MZYUF v Minister for Immigration

[2012] FMCA 649

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYUF v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 649

MIGRATION – Protection visa refused – evidence of the applicant not accepted – whether denial of natural justice? – independent country information covered by exception in s.424A(3)(a).

Migration Act 1958 (Cth), ss.422B, 424A(3)(a), 474

Abebe v Commonwealth (1999) 197 CLR 510 Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 Luu & Anor v Renevier (1989) 91 ALR 39 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

Applicant:

MZYUF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 35 of 2012

Judgment of: Turner FM

Hearing date: 16 July 2012

Date of Last Submission: 16 July 2012

Delivered at: Melbourne

Delivered on: 16 July 2012

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Ms Holt

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application for judicial review filed on 17 January 2012 and amended application filed on 2 May 2012 are dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 35 of 2012

MZYUF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex tempore & Revised)

1. The applicant in this matter has been denied a protection visa and seeks judicial review of that decision.

2. The main issues relevant to this review are:

   a)Whether the applicant has established the facts necessary to support his application,;

   b)Whether the Refugee Review Tribunal (the “Tribunal”) accepted his evidence;

   c)Whether the applicant was invited to appear before the Tribunal and declined; and

   d)Whether an error of jurisdiction occurred.

The Application

1. The applicant filed an Amended Application on 2 May 2012, which contains the following grounds that to a great extent are confined to allegations of fact and historical matters:

   (1)That the statement of decision given by the RRT on 29^th December 2011, is not in accordance with the law and facts of the case, especially the references quoted by the member of the RRT are not applicable in the instant matter in hand. Because the mere fact remains the same that the honourable High court has held that there should be well founded reason, of being that the applicant is a great risk of being persecuted and killed. Moreover the member at the paragraph 33 of the decision, brushes aside applicant claim of fear and persecution, is a gross violation of atrocities suffered by the applicant. Furthermore, I as an applicant has provided everything needed to prove my suffering. Also the decision maker has attached the history of Sikhs in India and problems faced by Sikhs, yet no attention has been given.

   (2)Decision maker in RRT erred in making a decision, to base on one address. The applicant provided one permanent address in India. Applicant cannot provide addresses of every place applicant stayed to avoid persecution, only as a mere fact that the applicant does not remember and applicant has no indication, that he will be asked to provide addresses of his all last addresses. Hence the reason for refusal are nothing more than an administrative ignorance.

   (3)RRT based the decision, on the mere fact that the applicant waited four years to lodge a refugee claim. Today we live in a temporary world, since applicant has four years to live in Australia, applicant was of the opinion that circumstances may change in four years. It was not till this application that the applicant realised that He is unable to return to India as the threats to his life are ongoing and many of the applicants friends relative has been killed mercilessly in police custody and others very well known procedures, that are claimed in media as police encounters and suicide.

   (4)My name is Bikramjit Singh. I was born in Sohal, Gurdaspur, Jalandhar India, on 03/05/1986. My father name is Joginder Singh and he is approximately 65 years old. My mother name is Lakhwinder Kaur and she is approximately 60 years of age. I belong to a Sikh family. My parents are pure Sikh, We live at VPO. Sohal District Gurdaspur Punjab.

   (5)My Education:

   I have completed my matriculation in 2002 from Punjab School Education Board with third division. I completed my secondary school from Punjab school education board in 2004 with major in Humanities. I have also undertaken Certificate 3 in Hospitality Commercial cooking in 2008. Then I undertook Diploma of Hospitality Management. From Chelsea International College Pty Ltd which is registered Victorian qualification authority.

   Work History:

   (6)My father Joginder Singh had inherited farms from my grandfather and while I was studying, I worked with him. After finishing my High School, I got a job in a Punjabi restaurant, but my father’s farm was burnt, and He needed extra support. Therefore I left my traineeship and went to work with him on our family farm for approximately 2 and a half year. This is how long it took us to clear the land and sow new crops.

