MZXRF v Minister for Immigration and Citizenship
[2008] FCA 690
•20 May 2008
FEDERAL COURT OF AUSTRALIA
MZXRF v Minister for Immigration and Citizenship [2008] FCA 690
MIGRATION – appeal from a decision of a Federal Magistrate – whether the Refugee Review Tribunal (“the Tribunal”) was affected by bias – whether the Tribunal made findings of fact which were not supported by evidence, failed to give reasons or did not consider evidence before it – where Court found no error on the part of the Federal Magistrate – appeal dismissed
Migration Act 1958 (Cth) ss 424A, 426
MZXRF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
VID 195 OF 2008TRACEY J
20 MAY 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 195 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MZXRF
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
20 MAY 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
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 195 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MZXRF
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
20 MAY 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
BACKGROUND
This is an appeal against a judgment of a Federal Magistrate delivered on 20 March 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 May 2007 and handed down on 1 June 2007: see MZXRF v Minister for Immigration and Citizenship [2008] FMCA 318. The Tribunal had affirmed a decision of a delegate of the Department of Immigration and Citizenship to refuse to grant a protection visa to the appellant.
The appellant is a citizen of India who arrived in Australia on 17 November 2005 on a student visa. On 8 December 2006 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs, as it was then known. A delegate of the first respondent refused the application for a protection visa on 25 January 2007. On 14 February 2007 the appellant applied to the Tribunal for a review of that decision.
REFUGEE REVIEW TRIBUNAL
The appellant claimed that he suffered persecution on the grounds of religion and membership of a particular social group. He was a Hindu whose Muslim girlfriend became pregnant. He also claimed that, as a result his girlfriend’s family searched for him to kill him and threatened his family with weapons. The appellant asserted that he and his family were beaten and that his family had to flee their home and could not send him money to finish his studies. He claimed that he would be killed if he returned to India, and that the authorities could not protect him.
On 21 February 2007 the Tribunal sent a letter to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”) which invited him to comment on: the length of time it took the appellant to lodge his protection visa application and the absence of any evidence which supported his assertion that his family was required to flee their home town due to the conflict with his girlfriend’s family. On 15 March 2007 the Tribunal received a reply from the appellant, which stated the reason the appellant lodged his application “late” was “due to the latest information [he] received from India” and attached a letter in support of his assertion that his family were in hiding. The Tribunal sent the appellant a further s 424A letter on 27 March 2007 which invited the appellant to comment on: the failure by the appellant to advise the Tribunal that he was denied an Australian student visa in 2004, as he had provided fraudulent documentation; the fact that the appellant lodged his protection visa application approximately three weeks before his student visa was due to expire; contradictory evidence from the appellant and his mother in relation to the appellant’s beatings, the appellant’s parents alleged captivity and actual living circumstances and the identity of the appellant’s alleged girlfriend; and the appellant’s mother’s inability to provide corroborative evidence in relation to how the appellant met his alleged girlfriend. The appellant replied to this letter on 17 April 2007.
The Tribunal was not satisfied that the appellant was a credible witness for the following reasons:
1.The appellant omitted to advise the Tribunal that he had attempted to travel to Australia in 2004 as a student, and only acknowledged this when it was put to him at the hearing. On 17 April 2007, in response to the 27 March 2007 s 424A letter, the appellant claimed that the reason for his application in 2004 was to leave India with his girlfriend and to live with her overseas in safety;
2.The appellant’s student visa ceased on 7 August 2006 and the appellant would have been required to leave Australia by 31 December 2006. The appellant did not refer to any details of the reasons for the cessation of his student visa and told the Tribunal he intended to continue his studies in Australia. Departmental information indicated that the appellant did not have any further options for remaining in Australia when he lodged his protection visa application on 8 December 2006’
3.The appellant had remained in Australia for over one year before applying for a protection visa;
4.The appellant’s limited knowledge and vague evidence in relation to his purported girlfriend;
5.The appellant’s mother gave evidence that contradicted the appellant’s evidence at the Tribunal hearing; and
6.The appellant gave vague evidence about the harm allegedly suffered by his parents.
The Tribunal did not accept that the appellant was in a relationship with a Muslim girl and found that neither he nor his family suffered persecution as a result of such a relationship. The Tribunal was not satisfied the appellant was a person to whom Australia had protection obligations under the Refugee Convention and affirmed the decision not to grant the appellant a protection visa.
