ALQ17 v Minister for Immigration and Border Protection

Federal Court of Australia|2019-08-21|Before: Perram J, White J

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

Introduction 1 This is an appeal from a decision of the Federal Circuit Court (the FCC) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the AAT). 2 The appellant is a 32 year old national of India and a follower of the Sikh religion. He first arrived in Australia in 2009 on a Student visa. That visa was cancelled on 30 March 2011. Since then, the appellant has held a succession of Bridging visas, initially while his application for a Partner visa was processed and, more recently, while his application for a Protection visa was assessed. The appellant did not make his application for a Protection visa until 1 November 2013 which was shortly after he withdrew an application for judicial review of a decision of the former Migration Review Tribunal affirming the refusal of his application for a Partner visa. 3 A delegate of the Minister for Immigration and Border Protection refused the application for the Protection visa on 3 December 2015. That decision was affirmed by the AAT on 20 January 2017. 4 The appellant then sought judicial review of the AAT's decision in the FCC. The hearing of that review was originally listed for 4 April 2018 but was rescheduled to 4 June 2018 at the request of the appellant. On 4 June 2018, the appellant did not appear at the FCC hearing and the application was dismissed by reason of his non-appearance: ALQ17 v Minister for Immigration and Border Protection [2018] FCCA 2922. 5 The appellant then sought an extension of time to appeal and leave to appeal in this Court. The appellant required leave to appeal as the FCC decision was interlocutory in nature. On 17 January 2019, Perram J granted the extension of time, granted leave to appeal and remitted the matter to the FCC for hearing: ALQ17 v Minister for Immigration and Border Protection [2019] FCA 16. 6 On 20 March 2019, the FCC heard the remitted application for judicial review and dismissed it: ALQ17 v Minister for Immigration and Border Protection [2019] FCCA 829. The appellant now appeals to this Court against that judgment.

The AAT decision 7 In the AAT, the appellant made several claims in support of his application for a Protection visa. He claimed to be entitled to protection by reason of his religious beliefs, because he was involved in Sikh political organisations in India, because he had been involved in protests in India in 2007 and because he had been arrested, detained and tortured by the Indian police in 2010. 8 The AAT member accepted that the appellant is of the Sikh religion but noted that he was not an orthodox Sikh activist. By reference to country information which indicated, amongst other things, that 75% of India's 19 million Sikhs live in the Punjab (the applicant's home area), the member concluded that Sikhs in contemporary India do not have a heightened risk of discrimination beyond that experienced by the broader community and that there is no discriminatory and systemic withholding of state protection for persons who are active Sikhs or from a Sikh family. Accordingly, the AAT member was not satisfied that there was a real chance that the appellant would suffer significant harm by reason of his religious beliefs, if he returned to India. 9 The AAT did not accept the appellant's claim that he was a member or follower of any Sikh political organisation or that he had taken part in protests in India. The member thought it surprising that, despite the appellant's claims that he had fled India in July 2009 because of persecution, he had voluntarily returned to India in January 2010. The AAT also noted that, despite the appellant's claims that he had been wrongly detained and interrogated (and in the latter instance, tortured) in both 2007 and 2010, he had not applied for a Protection visa until 2013. The member did not regard the appellant as a credible witness. 10 The AAT was not satisfied that the appellant is a person to whom Australia owes protection obligations.

The FCC decision 11 In the FCC, the appellant raised the following grounds of appeal (quoted verbatim): 1. I believe I can proof myself better to Court. 2. I try to get more documents from my Country. 3. I did not get much time to proov mysef right. 4. I request to Fedral Circut Court to allow my submit my application because in previous Court hearings I want to get more documents from Country, I alredy ask my family to get proof regarding this case, but they are not get this document in certain time. All I need for this document I need some more time that's the only reason to apply Federal Circut Court. Thx very much. 12 The FCC Judge refused an oral application by the appellant for an adjournment of the hearing so that he could obtain more documents from India, because: (a) ample time had passed since the appellant commenced his application for judicial review on 3 February 2017, in which time he could have obtained more documents; (b) the appellant sought the documents to support a submission that the FCC make fresh findings concerning the underlying merits of his claim for a Protection visa, which was not the Court's function; and (c) it seemed improbable in any event that any relevant document would be brought forward. 13 The FCC Judge noted that the grounds in the application for review did not, on their face, identify any arguable jurisdictional error, that the appellant's desire to obtain more documents appeared to relate to his underlying claims, that the appellant appeared to request that the FCC make fresh findings of fact, that on the face of the materials the Tribunal had complied with its statutory obligations in the conduct of the review, and that the Tribunal's findings could not be said to lack an evident and intelligible justification.

Appeal to this Court 14 The appellant's Notice of Appeal in this Court contains a single ground of appeal which, stated verbatim, is as follows: My case is genuine and Im and not happy with Federal Circuit Court's dession and I want to request Federal Court to look my case. I really appreciate that. 15 As I pointed out to the appellant, a Ground expressed in those terms does not identify any error by the FCC of a kind which would warrant this Court's intervention on appeal. 16 The appellant did not provide an outline of submissions as required by the orders of a Registrar made on 29 March 2019. The appellant's oral submissions did not identify any matter suggestive of jurisdictional error by the Tribunal, nor error by the FCC. 17 The Judge's refusal of the oral adjournment application involved a discretionary judgment. The Court would not readily interfere with such a discretionary judgment: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5. See also Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; (2015) 235 FCR 464 at [41]-[45]. There is no basis on which, in accordance with the authorities, this Court could find that the FCC Judge's discretionary judgment with respect to the adjournment application was in error. Further, as counsel for the Minister submitted, the appellant had sought further time in the appeal determined by Perram J in which to provide documents. The effect of the decision of Perram J was that he had been given that time. 18 The Judge was correct to conclude that it was not open to the appellant to ask the Court to receive new evidence for the purpose of inviting the Court to disagree with the Tribunal's evaluation of the circumstances relating to his claim for a protection visa: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]; Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93, (2017) 251 FCR 23 at [55]. Evidence may of course be admitted at the first instance hearing of a judicial review application which is probative of jurisdictional error having occurred: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27]. 19 It was not suggested that the Judge had failed to discharge his duties to the appellant as an unrepresented litigant (as to which see AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; (2016) 241 FCR 30 at [37]-[42]), and no such failure is evident in the materials. 20 On my review of the materials, the FCC Judge was correct to conclude that the Tribunal's decision was not affected by jurisdictional error. The Tribunal's decision cannot be regarded as legally unreasonable or as lacking an intelligible basis. I consider that the FCC Judge was correct in the conclusion which he reached on the application for judicial review.

Conclusion 21 For these reasons, the appeal must be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

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