MZYFL v Minister for Immigration
[2009] FMCA 1315
•4 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYFL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1315 |
| MIGRATION – Review of Refugee Tribunal’s decision – grounds allege breaches of s.424A(1), lack of procedural fairness and denial of natural justice – grounds not made out – application dismissed. |
| Migration Act 1958, ss.422B, 424A(1), 424A(3) and 424AA |
| Applicant: | MZYFL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 902 of 2009 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 4 December 2009 |
| Date of Last Submission: | 4 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Walker |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 16 July 2009 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 902 of 2009
| MZYFL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
This matter comes before me today on an application filed on 16 July 2009 to review a decision of the Refugee Review Tribunal (the Tribunal) dated 18 June 2009. By that decision, an earlier decision of the Minister’s delegate was affirmed. The decision of the Minister’s delegate was to refuse an application for a protection visa.
Background
The background to the applicant is that he is a citizen of India who first arrived in Australia on 9 July 2008 on a tourist visa. He came to Australia to attend the World Youth Day. He departed Australia on 23 July 2008 when he returned to India. He again came to Australia on 14 September 2008 under his original tourist visa as it was still valid.
On 14 October 2008 the applicant lodged an application for a protection visa. In that application the applicant claimed to fear persecution from Hindu groups for the Convention reason of his religion; he being a Christian. He also claimed that the police themselves have an adverse interest in him. In addition, the Tribunal, in considering all the facts and circumstances of the applicant’s claim, identified that it had before it an implicit claim based upon imputed political opinion arising from the same facts and circumstances relating to his Christianity.
Before the Tribunal the applicant asserted that the State, that is the State of Punjab, is not willing or able to protect him from the harm he feared and went so far as to say that to some extent it was complicit in the risks that he faced. The applicant also claimed that it would not be reasonable to expect him to relocate within India to avoid the harm he feared. That was partly because the problems he fears occur throughout India – and it is fair to say he has repeated that concern and fear here today before me – and partly because he does not speak the language in those parts of India where Christians form the majority of the population.
I should point out at this stage that there have been two hearings by the Tribunal before the decision was made and that the second hearing took place in order to address an issue that was not addressed at the first hearing. That issue related to the applicant’s claims to have come from a low caste and the Tribunal’s anxiety, as a consequence, that there may have been an integer of the applicant’s claim that he was a member of a particular social group for the purposes of the Convention. However, in its reasons for decision, the Tribunal found that the evidence did not establish that he was a member of a particular social group. Indeed, the applicant did not press his claim in that regard.
The other significant fact concerning the two hearings is that between them the Tribunal made contact with Father Sonny in India.
Father Sonny was able to inform the Tribunal, it would appear to a significant extent, about the applicant’s circumstances in India.
The Tribunal then, at the second hearing, put the matters that were brought to the Tribunal’s attention by Father Sonny to the applicant for comment and response.
The Tribunal’s decision
Having considered all of the evidence the Tribunal then made a number of significant findings. The Tribunal accepted that the applicant was persecuted in the past, as claimed, for reasons of his religion by Hindus and also possibly persecuted for his imputed political opinion.
The Tribunal went on to discuss independent evidence in the form of country information which confirmed persecution of Christians in some parts of India, but in particular, in the applicant’s home State of Punjab. The information provided by the US State Department was confirmatory of the applicant’s understanding of the circumstance of persecution of Christians in the Punjab. The Tribunal also accepted various other media reports describing Christians being persecuted for reasons of their Christianity. The Tribunal accepted that evidence provided by the applicant.
The Tribunal also accepted the partially corroborative evidence of the applicant’s mother. She gave evidence by telephone at the first hearing. The Tribunal also accepted that there was a real chance that the applicant might, in the reasonably foreseeable future, experience persecution at the hands of the Punjabi police for reasons of his Christianity if he was to return to that State. The Tribunal considered the role of the police. It accepted evidence of numerous examples where there was persecutory actions by Hindus against Christians in the Punjab being undertaken with impunity as a consequence of police inaction.
In summary, the Tribunal accepted, in light of all the evidence available to it, that if the applicant were to return to the Punjab and encounter further persecution, as it had found there was a real chance of him suffering, should he return, State protection would not be available to him in accordance with international standards. The Tribunal went on to find, after accepting that there was a real chance of harm being caused to the applicant, should he, in the foreseeable future return to India and to his home State of the Punjab, that he would suffer harm, serious harm.
