MZYGZ v Minister for Immigration and Citizenship

[2010] FCA 943

FEDERAL COURT OF AUSTRALIA

MZYGZ v Minister for Immigration and Citizenship [2010] FCA 943

Citation:		MZYGZ v Minister for Immigration and Citizenship [2010] FCA 943
Appeal from:		MZYGZ & Anor v Minister for Immigration & Anor [2010] FMCA 428
Parties:		MZYGZ and MZYHA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 464 of 2010
Judge:		NORTH J
Date of judgment:		25 August 2010
Date of hearing:	25 August 2010
Date of last submissions:	25 August 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	23
Counsel for the Appellants:	The first appellant appeared in person
Counsel for the First Respondent:	Mr R. Knowles
Solicitor for the First Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 464 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYGZ
First Appellant

MZYHA
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	25 AUGUST 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellants 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 464 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYGZ
First Appellant

MZYHA
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	25 AUGUST 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from orders made by the Federal Magistrates Court on 2 June 2010.  On that day the federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal made on 19 October 2009 in which the Tribunal affirmed a decision of the delegate of the first respondent not to grant the appellants protection visas. 

2. The appellants are husband and wife who are citizens of India.  The appellant wife’s claims are made as a member of the family unit of the appellant husband. Their claims therefore depend upon the success of the appellant husband’s claims that he fears persecution in India on the grounds of his political opinion.  In these reasons the appellant husband will be referred to as the appellant. 

   THE APPELLANT’S CLAIMS

3. The appellant claimed that he was Vice President of his local Congress Party and a leader in his community.  In this capacity, the appellant claimed that he had publicly exposed the fraudulent use of Government funds meant for local community projects by the Bharatiya Janata Party (BJP).  As a result of this exposure, the appellant claimed that he and his family were targeted with threats, harassment, assaults and property damage.  He said that these threats were made by or on behalf of two people, Rajnikant and Babu Bhai.  He said that the BJP supporters also brought false charges against him alleging that he threatened to kill Rajnikant.

4. The details of the alleged harassment included that his hardware store was ransacked twice, his pregnant wife was harassed and assaulted and consequently miscarried, his father was harassed and threatened and his mother’s health suffered as a consequence of his problems.  The appellant claimed that the BJP are in power in Gujarat and that as a result he was unable to receive State protection from the police. 

   THE DECISION OF THE TRIBUNAL

5. The Tribunal rejected the appellant’s claims, finding at he was not a witness of truth and that his claims lacked credibility.  The reasoning of the Tribunal approaches his evidence both by reference to issues concerning his demeanour and also by reference to the content of the evidence itself. 

6. On the issue of demeanour, the Tribunal found that the appellant lacked spontaneity, was vague, imprecise and evasive.  It is now recognised in the practice of decision making however, that reliance on demeanour is a questionable foundation upon which to base findings of fact.  This is because it is also recognised as a matter of human experience that observations of demeanour may have explanations other than a lack of credibility.  As a result, it is now unusual to see decisions which are substantially based upon this reasoning. 

7. In this case however, the Tribunal went beyond mere reliance on demeanour.  The Tribunal recorded that the appellant was unable to respond to simple inquiries such as the dates and chronology of incidents which were critical to his claims.  The Tribunal rightly noted that the appellant would not be expected to have total recall of all details regarding the claims. Nonetheless, the Tribunal indicated that it would be expected that the appellant would have a greater knowledge of the detail of dates of the key events, including when the harassment commenced, when he and his wife were assaulted, the date of his wife’s miscarriage, when his shop was ransacked, the date of his claimed confrontation with Rajnikant, and when he was arrested.  The Tribunal concluded from of his lack of knowledge of these events that the events did not occur, or if they did occur that it was not for the reasons given. 

8. Whilst the Tribunal said that it doubted the genuineness of the appellant’s claims because of the appellant’s hesitation in providing responses to certain inquiries, the examples given by the Tribunal suggest that its real concern was the inability of the appellant to provide certain critical information. For instance, the Tribunal indicated in its reasons that the appellant could not, without prompting, provide the name of the President of his local Congress Party, could not provide a credible explanation of the financial and operational arrangements of his hardware business, and was not able to specify in any detail the work he performed in the local Congress Party. 

