MZYGP v Minister for Immigration and Citizenship

[2010] FCA 882

FEDERAL COURT OF AUSTRALIA

MZYGP v Minister for Immigration and Citizenship [2010] FCA 882

Citation:

MZYGP v Minister for Immigration and Citizenship [2010] FCA 882

Appeal from:

MZYGP v Minister for Immigration & Anor
[2010] FMCA 187

Parties:

MZYGP v MINISTER FOR IMMIGRATION AND CTIIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number:

VID 216 of 2010

Judge:

LANDER J

Date of judgment:

19 August 2010

Catchwords:

MIGRATION – appeal from Federal Magistrate – jurisdictional error – whether Refugee Review Tribunal complied with its obligations under s 424A of the Migration Act 1958 (Cth).

Held: Appeal dismissed – the Refugee Review Tribunal complied with its obligations.

Legislation:

Migration Act 1958 (Cth) s 424A

Cases cited:

MZYGP v Minister for Immigration & Anor [2010] FMCA 187 approved
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 followed

Date of hearing:

6 August 2010

Place:

Adelaide (heard in Melbourne)

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

39

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the Respondents:

Mr W Mosley

Solicitor for the Respondents:

DLA Phillips Fox Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 216 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYGP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CTIIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	19 AUGUST 2010
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s 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 216 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYGP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CTIIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	19 AUGUST 2010
PLACE:	ADELAIDE (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

1. This is an appeal from an order of a Federal Magistrate affirming an order of a Registrar of this Court made on 4 November 2009 dismissing the appellant’s application in the Federal Magistrates Court.

2. The appellant is a citizen of India who arrived in Australia on 29 December 2008.  On 9 February 2009 the appellant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa.  On 30 April 2009 the first respondent’s delegate decided to refuse to grant the visa on the ground that the appellant was not a person to whom Australia has protection obligations under the Refugees Convention.  On 21 May 2009 the appellant applied to the Refugee Review Tribunal (RRT) for a review of the delegate’s decision.

3. On 21 August 2009 the RRT affirmed the first respondent’s delegate’s decision not to grant the appellant a Protection (Class XA) visa.

4. On 15 September 2009 the appellant applied in the Federal Magistrates Court for the judicial review of the RRT’s decision and sought orders for the issue of the constitutional writs to quash the RRT’s decision and an order in the nature of mandamus requiring the RRT to review the delegate’s decision according to law.

5. The grounds of the application were:

   1. That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).
   Particulars: (a) There was certain adverse information used by the Tribunal to affirm the decision under review.
   (b) The Tribunal did not disclose the information in accordance with s 424A(1).

   2. That the tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error
   3. That the tribunal made denial of natural justice.  Because it failed to provide further opportunity before the tribunal

6. The application did not particularise those grounds.

7. On 4 November 2009 the appellant failed to attend a directions hearing in the Federal Magistrates Court and a Registrar of the Court dismissed the application pursuant to rule 13.03(c)(i)(a) of the Federal Magistrates Court Rules because of the appellant’s non-attendance. On 22 January 2010 the appellant sought a review of the Registrar’s decision.

8. The application for review was supported by an affidavit sworn by the appellant on 22 January 2010 in which the appellant said that on 4 November 2010 he was in Darwin doing farm work and was unable to find any flight to Melbourne before the day of the hearing.  He said that he rang the Court, but the Court said that he would have to send a fax but he did not have a facsimile machine to transmit to Melbourne.

9. Notwithstanding that the application was for a review of the Registrar’s decision to dismiss the proceeding on the ground that the appellant had failed to appear, the Federal Magistrate addressed the review by reference to the substantive application and required submissions on that application.  For reasons to which I will advert shortly, the Federal Magistrate dismissed the application.

10. The appellant has appealed from the order dismissing the appellant’s application for review made on 24 March 2010 and only one ground is relied upon, which is:

    1.The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

    (a) There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

11. The other two grounds of the application which were before the Federal Magistrate have been abandoned.

12. Whilst this is an appeal from a Federal Magistrate, the success or otherwise of the appeal will depend upon whether the appellant can show that the RRT fell into jurisdictional error to entitle him to the issue of the constitutional writs to require the RRT to reconsider the matter and decide his application according to law.  There is a need therefore to address the RRT’s decision.

