MZXTN v Minister for Immigration
[2008] FMCA 1061
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXTN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1061 |
| MIGRATION – Review of Tribunal’s decision – broad grounds lacking particulars (generic grounds) – no jurisdictional error disclosed – review dismissed. |
| Migration Act 1958 (Cth), ss.424A, 422B, 474 |
| Applicant: | MZXTN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 68 of 2008 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 25 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | In person (assisted by an interpreter) |
| Counsel for the Respondents: | Ms Hamnett |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 21 January 2008 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 68 of 2008
| MZXTN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 21 January 2008 the applicant filed an application to review the decision of the Refugee Review Tribunal handed down on 13 December 2007 by which the Tribunal affirmed an earlier decision of the first respondent's delegate to refuse to grant a protection visa to the applicant.
The matter came before me for directions on 6 March 2008.
A direction was made that the applicant file and serve any amended application he intended to rely on, together with proper particulars, by 7 May 2008. The applicant did not file an amended application.
The applicant confirmed at the hearing that he relies upon the application and the particulars, such as they are, disclosed in it.
The applicant listed 18 grounds for review, some of which can be aggregated under the one head.
In summary, those grounds can be categorised as falling under the following heads:
a) a failure by the Tribunal to consider the applicant's claim;
b) a breach of procedural fairness or natural justice;
c) taking into account irrelevant considerations and failing to take into account relevant considerations; and
d) the Tribunal was biased, or there was an apprehension of bias in the Tribunal, and it failed to act in good faith.
I shall address each of the broad grounds for review after setting out the factual background and the Tribunal's decision.
Background
The applicant is a citizen of India and prior to his arrival in Australia was a resident in India.
He first came to Australia in December 2006 as a member of a touring Indian cricket team on a temporary resident - sport visa.
At the conclusion of his tour he returned to India at the end of December 2006 after having spent a week in Australia. However, on 10 January 2007 he returned to Australia and on 22 January 2007 he applied for a protection visa.
In his application the applicant claimed that he feared persecution by reason of his membership of a particular social group, that being the Dalit class and that he worked to improve the position of the Dalit community and as a consequence attracted persecution. He claimed that he was beaten for raising his voice against members of the upper class in support of the Dalit class and his injuries were so severe that he had been bed ridden for months. He also claimed to have reported this event to the police but nothing had been done.
He also claimed that his mother had received threats against his life and had to sell land in order for him to come to Australia to escape. He claimed he faced danger at the hands of caste extremists, religious extremists and the police as they were all bribed by members of the upper class. He claimed because of his activities, should he be returned to India, he would be killed.
The Tribunal's Decision
The Tribunal by letter informed the applicant that it was unable to make a favourable decision without further material and he was invited to attend a Tribunal hearing.
That hearing took place on 5 July 2007. The applicant was assisted at the hearing by a Hindi-speaking interpreter. At that hearing the applicant claimed that he came from an agricultural background and that his family owned land which became the subject of litigation amongst his extended family after his father's death. He claimed his father's brothers, and some villagers, had beaten him because of an election in the village. He further claimed that on another occasion he had helped the poor workers get their wages from their employers and was beaten with sticks by these employers. He reported this attack to the police but he alleges they were bribed and took no action. He claimed that the employers had threatened to kill him, no matter where he was in India. He ran away to another village where he lived alone and laboured for a number of months. He was found in that village and he alleges he was beaten again.
In an apparent inconsistency with his protection application the applicant claimed that he was not a Dalit. He claimed by way of explanation that there was a mistake in his protection application made by the person who was assisting him.
After visiting Australia on the cricket tour he returned to Delhi for 10 days before coming back to Australia. He asserted that he did not travel with anyone when he came back on the plane, nor did he queue with anyone he knew at the immigration counter. He asserted he did not know where his family was and was unable to trace them and did not know what was happening to his father's land.
After that hearing the Tribunal sent a further letter pursuant to s.424A of the Migration Act 1958 (the Act) inviting him to comment on information that might form the reason, or part of the reason, for affirming the decision which was under review. A letter invited the applicant to comment on inconsistencies in the applicant's evidence concerning his class, his schooling, his employment status, whether or not he had been hospitalised and whether he had travelled to Australia alone or with another person. The applicant did not respond to this letter.
The Tribunal conducted a second hearing on 17 October 2007.
The applicant attended and again was assisted by a Hindi-interpreter.
At the second hearing the applicant claimed he feared retribution and violence from his father's extended family over the dispute arising over land after his father's death. He accused his cousins of joining the upper classes and, in effect, exploiting the poor labourers who worked for them, in whose cause the applicant claimed to be their champion.
He also gave evidence that his cousins discovered where he was hiding and attended on the village looking for him. A friend overheard them threaten to kill him. He hid elsewhere in the village but a month later attended on his own home village to be beaten.