FEDERAL MAGISTRATES COURT
On 27 June 2007 the appellant filed an application seeking judicial review of the Tribunal’s decision in the Federal Magistrates Court. The appellant claimed that:
1.The Tribunal had committed a jurisdictional error by denying the appellant procedural fairness;
2.The Tribunal misinterpreted or misapplied the relevant law, asked itself the wrong question and failed to address the correct issues. The Tribunal, he claimed, “focussed too narrowly on the factual questions of whether the events alleged by the [appellant] had occurred rather than on the issue of why the [appellant] feared persecution”;
3.The decision of the Tribunal was affected by bias and that its decision was similar to the delegate’s decision, which indicated that the Tribunal and the delegate had worked together and that the Tribunal did not fairly consider his application;
4.The Tribunal had committed a jurisdictional error by failing to consider relevant documentary evidence; and
5.The Tribunal failed to consider relevant material that supported the claim of a well-founded fear of persecution in performing its decision-making function.
The Federal Magistrate could discern no denial of procedural fairness. He examined the Tribunal’s decision, and the Court Book materials, and noted that the Tribunal had sent the appellant two “comprehensive” s 424A letters. His Honour noted that the Tribunal had permitted the appellant’s mother to give evidence at the hearing, at the appellant’s request.
His Honour also rejected the second ground, noting that:
“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.”
The Federal Magistrate accepted the First Respondent’s submission that there was simply no basis on which to make out any finding of bias on the part of the Tribunal. His Honour noted that the fact that the outcome of the decisions of the Tribunal and the delegate were the same was not sufficient for establishing bias. In any event, his Honour noted that the delegate had accepted that the appellant had a relationship with the Muslim girl and that the Tribunal had rejected this claim.
In relation to the appellant’s allegation that the Tribunal failed to consider relevant material, the Federal Magistrate found that the Tribunal dealt with all aspects of the appellant’s claim but “did not believe him” and did not fall into jurisdictional error by rejecting the appellant’s claim.
The Federal Magistrate also dismissed four additional claims raised by the appellant at the hearing. First, his Honour rejected the assertion the interpretation was inadequate as there was no evidence or anything in the materials that indicated any difficulties of interpretation prevented the appellant from putting material before the Tribunal or improperly influenced the proceeding or its outcome. Secondly, his Honour rejected the appellant’s claim that his mother had been asked questions that were unduly sensitive, and found the Tribunal’s decision recorded and dealt with the mother’s evidence in a manner that was “wholly unobjectionable.” Thirdly, the Federal Magistrate found that there was no basis for the appellant’s assertion that the Tribunal had failed to comply with s 430 of the Act. Finally, his Honour found that there was no basis for the appellant’s claim that the Tribunal was asked to examine independent country information and declined to do so. His Honour found that there had been no jurisdictional error and dismissed the application.
APPEAL TO THIS COURT
The notice of appeal to this Court was filed on 7 April 2008. The appellant claimed that his Honour erred in: finding that the Tribunal was not biased; not finding that the Tribunal erred in rejecting the appellant’s claims in relation to his girlfriend as this was contrary to the delegate’s decision and not supported by the evidence; and finding that the Tribunal was not obliged to look at independent country information put forward by the appellant.
At the hearing today the appellant was assisted by an interpreter. The appellant confirmed that he had had the decision of the Tribunal explained to him and that friends had assisted him to prepare his application to the Federal Magistrates Court.
The decision of the Federal Magistrates Court had been interpreted for him by the interpreter before the hearing commenced. The appellant understood the Federal Magistrate’s reasons.
The appellant had received assistance from legal aid personnel in preparing his notice of appeal and also had assistance in preparing submissions which were filed in support of the appeal. The written submissions of the Minister had been translated for him. The notice of appeal contained three grounds.
The first ground appearing in the notice of appeal reads as follows:
“The learned Magistrate erred in finding that the Tribunal was examining the truthful (sic) or otherwise of my assertions without realizing it has (sic) dealt with a closed mindset not open for persuasion.”
I understand this to raise an allegation of actual bias. This ground was also raised before the Federal Magistrate. It was dismissed for want of supporting material. I can find no evidence in the Tribunal’s reasons or in other material appearing in the Court Book which supports such a serious claim. It was properly rejected.
The second ground appearing in the notice of appeal reads:
“The Tribunal decision of not believing that (sic) I had an affair with a Muslim girl was contrary to the delegate (sic) decision and was not supported by evidence. The learned magistrate erred in holding with (sic) the Tribunal at this point.”
The reason that the Tribunal rejected the evidence of the appellant relating to the alleged affair was that the evidence given by the appellant was vague and inconsistent and had been contradicted in material respects by his mother’s evidence.