13. The appellant claimed to be a 31 year old national of India who entered Australia on 29 December 2008 as the holder of a Subclass 456 Business (Short Stay) visa which had been issued to him on 10 March 2008.  The appellant applied for a Protection visa because he said that he left India fearing that he would be killed as his life was threatened.  He said that he feared the local authorities and the Mafia, including the police and that they would harm or mistreat him if he were to return.

14. He claimed that the Indian authorities could not and would not protect him because they cooperated with the Mafia and his past employer.

15. In the hearing before the RRT the appellant said that he was employed by Patel Vishnubhai Kantibhai (referred to in the appellant’s evidence as Vishnubhai Kantibhaiand) (the Company) as a courier when it came to his attention that the business had “underhand dealings” in the sense that it was involved in money laundering.  He wanted to leave the Company but he was asked to do one last delivery and he said that he was sent from Mumbai to Parooj (referred to in the appellant’s evidence as Bharuch) in Gujarat to deliver a parcel.  He said that after he made that delivery the police came to his house and arrested him for stealing 19,940,000 rupees from the Company.  He claimed he was framed by the Company because he had had to leave its service.  He was imprisoned for one and a half months in Parooj.  He was admitted to bail after his father responded to a newspaper report of his arrest.  After he was released he said that the owner of the Company visited him, beat him and threatened that if he did not pay 20,000,000 rupees he and his family would be killed.

16. He said that his trial has still not occurred and no trial date was scheduled.  He said his lawyer did not assist him because he was the Company lawyer.

17. He told the RRT that he had documents which would verify his imprisonment and the period of the imprisonment, and had documents which would verify the bail arrangements.

18. It was put to the appellant during the hearing that the appellant’s application for the Subclass 456 Business (Short Stay) visa bore a date on which the appellant claimed to be imprisoned.  The appellant said that he had applied for that visa one month earlier and the form was not dated when he signed it.

19. He said that he left his home to stay in Gujarat but when he returned the threats continued.  He cannot, he said, locate in some other part of India because the Company has branches all over India.

20. It was put to the appellant that his claims appeared to be unrelated to any Convention reason.  The appellant said that if he were to return to India the case was pending against him and he would be arrested and put in prison.  The RRT explained to him that even if he were able to demonstrate to its satisfaction that he was at risk of persecution, his claims appeared to fall outside of the scope of the Convention.

21. The RRT did not accept all of the claims made by the appellant.  In particular, it did not accept that the Company would act in the way that he claimed, which seemed to be inconsistent with the Company’s own interests.  The RRT was not convinced that the Company would orchestrate false charges against the appellant for the purpose of protecting itself because to do so would attract even more attention from officials.

22. It described his claim that after he was released on bail he was beaten up, threatened and that money was demanded by the manager as far-fetched.  In particular, it would not accept that the manager of a large Company would be likely to have visited the appellant, beaten, threatened and demanded money of him and then departed leaving the appellant to go back into hiding.  In particular, the RRT did not accept that incident occurred.

23. The RRT was of the opinion that the fact that the appellant waited nine months after the grant of the Subclass 456 Business (Short Stay) visa seemed to be inconsistent with a fear of physical harm.  The RRT did not accept his explanation that he waited that long because he could not afford to depart.  It said that explanation appeared to be inconsistent with his claim that his father was a land-owning farmer who was able to bail him out of detention on an earlier occasion.

24. Whilst the RRT accepted that the appellant had been charged and detained as he claimed, it did not accept that he had been for the reasons that he asserted, or that his charge and detention was a consequence of a maliciously motivated prosecution perpetrated by bribery and improper influence for the purpose of preventing the appellant from leaving the Company and possibly disclosing information about its criminal activities.

25. Rather the RRT found that the claimed behaviour of the appellant’s employer was more consistent with the appellant actually having misappropriated the money in question.  However, the RRT made no finding whether the appellant did in fact misappropriate the money.

