MZYEL v Minister for Immigration and Citizenship
[2010] FCA 156
•2 March 2010
FEDERAL COURT OF AUSTRALIA
MZYEL v Minister for Immigration and Citizenship [2010] FCA 156
Citation: MZYEL v Minister for Immigration and Citizenship [2010] FCA 156 Appeal from: MZYEL v Minister for Immigration [2009] FMCA 1179 Parties: MZYEL, MZYEM and MZYEN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): VID 931 of 2009 Judge: MARSHALL J Date of judgment: 2 March 2010 Legislation: Migration Act 1958 (Cth) ss 424(3), 424A, 424AA(b)(iv) Cases cited: Minister for Immigration, Citizenship and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 applied Date of hearing: 1 March 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 The First Appellant appeared for the Appellants. Solicitor for the First Respondent: Australian Government Solicitor Counsel for the First Respondent: Mr D Brown
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 931 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYEL
First AppellantMZYEM
Second AppellantMZYEN
Third AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
2 MARCH 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 931 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYEL
First AppellantMZYEM
Second AppellantMZYEN
Third AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE:
2 MARCH 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
1The appellants are citizens of India from the State of Kerala. They are Christians. The first appellant applied to the respondent Minister for a protection visa. The other appellants, his wife and his daughter, were covered by his application as members of his family unit. A delegate of the Minister rejected the application. The Refugee Review Tribunal (“the Tribunal”) affirmed the delegate’s decision. The appellants unsuccessfully sought judicial review of the Tribunal’s decision before the Federal Magistrates Court; see MZYEL v Minister for Immigration [2009] FMCA 1179. They now appeal from that judgment to this Court.
2The first appellant claimed to fear persecution if returned to India in the reasonably foreseeable future by reason of his religious beliefs. He claimed to have received death threats from Hindu extremists because of his conversion of Hindus to Christianity and his work within his Church.
THE TRIBUNAL’S DECISION
3In reaching its decision, the Tribunal relied on independent country information including:
·the United States Department of State’s International Religious Freedom Report 2007 - India, 14 September 2007;
·the United States Department of State Report on Human Rights Practices in India, 2007 and 2009;
·the United Kingdom Home Office Country of Origin Information Report, 12 August 2008;
·an article from the Christian Science Monitor, 24 September 2008;
·the United States State Department’s International Religious Freedom Report for 2008 for India;
·various internet sources concerning the State of Kerala; and
·a September 2006 Department of Foreign Affairs and Trade Report on the “Relative Safety of Christians in Kerala”.
4From this country information the Tribunal found most Christians in Kerala were relatively safe and had freedom of worship. It found that Christians in Kerala were, in general, able to practise their religion without harassment or violence from Hindu fundamentalists. The Tribunal also considered that Christians in Kerala were able to avail themselves of effective State protection.
5The Tribunal found that the first appellant had been a long standing member of his Church, but that his involvement had been at a minor level as an ordinary member or follower. The Tribunal considered that the first appellant would not be perceived by any extremist groups as being involved in religious conversions. It also did not accept that he had “a commitment to undertaking proselytisation such that he would continue to do so into the reasonably foreseeable future if he were to return to India”.
6The Tribunal did not accept that the first appellant had a profile that would have led to his family receiving threatening phone calls because of his activities. It also did not accept that the first appellant’s business was burned down as a result of his religious activities. It took a similar view about allegations of assault on the first appellant.
7In coming to several of its findings of fact, the Tribunal observed inconsistencies between the evidence of the first and second appellants and raised concerns about the credibility of the first appellant.
GROUNDS OF APPEAL
8In their amended application for judicial review in the Court below, the appellants raised the following issues:
·an alleged failure by the Tribunal to comply with s 424 of the Migration Act 1958 (Cth);
·an alleged failure by the Tribunal to comply with s 424A of the Migration Act 1958 (Cth); and
·an alleged failure to provide the applicants with the independent country information the Tribunal relied upon to analyse the “future harm” faced by the appellants.
9In their notice of appeal to this Court, the appellants repeated their s 424 and 424A allegations. In particular, the appellants alleged that an invitation was not given in accordance with ss 424(3)(a) and 424B of the Act. The appellants also alleged that the Tribunal failed to comply with the requirements of s 424AA(b)(iv) of the Act.