   Our History as Sikh:

   (7)Sikh have been living in India for nearly 600 years and had their own state. We as Sikh were never governed by either Hindus or Muslims. We as Sikh are very hospitable nation with strong family values and customs. Our religion teaches us to be peaceful, loving and serene. We had our own independent state, even during the British rule and our great emperor was Maharaja Ranjeet Singh, who ruled Punjab for a very long time and during his rule, people were very content and prosperous. He gave every religion the freedom they deserved and demanded. After the great partition of India, the Sikh opted to remain in India, they were promised an independent state with no strings attached to our religion. However, Hindus in power never fulfilled their promises and slowly they interfered in our religion, and they tried to get rid of all the Sikhs from India. It was genocide. They attacked our Holy place just one year before my birth. They killed many hundred thousand Sikh children and young. They tried to make Sikh extinct, by killing all the young males.

   My claim for being a Refugee:

   (8)Since I was born to a pure Sikh family, I grew up listening to the tales of atrocities done to my family members including the killing of my uncle, his wife and three young children. This made me very angry. As a child I promised myself that I will defend my religion and will fight for a place for Sikhs that is Khalistan. Therefore At school was a member of All India Sikh Student Federation (AISSF). The absurd reality as portrayed by Indian authorities that the Khalistan movement has died is a joke; it is much stronger than it ever has been. However The Indian propaganda has got the best of the united nation and other countries. The Indian record of human rights is one of the worst in the world; they are much more barbaric than so called dictators of Arab world. Even though in Indian constitution there are impressive rules and laws, but exploitation is the virtue of Indian authorities. It can be seen in the state of Jammu Kashmir where Indian authorities broke the undertaking in the security council of the United Nations. Furthermore, during the great partition of India, Hindus butchered hundreds of thousands Muslims migrating to Pakistan.

   (9)At school I use to attend meetings and rally for Khalistan. Because of this I was arrested by the Indian Police, They hung me upside down and canned me till I passed out. My father and other elders came and paid hefty bribe to the officer in charge, and took me to Hospital. Indian police had the authority to keep an eye on young Sikhs and their activities and always arrest and bash them, in order to break their morale and humiliate them to an extent they go in a psychological paralysis. After my torture by the hands of the authorities, I was more determined. Once recovered, I started the Khalistan movement with further passion. I started to go out in group of 15 to 20 Sikhs. This way we were safe from the young Hindus and the Hindus who would out from other towns at night and will bash and as in many instances killed alone young and old Sikh men and woman. At few occasions, we had major clashes between Hindus extremist. However, every time, we Sikh were the one to go to police station and were tortured and humiliated.

   (10)After I finished my secondary education, I stared working in a restaurant, as cooking and eating has been my passion. I worked there for a little while, when one night on my way to home, I was attacked by 10 Hindus, who were hiding nearby. I was very scared as they had machete, so I started screaming, and ran back to my workplace. Due to my screaming, my fellow workers and some neighbouring businesses, who were mainly Sikh, came to my rescue. The Hindus ran and they threatened to get me. Soon after a day, my father’s farm was set alight; it was a major blow to our family, as farm was our bread and butter. We were devastated; The Hindus could not attack our home, as we lived in populated Sikh suburb. My father suffered a Heart attack, as it was too much to bear. I had no choice to quite my job and help my father build it again, as we had no money to hire labor and or machines.

   (11)For the next 2 and a half year, I worked with my father and brought the farm to the old position. My father was very happy yet sad. During my farming years, we kept guard at night, we and youths from our suburb or area, divided the duties. This was a major blow to Hindus, as they were not able to harm us. It is widely known fact that these Hindu thugs are hired by the Indian government and other Hindu political leaders and parties, as they had immunity from the police and law. No one would dare arrest them for any misconduct. Word got out that I Bikramjit is the one, who organizes night patrol of Sikhs farms and properties. Soon, the Indian authorities started branding us as terrorists and Pakistan’s agent. They spread the propaganda that Sikh is with Pakistan; therefore they do not belong to India and thus should be killed. But due to International Pressure India was forced to accept Sikh as their own. However in reality it is the opposite. Sikh in India have no employment perspective, thus we Sikh are forced to work for ourselves. They have misled the media and the whole world that In India minorities are living a peaceful life.

   (12)Once the Hindu thugs could not get us, Hindus got the authorities to arrest youths every day and bash them and forced them to admit that they were terrorist and are working for Pakistan intelligence. They have killed up to a 100 Sikh youths who were passionate about Khalistan movement. In the record many of them are non-existent where as the rest have been killed in fake police encounters. My father got the news and got worried, He sold half of his farm and begged me to leave India forever, as In India we Sikh are not safe in Punjab which is the main populated area for Sikhs, what about other states where Hindus are the majority.