26. The RRT found that, if anything, the appellant was fearful of criminal prosecution rather than persecution as that term is defined in s 91R of the Migration Act 1958 (Cth) (the Act).

27. The RRT did not accept that the appellant has been persecuted in the past and was not satisfied that there was any real chance that the appellant would experience serious harm capable of amounting to persecution for the purposes of s 91R(2) of the Act in the reasonably foreseeable future if he were to return to India.

28. But in any event and critically, the RRT found that, even if the appellant had been subjected to the matters complained of, there was no evidence that the alleged misbehaviour of his employer was motivated other than for criminal reasons.  The appellant did not identify any Convention-based reason for the harm which he said he feared.  The RRT affirmed the first respondent’s delegate’s decision.

29. As I have said, the Federal Magistrate on the application for review considered the substantive application notwithstanding that the application before him was for review of an order dismissing the proceeding for the appellant’s non-attendance at a directions hearing.

30. The application before him raised three grounds. The Federal Magistrate dismissed the first ground which asserted that the RRT had contravened s 424A(1) of the Act because there was adverse information used by the RRT to affirm the decision under review which was not disclosed in accordance with the section. His Honour found that there was no information identified of the kind which was required to be disclosed pursuant to s 424A. The second ground alleged that the RRT had made an error of law in failing to accord the appellant procedural fairness. The Federal Magistrate found that the appellant was not able to identify any failure to accord procedural fairness and dismissed that ground. He also dismissed the third ground which related to a claim that the RRT denied the appellant natural justice because, for the same reason, there was nothing that the appellant could point to to support the assertion.

31. He did note however that the appellant referred to documentation which had been obtained from India which he said was relevant to his claim.  During the hearing before the RRT the appellant offered to obtain further information from India but the RRT did not take advantage of the offer.  The RRT said in relation to the appellant’s offer:

    The Tribunal explained that even if he could demonstrate to its satisfaction that he was at risk of persecution his claims appear to fall outside of the scope of the Convention.

32. The Federal Magistrate was satisfied that the appellant’s statement that he could obtain further documentation was in fact an application for an adjournment which the RRT refused.  But in any event, the Federal Magistrate accepted the conclusion of the RRT that even if the appellant had been subject to threats and harm and feared further threats and harm, those threats and harm were not made for a Convention reason.

33. As I have already noted, the appellant has abandoned grounds 2 and 3 before the Federal Magistrate and on the notice of appeal relies only on the RRT’s breach of s 424A of the Act and the Federal Magistrate’s failure to find such a breach.

34. The appellant did not particularise the information which the appellant said was in the possession of the RRT, and which would be the reason or part of the reason for furthering the first respondent’s delegate’s decision which was not provided to the appellant.

35. The appellant provided no written submissions in support of the appeal.  He appeared on the appeal unrepresented.

36. At the hearing of the appeal the appellant was not able to identify any information of the kind which is required to be given by the RRT to an applicant pursuant to s 424A. Indeed, he could not identify any information that the Tribunal had which was not given to him. In fact he did not understand what his ground of appeal was, which he said was drawn up by “a friend”.

37. I have read the RRT’s decision and the Federal Magistrate’s reasons carefully, and I am unable to identify any information which was in the possession of the RRT which it was mandated to give to the appellant because it was information that the RRT considered would be the reason or part of the reason for affirming the first respondent’s delegate’s decision. The appellant provided the RRT with information but that information does not need to be given to the appellant: s 424A(3)(b) and s 424A(3)(ba). The RRT referred to an article in the Times of India which it said lent some weight to the appellant’s claims. However, that information did not need to be given to the appellant because it was not information specifically about the appellant: s 424A(3)(a). But, in any event, it was not information that the RRT considered to be the reason or part of a reason for affirming the first respondent’s delegate’s decision: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615. There is no evidence to support the appellant’s ground of appeal.

38. In any event, on this appeal, it is abundantly clear that the appellant’s claim for a Protection visa was misconceived because his fear of harm was not based on any Convention reason and was bound to fail.

39. The appeal must be dismissed.  The appellant must pay the first respondent’s costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:       19 August 2010