MZAEZ v Minister for Immigration

[2015] FCCA 712

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAEZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 712

Catchwords:
MIGRATION – Refugee Review Tribunal – whether s.424A applicable – whether the Tribunal considered key elements of the Refugee Convention
definition – whether the Tribunal was bound to investigate the applicants’ claims – whether the Tribunal’s decision was affected by actual bias.

Legislation: 

Migration Act 1958 s.424A

First Applicant: MZAEZ

Second Applicant: MZAFA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1053 of 2014

Judgment of: Judge Riley

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Melbourne

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the First Applicant: The First Applicant appeared in person

Solicitors for the First Applicant: The First Applicant was not represented

Counsel for the Second Applicant: The Second Applicant did not appear

Solicitors for the Second Applicant: The Second Applicant was not represented

Counsel for the First Respondent: Emily Latif

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. The application filed on 29 May 2014 be dismissed.

2. The applicants pay the first respondent’s costs in the proceeding, fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1053 of 2014

MZAEZ

First applicant

MZAFA

Second applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal.  There are two applicants, a husband and a wife.  The first applicant, the husband, has appeared in court today without the benefit of a legal representative but with the assistance of an interpreter.  The second applicant, the wife, did not attend the hearing today.

2. The first applicant made protection claims.  The second applicant did not make any protection claims of her own, but relied on her husband’s claims.

3. Both applicants are from India.  The first applicant is 36 years old and the second applicant is 30 years old.  They arrived in Australia on

   
   

   5 June 2013 as visitors.  They applied for protection visas on

   
   

   3 September 2013. 

4. The first applicant said that:

   a)he had worked in a fabric mill as a fitter;

   b)he began to participate in local politics;

   c)he joined the Congress Party and worked as a local promoter of the party;

   d)in his home region of Gujarat, the BJP had been dominant for two decades;

   e)there was conflict between the Congress Party and the BJP;

   f)during a local election, the first applicant delivered some party catalogues in his local area;

   g)BJP people asked him to leave their area and never come back;

   h)he left but, one week later, the same people saw him delivering catalogues in another area;

   i)there were six to eight people;

   j)they started fighting with him and hit him;

   k)he went to the Congress Party office for treatment;

   l)the next day, he found out that there was a big fight between Congress Party workers and BJP workers;

   m)several people were admitted to hospital;

   n)some Congress Party workers went to his house that evening to take him to the Congress Party office however the first applicant refused to go;

   o)he had promised his wife that he would stop his political work;

   p)the Congress Party workers became angry at him and told him he was a coward;

   q)afterwards, both the BJP and the Congress Party people thought that the fight occurred because of the first applicant;

   r)they began to humiliate him and make trouble for his family members;

   s)he went to the police and senior leaders, but no one was willing to help him; and

   t)the first and second applicants went to Ahmedabad due to their fears for their safety.

5. The first applicant attended a hearing with the Tribunal, however, the second applicant did not attend.  The Tribunal considered that the applicant’s claims were not credible.  The Tribunal found many aspects of the applicant’s evidence to be vague and lacking in detail.  The Tribunal was unconvinced by the applicant’s attempts to explain what appeared to be his sudden interest in the Congress Party.  The Tribunal considered that the applicant was not able to describe in any detail what activities he undertook to promote the party.  The Tribunal noted that the first applicant often repeated the same evidence in response to further questions and concerns raised by the Tribunal.  The Tribunal found the applicant’s evidence in relation to the harm he claims to have faced in India to be implausible.  The Tribunal set out its reasons in detail for finding the applicant’s claims to be implausible. 

6. Ultimately, the Tribunal was not satisfied that the first applicant had ever been involved in promoting or supporting the Congress Party. 

   
   

   The Tribunal did not accept that:

   a)the applicant had been warned by BJP supporters to stop assisting the Congress Party;

   b)there had been a fight between the Congress Party and the BJP for reasons associated with the applicant;

   c)the applicant was blamed for the fight;

   d)

   the party members were angry with or abusive of the

   
   

   first applicant;

   e)the applicant sought help from the Congress Party leader in his village or from the authorities; and

   f)the first and second applicants did not go to Ahmedabad due to their fears for their safety.

