Applicant A194/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 652

FEDERAL COURT OF AUSTRALIA

Applicant A194/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 652 APPLICANT A194/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 760 of 2003 SELWAY J 16 APRIL 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 760 OF 2003

BETWEEN: APPLICANT A 194 of 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE OF ORDER: 16 APRIL 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant to pay the first respondent's costs. 3. No order made in relation to the costs of the second and third respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 760 OF 2003

BETWEEN: APPLICANT A 194 of 2003

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SELWAY J

DATE: 16 APRIL 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 In this case, the applicant seeks prohibition certiorari mandamus and/or an injunction in relation to a decision of the Refugee Review Tribunal ('the Tribunal') dated 10 February 2003. The Tribunal refused the applicant's application for a protection visa on the basis that it was not satisfied that Australia had protection obligations in relation to her. 2 The sole ground revealed in the amended application for an order for review is that the Tribunal breached its obligation to afford procedural fairness to the applicant by proceeding with the hearing with a male interpreter. Both parties accept that in order to succeed in these proceedings the applicant must show that there was a jurisdictional error in the process, reasons or decision of the Tribunal. 3 The applicant is a citizen of India. She lists her ethnic group as Punjab Jat and her religion as Sikh. It is not altogether clear what the basis of her claim to be a refugee was. At one time she claimed to have been at risk of persecution by reason related to her husband's involvement in the Sikh Separatist Movement, a claim she appears later to have denied. Before the Tribunal, it would seem that she claimed that she was at risk of persecution by reason of her son‑in‑law's involvement in the Sikh Separatist Movement. 4 What is clear is that her claim included a claim of past persecution, including alleged sexual assaults upon her by the Punjabi police. As the Tribunal stated in its reasons: 'The applicant goes on to state that, "From September 11 2001, the police have started coming to my place at lease once a week. They claim that I am working for terrorists, because my son‑in‑law and that I was baptised by Sant Jarnail Singh Bhindranwale and had seen him on a regular basis when he came through the area. I do not know how they found this out as I was baptised in 1982 at Fatah Sahib and saw Sant Jarnail Singh Bhindranwale, as did many other people at the time. The police have recently been hitting me and threaten me with things I can not repeat. I have been living in constant fear for the last few months and finally was granted a visa after a $10,000 bond was lodged by my daughters in order to save me from the Indian Police. If I return to India with the new laws, I will be arrested and charged because of my contacts with Jarnail Singh Bhindranwale and my son‑in‑law's activities with International Sikh Student Federation.'