Mzaey v Minister for Immigration and Border Protection
[2016] FCA 517
•12 May 2016
FEDERAL COURT OF AUSTRALIA
MZAEY v Minister for Immigration and Border Protection [2016] FCA 517
Appeal from: MZAEY v Minister for Immigration & Anor [2015] FCCA 3538 File number: VID 963 of 2015 Judge: BARKER J Date of judgment: 12 May 2016 Catchwords: MIGRATION – application for protection (class XA) visa – appeal from Federal Circuit Court of Australia – whether primary judge committed jurisdictional error Legislation: Migration Act 1958 (Cth) s 5, s 36(2)(a), s 36(2)(aa), s 36(2A), s 91R(1)(b), s 424A, s 425
Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954)
Protocol relating to the Status of Refugees. Opened for signature 31 January 1967. 606 UNTS 267 (entered into force 4 October 1967)
Date of hearing: 12 May 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms C Symons Solicitor for the First Respondent: Clayton Utz ORDERS
VID 963 of 2015 BETWEEN: MZAEY
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
12 MAY 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to pay the costs of the first respondent to be taxed, if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BARKER J:
The appellant is a male citizen of India who applied for a protection (class XA) visa under the Migration Act 1958 (Cth) on 15 July 2013, after arriving in Australia from India on a student (class TU) subclass 572 visa on 5 February 2009.
The appellant claimed that, if he returned to India, he would live in fear of harm from his family and members of the Sikh community by reason of his conversion to Christianity in 2009. He claims to fear such harm on the basis that, after informing his parents of his conversion, they notified the Sikh community, causing it to issue a “public notice against him”.
On 22 November 2013, a delegate of the Minister for Immigration and Border Protection made a decision refusing to grant the appellant a protection visa.
The appellant sought review of this decision before the former Refugee Review Tribunal, but the Tribunal affirmed the delegate’s decision on 12 May 2014.
On 17 December 2015, the Federal Circuit Court of Australia dismissed the appellant’s application for judicial review of the Tribunal’s decision. See MZAEY v Minister for Immigration & Anor [2015] FCCA 3538.
The appellant now appeals from the Federal Circuit Court’s decision by a notice of appeal filed 31 December 2015, alleging the primary judge erred by “incorrectly interpreting a state relevant to the proceeding” and the “other side failed relevant evidence”.
DELEGATE’S DECISION
The delegate found the appellant’s claims to fear harm due to his conversion to Christianity were not credible or genuine. In circumstances where, despite being specifically invited to do so by the former Department of Immigration and Citizenship, the appellant had failed to present any evidence of his conversion or reasons for doing so, or any detailed information about the alleged threats of harm from the Sikh community, the delegate considered his claims were “vague and unsubstantiated”. Further, the delegate considered the four and half year delay between the appellant’s arrival in Australia and his application for a protection visa, raised “serious concerns as to the genuineness of the [appellant’s] claims”.
As the delegate concluded the appellant did not have a genuine, subjective fear of being persecuted in India, she did not make findings in relation to whether the harm feared was for a reason under Convention relating to the Status of Refugees, opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967. 606 UNTS 267 (entered into force 4 October 1967) (Convention reason), or whether the fear was well-founded.
Consequently, the delegate was not satisfied that Australia owed protection obligations to the appellant under s 36(2)(a) of the Act.
On the same bases, the delegate concluded there was no credible evidence before her to indicate the appellant may suffer harm amounting to significant harm for the purposes of s 36(2A) of the Act, and so there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there was a real risk he would suffer significant harm.
Consequently, the delegate was also not satisfied that Australia owed protection obligations to the appellant under s 36(2)(aa) of the Act.
TRIBUNAL’S DECISION
After filing his application for review of the delegate’s decision on 9 December 2013, the appellant accepted an invitation to attend a hearing on 20 February 2014.
Subsequent to the hearing, by letter dated 27 February 2014, the Tribunal invited the appellant to comment on or respond to certain information the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the delegate’s decision. In particular, the Tribunal invited the appellant to respond to a record of the appellant’s conversation with an immigration officer on 15 July 2013, in which the appellant made a number of statements apparently inconsistent with those made before the Tribunal, namely whether his father had threatened to shoot or physically harm him if he returned to India, and whether his relatives were members of the Bajrang Dal. Subject to an application for an extension of time to respond, a response was required by 21 March 2014.
By facsimile dated 12 March 2014, legal representatives for the appellant requested an extension of time to respond to the Tribunal’s letter of 27 February 2014. In its letter of 26 March 2014, the Tribunal granted an extension of time until 9 April 2014.
On 9 April 2014, the appellant’s legal representative provided further documentation supporting the appellant’s claims in the form of a letter from a bishop dated 19 February 2014, and a statutory declaration made by the appellant on 3 April 2014.
On the evidence provided, the Tribunal accepted that the appellant had converted from the Sikh religion to the Mormon religion. However, even considering the appellant’s claims cumulatively, that is whether a Sikh who converted to Mormonism and subsequently sought asylum in Australia, who had been disowned by his family, faced a real chance of persecution on return to India, the Tribunal held there was no real chance that the appellant would be persecuted for a Convention reason in the reasonably foreseeable future and that his fear of persecution was not well-founded. The Tribunal further found that, even viewed cumulatively, there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there was a real risk he would suffer significant harm.
