MZAEY v Minister for Immigration

[2015] FCCA 3538

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAEY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3538

Catchwords:
MIGRATION – Application for judicial review of decision – Protection (Class XA) visa application – application dismissed – no matter of principle.

Legislation:

Migration Act 1958 (Cth), s.424A

Applicant: MZAEY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1052 of 2014

Judgment of: Judge Riethmuller

Hearing date: 17 December 2015

Date of Last Submission: 17 December 2015

Delivered at: Melbourne

Delivered on: 17 December 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: Clayton Utz Lawyers

The Second Respondent: No Appearance

ORDERS

1. The Application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.00.

3. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1052 of 2014

MZAEY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This is an application for judicial review of a decision of what was then the Refugee Review Tribunal.  The decision of the tribunal was made on 12 May 2014 affirming a decision of a delegate not to grant the applicant a protection visa. 

2. The applicant came to Australia from India on 5 February 2009 on a student visa for vocational and training sector education.  In July 2013 he made application for the protection visa.  In November 2013 the delegate declined to grant the protection visa and then the applicant sought, in December 2013, to have the Refugee Review Tribunal review that decision.  The tribunal invited the applicant to appear before it and give evidence at a hearing on 20 February 2014.  The applicant took advantage of this invitation and appeared before the tribunal, and a witness appeared and gave some evidence.

3. Following the initial hearing, the tribunal wrote to the applicant pursuant to s.424A identifying information that the tribunal considered would be the subject, or could be the subject of comment or response by the applicant and, most importantly, would be part of the reason for affirming the decision of the delegate. This was responded to by the applicant through a representative after the tribunal first granted an extension of time to enable the representative to prepare the response. Ultimately the response was provided on 9 April 2014 which included various documents that are set out in the court book at pages 147 to 169. The decision to refuse the visa was then made on 12 May 2014.

4. The substance of the applicant’s case was that he was at risk of harm if he returned to India because he had converted from being a Sikh to a Christian Mormon.  The applicant said that his family were strict Sikhs and that his father and brother had threatened to shoot him, and that his father had even put notices in an Indian newspaper disowning him.  He believed that he would be targeted because of his conversion from the Sikh religion not only by family members but by Hindu extremists, and put forward the proposition that he had family members in Bajrang, Dal.

5. The tribunal didn’t accept the evidence that the applicant’s father had threatened to shoot him.  They found that the documents provided by him, and in particular a notice published in an Indian language newspaper, were contrived to support his claim, and found that his claims with respect to relatives being in the Bajrang Dal were somewhat vague and didn’t accept them.  Ultimately, the tribunal didn’t find that he was at real risk of harm.

6. The applicant seeks judicial review on four grounds. 

Ground 1

1. The first ground is that the tribunal failed to adhere to the requirements of procedural fairness. It is clear that the tribunal complied with the basic requirements of providing him with an opportunity to be heard and complied with s.424A, by providing him with notice of information that would be part of the reason for refusing the application, and then granting an extension of time to allow him to respond to that notice.

2. The particular points that he raises are, firstly, that the tribunal relied upon country information and, secondly, the way the tribunal dealt with the public notice published in an Indian newspaper.  With respect to the first matter, he complains that the tribunal relied upon country information that came from the Internet.  It is open to the tribunal to seek out country information as the tribunal sees fit, and the tribunal had clearly undertaken considerable research with respect to country information from a wide variety of sources that they set out in detail in the decision that they made. That information, in substance, covers pages 5 through 14 of the tribunal’s decision.  It is all footnoted with respect to the locations of the sources of that information, a total of 29 footnotes to the source of the various country information that the tribunal relied upon.  I am not persuaded that there was any error on the part of the tribunal in seeking out and perusing country information in a case such as this.

3. The more specific claim of the applicant is that the advertisement or notice that was published in an Indian language newspaper, which appears at page 29 of the court book, was not given the weight that it ought to have been given by the tribunal.  The notice, which is published in a Hindi language newspaper, effectively sets out a claim to inform the public in general, and the Sikh community in particular, that the applicant had gone to Australia to study and discarded the Sikh religion in favour of Christianity, and that because of that his father had disowned him.  The notice purports to have been placed by an advocate of the Civil Court of Dabra which I assume is the equivalent of a solicitor in Australia, and provides the advocate’s telephone number. 

4. The tribunal dealt with this at paragraphs 41 to 46 of the decision saying as follows, quote:

   41. The applicant stated that after he spoke to his father he received au email from Gitjesh Pathak Advocate which attached the public notice that the applicant's father had placed in the newspaper. The applicant was asked what newspaper it was published in and he said that he did not know he presumed it was Dainik Bhaskar. He was not sure how widely this newspaper circulated. The applicant was asked why the notice was in English as the Tribunal found it strange that his father would put a public notice in a Hindi newspaper· and put it in English when the purpose seems to be to notify people, particularly the local community, that he had disowned the applicant.

   42. The applicant was also emailed a letter from Sgri Gum Nank Dev Ju Gurudvara. He said that he did not know where this person was. He was asked what the purpose of this letter was and he said that it was to inform him that he had been disowned by the Sikh community. He was asked why it was in English and further why it was not addressed to him.

