MZXRF v Minister for Immigration

[2008] FMCA 318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXRF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 318

MIGRATION – Refugee Review Tribunal – alleged jurisdictional error on several grounds – no grounds made out – application dismissed with costs. 

Migration Act 1958 (Cth), ss.418, 424A, 430

Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68

Applicant: MZXRF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 872 of 2007

Judgment of: Burchardt FM

Hearing date: 18 February 2008

Date of Last Submission: 18 February 2008

Delivered at: Melbourne

Delivered on: 20 March 2008

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr B. Wee

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. THAT the application filed 27 June 2007 be dismissed. 

2. THAT the Applicant shall pay the First Respondent’s costs, fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 872 of 2007

MZXRF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The background to this matter is set out in paragraphs 4 and 5 of the contentions of fact and law of the First Respondent, which I now paraphrase. 

2. The Applicant is an Indian citizen of Hindu faith who arrived in Australia on 17 November 2005 on a subclass 573 student visa.  That visa expired in August 2006 and the Applicant would have been required to leave Australia on 31 December 2006.

3. Shortly before this final expiry date, on 8 December 2006, the Applicant applied for a protection visa.  He claimed that he would face persecution in India because of his relationship with a Muslim girl who became pregnant with his child.  The Applicant claimed that because of that relationship he was beaten in year 12 by the girl's brother; that in July 2006 the girl's father, who is a Muslim extremist and head of the local mosque, threatened and beat his family; and that his family was detained by Muslim extremists for a week.

4. On 25 January 2007 a delegate of the First Respondent refused the visa application.  On 14 February 2007 the Applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the decision.  The Applicant attended a hearing on 23 March 2007 and gave evidence.

5. The Tribunal sent the Applicant two s.424A letters, one before the hearing, on 21 February 2007; and one after the hearing, on 27 March 2007. The Applicant replied to both of those letters. On 12 May 2007 the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa.

6. The application alleges jurisdictional error on five grounds.  Those grounds are only slightly elaborated in the Applicant's contentions of fact and law filed on 22 October 2007, much of which consists simply of merits review.  At the hearing before me the Applicant made submissions which, in my view, added little to the materials already filed.  It should be noted that the Applicant did raise an issue as to the competence of the interpretation at the proceeding before the Tribunal.  I turn to deal with the five matters raised by the Applicant seriatim. 

Procedural fairness

1. The application particularises this ground as:

   Further particulars will be provided after receipt of the tape recordings of the hearing at the Tribunal on 23 March 2007.

   No such particulars have been provided.  

2. It suffices to say that I accept the submission of the First Respondent that no denial of procedural fairness can be discerned on the face of the Tribunal's decision or from the Court Book materials. I note that the Tribunal sent the Applicant two comprehensive s.424A letters.

3. In his contentions of fact and law, and again before me, the Applicant complained that it was only upon his insistence that the Tribunal was prepared to take evidence from his mother.  This was put in the context of a bias point.

4. The fact is, however, that the Applicant's mother was permitted to and did give evidence at the hearing, so it is not possible to discern any procedural unfairness in this regard.

5. It should be noted that, although the Applicant asserted before me that he had to insist that evidence be taken from his mother, he indicated in his hearing response form that this was what he wanted, and I note that the Tribunal accommodated this desire. 

The Tribunal asked the wrong question because it focused on past events rather than the issue of why the Applicant feared persecution in the future

1. It is of course clear from the Tribunal’s decision that the Tribunal spent a considerable amount of time evaluating the truthfulness or otherwise of the Applicant's factual assertions as to what had occurred to him in India.  The Tribunal did not believe the Applicant.  At CB 305 the Tribunal expressed its conclusions thus:

   The Tribunal does not accept, therefore, that the visa Applicant and his family were ever subjected to persecution by Islamic extremists or terrorists.  Having considered the material submitted to the Tribunal by the Applicant, including departmental records about the visa Applicant's previous student visa, as well as his past attempt to travel to Australia in 2004, the Tribunal is not satisfied that the visa Applicant has ever suffered persecution by Islamic extremists.  It follows that the Tribunal is not satisfied that the Applicant has a real chance of facing persecution for a Convention reason, if he returns to India now or within the reasonably foreseeable future and that he does not have a well‑founded fear of persecution.

2. It should be noted that the basis upon which the Applicant pressed his claims before the Tribunal, and indeed before the delegate, was that he faced persecution if he returned to India and that that persecution arose out of his prior relationship with a Muslim girl and the sequelae thereof. 

3. There is nothing inherently impermissible in the Tribunal examining the truthfulness or otherwise of the Applicant's assertions.  Indeed to fail do so would plainly be improper.  It is clearly permissible to look to past events as offering a reasonable guide to what may be expected in the future.  In the context of the facts revealed by this particular case, the Tribunal's approach was entirely open to it, and, in my view, wholly proper.  This approach is one sanctioned by authority (see Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 at [36]).