There was a reasonable basis for the Tribunal concluding that it doubted the appellant’s credibility on this issue. If the ground also suggests that the learned Magistrate erred in holding that there was evidence that entitled the Tribunal to reject the appellant’s credibility, and I am not sure that the Federal Magistrate was invited to make such a finding, the learned learned Magistrate did not err in so holding.
The third ground appearing in the notice of appeal reads
“The learned magistrate in finding that the [T]ribunal was not obliged to look at country information put forward by me and it was a jurisdictional error not to do so.”
I have carefully read the Magistrates reasons. I can find no finding to the effect alleged in the third ground in those reasons. Indeed, it would be surprising if there were one because there is no evidence that the appellant invited the Tribunal to look at country information.
I therefore reject the grounds advanced in the notice of appeal.
The written submissions that were filed in support of the appeal contain three paragraphs. The first deals with the allegation of bias on the part of the Tribunal. Some attempt is made to particularise the ground. It is said that the Tribunal was hesitant to permit the appellant’s mother to give evidence, and when it agreed to do so, sought to discredit both the appellant and his mother rather than establish the truth. The appellant cites by way example question relating to the colour of his alleged girlfriend’s eyes. He says that the colour of her eyes was not relevant to fact finding. I disagree. It was relevant to determining the appellant’s credibility, particularly when the appellant’s mother was asked the same question and gave a different answer.
The paragraph also alleges that the Tribunal engaged in what is described as character assassination. It is said that this occurred because the Tribunal gave too much weight to the failed student visa application made by the appellant in 2004. It is said that this was not an issue before the Tribunal. In my view, the Tribunal was entitled to have regard to this evidence if only to assess the credibility of the appellant. The paragraph concludes by alleging that the Tribunal embarked upon its review “with a mind fixed upon rejecting my claims”. This is an even stronger assertion of actual bias. What I have already said in relation to the first of the grounds appearing in the notice of appeal applies with even greater force in relation to this contention.
The second paragraph of the submissions contends that the Tribunal was obliged to give reasons for not believing that the appellant had an affair with a Muslim girl. In my view, it is clear from the Tribunal’s reasons that it did explain precisely why it rejected the appellant’s claim to have an affair. The paragraph concludes with a further allegation of actual bias which I reject for the same reasons as I have earlier explained.
The third paragraph of the submission states that the appellant had placed before the Tribunal the contention that, because he was a person of Hindu faith, he had a well founded fear of persecution by reason of his membership of a particular social group. He does not identify what that group was. He does however say that his fear of persecution arose from his association with a woman of Muslim faith. He complains that the Tribunal has not assessed this claim and thereby fallen into jurisdictional error. It is clear enough that the particular social group to which the appellant refers is a group which contains people who have associated with persons of the opposite sex who have a different religion. The Tribunal did consider the appellant’s claims which were founded upon his relationship with a Muslim woman. It found that he did not have such a relationship. There was therefore no evidentiary foundation for the claimed fear of persecution by reason of his alleged membership of a particular social group which contained men and women of different faiths.
When invited to elaborate on his grounds of appeal at the hearing this afternoon, the appellant raised yet another fresh ground. It was that, when he appeared before the Tribunal, he had verbally requested that additional witnesses should be heard but that the Tribunal did not indicate a willingness to receive such evidence. No ground based on this alleged failure was raised in the Federal Magistrates Court. No ground based on this alleged failure of the Tribunal to receive the evidence was raised in this Court. There is no evidence before the Court that such a request was made and rejected. There is in evidence a document in which the appellant was invited to notify the Tribunal of any witnesses he wished to have called. The only witness nominated by him in that document was his mother. She was heard. In any event, the Tribunal was under no obligation to receive additional evidence: see s 426 of the Act.
The appellant seeks therefore to raise this afternoon four grounds that were not raised on earlier occasions or in the notice of appeal filed in this Court. No explanation is given as to why these grounds were not earlier raised other than it had not occurred to the appellant to do so. For reasons which I have given in dealing with each of the grounds, I consider that none of them has any prospect of success. I have nonetheless given them careful attention.
In my opinion, none of the grounds raised in the notice of appeal, or in the additional submissions warrant a finding that the Tribunal committed any jurisdictional error in determining the appellant’s application. Nor can I find any basis in the learned Federal Magistrate’s reasons to suggest any appellable error on his part. The appeal will therefore be dismissed with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 23 June 2008
Applicant was self represented
Counsel for the Respondent: Ms S Burchall Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 20 May 2008 Date of Judgment: 20 May 2008