MZYWJ v Minister for Immigration
[2012] FMCA 660
•7 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYWJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 660 |
| MIGRATION – Refugee Review Tribunal – no jurisdictional error identified. |
| Migration Act 1958, ss.424A, 424AA, 424C |
| Applicant: | MZYWJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 289 of 2012 |
| Judgment of: | Riley FM |
| Hearing date: | 26 July 2012 |
| Date of last submission: | 1 August 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant appeared in person |
| Counsel for the First Respondent: | J McKenna |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The application filed on 15 March 2012 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 289 of 2012
| MZYWJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of India. He arrived in Australia on 12 December 2012 as the dependant of a holder of a student visa, namely, his wife. She was studying hairdressing. The applicant and his wife were divorced in February 2011. The applicant filed an application for a protection visa on 11 March 2011.
The applicant’s claims
The applicant claimed that:
a)he was a well off dairy farmer and businessman;
b)some people owed him some money;
c)when he asked to be paid, they verbally abused him and physically assaulted him;
d)he later learned that they were BJP supporters;
e)the police were not interested in investigating his complaint;
f)the applicant wanted help from the Congress Party so began to participate in party work;
g)the people who had previously assaulted him learned of his involvement with the Congress Party;
h)they attacked and abused the applicant and destroyed his business; and
i)he feared that the people would kill him if he returned to India.
The delegate’s decision
The delegate refused the application on the grounds that:
a)the applicant failed to attend his interview, which suggested that he did not have a strong subjective fear of persecution;
b)the applicant did not lodge his protection visa application for over two years after his arrival in Australia, when his spouse visa was about to expire; this raised doubt about the credibility of his claim to fear persecution;
c)the application lacked detail and the applicant did not attend an interview to provide further information, which left the delegate dissatisfied about the applicant’s claims;
d)the applicant returned to India from 14 December 2010 to 31 January 2011, which raised doubt about the strength of his subjective fear; and
e)it would be reasonable for the applicant to relocate to another area of India where the BJP is not in government.
The Tribunal’s decision
The Tribunal considered that the applicant was not a credible witness because:
a)the applicant told the Tribunal that the person he particularly assisted in the Congress Party was a leader called Nitin Patel, but that person is actually a Minister in the BJP government of Gujarat, while Siddarth Patel has been the leader of the Congress Party in Gujarat since 2010;
b)the applicant was a vague and evasive witness;
c)the applicant’s oral evidence contained numerous inconsistencies;
d)the applicant’s oral evidence was inconsistent with his written claims;
e)the applicant’s claims were implausible, in that his claims were out of proportion with his minor involvement with the Congress Party; and
f)the delay in lodging a protection visa application created doubt about the genuineness of the applicant’s subjective fear.
The Tribunal accepted that the applicant had a dairy business and may have sometimes had minor arguments with customers over unpaid debts. However, the Tribunal did not accept that any such disputes escalated to the point of serious harm and did not accept any of the applicant’s other claims about his problems in India or that he had ever had any involvement with the Congress Party. The Tribunal did not accept that the applicant faced a real risk of serious harm for any Convention reason.
Moreover, the Tribunal considered that, even if the applicant did have a well-founded fear of persecution for the reasons claimed, he could reasonably relocate within India and thus avoid facing a real chance of persecution for the reasons claimed.
Ground 1
The first ground of review in the application filed on 15 March 2012 is:
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).
Section 424A of the Migration Act 1958 provides as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
The applicant was not represented before this court. He did not file a written outline of contentions. He attended the hearing before this court but did not make any submissions. He did not expand on the grounds stated in his application. More particularly, he did not specify which information the Tribunal relied upon but did not disclose to him.
The first respondent said that the information relied on by the Tribunal was information that was exempt under s.424A(3)(ba) or s.424A(3)(b) of the Migration Act 1958 or was country information relating to Nitin Patel.
The first respondent said that the information relating to Nitin Patel was arguably exempt under s.424A(3)(a) of the Act. That paragraph exempts from the general requirements of s.424A of the Act information:
that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member[.]
The Tribunal provided references to the country information it had relied upon in footnotes to paragraph 68 of its reasons. The information was clearly about Nitin Patel and Siddarth Patel specifically. Therefore, the information does not fall within the exemption contained in s.424A(3)(a) of the Act.
