MZYVA v Minister for Immigration
[2012] FMCA 787
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYVA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 787 |
| MIGRATION – Review of Refugee Review Tribunal’s decision to affirm earlier determination of Minister’s delegate not to grant a refugee visa – unrepresented Applicants – articulated grounds the composite efforts of other fellow applicant refugees – unable to speak to unparticularised grounds – grounds unsustainable – application dismissed. |
| Migration Act 1958, ss.36(2)(a), 36(2)(b), 65(1), 91R, 424A, 424A(1), 424A(3), 424A(3)(a), 424A(3)(b), 424A(3)(ba), 424AA, 425 Refugees Convention, Article 1A(2) |
| Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 MIAC v Chamnam You [2008] FCA 241 NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 Nagalingam v MILGEA (1992) 38 FCR 191 Prasad v MIEA (1985) 6 FCR 155 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Re: Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 |
| First Applicant: | MZYVA |
| Second Applicant: | MZYVB |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 160 of 2012 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 14 August 2012 |
| Date of Last Submission: | 14 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| The Applicants: | In person |
| Counsel for the First Respondent: | Ms E. Holt |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 17 February 2012 is dismissed.
The Applicants pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 160 of 2012
| MZYVA |
First Applicant
| MZYVB |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicants are husband and wife, but the pertinent claims upon which the parties seek protection visas are those associated with the First Applicant, and the Second Applicant (his wife) is dependent upon his claims. Consequently, a reference to the Applicant is a reference to the First Applicant.
The matter comes before the Court on an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on
25 January 2012, which decision affirmed an earlier decision of the
First Respondent’s delegate to refuse an application for a Protection (Class XA) visa made by the Applicants.
At the hearing the Applicant was unrepresented, but was assisted by a Gujarati interpreter. It was evident, however, that the Applicant, although he knew of the directional orders of Registrar Caporale made on 4 April 2012, had decided not to amend his application or provide written submissions. He stated he had provided everything to the Tribunal and saw no need to provide further material. It was also evident that his application was prepared with the assistance of someone who had some knowledge of the issues and the law associated with migration matters. The Applicant informed me that there was a group of fellow refugee seekers with whom he associated and with whom he joined in preparing his application for review, and upon whom he relied for their understanding.
Background
The Applicant (and his wife) are of Hindu ethnicity and religion.
The Applicant is 28 years of age and he travelled from India to Australia with his wife on Indian passports under an Australian student visa issued in New Delhi which was valid until 24 November 2010.
After unsuccessfully applying for an extension of his visa to continue his studies in Australia, the Applicant then sought, on 22 October 2010, the protection visa.
Claims
In support of his visa application the Applicant, in short compass, claimed he was at risk of serious harm and death should he be returned to India in the reasonably foreseeable future because of his political activities. He was a follower of the Congress Party and, in that capacity, became involved in his party’s unsuccessful elections in the State of Gujarat in 2007 which saw him the subject of two incidents following the outcome as set out below.
He was involved in a clothing retail business, with others. Whilst in his shop a number of men came in, refused to pay for items and he was assaulted. That incident is described as the 28 September 2008 incident. Evidence produced in support of this claim was a letter written by him to the police, but there is no evidence from the police acknowledging the incident or the letter.
A second incident happened on 1 December 2008 where two of the original assailants, with three others, attended on his store and again threatened and assaulted the Applicant.
The Applicant believes, based upon the beliefs of those associated with him in India, that the assailants were members of the ruling Bharatiya Janata Party. At the Tribunal and, indeed, before me the Applicant reiterated a concern that he has about being sent back to India at a time when the next elections are due, which he told the Tribunal were in 2013, but me in 2014/15. He stated, however, that after the elections he would be happy to go back to India to continue further studies there.