   43. According to Wikipedia Dainik Bhaskar is an Indian Hindi-language daily newspaper published by D B Corp Ltd. It was started in year 1958 from Bhopal, the capital city of Madhya Pradesh. As of 2012, its National Editor is Kaipesh Y.agnik who operates from Bhopal, Madhya Pradesh. Daninik Bhaskar launched buisness ·Bhaskar, the first business daily in Hindi, on 27 June 2008. As of 2011, Business Bhaskar is the largest Hindi-language business daily and has nine editions (Delhi, Bhopal, Indore, Gwalior, Raipur, Panipat, Jalaindar, Ludhiana, Chandigarh and Jaipur). Yatish K Rajawat is its founding editor. Bhaskar.com is the largest Hindi news website After the-hearing the applicant contacted the Tribunal and advised that the notice was placed in the Patrika Newspaper and not Daninik Bhasker and he had made a mistake at the hearing. Patrika is described as a very popular newspaper in Mahya Pradesh and Chhattisgarh. It is a Hindi language newspaper.

   45. The Tribunal found both these documents somewhat contrived. Given the intended audience of the letters it seemed incongruent that they would be in English. In the portion of the newspaper the applicant has provided, the notice is the only item in English. They seem more to have been prepared to support his claim for refugee status and for this reason the Tribunal gives· them little weight.

   Are the applicant's relatives members of the Bajrang Dal?

   46. In his conversation with the immigration officer in July 2013 the applicant claimed that he feared his brother who was a member of the Bajrang Dal. In his evidence to the Tribunal he said that he brother (sic) was not a member of the Bajrang Dal but some of his cousins were. He was asked how many cousins and he said quite a few of them but could not provide any details. It was discussed with the applicant that the Bajrang Dal were an extremist Hindu group and the Tribunal would not have expected Sikhs to be members of this group.

5. The tribunal found the notice somewhat contrived, given that it appeared in a Hindi language newspaper and was entirely in English.  At first blush, when one sees the photocopy, one can be forgiven for assuming that the column beside the English language notice is the equivalent in Hindi but it is not, as is apparent even to the English reader because the phone number at the bottom of the notice is different.

6. The applicant says that is not unusual that a notice would be published in English and that many in his area speak and read English.  He also points out that, despite the fact it is a Hindi language newspaper, another item published nearby it contains a headline which can be seen at the bottom of the page “Pick of the Pay” which is clearly an English language phrase.  The rest of the content is, however, in Hindi.

7. Ultimately, it is a matter for the tribunal to make findings of fact.  In the context of this particular case, that is that the applicant says his father was publishing a notice to the local Indian community in which he lives and, in particular, the Sikh community in a Hindi language newspaper, it seems to me to be quite realistic that the tribunal would raise the question about why the notice would not be in Hindi rather than in English. 

8. The tribunal ultimately gave that consideration weight which led them to conclude that they didn’t find that the notice gave any real weight to the applicant’s claim.  That was a view that was clearly open to the tribunal as it was based on a rational reasoning process in the particular circumstances of the case.

9. Having reached that point, it is not for me to determine whether, had I been hearing the case at first instance, I would have or had not come to the same conclusion as the tribunal.  It is enough to note that it was a finding that was reasonably open to the tribunal on the material before them.  In these circumstances, I’m not persuaded that this amounts to a ground for judicial review.

Ground 2 & 3

1. The second and third grounds allege that there was an error of law by the tribunal applying the wrong test.  The applicant was not able to identify where in the decision a wrong test had been referred to, nor even indicate in more general terms what test might have been applied that was incorrect.  The tribunal set out in some detail, in the form commonly seen, the relevant law at the beginning of the decision. There was nothing remarkable about the summary of the law that they gave.  There certainly does not appear to be errors contained in that summary.

2. It seems more likely that someone has assisted the applicant to draw the grounds and has alleged an error of law and wrong test but not taken the time to identify an arguable error of law or wrong test in this case as there does not appear to be one on the face of the decision.

Ground 4

1. The final ground is that the tribunal failed to take into account a relevant consideration which the tribunal member was bound to take into account.  This can be a somewhat difficult ground, given the weight that needs to be given to different pieces of evidence placed before the tribunal as discussed at some length in SZRTK by Robertson J.  In this case, however, there is nothing that the applicant can point to in the material that the tribunal have not dealt with in their decision, and certainly nothing of such significance that would lead one to infer some form of error on the part of the tribunal because the material was not specifically discussed in the decision that the tribunal made.

2. To the extent that this is another formulation of the previous ground, it seems to me that it fails for the same reason.  That is, in the paragraph quoted above the tribunal traversing at some considerable length the arguments relating to the notice published in English in the Hindi language newspaper before making their findings. They clearly have had regard to the various factual matters and arguments relating to it before making their decision. 

3. In these circumstances, I am not persuaded this amounts to a ground for judicial review.  I, therefore, dismiss the application.

[further argument ensued]

1. In this matter the applicant has been entirely unsuccessful.  Costs ordinarily follow the event.  The Minister seeks costs in the sum of $6825, the scale fee.  The applicant says that he is unemployed and impecunious.  This is not a basis upon which to decline to make a costs order if it is otherwise appropriate to do so.  In the circumstances of this case it is appropriate that the applicant pay the Minister’s costs fixed at $6825.

2. I note that the second respondent is named as the Refugee Review Tribunal which was the correct name at the time that the proceedings commenced.  However, the tribunal has now had its name changed by legislation and is referred to as the Administrative Appeals Tribunal.  It’s appropriate that the court proceedings be amended to reflect that change in name.  I, therefore, order that the name of the second respondent be amended to the Administrative Appeals Tribunal.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date:  14 January 2016