FEDERAL COURT OF AUSTRALIA HZAAF v Minister for Immigration and Citizenship [2012] FCA 1301 Citation: HZAAF v Minister for Immigration and Citizenship [2012] FCA 1301 Appeal from: HZAAF v Minister for Immigration & Anor [2012] FMCA 684 Parties: HZAAF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: TAD 30 of 2012 Judge: TRACEY J Date of judgment: 21 November 2012 Cases cited: HZAAF v Minister for Immigration & Anor [2012] FMCA 684 Date of hearing: 21 November 2012 Place: Hobart Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 23 The appellant was self-represented Counsel for the Respondents: Mr D Wilson Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY GENERAL DIVISION TAD 30 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: HZAAF Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE OF ORDER: 21 NOVEMBER 2012 WHERE MADE: MELBOURNE VIA VIDEO-LINK TO HOBART THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY GENERAL DIVISION TAD 30 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: HZAAF Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE: 21 NOVEMBER 2012 PLACE: MELBOURNE VIA VIDEO LINK TO HOBART REASONS FOR JUDGMENT 1 This is an appeal from the decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'): see HZAAF v Minister for Immigration & Anor [2012] FMCA 684. 2 The applicant is a citizen of India who arrived in Australia on 8 January 2009 as the dependent spouse of a Class (TU) 572 student visa holder. On 9 March 2011, he lodged an application for a protection visa with the Department. A delegate of the first respondent made a decision to refuse the application for the visa on 29 July 2011. The decision of the delegate was affirmed by the Tribunal on 22 February 2012 and an application for review was refused by the Federal Magistrate on 24 July 2012. BACKGROUND 3 The applicant is a Sikh male who is fluent in English and Punjabi. He completed 12 years of education in India and described his occupation before coming to Australia as a "labourer". He did not have any difficulty travelling to Australia or obtaining the relevant travelling documents. The applicant's parents, with whom he is still in contact, still live in India. He is currently unemployed. 4 The applicant claimed that he was assaulted and harassed by "extreme" Hindu students whilst at school in India. He claimed that he received threats of death and sexual assault. 5 The applicant claimed that, in 2001, in order to protect himself, he joined the All India Sikh Student Federation ("AISSF"). As a result of this, he claimed, Hindus followed him on his way home from school and bashed him, telling the applicant's parents that they would cut him "into little pieces". The applicant claimed that he was hospitalised for two weeks following the attack. 6 After finishing school he was unable remain fully involved with the AISSF whilst searching for employment. As he was no longer protected by the AISSF, the applicant claimed that he was increasingly harassed by Hindus. He had visited the police station but was accused of terrorism, arrested, and only released as the result of a bribe. 7 The applicant claimed that he then resumed active involvement in the AISSF, including participating in riots and assaults on "lone Hindus". He worked on his father's farm for a period of time during which he was, he said, the subject of further bashings by Hindus. 8 The applicant claimed that he then moved to Amritsar and was a member of the local Sikh association for three years. During this time the applicant said he was arrested and assaulted by police on numerous occasions. One of these bashings led, he said, to him being hospitalised in intensive care for four weeks. 9 The applicant stated that, since his arrival in Australia, Hindus have harassed his family in an attempt to ascertain his whereabouts. The applicant expressed a fear that he will be killed and his family placed in danger if he returns to India. the tribunal's decisioN 10 After making his application for a protection visa, the applicant was invited to attend an interview. He did not. Following the refusal of the delegate to grant the protection visa, the applicant applied to the Tribunal for review of the delegate's decision. He was invited to attend a hearing but declined to do so. 11 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. The Tribunal also noted that there was no country information indicating systematic or institutionalised mistreatment of those involved with Sikh organisations or denial of political representation or access to education or employment to Sikh people. The Tribunal further noted the applicant's failure to attend the departmental interview or the Tribunal hearing where he could have provided more details in relation to his claims. PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT 12 In his application in the Federal Magistrates Court, the applicant 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 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 kinds 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 has 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." 13 Her Honour found that the applicant misconstrued the nature of an application for judicial review. Her Honour commented that judicial review: "… 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. 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. 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." 14 On the basis of these reasons, Grounds 1, 2 and 3 were dismissed. Her Honour also dismissed Grounds 4 and 5 as they were "statements of claim by the Applicant" and did not allege or disclose any error on the part of the Tribunal. the present proceedings 15 The grounds of appeal relied upon by the applicant in his notice of appeal are as follows: "1. That the statement of decision made by the RRT is against the law and the facts, and the RRT did not addressed (sic) the issues in questions, instead the whole applicants story was re-written in the statement of decision. The applicable law was not mentioned, although the country information was before the Tribunal, but they did not bothered going into it , and the decision was made mainly on the statement of claim submitted by the applicant. 