MZYFJ v Minister for Immigration and Citizenship
[2010] FCA 721
•28 May 2010
FEDERAL COURT OF AUSTRALIA
MZYFJ v Minister for Immigration and Citizenship [2010] FCA 721
Citation: MZYFJ v Minister for Immigration and Citizenship [2010] FCA 721 Appeal from: MZYFJ v Minister for Immigration and Anor (No. 2) [2009] FMCA 74 Parties: MZYFJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 171 of 2010 Judge: GRAY J Date of judgment: 28 May 2010 Catchwords: MIGRATION – visa – protection visa – Tribunal hearing – Tribunal’s obligation to provide particulars of information and indication of its relevance – whether Tribunal required to comply with obligation in writing – whether Tribunal complied with obligation orally in course of hearing Legislation: Migration Act 1958 (Cth), ss 5(1), 36, 91R(3), 424AA, 424A, 424A(1), 424A(2A)
Convention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967Cases cited: MZYFJ v Minister for Immigration and Anor (No.2) [2009] FMCA 74 cited Date of hearing: 28 May 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 20 Counsel for the appellant: The appellant appeared unrepresented Counsel for the first respondent: Mr D Brown The second respondent submitted to any order the Court might make, save as to costs Solicitor for the respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 171 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYFJ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
28 MAY 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
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 171 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYFJ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE:
28 MAY 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This appeal is from the judgment of the Federal Magistrates Court of Australia published as MZYFJ v Minister for Immigration and Anor (No. 2) [2009] FMCA 74. The learned federal magistrate dismissed an application by the appellant, seeking to set aside a decision of the Refugee Review Tribunal made on 2 June 2009. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (”the Minister”), the first respondent to this appeal, refusing to grant the appellant a protection visa. The Tribunal was the second respondent to the proceeding in the Federal Magistrates Court, and is the second respondent to this appeal.
By s 36 of the Migration Act (1958) (Cth) (“the Migration Act”), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two documents, taken together, the “Convention”. For present purposes, it is enough to say that, pursuant to the Convention, Australia has protection obligations to a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country
The appellant is a citizen of India, who last arrived in Australia on 5 September 2008. He applied on 30 September 2008 for a protection visa. On 3 December 2008, the Minister’s delegate refused to grant a protection visa. The appellant applied to the Tribunal for review of the delegate’s decision. On 16 February 2009, the appellant attended at a hearing before the Tribunal, which was conducted with the assistance of an interpreter. In the course of that hearing, the Tribunal asked the appellant whether he wished to submit any additional written materials. The appellant asked for, and was granted, one month to do that. He did not submit any additional written materials. The Tribunal then reconvened the hearing on 21 May 2009, and the appellant again attended and gave evidence and presented arguments.
The appellant claimed to have a well-founded fear of persecution, if he should return to India, for the reason of his religion, and also for the reason that he belonged to what he described as a “backward class”. He claimed to be an active Christian, who had been harmed, and threatened with harm, by extremist Hindu organisations, whose activities he had exposed.
In its reasons for decision, the Tribunal set out a number of grounds upon which it disbelieved the evidence of the appellant. Based upon information that it derived from sources other than the appellant, the Tribunal acknowledged that a person holding genuine Christian beliefs, and actively involved and engaged in preaching or Evangelical work, could be the subject of persecution in India on that ground. The Tribunal did not accept the appellant’s claims to have been involved in such activities, or that he had encountered problems for the reason of his religion. The Tribunal found that the appellant had lied about his authorship of the whole of the statement of his claims, because some of that statement had been lifted from the internet and not expressed in the appellant’s own words. The Tribunal also found that the appellant’s claims bore striking similarities to those of another applicant, and concluded that those claims were copied or adapted from that other application, particularly as the appellant’s oral evidence was difficult to reconcile with the written statement.