In reaching this conclusion, the Tribunal did not accept the appellant’s claims to fear harm from his family. The Tribunal did not accept that the appellant came from a strict Sikh family; that the appellant’s father threatened to shoot or physical harm him; or that any of the appellant’s family members were members of the Bajrang Dal. While it did accept the appellant’s family may shun, ostracise and disown him due to his conversion to the Mormon religion, it did not regard this treatment as serious harm within the meaning of s 91R(1)(b) or significant harm within the meaning of s 36(2A) and s 5 of the Act.
Further, in the particular circumstances of the case, the Tribunal found the appellant would not be at real risk of significant harm if he relocated outside of his home state and that it would be reasonable for him to do so.
With regard to the appellant’s claim to fear harm from Hindu extremists who attack Christians in India, the Tribunal accepted that country information confirmed the occurrence of such attacks. However, in the particular circumstances of the appellant, the Tribunal considered the chance that he would be targeted for serious harm as “remote or insubstantial or far-fetched”, and therefore not a real chance.
For those reasons, the Tribunal was not satisfied Australia owed the appellant protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT
In his grounds of judicial review before the Federal Circuit Court, the appellant contended the Tribunal:
(1)failed to observe the requirements of procedural fairness;
(2)made an error of law;
(3)applied the wrong test; and
(4)failed to take into account a relevant consideration.
The primary judge considered it was clear the Tribunal complied with the basic requirements of providing the appellant with an opportunity to be heard and complied with s 424A of the Act, by its letter to the appellant dated 27 February 2016 and subsequent grant of an extension of time.
With regard to the appellant’s complaint that the Tribunal relied upon country information sourced from the internet, the primary judge noted it was open to the Tribunal to seek country information as it saw fit and that it had used a wide variety of sources. Consequently, his Honour was not persuaded the Tribunal erred in seeking out and perusing country information.
In particular, however, the appellant complained that the Tribunal did not give sufficient weight to the notice published in an Indian language paper, which effectively sought to inform the general public and Sikh community that the appellant had gone to Australia, converted to Christianity, and been disowned by his father. The primary judge noted that, having considered the notice at [41]-[46] of its decision, the Tribunal found it to be somewhat contrived. In circumstances where the Tribunal had regard to the notice but did not afford it any real weight, the primary judge considered its view was clearly open to it as it was based on a rational reasoning process in the particular circumstances of the case.
With regard to grounds 2, 3 and 4, the primary judge noted the appellant was not able to identify where in its decision the Tribunal referred to or applied the wrong test, or point to something that the Tribunal did not deal with in its decision.
APPEAL TO THIS COURT
The appellant’s notice of appeal filed 31 December 2015 appeals the primary judge’s decision on the grounds that his Honour “incorrectly interpreting a state relevant to the proceeding” and the “other side failed relevant evidence”.
The appellant did not file any submissions but appeared, as a self-represented party, at the hearing and made oral submissions including about the role played by a migration agent engaged by him early on in the process and his inability to be legally represented.
The Minister made submissions both in writing and orally at the hearing.
In circumstances where the Minister considered the absence of particulars and any written submissions rendered it difficult to determine the nature of the appeal grounds, the Minister reasonably approached the appeal on the basis that the appellant agitated the same matters in issue before the primary judge.
With regard to ground 1, that the Tribunal failed to observe the requirements of procedural fairness, the Minister, by reference to the Tribunal’s correspondence to the appellant dated 27 February 2014 and its invitation to the appellant to attend a hearing, submits the primary judge was correct to conclude that it had complied with its statutory obligations under s 424A and s 425 of the Act.
The Minister further contends the primary judge was correct in concluding the Tribunal did not apply the wrong test in conducting a review of the appellant’s visa application.
With regard to the allegation that the Tribunal failed to take into account a relevant consideration, the Minister notes the Tribunal’s decision had regard to the appellant’s documentary material, oral evidence, and information and responses provided to the Tribunal subsequent to the hearing, including the appellant’s response to its correspondence under s 424A of the Act. The Minister says the weight to be attributed to this evidence was a matter for the Tribunal, and that its decision reflected an intelligible and rationally-based reasoning process.
In these circumstances, the Minister submits the appeal should be dismissed with costs.
The Court generally accepts the Minister’s submissions.
This is a case where, as the primary judge pointed out, the Tribunal had regard to relevant evidence before it, obtained in accordance with its powers in conducting merits review.
There was nothing to indicate a lack of procedural fairness in the conduct of the proceeding before the Tribunal. The Tribunal met its obligations under s 424A and s 425 of the Act.
Nor is it evident that his Honour, or the Tribunal earlier, made any error of law.
Ultimately, it was a question of fact finding whether or not Australia owed the appellant protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act.
Perhaps the most relevant piece of evidence to support the appellant’s case was the notice published in an Indian‑language paper. But the Tribunal found this to be somewhat contrived, as the primary judge pointed out. That was a question of fact finding for the Tribunal to decide having regard to the weight of the evidence. The primary judge’s finding that the Tribunal’s finding did not involve any jurisdictional error, is beyond reproach on this appeal.
All in all, there is no evidence to support the grounds of appeal that there was any error of law, wrong test applied, or relevant consideration not taken into account. There was no jurisdictional error made by the Tribunal and the primary judge was not in error in so finding.
In these circumstances, the appeal should be dismissed with costs.
ORDERS
For the reasons given above, the appropriate orders are:
(1)The appeal be dismissed.
(2)The appellant to pay the costs of the first respondent to be taxed, if not agreed.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 12 May 2016
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