9. In the result, the Tribunal did not accept that the appellant was a member of the Congress Party, or that he held the position of Vice President, or that he held any leadership role in the Congress Party which would have led him to become a target of the BJP.  It did not accept that the appellant exposed the fraudulent use of funds by local BJP operatives, and it rejected the claims of harassment of either himself or his family.  The Tribunal rejected the evidence of difficulties with Rajnikant and was not satisfied that the appellant was denied projection by the police.  In so finding, the Tribunal affirmed the decision of the delegate of the first respondent.

   THE PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

10. The appellant then sought a judicial review by the Federal Magistrates Court.  His notice of appeal relied on three grounds.  The first ground was stated as follows:

    1.The Tribunal failed to accord “Procedural Fairness” to the Applicant because of :

    its failure to carry out its role in an Inquisitorial Manner when it made a contrary finding that:-

    “In regard to the documents submitted to it, the Tribunal notes that with the exception of the statement from the Raj Nursing Home regarding his wife’s miscarriage (although not certified, it is on letterhead), none of these documents are certified.  Given the delay in the applicant submitting these documents which are purportedly important to his central claims and his lack of knowledge of their contents or their significance as claimed at the hearing, the Tribunal places no weight on the documentation provided post hearing” (RRT decision, paragraph 96)

    …….. on the basis of the applicant’s lack of credibility, ….. the Tribunal does not accept that the applicant ever held the position of Vice-president as claimed or held any leadership role in the Congress Party, such that he has acquired a political profile … “ (RRT decision paragraph 97)

    1.1.1     the weight it gave to the claims of the Applicant because of the Applicant’s lack of knowledge and hesitation in responding to enquiries of the Tribunal when it said:

    “… The applicant’s inability ….. to provide the name of the President of his local Congress group …..

    ….. The applicant’s inability to provide credible, plausible explanation of the arrangements in place for the financial arrangements of … his hardware business in his absence from India; ….. leads the Tribunal to doubt the genuine nature of his claims overall.” (RRT decision paragraph 95)

    …… the Tribunal does not consider that each of the factors mentioned above, …. would necessary be fatal to the applicant’s claims.  However, … the Tribunal finds that the imprecision of evidence, ….. advanced by the applicant undermines his claims overall.”  (RRT decision paragraph 100)

    The applicant submits that the Tribunal erred in not assessing the Applicant’s claims in a manner that was required as mandatory under sec.414 of the Migration Act 1958, thus giving rise to a breach of a statutory provision in the Act which amounts to jurisdictional error made by the Tribunal.

11. The federal magistrate rejected the first ground of appeal by adopting the written submissions of the first respondent.  He set out in his judgment a two page passage from those written submissions.  Whilst that is a convenient and efficient course, it may not be the preferable style because it may give the impression that there has been insufficient independent attention given to the issues by the decision-maker.

12. The written submissions relied upon by the federal magistrate set out, in detail, the compliance by the Tribunal with the statutory requirements applicable to the hearing. The submissions first stated that the circumstances of the case did not attract the operation of s 424A of the Migration Act 1958 (Cth) (the Act) because the decision of the Tribunal was based upon material provided by the appellant himself. The submissions then addressed the requirements of s 425 of the Act and pointed out that the appellant had been invited to a hearing, that he gave evidence with the assistance of an interpreter, and that the hearing lasted about three hours.

13. The submissions then turned to the reasons of the Tribunal and stated that the reasons demonstrate that the appellant was alerted to the issues upon which the Tribunal ultimately relied upon in order to determine the application.  The remainder of the submissions contended that the Tribunal’s decision rested on a rejection of the appellant’s credibility, that the issue of credibility was something entirely within the jurisdiction of the Tribunal and that even if errors had been made in that assessment, they would not amount to jurisdictional errors.

14. The second ground of appeal was as follows:

    The Tribunal acted in a ‘manifestly unreasonable” manner towards the Applicant when dealing with the Applicant’s claims because of it’s failure to consider the claims in accordance with the Criteria in Article 1(A)(a) of the 1951 UN Convention relating to State of Refugee, due to the following conclusions:-

    2.1   “Whilst the applicant has maintained consistency in the elements of    his claims, he was unable to provide the necessary details or consistency around key aspects of his circumstances, …. (RRT decision paragraph 91).