The Tribunal found that the appellant knew very little about Christianity and did not demonstrate an appreciation of the differences between Christianity and other religions. He was unable to name the church where a priest, who had written a letter identifying the appellant by name, was based. The Tribunal found the appellant’s evidence at the hearings was significantly at odds with the background he described in the written statement of his claims. It found that the fact that the appellant had returned to India after first visiting Australia, was inconsistent with his claimed fear of persecution. Although it accepted that the appellant may identify as a Christian, the Tribunal did not accept that he was an actively practising Christian, let alone one with a genuine Evangelical bent.
The Tribunal did not accept the appellant’s claims to have arranged meetings against, or exposed the adverse activities of, extremist Hindu groups. It found that his evidence about a claimed attack on him while he was riding home on his scooter at night was contradictory. It did not accept that the appellant was attacked and beaten on two occasions because of his religion, or that he was hospitalised as a result. To the extent that the appellant relied on documents in support of his application, the Tribunal found them to have been contrived. The Tribunal found that the appellant had invented claims that he had been threatened because his parents were Christian, or because he had acquired a profile as an important Christian by being selected to attend World Youth Day.
In relation to the appellant’s activities in Australia in connection with World Youth Day and subsequent to his return to Australia in September 2008, the Tribunal held that it should disregard that conduct pursuant to s 91R(3) of the Migration Act, because the appellant had not satisfied the Tribunal that he engaged in that conduct otherwise than for the purpose of strengthening his claim.
The Tribunal then dealt with the appellant’s claim to be at risk of harm owing to his membership of a backward class or caste. It found the claim was lacking in detail, that the appellant was unable to identify any motivation for the harm he claimed to have experienced, other than religion, and that he had been unable to separate the notion of caste or class from that of religion. The Tribunal found that this suggested that the appellant had adopted his claim from that of another applicant without comprehending its meaning. Although it accepted that class or caste may be capable of constituting a particular social group in India, the Tribunal did not accept that the appellant had been targeted for that reason.
The Tribunal therefore did not accept that the appellant had been persecuted in the past for any Convention reason. It found that there was no real chance that the appellant would experience serious harm amounting to persecution in the reasonably foreseeable future, if he returned to India, whether for the reasons of his religion or particular social group or for any other reason.
The appellant’s application to the Federal Magistrates Court contained three grounds. The first alleged a breach of s 424A of the Migration Act, in that the Tribunal had used adverse information to affirm the decision under review and had not disclosed that information in accordance with s 424A(1). The second alleged error of law and lack of procedural fairness on the part of the Tribunal. The third ground was that the Tribunal denied the appellant natural justice because it failed to provide further opportunity before the Tribunal.
The federal magistrate found that the Tribunal well understood the task it was undertaking, and that it had complied appropriately with s 424AA of the Migration Act in respect of information it considered would be the reason or part of the reason for affirming the decision to refuse the appellant a protection visa. His Honour found that it was clear that the Tribunal did not fall into jurisdictional error. He pointed out that the appellant had not identified any adverse information that was improperly used by the Tribunal. Nor could his Honour see that there was any information that the Tribunal failed to disclose in accordance with s 424A(1). His Honour found that the assertions of error of law, lack of procedural fairness and denial of natural justice were wholly unparticularised. In any event, his Honour did not think that the Tribunal erred in those regards or otherwise.
The notice of appeal to this Court repeats the ground that the Tribunal was in breach of s 424A of the Migration Act by relying on adverse information to affirm the decision under review and failing to disclose the information in accordance with s 424A(1). The notice of appeal also seeks leave to include additional grounds for review of the decision of the Tribunal on the grounds of jurisdictional error. The appellant has appeared before me today in person, assisted by an interpreter. I have asked him specifically to expand upon the grounds of his application to the Federal Magistrates Court. The appellant has not pointed to any adverse information on which the Tribunal relied to affirm the decision under review.
