MZYDG v Minister for Immigration

[2009] FMCA 768

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYDG v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 768

MIGRATION – Refugee Review Tribunal – protection visa – claim of conversion to Christianity – not accepted by Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.422B

Applicant: MZYDG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG192 of 2009

Judgment of: Riley FM

Hearing date: 25 June 2009

Date of Last Submission: 25 June 2009

Delivered at: Melbourne

Delivered on: 25 June 2009

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Brian Wee

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application filed on 17 February 2009 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG192 of 2009

MZYDG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal.  The applicant is a citizen of India who arrived in Australia on 29 June 2009. 

2. The applicant applied for a protection visa on 22 July 2008.  The delegate refused that application on 9 October 2008, and the applicant then applied to the Refugee Review Tribunal.  The Tribunal held a hearing on 16 January 2009 and affirmed the delegate's decision on 23 January 2009. 

3. The present application was filed in this court on 17 February 2009.  The application was supported by an affidavit.  It sets out very much the same matters as are set out in the application to this court, including predominantly the underlying facts that the applicant urged the Tribunal to accept.  The applicant is unrepresented and he did not file written submissions in this court. 

4. The applicant claimed before the Tribunal that he feared persecution from the Indian authorities because he had converted from Hinduism to Christianity in October 2007.  He claimed that he had been attacked by eight to 10 people when he left the church in late 2007 and suffered injuries that required him to be hospitalised for five days.  He said that in April 2008 he was attacked outside the church and chased to a police station.  He also said that he was hit with a stick by police.

5. The Tribunal did not accept that the applicant had converted to Christianity.  The Tribunal noted that the applicant stated that Jesus was crucified on 25 December and was reborn on Good Friday. 

   
   

   The applicant was unable to tell the Tribunal who Jesus's mother was or the name of any of the books he had studied about Christianity.

6. The applicant said that he prayed on his own and asked for his wishes to be fulfilled.  He said that he had converted by himself through prayer.  He said that he worshipped with others by cleaning the church, for service.  The applicant was not aware of the main prayer of the Christian faith and the applicant conceded that he had not attended church in Australia.

7. The Tribunal did not accept that the incidents of assault that the applicant had claimed had in fact occurred. The Tribunal did not accept the credibility of the applicant's claims. The Tribunal considered the applicant's claims about the events he described to be vague and inconsistent.  The Tribunal noted that the applicant abandoned claims in his protection visa application which had been contradictory to his oral claims.  The Tribunal considered that this made the applicant less credible overall.

8. The applicant's application is quite long.  It contains a number of statements that go to the merits of the case.  The applicant said at paragraph 9 of the application that the Tribunal had never considered "the treatment, abuse and torture with serious harm I received in India".  However, the Tribunal did not accept that the applicant had suffered any of the abuse that he claimed.  Accordingly, it followed that the applicant had not suffered serious harm as a result of the alleged abuse.

9. The applicant also said in paragraph 9 that the Indian government would not protect him because there is a law that prevents people from converting from Hinduism to Christianity.  However, the Tribunal did not accept that the applicant had converted from Hinduism to Christianity.  Accordingly, he was not in need of protection by the Indian government. 

10. The applicant said in paragraph 10 of his application that the Tribunal never considered his well‑founded fear of persecution.  However, it is clear that the Tribunal considered each of the applicant's claims and found them not to be credible.

11. The applicant then said in paragraph 10 of the application that the Tribunal did not act in good faith in the hearing and the member was biased against him. I consider that there is no basis for these allegations. The decision of the Tribunal shows that it carefully considered the matters raised by the applicant and rejected them on reasonable and rational grounds.

12. The applicant then said that the Tribunal never applied information from India.  If this means country information, it was unnecessary for the Tribunal to rely on it, because the Tribunal simply did not accept that the applicant had converted to Christianity.  If the applicant meant information that he provided from India, it was not sufficient to overcome the Tribunal's doubts about the applicant's conversion.

13. The applicant in paragraph 11 of his application re‑stated the claim of bias.  However, as indicated, that allegation is without foundation.  The applicant said in paragraph 12 of the application that the Tribunal had made various jurisdictional errors but did not particularise them, except perhaps in paragraphs 13, 14 and 15 of the application where the applicant re‑states certain of his claims which the Tribunal has rejected.