    2.2   “The Tribunal finds that the harm feared by the applicant could amount to serious harm and systematic and discriminatory conduct as outlined in s.91(R)1.” (RRT decision paragraph 87)

    “However, ….the Tribunal finds that the applicant is not a witness of truth and his claims lack credibility.”  (RRT decision paragraph 89)

    2.3   “As a consequence of its assessment of the applicant’s written and oral evidence … the Tribunal does not accept that the applicant was a member of the Congress Party as claimed … Nor does it accept that the applicant’s parents have ever been a target of harassment by BJP …” (RRT decision paragraph 97)

    2.4   “….. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm amount to persecution …., if he were returned to India … (RRT decision paragraph 102)

    The applicant submits that the Tribunal acted in a manifestly unreasonable way when dealing with the Applicant’s claims and ignoring the aspect of persecution or serious harm in terms of Sec.91R of the Act in order to be satisfied whether the Applicant has a well founded fear of serious harm or a “real chance”.  Hence the Tribunal’s failure to observe this obligation amounted to a breach of a Statutory Obligation, thus amounting to a jurisdictional error committed by the Tribunal.

15. The federal magistrate again relied upon the first respondent’s written submissions, extracting three paragraphs directly from them and endorsing their arguments.  In essence, the federal magistrate accepted the argument that the second ground amounted to a quarrel with the Tribunal’s fact findings and that such an argument was not open on an application for judicial review. 

16. The third ground of appeal was as follows:

    3.        The Tribunal fell into jurisdictional error in failing to request more           information regarding the Applicant’s victimisation for his political affiliations and activities in India from the authorities directly.

17. In respect of this ground, the federal magistrate determined that it was not for the Tribunal to make out the appellant’s case for him.  The Tribunal gave the appellant a chance to submit further material after the hearing and accepted that material from him.  This was, the federal magistrate found, sufficient opportunity for the appellant to put his case. The federal magistrate thus rejected the third ground of appeal. 

18. Finally, the federal magistrate addressed some oral submissions made to him.  In the course of the hearing, the appellant submitted that the Tribunal failed to have regard to his arrest and to his wife’s miscarriage.  The federal magistrate rejected this contention by pointing out that the Tribunal had expressly referred to both these issues, one at [98] and the other at [99] of its decision.  The federal magistrate thus dismissed the appeal.

    THE PROCEEDING IN THIS COURT

19. On 15 June 2010 the appellants filed a notice of appeal in this Court.  The grounds of appeal were as follows:

    1.The Learned Federal Magistrate was in error in not determining that the Second Respondent had failed to accord “Procedural Fairness” to the Applicant because of:

    Its failure to carry out its role in an Inquisitorial Manner when it said “Having considered all of the evidence before it” whereas it made a contrary finding.
                 The weight it gave to the claims of the Applicants because of the Applicants’ lack of knowledge and hesitation in responding to enquiries of the Second Respondent.

    2.The Learned Federal Magistrate was in error in not determining that the Second Respondent acted in a “manifestly unreasonable” manner towards the Applicants when dealing with the Applicants’ claims because of it’s failure to consider the claims in accordance with the Criteria in Article 1(A)(2) of the 1951 UN Convention relating to Status of Refugee.

    3.The Learned Federal Magistrate was in error in not determining that the Second Respondent fell into jurisdictional error in failing to request more information regarding the Applicants’ victimisation for his political affiliations and activities in India from the authorities directly.

20. These grounds of appeal reflect, in substance, the same grounds as were raised before the federal magistrate.  The appellant appeared at the hearing of the appeal before this Court and was assisted by an interpreter into Gujarati.  He was unable to explain or expand upon the grounds in the notice of appeal.  Against this background, there is no error in the reasoning of the federal magistrate on the three grounds of appeal with which he dealt. 

21. The appellant was invited to explain any other errors made by the Tribunal and/or the federal magistrate.  He simply referred to an insufficiency of time given to him by the federal magistrate.  It seems that he suggested that he had not had a sufficient opportunity to explain his grounds of appeal before the federal magistrate.  There is nothing evident from the record of the proceeding which would support this contention.  The grounds of appeal were comprehensively stated and were each dealt with. 

22. Further, the appellant suggested that he had not had sufficient time since the judgment of the Federal Magistrates Court was delivered to obtain further evidence.  The appellant did not explain what further evidence he had in mind. In any event, on a judicial review appeal, there would ordinarily be no scope for the admission of any further evidence on the merits of the case.  The appellant said that he was not feeling particularly well at the hearing of the appeal and that was hindering his capacity to provide a catalogue of errors made by the Tribunal or the federal magistrate.  I am not satisfied that his feeling ill has hampered his attention to the hearing of the appeal. 

23. Accordingly, the appeal must be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        25 August 2010