ANALYSIS
10Section 424 of the Act provides the Tribunal with the discretion to obtain any material that it considers relevant. It also provides, in s 424(3), that the Tribunal may give a person a written invitation to provide information. The Tribunal did not breach s 424(3) because it did not request written information from any person. The Tribunal is not compelled to investigate an applicant’s claims; see Minister for Immigration, Citizenship and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ. His Honour below correctly rejected this ground of review.
11The Tribunal in its reasons referred to a range of country information, including that referred to at [12], below. At [98] of its reasons, the Tribunal stated that:
Pursuant to s 424AA of the Act, the Tribunal outlined for the applicant the information before it that was adverse to his case and how it was relevant to the review application.
12In that regard the Tribunal referred to country information concerning:
·the relative safety of Kerala for Christians;
·lack of information regarding attacks in Kerala; and
·the availability of effective State protection.
13None of that information was specifically about the first appellant or any other person but was about a class of persons of which the first appellant is a member, that is, Christians in Kerala. Accordingly, the Federal Magistrate was correct in holding that s 424A of the Act was not breached by the Tribunal because of the provisions of s 424A(3)(a).
14In their notice of appeal, the appellants re-agitate their ss 424 and 424AA contentions. They are rejected for the reasons set out above. The notice of appeal also refers to s 424B, but that section deals with the requirements for a written invitation given pursuant to ss 424 or 424A. However, in this case, no such invitation was given or required to be given, particularly as an oral invitation was given in accordance with s 424AA; see s 424A(2A) of the Act. Accordingly, the appellants’ contentions in respect of ss 424, 424A and 424B of the Act are rejected.
15The appellants’ notice of appeal alleges that the Tribunal failed to comply with s 424AA(b)(iv) of the Act. However, this was not a ground of review in the Court below. As the appellants are not legally represented the Court will consider this ground, although it must be borne in mind that this Court is sitting on appeal from the Federal Magistrates Court and not exercising an original judicial review jurisdiction.
Section 424AA(b)(iv) operates as follows:
·the Tribunal gives to an applicant orally (at a hearing to which it has invited the applicant) clear particulars of any information the Tribunal considers would be the reasons for or part of the reasons for affirming a decision under review;
·if the applicant seeks more time to comment on or respond to the information, the Tribunal must adjourn the review if it considers that the applicant reasonably needs additional time to comment on or respond to the information.
17The Tribunal at [98]–[107] of its reasons sets out clear particulars of the information which it considered would form part of the reasons for decision. In its reasons, the Tribunal recorded that it had asked the first appellant during the hearing whether he needed an adjournment to respond to that information; at [98] and [108] of the Tribunal’s reasons. The first appellant responded “immediately” to those matters and did not seek an adjournment to otherwise consider his response.
18At [111], the Tribunal noted that the first appellant asked at the conclusion of the hearing if he could submit further information in support of his application. The Tribunal said that the first appellant was able to submit further information, but that he should do so as soon as possible. The first appellant sent some post-hearing material to the Tribunal which included a request for an adjournment of “at least two years”.
19In the circumstances s 424AA(b)(iv) of the Act was not engaged. The first appellant did not seek more time to comment on or respond to the information set out at [98]–[107] of the Tribunal’s reasons for decision. The Tribunal merely acceded to a request for the first appellant to submit “further information”. The Tribunal had no cause to consider whether the first appellant reasonably needed additional time specifically to respond to the information contained at [98]–[107] of its reasons. The Tribunal also did not fail to comply with s 424AA(b)(iv) as alleged by the appellants.
20The final ground of appeal is difficult to understand. It appears a challenge to fact finding by the Tribunal. The Federal Magistrate dismissed a similar ground of review raised before him. The amended application referred to an alleged failure to apply the “real chance” test for the purpose of determining whether the first appellant would suffer persecution if returned to India. The Tribunal carefully considered the first appellant’s claims. It did not believe the first appellant would face serious harm if returned to India. It was entitled to so find on the material before it.
21Orally before the Court, the first appellant complained about a lack of opportunity to present his case to the Tribunal. There is no evidence of any application by the appellants for more time to present their cases to the Tribunal. Indeed, this issue was not a ground of the amended application before the Court below. In any event, I am not satisfied that there is any merit in the complaint. The Tribunal, did at [111] of its reasons, allow the appellants extra time to submit further documentary material to it. They did so and the Tribunal took that material into account in coming to its decision.
22The appeal is dismissed, with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 2 March 2010
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