MZXDW v Minister for Immigration

[2006] FMCA 494

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXDW v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 494

MIGRATION – Refugee visa – no jurisdictional error.

Migration Act 1958

Applicant: MZXDW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

File Number: MLG 1381 of 2005

Judgment of: Phipps FM

Hearing date: 20 March 2006

Date of Last Submission: Nil

Delivered at: Melbourne

Delivered on: 20 March 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms S Sim

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.

2. The application is dismissed.

3. The applicant pay the respondent's costs fixed at $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1381 of 2005

MZXDW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who has applied for a protection visa.  The visa was refused by a delegate of the first respondent.  The applicant arrived in Australia on 19 July 2003 on a student visa and lodged the application for a protection visa on 19 April 2004.  The notification of the rejection of the application was 9 September 2004 and the applicant then applied to the Refugee Review Tribunal which affirmed the delegate's decision.

2. The claim for a refugee visa that the applicant makes is that he became a member of the Congress Party youth wing in 1999. 

   
   

   The Congress Party is one of the major political parties in India.  He claimed he was elected to the office of president in his state and held the position for a year.

3. During the 1999 elections in that state he campaigned against the incumbent party and helped his father, also a supporter of the Congress Party, with his election activities.  The applicant claims that during the 1999 elections he discovered that an opposite party candidate had been supplying liquor and money to villagers in exchange for votes, contrary to the electoral laws, and he claimed he reported those activities to the media who published his report in the newspaper.

4. He then claimed that on the following day he was attacked and threatened with death.  He continued to campaign in the next polling phase.  He claimed that the opponents had learnt of his dealings with the media.  He claims he reported the incident to the police but his statement was rejected by the police and he was told not to interfere in the opposition party's activities.

5. He claims that he, along with his father and a Congress Party candidate, reported on the serving and distributing of liquor and he claims, following an investigation by the election commission, the first phase of polling was cancelled.  He then claimed that in January 2001 the opposing party's electoral office was destroyed and he was blamed for the attack.

6. There was a complaint made to the police.  He was wrongly blamed for the attack.  The police tried to arrest him but he hid and changed his residence to avoid the police.  The applicant said his family insisted that he move to a different state.  So he did, in 2002, and took up work in a different state.  He claimed that information was passed on to local politicians and the police.

7. He said it was impossible for him to remain in India and so he decided to move to Australia on a student visa.  He claimed that his life would be in danger if he returned to India in view of his part persecution and political opinion.  He feared the state government in his home state, or his parent's state, would take action against him.

8. The tribunal's decision is dated 15 February 2005.  In its findings, the tribunal accepted that the applicant's grandparents and parents were supporters of the Congress Party and that his father may have actively participated in the 1999 state elections.  It accepted that the applicant was a supporter of the Congress Party and a member of the separate Congress Party youth wing but it did not accept that he held the position of president of the youth wing.

9. It based its findings on questions of credibility and gave its reasons for basing its findings in that way.  Similarly, the tribunal did not accept that the applicant canvassed for a local member in the 1999 state election; it did not accept that he was responsible for the report either to the media or the election commission about purchase and distribution of alcohol; and did not accept that he was attacked as a consequence of that.

10. The tribunal did not accept that the applicant was accused of destroying an opposition party electoral office in January 2001.  Again the tribunal based its findings on matters of credibility and gave its reasons for making those credibility findings.  The tribunal found that the applicant did not experience any problems in any of the states in which he lived and nor that he was of interest to either the police or forces working with politicians.

11. It also found that the police did not pass on information about the applicant to police in other states and found that the applicant's alleged political opponents did not come to know of his whereabouts in another state.

12. The tribunal therefore concluded that, given his limited involvement in politics in the past, the applicant did not obtain a political profile and did not attract the interest of an opposing party or forces supporting that party, or the police.  The tribunal found that the applicant could return to India and to places where he had previously resided without facing a real chance of persecution.

13. The application for review to this court gives as grounds for review that the decision of the tribunal is affected by jurisdictional error in that the tribunal failed to take account of relevant criteria.  The particulars are that the tribunal misinterpreted, or misunderstood, the criterion that the applicant had to establish to be eligible for a grant of visa in that it failed to consider the applicant's claims and the evidence in support of those claims.  There are no further particulars.

