FEDERAL COURT OF AUSTRALIA

DZADX v Minister for Immigration and Border Protection [2015] FCA 139

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay to the first respondent the costs of the appeal fixed in the amount of $2178.

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 a decision of the Federal Circuit Court of Australia (FCCA) made on 17 October 2014. It dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The appellant has two grounds of appeal which are as follows.

1.    The Federal Circuit Court Judge failed to consider that the Tribunal decision was affected by judicial error in that the Tribunal failed to correctly apply the test in s 36(2B)(a) of the Migration Act 1958.

2.    The Federal Circuit Court Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because it’s “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

2        The appellant is a citizen of India who came to Australia on a tourist visa on 17 February 2012 and it was extended to 17 August 2012. From that date, he became an unlawful non-citizen in Australia. Whilst in Australia, on 17 January 2013, he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). The Tribunal decision at para 3 records the detail of his claim. In short, he said that by reason of his religion, as a follower of Dera Sacha Sauda, he was vulnerable to persecution if he were to return to India. The delegate of the Minister, on 27 August 2013, refused his application for a protection visa.

3        That decision was reviewed by the Tribunal and, on 16 April 2014, it gave its decision affirming the delegate’s decision not to give to the appellant a protection visa. The Tribunal’s reasons, at paras 26 and 27, identified the issue as whether the appellant had in fact been involved with Dera Sacha Sauda while he was in India and, if so, whether he had suffered the consequences he claimed. Then, the Tribunal concluded on the basis of the appellant’s evidence that he had made up that story. In broad terms, its reasons were that:

(1)    because the appellant had not engaged in any activities consistent with his religion while he had been in Australia, his claim to be a staunch follower of that religion was not credible;

(2)    his evidence about how he and his parents became involved in Dera Sacha Sauda was implausible, in part based upon the way in which the appellant gave his evidence; and

(3)    there has been a very long delay, after the appellant arrived in Australia, before he applied for a protection visa and that was not simply through ignorance. Again, in part, that conclusion was supported by how the appellant gave his evidence before the Tribunal.

4        As the Tribunal did not believe the appellant and because he did not claim to have any other reason for fearing to return to India, the Tribunal was not satisfied about his claim. The Tribunal referred specifically to ss 36(2A) and 36(2AA) and addressed those criteria.

5        As the appellant had not satisfied the Tribunal that he was a person who fell within either of those provisions, his application was refused. The Federal Circuit Court noted the appellant’s claims about why the Tribunal had fallen into error at para 7 of its reasons:

The applicant filed an amended application on 18 July 2014 and set out one ground. He claimed that the Tribunal made an error and failed to apply the correct test. He said the Tribunal was satisfied that the applicant was at a real risk of significant harm and because of this the Tribunal was required to consider whether or not it was reasonable for him to relocate to another part of the country. He said the Tribunal failed to consider whether or not a DSS member in India was at risk of harm and unable to access effective protection.

6        As the Tribunal pointed out, the grounds of appeal to the Federal Circuit Court were based upon a mistake.

7        As the Federal Circuit Court pointed out, the grounds of appeal were in part mistaken because they assumed that the Tribunal had believed the appellant when it did not. Consequently, the Federal Circuit Court concluded that there was no mistake on the part of the Tribunal by not considering whether s 36(2B) applied to the appellant. There was no need to consider whether the appellant could reasonably relocate to another area of India because the Tribunal was not satisfied that he was at any risk of persecution for a Convention reason if he returned to India.

8        The Federal Circuit Court concluded that the appellant was really doing no more than asking for it to review, on the merits, the decision of the Tribunal, and that was not its function.

9        On this appeal the first ground of appeal is the same matter that was addressed by the Federal Circuit Court. For the reasons given by the Federal Circuit Court, there is no mistake in the consideration by the Tribunal, or on this appeal the Federal Circuit Court, on that point. That has already been decided by this Court in the case of SZLPI v The Minister for Immigration and Citizenship [2008] FCA 1891.

10        The second ground of appeal is not one that was raised before the Federal Circuit Court. However, I will consider it in case it demonstrates error on the part of the Federal Circuit Court and on the part of the Tribunal.

11        The appellant, who appeared in person today, did not, in my view, provide any reason to find that that ground of appeal is made out. He said that the error was that he was not believed. That was a matter for the Tribunal to decide on the evidence, and it made that decision with the benefit of having seen and heard the appellant give his evidence to the Tribunal. In the matter of Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, McHugh J explains why the Tribunal making a decision on credit does not thereby make a legally reviewable error.

12        The appellant also said, in his submissions today, that he did not get the opportunity to present evidence to the Tribunal, and that if he had been asked by the Tribunal to provide some evidence, and he had not provided it, then he could accept that the Tribunal was correct.

13        The presentation of what material he wanted to rely upon, both to the delegate and to the Tribunal, was largely a matter for the appellant. The Tribunal appears to have done some research of its own, and to have recognised that Dera Sacha Sauda is a breakaway religious group. It also appears to have accepted that there has been significant conflict between the Dera Sacha Sauda people and the orthodox Sikh community for some years within the Punjab area. The Tribunal gave the appellant the opportunity to give evidence to satisfy it that he was an active member of the Dera Sacha Sauda in India. At one point it adjourned the hearing so that he could give his evidence with the help of an interpreter.

14        The Tribunal’s reasons record that it specifically told the appellant that the real issue for him was whether he did have the involvement with Dera Sacha Sauda which he claimed, and he gave extensive evidence to the Tribunal about that. The Tribunal also asked the appellant about the things which were troubling it about his story and why it might not accept his version of events. In my view, the appellant has not made out that the Tribunal did not properly understand or apply the law. He has not made out that the Tribunal did not properly identify for him the relevant issues that he had to address, and he has not made out that the Tribunal did not give him a proper opportunity to present such material as he wanted to present in support of his claim.

15        For those reasons I am not satisfied that the appellant has shown error on the part of the Federal Circuit Court, nor has he shown error on the part of the Tribunal in a manner which would entitle either the Federal Circuit Court or this Court to quash its decision. The appeal is dismissed. The appellant should pay to the first respondent the costs of the appeal.

Associate:

Dated:    18 March 2015