2. That the learned Magistrate has imposed the cost as $6741.00 that is based on arbitrary calculations. The applicant strongly requests that the said amount be kindly reduced to the ordinary cost which is normally imposed on applicants. The applicant has no means to pay such a hefty cost. 3. Decisions (sic) maker in RRT only referred the matters of the Refugee Board Canada, but did not had their own country information's (sic) it is not safe to totally rely on the Refugee Board Canada, for instance, it is noted down in the decision on page 7 of 11 that ASSIF was formed in the year 1947, this is not correct the ASSIF was formed in the movement of Khalistan, and similarly the other groups were formed during the movement of Khalistan. It is not safe to rely on the information's issued by the Refugee Board Canada. The Tribunal made many other errors in deciding the review application of the applicant The RRT has wrongly inferred the matters which were not agitated anywhere this shows that a stereo decision was made either based on the imaginations or conjectures. These legal errors coupled with other require the intervention of the court. 4. In the decision the 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 jail 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 .The Sikhs are not given the protection , the authorities lakes the protection, but the authorities .themselves are responsible for the killings of the Sikhs and different kind of discriminations. 5. RRT based the decision, on the mere fact that the applicant waited four years to lodge a refugee claim. Today we live in a temporary world, since the applicant has four years to live in Australia, applicant was of the opinion that circumstances may change in four years. It was not till this application that the applicant realised that He is unable to return to India as the threats to his life are ongoing and many of the applicants friends relative has been killed mercilessly in police custody and others very well known procedures, that are claimed in media as police encounters and suicide. 6. That the applicant has given full details, in accordance with the guidelines given in the Refugee laws laid down by the UNHCR, the applicant fulfilled all the requirements of being a refugee, The applicant satisfied the criteria for protection visa. The applicant is a person to whom the Australia has protection obligations as laid down under the law, the applicant was deprived of all the basic needs of life, the applicant was refused the right to have a job, the right to other government social obligations, the amount of the harassments and the fear of life was nowhere mentioned in the decision, in other words it is a decision, which requires to be reversed and sent back to the authorities, it is not enough in the given circumstances of the attitude of the review body and the way of the processing by the delegate of the Minister. The applicant has mentioned the extreme amount of danger to the life of the applicant is he is returned back to the country of the origin 16 It is immediately to be observed that, with the possible exception of Ground 2, these grounds do not, in terms at least, identify appellable errors said to have been made by the Federal Magistrates Court. Given that the appellant is unrepresented I am, nonetheless, prepared to avoid any technical reading of his grounds. It is also to be noted that these grounds also raise issues which were not agitated before the Federal Magistrate. 17 Ground 1 and Grounds 3 – 6 may be understood to allege that the Federal Magistrate erred in not finding that the Tribunal failed to have regard to relevant considerations, namely, country information and the claims and evidence advanced by the applicant. The applicant also alleges that the Tribunal failed properly to consider the relevant law, and claims that the Tribunal made factual and legal errors. 18 The reasons provided by the Tribunal and the Federal Magistrate disclose no such failings. The reasons given indicate that the Tribunal took detailed account of the applicant's evidence and claims and of the relevant country information. The findings made by the Tribunal were reasonably open. They were not tainted by jurisdictional error. The learned Federal Magistrate was correct in so holding and in making the observations outlined above at [13]. 19 Ground 2 alleges that the order as to costs which was imposed by the Federal Magistrate was arbitrary. This ground does not disclose any appealable error of law. The amount of costs, fixed by the Federal Magistrate, was the amount prescribed under the Federal Magistrates Court fee scale. 20 The applicant also filed written submissions which largely reiterated the factual claims previously advanced. In addition, the written submissions articulate a new complaint that the applicant was denied procedural fairness by the Minister's delegate and bias on the part of the delegate. 21 The applicant attended in person at this afternoon's hearing. He was assisted by an interpreter. The Minister's submissions had been translated for him. When asked if he wished to make any additional submissions he said that he wished to rely on his written submissions. 22 There is nothing before me which would indicate that the applicant was denied procedural fairness: although the applicant claimed that he never received the letter inviting him to attend an interview with the delegate of the Minister, this was not raised before the Federal Magistrate. In any case, the applicant also chose not to attend the Tribunal hearing. I also find no basis for the applicant's written submission that the delegate of the Minister was biased. 23 The appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 21 November 2012