MZWCT v Minister for Immigration - [2005] FMCA 385

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWCT v MINISTER FOR IMMIGRATION

[2005] FMCA 385

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth), s.575A
Judiciary Act 1903 (Cth), s.39B

VFAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1081
Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218
W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Abeysinghe v Minister for Immigration & Multicultural Affairs [2002] FCA 511
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266

Applicant:

MZWCT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 99 of 2004

Delivered on:

1 March 2005

Delivered at:

Melbourne

Hearing Date:

1 March 2005

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondent:

Mr C.J. Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The applicant’s application filed 4 February 2004 be dismissed.
The applicant do pay the respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 99 of 2004

MZWCT

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant in this matter is a 27-year old female Indian citizen of Sikh ethnicity. The applicant came to Australia on 15 August 2002 from New Zealand where she had been residing for six months following her departure from India on 8 February 2002. The applicant applied for a protection visa on 15 August 2002, setting out her claims in questions 39 to 44 of Part C of the application form. On 11 September 2002 a delegate of the respondent made a determination that the applicant was not a person to whom Australia had protection obligations and refused her application.
The applicant sought a review before the Refugee Review Tribunal (‘the RRT’) on 8 October 2002 and the RRT conducted a hearing on

11 December 2003. The RRT ultimately affirmed the delegate's decision on 17 December 2003, handing down their decision on

16 January 2004.
On 4 February 2004 the applicant made application pursuant to section 39B of the Judiciary Act and section 575A of the Migration Act, relying upon the following grounds:
i)The respondent failed to observe the proper procedures with regard to the applicant and to act in accordance with substantial justice;
ii)The respondent exceeded its jurisdiction.
These very brief grounds fail to disclose any basis for judicial review that appears to be particular to this case as opposed to the general propositions that are raised by the grounds that could arguable apply to any case.
The applicant then lodged a statement of facts and contentions which barely exceeds one page. Once the formal introductory parts are removed, the actual contentions are five brief paragraphs in the following terms:
1.Pursuant to the provisions of the Act the delegate and the Tribunal were acting on behalf of the Minister.
2.The Tribunal erred in law and exceeded its jurisdiction in that it failed to consider whether a private act of violence can not in circumstances where it is perpetrated with religious overtones, by as alleged by the applicant, constitute persecution.
3.The Tribunal failed to inquire and to determine whether the authorities in India were willing and able to protect her from alleged persecution.
4.The Tribunal, contrary to section 424A of the Migration Act failed to put to the applicant at the hearing that it did not believe that she was a credible witness and the Tribunal believed that her evidence was fabricated.
5.In the circumstances, it is pleaded that the applicant is entitled to the relief sought in the application.
Ground (1) appears to be irrelevant.
Whilst grounds (2) and (3) of the statement of facts and contentions raise issues with respect to the meaning of persecution under the relevant legislation and the convention, it was not in fact an issue that the RRT needed to determine. This is because the RRT rejected the version of events given by the applicant on the basis that the applicant was not a credible witness. The RRT made the following findings:
The Tribunal finds that the applicant was not a credible witness. In significant respects, her evidence at the Tribunal hearing was vague, scant and inconsistent.
At the hearing the applicant claimed, essentially, that she feared being persecuted in India because she had refused to marry a Hindu man (Mr Sharma). Yet, her evidence about the circumstances of her relationship with him was so vague and scant as to suggest that she had fabricated this claim. For instance, she could not remember in which year he had proposed to her. The Tribunal also found it incongruous that she referred to him by name on only one occasion — when she was asked what his name was — given they had attended the same school between about 1990 and 1996, and given that he had apparently contacted her on many occasions for about five years after they stopped attending the same school.
The applicant’s evidence at the hearing was vague and inherently unconvincing in relation to her claim that Mr Sharma had bit her on one occasion. Initially, she merely stated that he had bit her and threatened her on that occasion. It was only when asked to provide more detail about that incident that she gave evidence to the effect that he had seriously assaulted her. Further, when asked what she had done in response to that assault, the Tribunal found her response that she made a decision to leave India to be incongruous given she failed to leave that country for another six months. Then, when asked why there was a six-month delay before she departed India after Mr Sharma assaulted her, she said she did not know. The Tribunal also found it incongruous that she did not even attempt to seek an alternative solution to her “problem” with Mr Sharma during that six-month period.
The Tribunal found the applicant’s failure to claim asylum in New Zealand to be inconsistent with her claim to have had a genuine fear of being persecuted in India at the time she departed that county. The Tribunal notes that she resided in New Zealand for six months, during which time she did “nothing” according to her own evidence at the hearing. Further, it notes that she failed to explain satisfactorily to the Tribunal why she bad been able to claim asylum in Australia yet had been “unable” to claim asylum in New Zealand during the six months she lived there.
The applicant gave inconsistent evidence in relation to the whereabouts of her immediate family members. At the outset of the hearing, she said that her parents, three sisters and brother continued to live in her home village in Punjab. However, at the end of the hearing and in the context of her giving evidence that her father had also experienced mistreatment in Punjab, she stated that she did not know where her family was. She sought to explain this inconsistent evidence by stating that she had made a mistake. The Tribunal accepts that applicants can make mistakes during Tribunal hearings. However, a mistake of such significance suggested to the Tribunal that the applicant was being untruthful.
Given the Tribunal’s assessment of the applicant’s evidence at the hearing, it does not accept that she has been mistreated or threatened by Mr Sharma, any member of his family, or by the Indian authorities as she has claimed. It does not accept that any member of the applicant’s family has been mistreated or threatened by Mr Sharma, any member of his family, or by the Indian authorities. It does not accept that applicant has a genuine fear of being persecuted by Mr Sharma, any member of his family, or by the Indian authorities, because she is a Sikh.
Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted by any person, Hindu or otherwise, or by the Indian authorities, for reasons of religion or (imputed) political opinion.
It is apparent that the RRT have rejected the applicant's credibility and did not accept her evidence. The contentions of fact and law do not attempt to address this fundamental difficulty: that is, that the facts and circumstances claimed by the applicant were not accepted by the RRT. Unless the RRT accepted those facts, none of the following issues referred to in paragraphs 2 and 3 of the statement of facts and contentions can arise. In this regard it appears to me that the application is misconceived.
Ground (4) of the contentions of fact and law make a claim that the RRT ought to have advised the applicant at the hearing that it did not believe she was a credible witness and did not accept her version of events. This is also misconceived, for the reasons set out in the contentions filed on behalf of the respondent, which includes an enormous number of case references. The respondent says:
The Tribunal was not required to put to the applicant pursuant to s424A of the Act, that it did not believe that she was credible or that it believed her evidence was fabricated. The Tribunal’s thought processes are not ‘information’ for the purposes of s424A(1)(a): VFAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003]FCA 1081 (Marshall J, 8 October 2003) at [6]-[8]; Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218 (Emmett J, 31 October 2003) at [18]-[19]; W352 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 (French J, 5 April 2002) at [42]; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 at [95]; Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 (Sackville J, 14 August 2000) at [50]-[54]; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] and [295]; Abeysinghe v Minister for Immigration & Multicultural Affairs[2002] FCA 511 (Ryan, Carr and Conti JJ, 30 April 2002) at [20]; WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266 at [27]-[31].
The remaining ground, ground (5), did not raise any contentions that require an answer.
In the circumstances, I therefore refuse the application of the applicant.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: