MZYFH v Minister for Immigration - [2011] FMCA 234

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYFH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 234

MIGRATION – application for judicial review of the Refugee Review Tribunal – decision of the Refugee Review Tribunal upheld and application dismissed – costs ordered.

Migration Act 1958 (Cth), s.424A(1); s.425(1)

Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2008) 58 ALD 609
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFA 107
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138
SZJBE v Minister for Immigration and Citizenship [2007] FCA 190

Applicant:

MZYFH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1513 of 2010

Judgment of:

Whelan FM

Hearing date:

16 March 2011

Date of Last Submission:

16 March 2011

Delivered at:

Melbourne

Delivered on:

16 March 2011

REPRESENTATION

The Applicant:

In person

Solicitors for the first Respondent:

DLA Phillips Fox

Solicitors for the second Respondent:

DLA Phillips Fox

ORDERS

That the application in this matter is dismissed.
That the Applicant pay the Respondent’s costs in the amount of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1513 of 2010

MZYFH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application under the Migration Act 1958 (Cth) (“the Act”), in which the Applicant seeks orders to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 October 2010. The Applicant also seeks an order that the Tribunal review, according to law, the decision of the delegate of the Minister to refuse a protection visa sought by him.
The Applicant arrived in Australia on 18 September 2008 on a visitor’s visa. He has previously been in Australia for some time in July 2008, to attend World Youth Day. He applied for a protection visa on 21 November 2008. The Applicant is an Indian citizen. The grounds on which the applicant was made, is that he claims he would be persecuted if he returned to India, on the grounds of his religion, being a Christian.
On 14 January 2009, a delegate of the Minister refused the protection visa application. On 19 February 2009, he applied to the Tribunal to review that decision. There was a hearing conducted by the Tribunal and on 20 May 2010, the Tribunal decided to affirm the delegate’s decision. The Applicant sought a review of that decision and on 13 November, the Court dismissed the matter with costs. On 30 November 2009, the Applicant filed a notice of appeal in the Federal Court and on 4 June 2010, the Federal Court allowed the appeal and quashed the decision of the Tribunal. On 8 October 2010, the Tribunal, differently constituted, again affirmed the delegate’s original decision. On 1 November 2010 the Applicant applied to this Court for a judicial review of that decision.
The grounds on which the Applicant seeks relief are as follows.
a)Ground 1, is that the Tribunal’s decision was in breach of s.424A(1) of the Act. The particulars given for that ground, are that there was certain adverse information used by the Tribunal and the Tribunal did not disclose that information to the Applicant in accordance with the provisions of the Act.
b)Ground 2 of the application, was that the Tribunal made an error of law and lacked procedural fairness.
c)Ground 3, was that the Tribunal denied the Applicant natural justice, because it failed to provide a further opportunity before the Tribunal.
The Applicant did not seek to amend his application or to provide any further or better particulars and nor did he provide any written submissions to this hearing. Each of the grounds were put to the Applicant by this Court and he was invited to address the Court on the matters on which he sought to rely. The Applicant was unable to recall the information he relied upon in ground 1. He was unable to recall why he said the Tribunal made an error of law, or was procedurally unfair. In relation to ground 3, the Applicant indicated that he did not seek a further hearing before the Refugee Review Tribunal.
The original decision of the delegate of the Minister, summarised the Applicant’s claim as follows.
The applicant claims that he fears persecution on the basis of his religion. The applicant claims that he lived in an area where lots of Hindus lived. As he and his family were Christians, local Hindus did not like them. The applicant claims he was harassed and harmed by local Hindus, because he had refused to convert to Hinduism. He also received threatening phone calls from the RSS, VHP and Bajrang Dahl.
On 24 December 2007, Hindu activists came to his shop and damaged the items in his shop and told him to change his religion or leave the country. They also threatened to kill him, if he told the police about the incident. He was beaten badly and sent to hospital while he was unconscious. At that time, he and his family changed their religion and had to attend Hindu temples daily. As his wife was sick, he was told to bring his wife to the church. A few days later, his wife felt much better after the priest offered prayers for her. The applicant was convinced himself not leaving Christianity.
In July 2008, he travelled to Sydney to attend World Youth Day. After his return to India, he found the situation got worse in Orissa and in the Punjab. After his wife gave birth to twins, members of the RSS, VHP and the Bajrang Dahl, came to his house to threaten them. They told him to change his children’s names to Hindu names. As he was very frightened, he spoke to the Father at the church again. He was told to leave the country and the church would take care of his family and children. There have been many acts of violence against Christians in India. The applicant claims that Hindu activists will kill him on return, as they recently killed a lot of Christians in India.[1]
[1] Court Book at page 48.
The delegate accepted that the Applicant was a Christian, but did not accept that the Applicant would face persecution if he returned to India because of his religious belief. In particular, the delegate did not accept his claim that he was attacked by RSS and Bajrang Dahl activists in December 2009, nor that he was targeted by Hindu fanatics, because of his religion or his alleged refusal to convert to Hinduism.
At the first Tribunal hearing, the Tribunal heard evidence from the applicant and via telephone from ‘Father Thomas’ and ‘Father Peter’. The Tribunal indicated to the Applicant at the commencement of the hearing, that it was not at that stage satisfied that his claims to be a Christian were true, or that his claims to have been persecuted were true. Further, it was concerned that it may be reasonably open to him to relocate to another part of India, where he would not face a real chance of persecution.
The Applicant responded that he had gone to Orissa and Bombay and it was not safe there. He said his wife was currently living in the church, which he referred to as the City Parish in Jalandhar. The Tribunal noted that the children’s birth certificates did not have a name listed. He stated that he had been told they could name the children later. If they had given the children Christian names, they might have faced problems with Hindus. He was asked how Hindus would know the names, and stated that people would pass the names on.
The Applicant was questioned by the Tribunal about when he became a Christian and the details about his religion and the religion of his family. He was asked about the church to which he belonged and the priests. He was also asked about the attack on his shop, about where he was living in India and where his family was currently living. The Tribunal contacted the Sacred Heart Church, which had provided a letter of support for the Applicant’s visitor’s visa to attend World Youth Day.
The Tribunal spoke to ‘Father Thomas’ and asked him to confirm that the Applicant was a member of the church, that he was attacked by Hindus and that his wife was being looked after by the church. ‘Father Thomas’ stated that no-one had been attacked by Hindus and nobody was being looked after by the church. He referred the Tribunal to ‘Father Peter’, who had organised the World Youth Day trip to Australia. ‘Father Peter’ confirmed that the Applicant had been interviewed and had been recommended to travel with the group to World Youth Day. Otherwise, he stated the Applicant’s claims were wrong and the Applicant was attempting to bluff the Tribunal. When asked to respond to the evidence, the Applicant stated that ‘Father Peter’ was annoyed with people who had sought asylum in Australia.
The Tribunal put to the Applicant that the evidence suggested that he had not in fact been attacked by Hindus and that his wife and children were not being looked after by the church. He stated that other people had made mistakes and ‘Father Peter’ was taking it out on him. His wife was being helped by City Parish church members.
The Tribunal questioned the Applicant further on his relationship with the church in India. The Tribunal did not find the Applicant to be a credible witness. It did accept, that he and family were involved in the church in India. It accepted that he and his family were Christians, as claimed. The Tribunal did not accept that the Applicant had been the victim of anti-Christian violence and it set out its reasons for this at page 121 of the Court Book. Those reasons indicated that there were inconsistencies in the evidence given by the Applicant. In particular, his evidence with respect to a claimed attack on his shop was inconsistent and the fact that he returned to India after first visiting Australia, seemed to be inconsistent with his claimed fear of persecution and the evidence in relation to him being warned to change his children’s names to Hindu names, or leave the country. Further, the Tribunal found that key aspects of his claims were refuted by church officials, from whom the Tribunal had taken evidence.
On appeal, the Federal Court quashed the decision of the Tribunal and directed that the review of the delegate’s decision should be re-heard. The Court found that the Tribunal had failed to meet the requirements of s.424AA, because it had failed to give clear particulars to the Applicant to ensure that he understood the relevance and consequences of the information, in this case, the evidence of ‘Father Thomas’ and ‘Father Peter’, that it had determined would be the reason or part of the reason for affirming the decision. The reasons of the Court are set out, with respect to this, at pages 140 to 142 of the Court Book.
The decision under review in these proceedings, is the decision of the Tribunal of 7 October 2010. The Tribunal referred to the claims of the Applicant, as set out in his original application. It summarised the decision of the delegate as follows:
On January 14 2009, the delegate refused the applicant’s protection visa application without interviewing the applicant. The delegate noted that there was little detail or evidence in support of the applicant’s claims; no details of the priest he is supposed to have spoken to about the problems he experienced and no evidence that he reported the incident to the police, which according to country information, could have been expected to provide him with state protection. Although there was country information about attacks on church pastors or proselytes, there was no evidence the applicant was involved in such activities, and the delegate did not accept that the applicant was a subject of the attacks, as claimed or was, either then or now, of adverse interest to other religious groups. The delegate was satisfied the applicant would not face persecution if he returned to India because of his religious beliefs. In any event, the delegate considered that, as a relatively young businessman, it would be reasonably open to the applicant to relocate to another part of India . . .[2]
[2] Court Book, pp.171-172 at paragraph 22.
The Applicant was questioned by the Tribunal about his religion and that of his family. He was asked why he chose to become a Catholic and questioned about that faith. He was asked about the problems he experienced because of his religion. Certain contradictions in his evidence concerning dates and events, were put to him and he gave evidence of incidents other than the ones previously put in his application, or before the tribunal on the first occasion. The Tribunal noted that there were a number of inconsistencies in the evidence, that he had provided in the hearing and the evidence that he had provided to the first Tribunal and in his protection visa application. Those matters are set out at paragraphs 43 to 46 of the Tribunal’s decision.[3] In response, the Applicant stated that he sometimes forgets things, that he sometimes mixes things up.
[3] Court Book, pp.177-178.
The Applicant was also questioned about what he feared if he returned to India and the country information concerning freedom of religion in India was put to him. He was also questioned about the possibility of relocation within India.
The Tribunal found that the Applicant’s evidence regarding his and his family’s religious beliefs to be contradictory and vague.[4] The Tribunal also referred to the Applicant’s very basic knowledge of the Catholic faith and his inability to recite more than three of the Ten Commandments. His lack of knowledge, they found to be inconsistent with his claim that he read the Bible twice daily and went to church weekly. The Tribunal concluded that it was not satisfied that he was a Christian.
[4] Court Book, page 181 at paragraph 56.
The Tribunal then went on to deal with the other claims made by the Applicant.[5] In each case, the Tribunal noted it did not accept that the Applicant was a Christian or a credible witness. The Tribunal also referred to other contradictions or inconsistencies in the Applicant’s evidence, concerning his business and residence, his evidence about attacks and threats from Hindu extremists and the attack on his shop on 24 December 2007.
[5] Court Book, pp 182-183, at paragraphs 59-61.
The Tribunal also rejected the Applicant’s claim about the conversion of his family to Hinduism after December 2007 and their return to the church after his wife’s illness, and the evidence that he was threatened about not giving his children Hindu names. The Tribunal also referred to the fact that the issue of converting Hindus to Christianity, was only raised by the Applicant at the hearing before it, for the first time and his evidence in this regard, was also rejected. The Tribunal also rejected the Applicant’s claims about why he said he would be harmed if he returned to India.
In relation to the issue of the evidence of ‘Father Thomas’ and ‘Father Peter’, the Tribunal explained to the Applicant that it was not placing reliance on that evidence.[6] The Tribunal concluded that it did not accept that the Applicant was a Christian or that he was targeted by Hindu extremists as he claimed. It did not accept that the Applicant was a member of the Catholic Church, or any other Christian faith. It did not accept that if he returned to India, he would face a real chance of persecution, for reasons of his alleged Christian religion.
[6] Court Book, page 184 at paragraph 66.
The Respondent in this case, submits that none of the information before the Tribunal, fell within the meaning of information in s.424A. The Tribunal was not required to give the Applicant notice of matters of evidence and inconsistencies in evidence, which it was considering as part of its own appraisal of the case before it.[7] The Tribunal was entitled to have regard to the Applicant’s claims and evidence given to the Tribunal, as previously constituted,[8] and the evidence given to the previous Tribunal was not subject to s.424A, because it was given by the Applicant for the purpose of his application for review.[9]
[7] SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1.
[8] SZJBE v Minister for Immigration and Citizenship [2007] FCA 190.
[9] SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFA 107.
On the issue of procedural fairness, the Respondent submitted that the Tribunal had complied with s.425 of the Act. The Applicant was invited to attend a hearing. He attended and gave evidence. The Tribunal’s findings were open to it on the evidence before it, including the adverse credibility findings.[10] The Respondent submitted that the Tribunal was not required to invite the Applicant to a further hearing. He did not request a further hearing and nor was there any information provided which would necessitate a further hearing.[11]
[10] Re Minister for Immigration and Multicultural Affairs and Others; Ex parte Durairajasingham (2000) 58 ALD 609.
[11] SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138.

Conclusions

The issues before the Court today, are whether the Tribunal breached s.424A(1) of the Act, or s.425(1). In relation to s.424A(1) of the Act, the Tribunal reached its conclusions on the basis of the following material.
a)The original application, in particular the Applicant’s statement, attached to his visa application;
b)the information given by the Applicant to the first Tribunal hearing;
c)the responses given by the Applicant to questions put by the Tribunal at the hearing on 9 September; and
d)country information regarding religion in India.
Section 424A(1) is subject to ss.2A and ss.3. Relevant to these proceedings, are the provisions of s.424A(3), which deals with evidence, or material which is not specifically about the Applicant, but about a class of persons of which the Applicant is a member. Country information regarding religion in India, would fall into that category. It would therefore be excluded from s.424A(1).
Also excluded by s.424A(3)(b), is information given by the Applicant himself, for the purposes of the application. This covers information in the Applicant’s statement and also the information given to the first Tribunal hearing. The fact that the decision of the first Tribunal was set aside by the Court, does not mean that the second Tribunal could not consider the evidence given by the Applicant to the first Tribunal hearing. As such, evidence is information he gave himself, it is not information covered by s.424A(1).
The Tribunal clearly made findings adverse to the Applicant, based on the material before it, including the information he gave in the hearing and the contradictions and inconsistencies it identified in that material. Such material, is not information for the purposes of s.424A(1). It relates to the appraisal made by the Tribunal of all of the information before it and its assessment of the credibility of the Applicant. It is clear that the Tribunal is not required to treat such material as information for the purpose of s.424A.[12]
[12] SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1.
It is also clear, that the Tribunal pointed out to the Applicant, inconsistencies in the evidence he had given at the first Tribunal hearing and the evidence he gave to the Tribunal on 9 September and I refer again, to paragraphs 43 to 47 of the Statement of Decision and Reasons.[13]
[13] Court Book at pp.177-178.
The delegate in the original decision, accepted that the Applicant was a Christian. The delegate did not accept that the Applicant was targeted by Hindu fanatics because of his Christian religion, that the Applicant was a person of adverse interest to other religious group, that he was mistreated or denied state protection for a convention-related reason or that the Applicant was not able to relocate within India to an area of safety.

