MZWVY v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 541

FEDERAL COURT OF AUSTRALIA

MZWVY v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 541

MZWVY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
VID 1624 OF 2005

SUNDBERG J
12 MAY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1624 OF 2005

BETWEEN:

MZWVY
FIRST APPELLANT

MZWVZ
SECOND APPELLANT

MZWWA
THIRD APPELLANT

MZWWB
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SUNDBERGJ
DATE OF ORDER:	12 MAY 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs of the appeal fixed in the amount of $2,000.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1624 OF 2005

BETWEEN:

MZWVY
FIRST APPELLANT

MZWVZ
SECOND APPELLANT

MZWWA
THIRD APPELLANT

MZWWB
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SUNDBERGJ
DATE:	12 MAY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of McInnis FM made on 19 December 2005. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is to be heard by a single judge. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 7 January 2005.

2. The appellants arrived in Australia on 8 November 2003. The first appellant applied for a protection visa on 19 December 2003. (The first appellant’s wife and children joined in his application at a later stage, but for convenience the first appellant will be referred to as “the appellant”.) A delegate of the first respondent refused the application for a protection visa on 28 April 2004. The decision of the delegate was the subject of an application for review by the Tribunal.

3. The essence of the claim before the Tribunal was an alleged fear of persecution by Hindu and Muslim groups in India because the appellant was involved in practising and preaching Christianity. The appellant chose not to appear at the hearing, instead providing a written submission that included a chronology of events concerning attacks on Christians and relevant media articles.  The Tribunal, after considering the appellant’s evidence as a whole, was not satisfied that he was a person to whom Australia owed protection obligations.

4. On an application for review of the Tribunal’s decision before the Federal Magistrates Court the appellant represented himself. He made various claims in relation to the Tribunal’s findings of fact.  The Magistrate dismissed the application on the basis that the findings of the Tribunal were made after the appellant had been given the opportunity to attend the hearing and provide further submissions. The Magistrate found that the Tribunal had not taken irrelevant considerations into account and had approached its task in an appropriate manner free of apprehended bias. The Magistrate concluded that the procedure followed by the Tribunal did not constitute a breach of natural justice or procedural fairness.

5. The appellant’s Amended Notice of Appeal (the first notice) contains three grounds of appeal:

   ·he had no solicitor to represent him, as a result of which his case was not presented in detail

   ·he is trying to produce more documents to support his case

   ·his facts were not taken into consideration because he was not legally represented.

6. In a later document also called an Amended Notice of Appeal (the second notice), the appellant restates the facts he relied on to support his fear of persecution, and argues with the findings of fact made by the Tribunal. He adds that

   ·the Tribunal and the Magistrate failed to look into his details

   ·he is shocked by the Tribunal’s statement that he had not attended the Tribunal’s hearing

   ·the Tribunal did not probe “into the direct issues” of claims

   ·the Tribunal’s decision was one sided and his claims were not taken into consideration.

7. The first two matters raised in the first notice of appeal are not admissible grounds of appeal. To the extent that the remaining complaint assumes that the Magistrate was required to find facts, it misunderstands his Honour’s role. It is clear that he properly carried out his role, namely to determine whether the Tribunal’s findings were reasonably open on the evidence. His Honour said:

   “I am satisfied on a proper reading of the decision that … the Tribunal has indeed thoroughly considered and dealt with the Applicant’s claims of persecution and made findings on each claim which were reasonably open to the Tribunal.”

   The Tribunal carefully outlined the claims made by the appellant and the evidence upon which he relied. Its findings and reasons for decision disclose no failure properly to consider the details put forward by the appellant. The Magistrate’s conclusion that the Tribunal thoroughly considered the various claims is entirely borne out by a reading of the Tribunal’s decision.

8. The first and third matters complained of in the second notice, and the second part of the fourth matter, merely repeat, in slightly different language, matters raised in the first notice.

9. The second matter in the second notice is directed to the following passage in the Tribunal’s reasons:

   “The applicant was put on notice that the Tribunal was not able to make a favourable decision upon the evidence he provided in support of his application. Although he provided some further information to the Tribunal, he did not give it the opportunity to explore his claims with him at a hearing. Many questions regarding his previous and future circumstances remain unanswered. Due to the lack of detailed information, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well‑founded fear of persecution within the meaning of the Convention.”

   This is a quite unexceptionable statement. The appellant was invited to attend the Tribunal hearing. He did not do so, instead filing a written submission. The Tribunal was simply recording that, because of the appellant’s absence, it was unable to explore with him various matters relevant to his claims.

10. On the hearing of the appeal the appellant gave an instance of what he would have been able to tell the Tribunal had he attended the hearing. The Tribunal said it would have liked to discuss with the appellant his previous trip to Australia in 2002 and subsequent return to India a month later, and why he did not apply for protection at that time if he was subjected to threats and discrimination prior to his trip. The appellant said that had he been at the hearing he would have been able to tell the Tribunal that it was only after “the incident which terrified us on 10 September 2003” that he “decided to get rid of his home and move to a safer destination”. Until that incident he was not in fear of his life. There was no need for him to seek a protection visa in 2002. The material before the Tribunal does not refer to an incident in September 2003. The appellant’s account of discrimination against him is expressed in a very general manner, without dates. In those circumstances, it is not surprising that the Tribunal took the visit to Australia to have been in 2002, that being the date appearing in the delegate’s decision. In any event, the appellant cannot complain about what he says is a mistake by the Tribunal. He was invited to attend a hearing to give oral evidence and present arguments in support of his claims. He was informed that the invitation was being extended because the material before it did not enable the Tribunal to make a decision in his favour. He did not attend the hearing, but submitted a typed version of the handwritten material in his visa application – with no dates and almost no particulars of the alleged threats. This submission told the Tribunal nothing it did not already know. In those circumstances it avails the appellant nothing now to say, in effect, that he should have gone to the hearing because he would have been able to clear up a misunderstanding induced by the absence of dates and particulars in his written submission.

11. The first part of the fourth matter in the second notice might be read as a claim that the Tribunal was biased. The Magistrate treated the appellant as having alleged bias. He said:

    “Whilst it may be genuinely felt by the Applicant that the decision is one which appears to be biased, I am not satisfied on the material before me that there is indeed evidence which would satisfy the tests for apprehended bias; that is, whether a fair‑minded observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question being decided (see Ex parte H (2001) 179 ALR 425 at 434).

    In this case it is clear that the Tribunal has approached its task in an appropriate manner, free of any suggestion of apprehended bias, as it has properly addressed the claims in some detail and there is nothing in the material before me to suggest that the Tribunal had failed to bring an impartial mind in its decision‑making process regarding this claim.”

    The Magistrate posited the correct test for apprehended bias, and his Honour’s conclusion on the point was unavoidable.

12. None of the grounds of appeal having been made out, the appeal must be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:            12 May 2006

The Appellant appeared in person.
Counsel for the Respondent:	CL Symons
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 May 2006
Date of Judgment:	12 May 2006