However, the Tribunal then went on to consider whether it would be reasonably open to the applicant to relocate to another part of India, where he would not face a real chance of persecution for Convention reasons. It is fair to say, in summary, after examining the country information at hand, the Tribunal concluded that the applicant could reasonably relocate to a number of States in India where there was a majority population of Christians and not be at risk of serious harm.
In making that finding, the Tribunal considered the objections to that course of action proffered by the applicant; namely, that for him to do so would put him at a disadvantage because he did not speak the language of these areas, and should he wish to visit his family in the Punjab, he would still be at risk. He also contended that because the Hindus are the majority population in India, wherever he went, he would always be at risk of persecution because of his Christianity.
The Tribunal considered all of those reasons and nonetheless concluded that it was not unreasonable for him to relocate to avoid persecution, even though the Tribunal was satisfied the applicant faces a real chance of experiencing, in the Punjab, in the reasonably foreseeable future, persecution should he return there. For those reasons, the Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. It then affirmed the earlier decision of the delegate to refuse to grant the applicant a protection visa.
Grounds for review
In his application for review, the applicant sets out three grounds.
They are that the Tribunal breached s.424A(1) of the Migration Act 1958 (the Act); there was a lack of procedural fairness; and there was a denial of natural justice. The applicant did not provide in his application any particulars in support of the grounds relied on.
He has not complied with directional orders made on 2 September 2009 that he provide further and better particulars of his grounds, and also provide written submissions by 28 October 2009. Both of those failures, under the Federal Magistrates Court Rules 2001, would entitle me to dismiss his application; but I am of the view to do so in the circumstances of this applicant would be unfair. I further say that because the applicant comes to the court without the assistance of legal advice – without legal representation. It would appear that from the inception of his review application he has not had the benefit of legal assistance.
I was concerned at the start of the hearing that some consideration should be given to an adjournment to allow him to get legal assistance; but I declined to do so for two reasons. First, he has been directed, it would appear, appropriately, to sources of legal assistance and advice. It appears, with some frustration, he eventually got some advice which was to the effect that that particular legal resource was not prepared to act for him. Should I have granted an adjournment, I do not think his endeavours to obtain legal assistance would have been any more successful and his case would not have been advanced any further.
The second reason is that, on the face of the material, there was no reasonable prospect of success, in any event.
I offered an opportunity to the applicant to expand upon and particularise the grounds that he had set out in his application.
Without wishing to appear critical, he was unable to do so in any real sense. The end result, from the responses by the applicant to my questions, was to reinforce, in effect, the strength and merit of the written submissions provided by the first respondent wherein the first respondent highlighted the process adopted at the Tribunal was a fair process, and certainly was not in breach of any of the provisions as set out in s.422B of the Act, which is the governing law in relation to matters of procedural fairness and natural justice before the Tribunal.
The principal complaint of the applicant concerned the Tribunal’s use and reliance on information that supported the Tribunal’s finding that the applicant could reasonably relocate to another place in India.
This, as I understood the applicant’s case, was said to be in breach of s.424A(1) of the Act. It is evident, from a reading of the Tribunal’s decision, which I must say is a thorough one, that that ground is not made out. The information used by the Tribunal is information which was not peculiar to the applicant, it was country information and as such is an exception to the provision of s.424A(1). (See s.424A(3))
Should the applicant be complaining about the use of information from Father Sonny, then the Tribunal put that information to the applicant in the second hearing and sought his response. In that regard, there is compliance with s.424AA of the Act.
Conclusion
None of the grounds, as limited as they are, as set out in the application, have been proved. I am satisfied that the Tribunal, in reaching the findings it did, did so on evidence presented to it and those findings were open to it. It has to be emphasised that, predominantly, the findings were in favour of the applicant, save for the significant finding that the applicant could reasonably relocate to avoid persecution. In respect of that particular finding, which was determinant of the outcome of the Tribunal hearing, I am satisfied it was open to the Tribunal.
In those circumstances, the application which was filed on the 16 July 2009 should be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate: Sam Parker
Date: 14 January 2010
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