7. Consequently, the Tribunal did not accept that the applicant faced a well-founded fear of persecution for a Convention reason.  In addition, for the same reasons, the Tribunal did not accept that the applicant faced a real risk of significant harm if he were to return to India. 

8. The applicant has raised four grounds in his application.  The applicant did not provide particulars of those grounds.  He has not filed an outline of written submissions.  When asked by the court today what he wished to say about the various grounds in his application, the applicant said that he had nothing to say. 

9. The first ground is:

   My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.

10. The first applicant has not identified any information that he says the Tribunal should have, but did not, provide to him in writing. There does not appear from the decision to have been any information that the Tribunal relied upon which it should have given to the applicants. The Tribunal’s decision was based on its view of the credibility of the first applicant and the implausibility of his claims. The assessment of credit and plausibility is not information within the meaning of s.424A of the Migration Act 1958 (“the Act”).  I am not persuaded that, in this case, there was any information which the Tribunal should have, but which it did not provide to the applicants.  For completeness, I note that the delegate also rejected the applicants’ claims for credibility reasons.

11. The second ground in the application is:

    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

12. Again, the first applicant has not provided any particulars of this ground. The decision of the Tribunal appears to have properly set out the legislative background and the correct legal principles. The applicants’ claims appear to have been properly set out and understood. The decision that those claims were implausible and not credible was open to the Tribunal. It does not seem to me that it could properly be said that the Tribunal’s decision was not reasonable in the legal sense or that the decision was not arrived at in accordance with the requirements of the Act.

13. The third ground in the application is:

    The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

14. The Tribunal in this case has considered the four key elements of the Refugees Convention.  The Tribunal was satisfied that the applicants were outside their country of nationality.  The Tribunal was not satisfied that the first applicant feared persecution.  The Tribunal considered that the first applicant’s claims in that regard were not credible or plausible.  The Tribunal accepted that the first applicant’s claims amounted to a claim of persecution on the grounds of political opinion.  However, the Tribunal did not accept that those claims were credible or plausible.  The Tribunal did not accept that the persecution that the first applicant claimed to fear was well-founded.  That was because the claims were considered by the Tribunal not to be credible or plausible.

15. I am not persuaded that the Tribunal failed to consider the four key aspects of the Refugees Convention definition.  Moreover, I am not persuaded that the Tribunal failed to consider all of the applicant’s claims.  The Tribunal set out those claims in detail.  The Tribunal questioned the applicant about relevant matters during the hearing before it, and the Tribunal set out its analysis of the matter under the heading “Findings and reasoning”.

16. The fourth ground in the application is:

    The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India.  Therefore, the Tribunal decision dated 05^th May 2014 was effected by actual bias constituting judicial error. 

17. It is well established that, as a general rule, the Tribunal has no obligation to investigate an applicant’s claims.  It is for an applicant to make out his or her claims.  It is only where there has been a failure to make an obvious inquiry about a critical fact, the existence of which is readily ascertained, that there might be a jurisdictional error constituted by a failure to inquire.  The applicants have not pointed to any such fact or information.  I have been unable to identify any. 

18. The allegation of actual bias appears to be dependent upon the alleged failure to investigate.  As there was no impugnable failure to investigate, there could have been no consequent actual bias.

19. In any event, it is well established that actual bias only occurs where there has been pre-judgment to which the decision-maker was so committed that the decision was incapable of alteration, whatever evidence or arguments might be presented.  It is also well established that an allegation of actual bias must be distinctly made and clearly proved. 

20. The decision of the Tribunal in this case does not appear to me to have been affected by actual bias.  The summary by the Tribunal of the hearing before it indicates that the Tribunal was making reasonable inquiries of the applicant.  There is nothing in that summary to indicate that the Tribunal had committed itself to a view of the facts prior to the conclusion of the hearing.  All in all, there does not appear to be anything in the material before the court to substantiate the allegation of actual bias. 

1. None of the applicants’ grounds has been made out.  There does not appear to be any other error in the Tribunal’s decision.  Consequently, the application must be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:26 March 2015