In any event, s 424AA of the Migration Act now permits the Tribunal to give to an applicant appearing before it oral particulars of information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. If the Tribunal gives such oral particulars, the Tribunal is obliged to ensure, so far as is reasonably practicable, that the applicant understands why the information is relevant to the review and the consequences of the information being relied on in affirming the decision under review. The Tribunal is also required to invite the applicant to comment on or respond to the information, to advise the applicant that he or she may seek additional time to comment on or respond to the information and, if additional time is sought, to adjourn the review if the Tribunal considers that additional time is reasonably needed.
The Tribunal endeavoured to comply with s 424AA in respect of variances between the appellant’s oral evidence and his statement of written claims, the striking similarity of his claims to those of another applicant, and the fact that the appellant’s claims appeared to have been copied from the internet. It also raised a particular inconsistency in the appellant’s evidence as to the date of a beating he claimed to have suffered. The appellant made some response orally at the first hearing and, as I have said, was granted a month to submit additional written materials. At the second hearing, the Tribunal again endeavoured to comply with s 424AA of the Migration Act in relation to the same three points and the inconsistency as to the date of the beating. The appellant again took the opportunity to respond orally.
Provided that the Tribunal complied with s 424AA of the Migration Act, it was not obliged to comply with s 424A; see s 424A(2A). The appellant has made no complaint that the Tribunal failed to comply adequately with s 424AA. I can find nothing in the material suggesting that the Tribunal failed to comply with s 424AA. Accordingly, the Tribunal was not obliged to comply with s 424A in respect of any information on which it relied. The federal magistrate was correct to hold that the first ground of the appellant’s application to the Federal Magistrates Court failed.
Similarly, the only other ground expressed in his notice of appeal must fail. I invited the appellant to expand upon the issues of error of law, procedural fairness and natural justice. The appellant told me from the bar table that he asked the Tribunal for further time to obtain documents from India that would have supported his claims to have a well-founded fear of persecution. I asked him what documents he had in mind. He said that he was still receiving letters from people in India telling him that he is still in danger. He did not refer to any specific documents that he had been seeking to obtain, for which he could have needed further time. In view of the fact that the appellant had two hearings before the Tribunal, separated by more than three months, and an opportunity to submit written material, of which he did not avail himself, it does not appear possible for the appellant to claim that he was denied an opportunity to put before the Tribunal whatever material he might have wished to rely on. The fact that letters might arrive from people warning the appellant about conditions in India, after the Tribunal has completed the performance of its function, provides no ground for saying that the Tribunal should have deferred the completion of its function, to await indefinitely the arrival of further documents.
The appellant did not expand on the suggestions of error of law, lack of procedural fairness or denial of natural justice any further. His principal concern in making submissions in support of his appeal was to impress upon me that the Tribunal had reached the wrong conclusion and that he was entitled to, and should be granted, a protection visa. I endeavoured to explain to the appellant that the facts of his case were for the Tribunal, and the Tribunal alone, to find. Neither the Federal Magistrates Court nor this Court has power to find that the facts determined by the Tribunal are incorrect. The Federal Magistrates Court could only set aside the Tribunal’s decision if it were to find that there was jurisdictional error on the part of the Tribunal. Jurisdictional error amounts to error of law, such as the Tribunal misunderstanding the task it was required to perform, or failure to provide proper process, such as failure to comply with a statutory prerequisite to the exercise of its function or to afford procedural fairness to the appellant. There is no indication that the Tribunal committed any of these errors. The Federal Magistrates Court was therefore correct to dismiss the appellant’s application to it. To succeed on his appeal, the appellant would have to demonstrate error on the part of the federal magistrate. He has failed to do so. The appeal must be dismissed.
Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the appeal. Such an order is in accordance with the usual principle that costs follow the event. The only ground on which the appellant has attempted to resist such an order is that he has no work, and therefore no means of meeting the order. The lack of means of an unsuccessful party is normally no ground for refusing an order for costs in favour of the successful party. The usual order for costs ought therefore to be made.
The orders of the Court are:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate:
Dated: 9 July 2010