The Tribunal’s Findings
The most significant finding of the Tribunal was in respect of the Applicant’s credibility. For cogent reasons set out in the Tribunal’s decision, the Tribunal came to a conclusion that the Applicant was not credible. The reasons for such, the Tribunal stated, were because of the inconsistencies between the written statement in support of the application, his oral evidence and supporting documents. Accordingly, the Tribunal rejected the claims made in respect of the alleged incidents on 28 September 2008 and 1 December 20008. The Tribunal explained its rejection of affidavit evidence provided by two others, giving them little weight as the content was contradicted by the Applicant’s own evidence. The Tribunal also noted that 90 – 95 per cent of the Applicant’s written claims were identical to another set of claims before the delegate and was not satisfied as to the explanation provided by the Applicant. The Tribunal also gave little weight to the Second Applicant’s evidence.
Having regard, therefore, to the rejection of the Applicant’s claims because of the adverse credibility finding against the Applicant,
the Tribunal was not satisfied that Australia owed protection obligations to the Applicant under the Convention because of the Applicant’s political beliefs, or any other Convention reason.
Grounds for Review
Having regard to how the Applicant’s grounds for review came to be articulated, mainly through the assistance of others who, it appears, pooled their common experiences to create a document that expresses grounds in general terms relevant to the law associated with such, it is not surprising that, when questioned as to how the grounds were put, the Applicant was unable to respond in any sensible way.
There were four grounds of appeal as follows:
(1)There was a failure to fully comply with section 424A of the Migration Act 1958 (VF) and reliance was placed on the decision in SAAP.
(2)The tribunal had no jurisdiction to make the decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Act.
(3)The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the tribunal decision. The tribunal has not considered this aspect and therefore committed factual and legal error.
(4)The tribunal has failed to investigate applicants’ claim, especially the grounds of persecution, in India. Therefore, the tribunal decision dated 25 January 2011 was effected by actual bias constituting judicial error.
None of the grounds were particularised, nor did the Applicant take advantage of the opportunity to file an amended application and provide written submissions. The Applicant, when invited to expand on the grounds, simply professed ignorance and could not advance his case.
Notwithstanding the position of the Applicant, it is incumbent upon the Court, in these circumstances, to ensure that no injustice is done to the Applicant because of his manifest ignorance and because of the particular disadvantage he is placed in concerning the complex issues that arise in migration matters, in particular those in respect of the law governing judicial review of migration decisions. Accordingly,
I thoroughly read the decision of the Tribunal with a view to seeing whether such an injustice arises in this particular case. I am satisfied that none does.
Consideration
The First Respondent has provided written submissions in respect of the general and unparticularised grounds stated by the Applicant.
Ground 1
In respect of the first ground, when questioned, the Applicant could not give details of the information which may be said to have been the reason or part of the reason for affirming the decision of the First Respondent’s delegate. My reading of the decision does not reveal any information that should have enlivened s.424A(1) of the Migration Act 1958 (the Act).
It is clear, in my view, that the information upon which the Tribunal based its findings against the Applicant was put to the Applicant at the hearing in accordance with s.424AA, or fell within the exceptions in s.424A(3)[1]. Should the Applicant be inferring that the “information” he believes enlivened s.424A(1) are the Tribunal’s subjective appraisals and thought processes when considering the Applicant’s evidence and claims, then such is not information that enlivens s.424A(1)[2].
[1] See SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [88]
[2] See SZMCD
Should the Applicant be making a general reference to the country information that is disclosed in the Tribunal’s decision as a basis for enlivening s.424A(1), then such information clearly is an exception under s.424A(3)(a)[3]. Again, should the Applicant be referring to his own information that he gave for the purposes of his application, that is an exception under section 424A(3)(b)[4], and in similar fashion,
the Applicant cannot rely on information he gave during the hearing,
as it is exempt under s.424A(3)(ba).
[3]See VHAP of 2002 v Minister for Immigration [2004] FCAFC 82; Minister for Immigration v NAMW [2004] FCAFC 264; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]); MIAC v Chamnam You [2008] FCA 241 at [16]
[4]Minister for Immigration v NAMW [2004] FCAFC 264; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Again, a fair reading of the Tribunal’s decision confirms, in my view, that it complied with its obligations under s.425 of the Act[5].