The first Tribunal also accepted the Applicant was a Christian, although it did not accept that the Applicant had been threatened or attacked because of his religion, or that he and his family had sought sanctuary within the church. It did not therefore, accept that he had been persecuted in the past for his religion, or that there was any real chance of him suffering serious harm, if he were to return to India.
Was the Applicant put on notice that his claim to be a Christian was in issue? Section 425(1) refers to the Applicant being invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.[14]
[14] Migration Act 1958 (Cth).
The task of the Tribunal is to review the particular decision of the delegate and the reasons given.
In SZBEL & The Minister for Migration, Multiculturalism and Indigenous Affairs,[15] the High Court stressed the importance of the reference in s.425(1), to the issues arising in relation to the decision under review. I refer to paragraphs 34 to 36 of that decision. The Court said:
The tribunal is to review the particular decision. The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But, if the tribunal takes no step to identify some issues, other than those the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive, are the issues arising in relation to the decision under review. Unless some other additional issues are identified by the tribunal, it would ordinarily follow, that on review by the tribunal, the issues arising in relation to the decision, would be those which the original decision-maker identified as determinative against the applicant.[16]
[15] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152.
[16] Ibid at paragraphs 34-36.
In this case, the first Tribunal clearly put to the Applicant the issues as set out at paragraph 32 of its Statement of Reasons and Decision.[17] No similar statement appears in the decision currently under review. Mr Wee put to the Court, that there was substantially more material before the Tribunal, arising from the material put to the first Tribunal and the Tribunal clearly traversed all of these issues. In particular, he referred to paragraphs 29 to 32 of the decision, where the Applicant was questioned about his beliefs and that of his family and when and why he chose to become a Catholic and the basis for his faith. The Respondent says, the Applicant should have been on notice that the question of his Christianity was at issue and the Tribunal explained to him at paragraph 32 of their decision, the importance of the questions and the answers he gave.
[17] Court Book at page 107.
Secondly, Mr Wee referred to paragraph 47 of the Statement of Decision and Reasons, where he submits the Tribunal made it clear that it was covering the entirety of the Applicant’s claims. Thirdly, Mr Wee submitted, that even if the Tribunal erred in not putting the question of his Christianity explicitly, it nonetheless did not rely solely on the generality of that finding, but went on to look at each of the events or integers, which the Applicant claims indicated past persecution and made findings based on the inconsistencies in the Applicant’s evidence about these. The Tribunal found the Applicant was not a credible witness. It expressly found, that the matters claimed by the Applicant did not occur. The Tribunal did not accept that the Applicant is a person to whom Australia has a protection obligation. Even if there was an error in relation to the failure to expressly put the question of his Christianity in issue, it was not sufficient to affect jurisdiction.
I am not satisfied that the Tribunal did clearly and explicitly put the question of the Applicant’s Christianity in issue, although the line of questioning inferred that the Tribunal was not satisfied that his claim should be accepted. The Tribunal, however, went on after making the finding that it did not accept the Applicant’s claim to be a Christian, to address and make findings on the claims to persecution and new matters raised by him only at the hearing. The Tribunal did not accept, on the basis of the material before it, that the Applicant had been subject to persecution, or was threatened or harmed by Hindu activists. It did not accept his account of the events which he said led to his decision to return to Australia.
Further, it did not accept his new claim to have played a role in converting others from Hinduism to Christianity. The Tribunal further did not accept, the claim that the Applicant would be likely to suffer harm if he returned to India or the basis on which he stated he was likely to suffer such harm. The criteria of s.36(2)(a), require that the Applicant must have a well-founded fear of persecution involving the threat of serious harm for a reason or reasons covered by the Convention. The Tribunal, in this case, clearly found that the Applicant was not targeted by Hindu extremists and would not face a real chance of persecution if he returned to India.
I accept the Respondent’s submission that even if the Tribunal made an error in relation to clearly putting to the Applicant the issues arising in relation to the decision under review, with respect to his claim to be a Christian, it nonetheless acted within jurisdiction in determining that he was not a person to whom s.36(2)(a) applied, for reasons which were clearly in issue, arising out of the delegate’s decision.
For these reasons the application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Whelan FM

Associate:

Date: 7 April 2011