14. In paragraph 16 of the application the applicant says the Tribunal never considered the abuse, mistreatment and torture that the applicant received in India.  As indicated above, the Tribunal did consider the applicant's claims of abuse but did not accept that they had occurred.

15. In paragraph 17 of the application, the applicant said the Tribunal did not consider the case properly.  However, as I have indicated, the decision of the Tribunal is careful and thorough.

16. In paragraph 18 of the application, the applicant said the Tribunal made certain jurisdictional errors, and does not particularise them, except possibly in paragraph 19 where the applicant says the Tribunal failed to address or deal with the claim raised.  As stated, the Tribunal did deal with the claims raised by the applicant.

17. The applicant then said in paragraph 20 of the application that the decision was made without jurisdiction or is affected by an error of jurisdiction.  That claim was not particularised, and I am unable to discern any basis in the Tribunal's reasons that would support that ground.

18. In paragraph 21 of the application the applicant said the decision is affected by an error of law.  That complaint is not particularised.  I am unable to discern any error of law in the decision.

19. The applicant says in paragraph 22 of the application that the decision is so unreasonable that no reasonable decision‑maker could have made it.  I do not accept that argument.  In view of the severe shortcomings in the applicant's evidence about his alleged conversion and the alleged assaults on him, it seems to me that the Tribunal's decision was entirely reasonable.

20. The applicant then says in paragraphs 23, 24 and 25 of the application that the decision was an improper exercise of power, failed to take into account relevant considerations and took into account irrelevant considerations. These allegations are not particularised. I do not accept that there is any substance to them.

21. In paragraph 26 the applicant says that the decision of the Tribunal was not made in good faith.  As stated above, I do not accept this allegation.  The Tribunal's decision is careful and thorough.

22. The applicant says in paragraph 27 that the decision of the Tribunal was not capable of reference to the power given to the Tribunal.  However, it seems to me that the decision of the Tribunal is entirely referable to the power given to the Tribunal.

23. Paragraph 28 of the application deals with the further claim that the Tribunal did not consider the serious persecution the applicant will face.  However, as stated, the Tribunal did consider all the matters that were before it. 

24. In paragraph 29 of the application, the applicant says that the Tribunal failed to accord him natural justice. The requirement to afford the applicant natural justice is confined by section 422B of the Migration Act 1958 (Cth) (“the Act”). The principal issue on which the decision of the Tribunal turned was the Tribunal's serious doubts about the applicant's claim that he had converted to Christianity. Paragraph 43 of the Tribunal's decision indicates that this issue was squarely raised with the applicant at the hearing.

25. The applicant in paragraphs 30, 31 and 32 of the application repeats that the Tribunal was biased and failed to consider the application.  For the reasons stated above, I do not accept these allegations. 

26. In paragraph 33 of the application the applicant says that the decision‑maker failed to follow the procedures required by the Act. This is unparticularised. I am unable to discern any procedure required by the Act that the Tribunal failed to follow in this case.

27. The applicant says in paragraph 34 of the application that the decision‑maker asked the wrong questions and misconceived his duty.  These allegations are also unparticularised.  I do not consider that they are made out in this case.

28. At the hearing before this court the applicant added a couple of points.  The applicant said that the Tribunal had told him that it would look at his claim.  I consider that the Tribunal did look properly at  his claim.  The applicant also said at the hearing before the court today that the Tribunal had told him that he would have another opportunity to give evidence but then the Tribunal just handed down its decision. 

29. However, paragraph 44 of the Tribunal decision indicates that the applicant asked the Tribunal if it required any further evidence. 

    
    

    The Tribunal said it did not require evidence but the applicant was free to provide evidence if he wished.  The Tribunal said it would not provide further time for the applicant to do so, as the Tribunal considered the applicant had been provided with ample opportunity to obtain and submit such evidence already.

30. I do not consider that there was any error in the Tribunal not giving the applicant more time.  As the Tribunal indicated to the applicant at the hearing, the applicant had had since the time when he lodged his application with the Department of Immigration and Citizenship to gather such evidence as he wished.  

31. In all the circumstances, I am not satisfied that there is any jurisdictional error in the Tribunal's decision. Accordingly, the application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:  Rhonda Soans

Date:  13 August 2009