He says that the hospital refused to admit him. He relied upon another friend to obtain medical assistance for him. That friend also then arranged to have him travel to Australia as a member of an Indian cricket team. He further said that his mother had to sell land in order to pay for this to happen.
There was also evidence, given by the applicant, that he had not had any contact with his family since January 2007. He had arranged for a cousin to provide documentary proof of the alleged assault.
Those documents confirmed that an assault had been reported but they did not name the applicant in the report and a further letter sent to the police indicated that the applicant was not present when the assault took place.
The Tribunal's Post Second Hearing Decision
In summary, the Tribunal affirmed the Delegate's decision to refuse to grant the protection visa after finding the applicant not to be a credible witness. The Tribunal found:
i) the applicant's evidence throughout the visa application process was contradictory and inconsistent;
ii) that the incoherence of and inconsistencies in the applicant's evidence were due to the nature of the evidence that the applicant gave as opposed to being the result of any interpreting issues;
iii) that the applicant was not a credible witness given the discrepancies between the applicant's evidence provided in his protection application and that provided at the Tribunal hearings;
iv) that the applicant was not beaten or threatened or harassed due to any membership of the class of Dalits;
v) that the applicant's claim to have been beaten a number of times to the extent that he required hospitalisation was inconsistent with his previous application for a temporary sports visa in which he stated that he had not had any illnesses, injury or medical condition lasting more than two weeks for which he had required hospitalisation;
vi) that his claim to have suffered injuries due to beatings were inconsistent with his ability to play cricket at a high level;
vii) that the applicant's claimed support for labourers was not credible given the applicant's vague and inconsistent evidence throughout the application process on this issue;
viii) that the applicant's involvement in a land dispute with members of his father's family was a personal dispute and any harm the applicant claims to fear as a result is not convention related;
ix) that the applicant had not paid the Desert Youth Cricket Club to assist him to leave the country because he was in fear of his life in India; and
x) that the fact that the applicant had returned to India at the end of his cricket tour indicated that he did not genuinely fear for his life in India.
Grounds for Review
Failure to consider applicant's claims
The applicant did not provide any particulars of the claims allegedly not considered by the Tribunal.
A reading of the Tribunal's decision, in my view, clearly addresses all of the claims made by the applicant. At the hearing before me, when given the opportunity to further expand on the claims not considered by the Tribunal, the applicant was unable to say what claims were not considered.
I am satisfied that those grounds listed by the applicant that can come under this broad head are not sustainable.
Breach of Procedural Fairness or Natural Justice
Again the applicant was unable to provide particulars of how the Tribunal breached procedural fairness or natural justice requirements. I am satisfied from a reading of the Tribunal's decision that the Tribunal acted appropriately in providing a notice to him pursuant to s.424A of the Act.
Further, it is noted that s.422B of the Act provides the statutory framework setting out the requirements of natural justice and there is nothing in the way the Tribunal conducted the hearings that would indicate there has been a failure on its part to comply with those requirements. Indeed, the Tribunal appears to have been exemplary in these regards.
In a similar vein, I am satisfied that there has not been a breach of s.425 of the Act. Whilst there appears to have been some difficulties on the part of the Tribunal to follow exactly what the applicant was expressing, the Tribunal found that those difficulties were not related to any interpreting problems but reflected the nature of the inconsistencies in the evidence and the credibility of the applicant.
I am satisfied that the two hearings granted to the applicant were meaningful hearings that afforded the applicant the opportunity to present his case fully.
Taking Into Account Irrelevant Considerations and Failure to take into Account Relevant Considerations
Again under this broad of head the applicant has failed to provide particulars. At the hearing he was unable to do so. From my reading of the decision there does not appear to be any error in these regards on the part of the Tribunal. The Tribunal took into account, on the face of it, all the evidence submitted by the applicant as well as relevant Country Information relating to aspects of the applicant's claims as, indeed, it was entitled to do.
Unreasonableness
Again there were no particulars given in the application or at the hearing before me as to how this ground could be made out. From my reading of the decision it can be categorised as thorough, exhibits probative logic and the findings of the Tribunal were findings open to it on the evidence before it.
Actual or Apprehended Bias and Lack of Good Faith
Once again no particulars were given in support of this ground.
It should be said that the application for review is expressed in a generic form covering multiple grounds that address potential grounds under the law. The lack of particularisation of the grounds does not assist the applicant in presenting a case, and certainly makes it difficult for the first respondent to respond.
There was nothing in the decision, or in the evidence of the applicant before me, to justify a conclusion that there was actual or apprehended bias; or indeed any lack of good faith on the part of the Tribunal.
Conclusion
The grounds, as broad as they are, do not disclose any error on the part of the Tribunal, yet alone a jurisdictional error.
Accordingly, the decision of the Tribunal is afforded protection under s.474 of the Act and the application filed on 21 January 2008 must be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date: 29 August 2008
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