Bias

1. This ground, as I have earlier said, was partly asserted in the context of the Applicant's alleged insistence that his mother's evidence be taken into consideration.  It also appears to be interrelated with the assertion in the Applicant's contentions of fact and law that bias can be discerned on the part of the Tribunal because it produced a similar decision to that of the delegate. 

2. The Applicant's contentions of fact and law relevantly read:

   The decision of the Tribunal and the DIAC decision was similar which mean they use same principle and they work together and there no fair consideration for my application. [sic]

3. I accept the submission of the First Respondent that there is simply no basis on which to make out any finding of bias on the part of the Tribunal.  The fact that the decision of the Tribunal was the same in its ultimate outcome as that of the delegate is not in any way sufficient to produce a finding of bias.  It should be noted that in at least one material respect the Tribunal's decision was different to that of the delegate. 

4. The delegate did accept that the Applicant had an affair with a Muslim girl (CB 89) and went on to decide against him, on the footing that he could relocate (CB 90).

5. The Tribunal, on the other hand, did not accept that the Applicant had ever had a relationship with a Muslim girl, as claimed, at all

   
   

   (CB 303‑304) and did not address the issue of relocation. 

Relevant material or considerations

1. This ground is particularised as:

   The Tribunal failed to consider the documentary evidence placed by the Applicant before the Tribunal to establish that the Applicant had well-founded fear of persecution for reasons of membership of his being a member of a social group in view of his sexual affair with a woman belonging to a inter-religious muslim faith.

2. Essentially, the Applicant's submission was that the Tribunal refused to consider or believe his claims.  It is clear from the Tribunal's reasons for decision that it was fully appraised of the assertions in the materials put forward by the Applicant.  What happened was that the Tribunal did not believe him.  There is no force in this ground.

Failure to consider relevant material

1. This ground does not seem to add anything and amounts in the ultimate, in my opinion, simply to a complaint that the Applicant was not believed.  The Tribunal dealt with all aspects of the Applicant's claim and was entitled to either accept or decline to accept such claim.  It did not fall into jurisdictional error in not accepting the Applicant's assertions.

Additional issues

1. Before the Court, the Applicant raised the issue of interpretation.  The Applicant asserted that the interpretation at the hearing before the Tribunal was inadequate.  This assertion is not raised in the grounds of appeal nor referred to in the Applicant's contentions of fact and law.  No evidence has been submitted to support this assertion.  There is nothing in the materials that gives rise to any suggestion that any difficulties of interpretation in any way prevented the Applicant from putting any materials that he may have wished to put to the Tribunal, or that otherwise interpretation in some way improperly influenced the proceeding or its outcome. 

2. The Applicant also asserted that his mother had been asked questions that were unduly sensitive.  I accept the submission of the First Respondent that the Tribunal's decision records the mother's evidence and deals with it in a way which is wholly unobjectionable.

3. In his contentions of fact and law the Applicant asserts that the Tribunal:

   failed to comply with section 430 of the migration Act 1958 and there was also failure to comply with section 418 of the act. [sic]

   There is simply no indication in the materials as to how it is put that any such failure to comply with the Migration Act 1958 (“the Act”) is made out and nor is it in any way apparent from the materials that this is the case.

4. The Applicant also asserts in his contentions of fact and law that:

   The Tribunal did not use the appropriate information from my country of origin and they did look into the situation of the citizen Indian that facing persecution and those in prison and the killing of Christianity and other to assess the case. [sic]

   There is no basis in the materials advanced by the Applicant that indicates that the Tribunal was requested to look at country information and declined to do so. 

5. Indeed, in light of the way the Applicant presented his case, it is scarcely surprising that the Tribunal confined itself to examining whether or not it accepted his claims.  There is no error revealed in the Tribunal's decision in this regard.

Conclusion

1. When one looks at the Tribunal's reasons for decision as a whole, it is clear that the Tribunal was properly seized of the question it had to consider, namely whether the Applicant was or was not a person to whom Australia owed a Convention obligation.

2. The Tribunal, in my opinion, did not in any way misconstrue the evidence or otherwise fall into jurisdictional error.  To the contrary, there was compelling evidence that might be said to have justified the Tribunal's decision, not least the Applicant's failure to reveal his failed 2004 student visa application, which application was rejected because of its reliance upon fraudulent documentation.

3. None of the criticisms advanced by the Applicant in his grounds of appeal, his contentions of fact and law and in his oral submissions are in any way valid and the application must be dismissed, with costs.

I certify that the preceding thirty [30] paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  20 March 2008