   (13)My father knew that I have a passion for food, so he got me an admission in hospitality in Australia. I came to Australia, as my father went to my feet, and begged that I must leave. We are very honourable people and I could not reject my father, SO even though I did not want to come here I like many other Sikh activist were forced to leave out (sic “our”) town. I came to Australia.

   Our association has been banned by the Indian authorities as we have been declared as terrorists, whereas in reality we are the victim, we as Sikh have never killed any innocent person. I had no alternative to survive in India, and fled as a student. I have a real chance of being killed by the hands of extreme Hindus and or by the Indian authorities. I being a Sikh have a subjective and objective fear of life in India. My life is in grave danger and I have a well founded fear of being killed. I will be killed if I am sent back to India.

2. On 7 March 2012 the applicant was ordered to file written submissions by 2 May 2012, but failed to do so. However, the Amended Application filed on 2 May 2012 contains submissions.

3. There are no clear grounds for judicial review set out in the applicant’s Amended Application, only the statements of alleged facts (supra).

4. The applicant arrived in Australia on 19 May 2007 (Court Book “CB” p.4) and filed the application for a protection visa on 23 March 2011 (CB p.2).

5. The applicant was invited to attend an interview to support his application to the delegate (CB p.63), but failed to attend (CB p.116.10).

6. The delegate refused the application for a protection visa (CB p.83). The applicant then applied for a review by the Tribunal.

7. The Tribunal sent the applicant an invitation to appear at the hearing before it on 23 December 2011, stating that:

   “The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone” (CB p.100).

   The applicant failed to attend that hearing (CB p.108).

8. It is clear that an applicant must make out their case.

9. In Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 [40]:

   “This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened”.

   And at [84]:

   “Accordingly, neither the Tribunal itself nor the primary decision-maker acts as a contradictor to a visa applicant’s case. But an applicant for a protection visa must put forward the evidence the applicant wishes the Tribunal to consider”. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 164 [40].

10. Although “the concept of onus of proof is not appropriate to administrative inquiries and decision making” (Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.

    The Court refers to the following decisions:

    “The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out”.

    A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 at 451. Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596. Nagalingham v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.

11. The Court applies the following decision in another matter:

    “The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected”.

12. Once the applicant failed to attend the interview, the inevitable result was that his application would be rejected.

13. When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 per Downes J at [4], citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5].

14. It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: SZIGQ (ante) per Downes J at [5].

15. The Court accepts the submission for the first respondent that the Tribunal complied with the requirements of notifying the applicant inviting him to attend.

16. The Tribunal went on to find that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention.

17. It found that there was no evidence to support the protection claims that accompanied the visa application (CB p.119.10).

18. The Tribunal found that it was not satisfied that the applicant had been detained and mistreated by the Indian authorities. It was not satisfied that he had been personally attacked by Hindus and it was not satisfied that his family farm was the subject of an arson attack (CB p.120.9).

19. The Tribunal was not satisfied that the applicant holds any subjective fear of persecution (CB p.121.1), or that if the applicant returns to India he faces a real chance of serious harm, capable of amounting to persecution (CB p.121.2).

20. The Tribunal found that it was not satisfied that the applicant is a person whom Australia owes protection obligations under the Refugee Convention (CB 121.3).

21. As stated by the Federal Court of Australia in Lee vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”.

1. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.

2. The Court refers to the following decisions:

   “The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of fact par excellence… and no detailed reasons need to be given as to why that particular witness was not believed…In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. : Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]”.

3. In Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, 23 November 1995, unreported) RD Nicholson J stated at [24]:

   “It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.

4. The Court invited the applicant to make submissions in support of his case today, but he declined to do so.

5. The Court accepts the following submissions from the first respondent:

   a)The independent country information referred to by the Tribunal was not required to be put to the applicant, as it was covered by the exception in s.424A(3)(a) of the Migration Act 1958 (the “Act”); and

   b)That the applicant has failed to establish a denial of natural justice.

6. Section 422B of the Act states:

   422B Exhaustive statement of natural justice hearing rule

   (1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   (3)In applying this Division, the Tribunal must act in a way that is fair and just.

7. A breach of that division has not been established by the applicant.

8. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

9. The application for judicial review is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Turner FM

Date:  27 July 2012