14. A reading of the tribunal's reasons shows that it did understand the criteria for a refugee visa and that it did consider all of the applicant's claims.  The applicant's claim was fear of persecution, fear for his personal safety if he returned because he had a political profile, and his claim for political profile was based on his claims of his political activities and his political affiliations, as already described.  The tribunal considered all of those and rejected most of them, and certainly the relevant parts insofar as the application was concerned, on credibility grounds.

15. The second particular is that the tribunal failed to deal with or consider the case as presented and the claims of the applicant.  That takes the matter no further than the first claim and, similarly, is not made out.

16. The third ground is that the tribunal misunderstood the meaning of persecution in the convention and in particular misunderstood the meaning of serious harm in finding that the harm of the applicant's experience in the past did not amount to serious harm.  The harm which the applicant claimed he had suffered in the past or that had been threatened in the past may well amount to serious harm but the tribunal found that the events which the applicant claimed, had not occurred, and so did understand the meaning of serious harm in the context of this case.

17. The next ground is that the tribunal failed to consider whether the facts, as it found to have occurred, led to the conclusion that the applicant had a well-founded fear of persecution for a convention reason.  That ground is not correct for the reasons already given.

18. The next ground is the tribunal misunderstood what follows from its finding, that the persecution did not have an official quality.  That does not appear to be a ground which has relevance to this case.  The applicant claimed his persecution did have an official quality, firstly, because the police would not accept his complaint and, secondly, that there was no protection from the harm with which he was threatened.  The answer to all of that is that the tribunal found that the incidents and circumstances that the applicant relies on did not occur.

19. The last of the particulars, under the relevant material heading, is that the tribunal failed to consider whether the motive for the harm threatened to him was because of political opinion held or imputed to the applicant.  The tribunal has rejected the factual claims made by the applicant in relation to the motivation for any harm.  In fact it has rejected that he did suffer any harm.

20. Overall, the tribunal's determination is based on a consideration of the facts as alleged by the applicant and a consideration of the credibility of those claims.  It has rejected, on credibility grounds and on consistency grounds, all of the material events which the applicant relies upon.  It is not a case where the tribunal has not considered the applicant's claim, or any part of it.  The tribunal has considered all of those claims.

21. The next ground which is alleged in the application is that the decision of the tribunal was made without jurisdiction and in breach of rules of natural justice.  A further ground alleges failing to provide procedural fairness as elaborated on in the written contentions which were filed.

22. In the applicant's submissions today there is a complaint that the tribunal relied on country information without giving that country information to the applicant and giving the applicant the opportunity to comment on the country information. The tribunal does make reference to reports on political circumstances in India and events in India generally and concerning the 1999 state election. All the material to which it has referred comes within the exception to the obligation to notify, which is contained in s.424A(3)(a) of the Migration Act 1958.

23. That section excludes from the obligation information that is not specifically about the applicant and is just about a class of person to which the applicant, or other person, is a member.  All of the country information that the tribunal refers to comes within that exception.  The first respondent submits that there is another basis for rejecting the claim of breach of procedural fairness or breach of essential requirements and that is that the obligation to provide information contained in s.424A(1) is only to provide information which is the reason, or part of the reason, for the decision.

24. The first respondent submits that the country information does not form the reason, or part of the reason.  The tribunal's reasons for rejecting the application, the first respondent submits, are based on credibility findings and the country information is no more than background to that credibility.  Whether that is the case or not does not matter because the country information comes within the exception in any event.

25. The application appears to contain a broader ground of breach of procedural fairness than that I have just referred to but it is not particularised.  There does not appear to be any other basis for arguing breach of procedural fairness.

26. Finally, the application claims that the tribunal asked the wrong question, identified the wrong issue and took into account irrelevant material.  It refers to the particulars which had already been given under the heading Jurisdictional Error.

27. None of the matters which are referred to, and which I have already dealt with give rise to an argument that there has been a wrong question asked, or a wrong issue, or the taking into account of irrelevant material.  There is no basis for attacking the tribunal's decision that has been made out.  The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:  Sherryn Kwong

Date: