FEDERAL COURT OF AUSTRALIA

AZACD v Minister for Immigration and Citizenship [2013] FCA 174

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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 26 November 2012. On that day, the Federal Magistrates Court made an order that the appellant’s application for judicial review filed on 21 June 2012 be dismissed (AZACD v Minister for Immigration and Anor [2012] FMCA 1140).

2    The appellant claims to be a national of India. He travelled to Australia on a valid Indian passport arriving in this country on 30 June 2009. He was a dependant on his wife’s student visa. Since arriving in Australia, the appellant has separated from his wife and later they were divorced. The appellant’s dependant student visa was due to expire on 18 August 2011. On 3 August 2011, he made an application for a Protection (Class XA) visa. On 26 August 2011, he was granted a bridging visa in connection with that application. The appellant’s application was refused by a delegate on 11 October 2011. On or about 7 November 2011, the appellant made an application for review by the Refugee Review Tribunal. The Tribunal conducted a hearing on 16 January 2012. The Tribunal conducted a further hearing on 14 May 2012 in light of the introduction of the complementary protection regime by the Migration Amendment (Complementary Protection) Act 2011 (Cth).

3    On 21 May 2012, the Tribunal made a decision to affirm the decision not to grant the appellant a protection visa. On 21 June 2012, the appellant made an application for judicial review in the Federal Magistrates Court. There were six grounds in the application.

4    In its reasons the Tribunal summarised the appellant’s claims. They were as follows. He was born in India in the village of Balachaur, which is located in the state of Punjab. He lived in Nawashahr between 2001 and 2009. He speaks Punjabi, Hindi and some English. He claims that he is of Hindu religion and from the Hindu ethnic group. He has a family living in Punjab, India, including two unmarried sisters and both parents. He has no brothers. He claims to come from a “traditional Hindu family”. Following his marriage, Muslim fundamentalists threatened to kill him unless he converted to the Muslim religion. They also attacked members of his family and he had to limit his movements. The appellant and his wife moved to Australia in June 2009 to escape persecution. His wife made contact with her family and, following that, she asked him to convert to the Muslim religion if he wanted their relationship to continue. He claims that she refused to listen to his suggestions and forced him to leave home. After a week, his father contacted him by telephone and said that a group of Muslims had ransacked his parent’s house, assaulted them and warned them that the appellant would be killed if he returned to India. He claimed that his family was in hiding because of the fear of further violence. He claims that he has received telephone calls asking where he was living and when his visa is going to expire. His father had told him that he should not return to India in the near future. The appellant claims that the situation could not be controlled by the authorities.

5    The Tribunal found that the appellant had exaggerated and embellished his claims and that there were serious inconsistencies in his evidence. It said that in reaching this conclusion, it had considered and allowed for difficulties with the unfamiliar setting, language limitations and cultural differences. However, the Tribunal was not satisfied that the appellant was able to explain adequately the inconsistencies presented to him. It concluded that the appellant’s evidence in relation to his claims for protection could not be regarded as reliable and truthful and it said that it found that the appellant was not a credible witness. The Tribunal identified the inconsistencies in the appellant’s evidence. It concluded that it had before it no reliable evidence that the appellant had had threats made against him as he claimed. It said that it was unable to rely on the appellant’s evidence to find that his claims were genuine. It found that the appellant would not face a real chance of persecution if he returned to India now or in the foreseeable future. The Tribunal said (at paragraph 101):

Having considered the applicant’s claims singularly and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution from the family of his former wife or from Muslim fundamentalists for any Convention reason. The Tribunal is also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to India, there is a real risk that he will suffer significant harm.

6    The Federal Magistrate addressed each of the six grounds of judicial review in turn.

7    The first ground of judicial review was that the Tribunal breached s 424A of the Migration Act 1958 (Cth) in that it did not give the appellant the independent information that it had about religion in India before the hearing. The Federal Magistrate rejected this ground because he held that relevant information was specifically excluded from the obligation in s 424A(1) by s 424A(3)(a).

8    The second ground of judicial review was that the Tribunal denied the appellant procedural fairness by reaching adverse conclusions that the appellant claimed were “implausible, being conclusions that were not obviously open on the known material without giving the applicant the opportunity to be heard in respect of those matters”. The Federal Magistrate interpreted this complaint as a complaint based on illogicality or irrationality rather than a denial of procedural fairness. He held that the challenge could not be sustained and he said that the Tribunal had identified the appellant’s claims and that it did give them appropriate consideration. There was nothing to suggest irrationality of illogicality associated with the way in which the Tribunal came to its findings as to creditworthiness. In addition, the Federal Magistrate said that there was nothing to suggest a lack of procedural fairness. The specific inconsistencies in the appellant’s account were put to him and his responses to them taken into the process of evaluation.

9    The third ground of judicial review was that the Tribunal had no jurisdiction to make the decision it did because its “reasonable satisfaction” was not arrived at in accordance with the requirements of the Migration Act. The Federal Magistrate noted that no particulars of this challenge were given and that it was a “generalised and broadly based attack upon the essential finding of fact”. The Federal Magistrate considered the lack of particularity to be in itself fatal to the challenge. Furthermore, insofar as the ground was an invitation to re-visit a factual finding, it was not a matter which could be entertained on an application for judicial review.

10    The fourth ground of judicial review was that the Tribunal’s decision was unjust and was made without taking into account the full gravity of the appellant’s circumstances and the consequences of the claim. The Federal Magistrate viewed this as an attack upon the merits of the Tribunal’s findings and said that it was not open to the appellant on an application for judicial review.

11    The fifth ground of judicial review was that the appellant satisfied the four key elements of the Convention definition as detailed on pages 2 and 3 of the Tribunal decision and that the Tribunal had committed factual and legal error because it had not considered “this aspect”. The Federal Magistrate said that again the lack of particulars was fatal to this ground and that, in any event, the Tribunal had considered the four elements of the Convention definition and applied them without error.

12    The sixth ground of judicial review was that the Tribunal had failed to investigate the appellant’s claim and, in particular, the grounds of persecution in India. It was said that the Tribunal’s decision was therefore effected by actual bias constituting “judicial error”. The Federal Magistrate rejected this ground. He noted the lack of particulars. He said that it was not possible for him to make any sense of this ground in the context of the factual findings of the Tribunal in this case.

13    On the appeal to this Court, the appellant’s grounds of appeal (without correction) are as follows:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

14    On the appeal, the appellant appeared in person. He was assisted by an interpreter. He did not file a written Outline of Submissions, even though the District Registrar had made orders on 17 December 2012 including an order about the filing and serving of a written Outline of Submissions by the appellant. He made very brief oral submissions. He said that he had a true fear of returning to India. He said that he feared the Muslim community in India.

15    There is no merit in the first ground of appeal. The Tribunal did consider at length the appellant’s claims that he would be persecuted if he returned to India. There is no doubt that, in terms of harm, the Tribunal understood that the appellant was saying that he would be killed if he returned to India (see, for example, paragraphs 26, 27 and 50 of the Tribunal’s reasons). In the event, the Tribunal was not satisfied that the appellant was a credible witness.

16    The second ground of appeal must be rejected having regard to the fact that none of the alleged “legal and factual errors” were identified. As the appellant was not represented, I will take this ground as alleging that the Federal Magistrates Court should not have rejected the grounds of judicial review or any one of them.

17    I have referred to each of the grounds of judicial review and how the Federal Magistrate dealt with them. In my opinion, the Federal Magistrate was correct to reject each ground for the reasons which he gave.

18    The appeal must be dismissed with costs.

Associate:

Dated:    6 March 2013