MZALA v Minister for Immigration and Border Protection

[2016] FCA 163

FEDERAL COURT OF AUSTRALIA

MZALA v Minister for Immigration and Border Protection [2016] FCA 163

Appeal from:	MZALA v Minister for Immigration & Anor [2015] FCCA 2734
File number:	VID 721 of 2015
Judge:	BROMBERG  J
Date of judgment:	22 February 2016
Catchwords:	MIGRATION – whether primary judge erred in failing to discern that Tribunal made jurisdictional error in that it failed, contrary to s 424A of the Migration Act, to disclose adverse information to appellant – adverse information not identified – primary judge did not err – appeal dismissed.
Legislation:	Migration Act 1958 (Cth) s 424A
Cases cited:	MZALA v Minister for Immigration and Border Protection [2015] FCCA 2734
Date of hearing:	22 February 2016
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	9
Counsel for the Appellant:	The appellant appeared in person assisted by an interpreter
Counsel for the First Respondent:	Mr A Aleksov
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The second respondent filed a submitting notice, save as to costs

ORDERS

VID 721 of 2015

BETWEEN:

MZALA

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BROMBERG  J
DATE OF ORDER:	22 FEBRUARY 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

BROMBERG J:

1. By Notice of Appeal lodged on 5 November 2015, the appellant appeals from a decision of the Federal Circuit Court, published as MZALA v Minister for Immigration and Border Protection [2015] FCCA 2734. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 28 August 2014 in which the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a Protection (Class XA) visa.

2. The appellant is a citizen of India and is of the Sikh religion.  He arrived in Australia on 31 July 2009 as a dependant of his wife, who held a Student (Subclass 572) visa.  He applied for a protection visa on 20 December 2013.  His principal claim was that he belongs to a lower caste than that of his wife, whom he married against the wishes of her family.  He claimed to have been attacked in 2009, for that reason, by his wife’s brother and the brother’s associates.  He further claimed that he had been summoned to a meeting convened by members of his village council who ruled against him, and he claimed that he had gone against his community and the decision of the village council.

3. The appellant claimed that he feared for his life and that of his family.  He also claimed that local police would not protect him because they would not interfere in the decisions of community leaders.

4. At a hearing convened by the Tribunal, the Tribunal expressed to the appellant its concerns about the credibility of his claims.  At [20] of its reasons, the Tribunal set out four concerns that the Tribunal had with the evidence and the claims made by the appellant.  It is not necessary that those concerns be here set out.  Each concern explains why the Tribunal did not accept that, as a result of his marriage, the appellant had experienced harm at the hands of his wife’s family or any other person in his home region of Thowna in the Punjab.

5. The Tribunal concluded at [21] of its reasons that it did not accept that the appellant had been attacked by his wife’s brother or persons associated with the brother in 2009 because of the objections of the family to the marriage.  Nor did the Tribunal accept that the appellant had been summoned to appear before the village council or otherwise harassed or attacked by persons belonging to that council for any reason relating to the appellant’s marriage to his wife.  At [22] of its reasons, the Tribunal concluded that it did not accept that the appellant faces a real chance of serious harm, should he be returned to Thowna, on the basis of his marriage or for any other Convention reason.

6. On judicial review before the Federal Circuit Court, the appellant advanced three grounds of review.  Only one of those grounds is now pursued on this appeal.  As expressed in the Notice of Appeal, that ground is as follows:

   The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

   (a)There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A.

7. Neither before the Federal Circuit Court nor in this Court did the appellant articulate the nature of the adverse information he says was used by the Tribunal in contravention of s 424A. Neither by way of written submissions nor in oral submissions made today has the appellant particularised the basis for the ground of appeal which he advances. The primary judge dealt with the s 424A ground as follows:

   [12]The applicant says that the Tribunal’s decision was in breach of s.424A(1) of the Migration Act 1958 (Cth) (“the Act”). He says that there was “certain adverse information” used by the Tribunal. He says that the Tribunal did not disclose the information to him, in accordance with s.424A(1).

   [13]The applicant does not particularise in his application, or in his oral submissions, what constituted the alleged adverse information relied on by the Tribunal. 

   [14]In any event, a proper reading of the Tribunal’s reasons does not disclose any such adverse information. Rather, the reasons show that the Tribunal relied on information provided by the applicant or independent country information of a general sense, rather than specific to the applicant. Such information is not captured by the exceptions in s.424A(3) and therefore not subject to the requirements of s.424A(1) of the Act.

8. There is no error that I can discern in the approach taken by the primary judge to the s 424A challenge. Nor am I able to identify any other apparent basis for the view that the primary judge failed to identify jurisdictional error in the decision of the Tribunal.

9. For those reasons this appeal must be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:        4 March 2016