribunal’s reasons carefully. I can detect no error, let alone jurisdictional error, in those reasons.

12    The appeal must be dismissed.

Associate:

Dated:    6 March 2013