[5]See SZBEL v Minister for Immigration and Multicultural and IndigenousAffairs (2006) 228 CLR 152 at [33] - [37]
In respect of the first ground, the Applicant has failed to show that the Tribunal has not complied with its statutory obligations, as broadly suggested by ground 1, and the decision of the Tribunal on that basis is not affected by error. This ground is not sustained.
Ground 2
In respect of ground 2 which is again stated broadly, and again unparticularised, I accept the First Respondent’s submissions that the decision of the Tribunal, on a fair reading, clearly shows that it has discharged its statutory obligations and has arrived at a decision that was open to it on the material before it. The Tribunal:
a)correctly articulated the legal framework within which the application fell for consideration;
b)considered the Applicant’s evidence;
c)considered country information; and
d)arrived at conclusions based on its assessment of that evidence.
Of course, and as previously stated, the Tribunal’s findings in relation to the Applicant’s credibility and veracity are very significant as to the outcome of his case. It is well established that credibility findings are findings of fact, and are a matter for the Tribunal par excellence[6]. Credibility findings are uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of this Court[7].
[6]Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [64] - [67]
[7]See NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291
On the material before it, the Tribunal was unable to be satisfied the Applicant was a person to whom Australia had protection obligations. Its reasons for not reaching that state of satisfaction are coherently spelt out. The Tribunal, in those circumstances, had no option but to affirm the delegate’s decision[8].
[8]See SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14] – [16] per Ryan, Jacobson and Lander JJ; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16] - [17] per Black CJ, Sundberg and Bennett JJ
The Applicant’s second ground is not made out and should be dismissed.
Ground 3
Ground 3 seems to be, in like fashion to the previous two grounds, bold statements which are unparticularised and which a fair reading of the Tribunal’s decision does not support. Such a reading clearly shows that the Tribunal was mindful of the legal framework in which its decision needed to be considered, with particular emphasis on the requisite satisfaction required under s.65(1), s.36(2)(a) and (b) of the Act, and the elements under Article 1A(2) of the Convention, and s.91R of the Act.
In my view, the Tribunal gave the Applicant’s claims due consideration, and after considering them and the evidence,
the Tribunal found that on the basis of the inconsistencies between the Applicant’s oral evidence, his written statement and supporting documents, the Tribunal had significant concerns about the Applicants’ credibility, and accordingly rejected the claims made about the incidents relied on by the Applicant. Logically, therefore, the Tribunal found that there was no real chance that the Applicants would suffer serious harm in the reasonably foreseeable future for reason of the Applicant’s political beliefs or any other Convention reason, if they were to return to India.
The Tribunal’s decision was open to it on the evidence, and the decision is not affected by jurisdictional error. This ground should be dismissed.
Ground 4
In respect of the final ground, where it is alleged the Tribunal failed to investigate the Applicant’s claim of persecution, the Applicant, when asked what was meant by “investigate” was unable to respond. Generally, however, it is not the role of the Tribunal to investigate, except in exceptional circumstances, and clearly this case is not one.
It is well established that the Tribunal is not required to make the Applicant’s case for him, nor was it required to uncritically accept any or all of the claims made by the Applicant[9]. I am satisfied, however, that a fair reading of the Tribunal’s decision clearly shows that it considered the Applicant’s claims and evidence, before making its findings and conclusions.
[9]See Prasad v MIEA (1985) 6 FCR 155 at 169-170; Randhawa v MILGEA (1994) 52 FCR 551; Nagalingam v MILGEA (1992) 38 FCR 191
In respect of the Applicant’s claim under this ground that the Tribunal’s decision is affected by actual bias, such allegations are very serious and must be distinctly made and clearly proved. In my view, there is no evidence to substantiate the Applicant’s claim in this regard[10].
[10] See Minister for Immigration v Jia Legeng (2001) 205 CLR 507
This ground, like the previous three, is not made out and should be dismissed.
Conclusion
For the above reasons the Applicant has failed to demonstrate jurisdictional error on the part of the Tribunal and, as the decision is a privative clause decision, the application made on 17 February 2012 must be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 6 September 2012
0
20
2