The first respondent also argued that the information was put to the applicant under s.424AA of the Act. That section provides that:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The Tribunal discussed the steps it took under s.424AA in paragraph 55 of its reasons. That paragraph states as follows:
After explaining to the applicant the operation of the s 424AA of the Act, the Tribunal put to the applicant that, according to its research, Mr Nitin Patel is a member of the BJP party, not the Congress Party. The Tribunal explained that this information was relevant to its decision as it could cast doubt over his alleged association with this man and the Congress Party. The Tribunal explained that this could lead to its not accepting his evidence in relation to these matters, as well as having doubts about his credibility generally which could lead the Tribunal not to accept other parts of his evidence as well. The Tribunal explained that this could lead to it forming the view that he was not a genuine refugee in need of Australia’s protection and therefore affirming the decision of the delegate under review. The applicant gave evidence that the Nitin Patel the Tribunal was referring to is from the BJP in Kardi, whereas the Nitin Patel he was talking about was from the Congress Party.
It appears that the Tribunal carefully complied with its obligations under s.424AA(b)(i), and that the applicant did in fact comment on the relevant information. However, there is nothing in the Tribunal’s reasons to indicate that it explained to the applicant under s.424AA(b)(iii) that he could ask for additional time to respond. The first respondent did not provide a transcript of the proceedings before the Tribunal.
The first respondent asked the court to infer that the Tribunal had complied with its obligations under s.424AA(b)(iii). However, I see no basis to draw such an inference. The Tribunal carefully set out the steps it took. The absence of any reference to advising the applicant of the possibility of seeking more time leads to the inference that the Tribunal did not so advise the applicant.
The first respondent argued that, in any event, the information about Nitin Patel was the subject of a s.424A letter. The Tribunal wrote to the applicant saying:
In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that the Tribunal has not made up its mind about the information.
The particulars of the information are:
1. At the Tribunal hearing on 28 November 2011 you gave evidence that the only member of the Indian National Congress Party (‘Congress Party’) with whom you had an association was a man named Mr Nitin, whom you described as the leader of the Congress Party in your area. (emphasis added)
2. By contrast, according to research undertaken by the Tribunal, the leader of the Congress Party in Gujarat since 2010 has been Siddharth Patel[1] [2]. Furthermore, according to the Tribunal’s research, Nitin Patel is the BJP Member for Kadi in Gujarat and is the current Urban Development Minister.[3] [4] [5]. The Tribunal was unable to find information regarding an individual named Nitin Patel with a connection with the Congress Party, either as the leader of the Congress Party in Ahmedabad, Gujarat, or otherwise.
The information contained in paragraphs 1 and 2 is relevant to the review as it could, subject to your comments, lead the Tribunal to not accept your evidence regarding your involvement with the Congress Party or with Mr Nitin Patel, given that the information could appear to contradict your oral evidence on these matters. The information could also lead to the Tribunal having doubts about your credibility generally, leading it to not accept other parts of your evidence as well. This could lead to the Tribunal not accepting that you are a genuine refugee in need of Australia’s protection. If so, this would be the reason or part of the reason for affirming the decision of the delegate under review.
[1] Ayyub, R. 2010 ‘All’s Not Well With Your Home, Minister’, Tehelka Magazine, Vol 7. Issue 22, 5 June – Accessed 29 November 2011.
[2] ‘Gujarat civic polls: BJP plea rejected’ 2010, Thaindian News, source: IANS, 28 September – Accessed 29 November 2011.
[3] ‘Twelfth Gujarat Legislative Assembly List of Members’ (undated), Gujarat Vidhan Sabha website – Accessed 29 November 2011.
[4] ‘Gujarat Minister slams Cong, Governor over Lokayukta issue’ 2011, Deccan Herald, source: PTI, 1 September – Accessed 29 November 2011.
[5] ‘Gujarat civic polls: BJP plea rejected’ 2010, Thaindian News, source: IANS, 28 September – Accessed 29 November 2011.
The footnotes were part of the Tribunal’s letter.
The letter, in paragraph 1 of the particulars, referred to Mr Nitin, rather than to Mr Nitin Patel. However, later in the letter, the difference between Mr Nitin Patel and Mr Siddarth Patel was clearly explained. At the Tribunal hearing, there had been extensive discussion about Nitin Patel. The summary of that aspect of the hearing runs from paragraph 47 to paragraph 56 of the Tribunal’s reasons.
Moreover, the applicant responded to the s.424A letter by letter dated
4 January 2012 saying (CB115):I have been asked to provide further information regarding Nitin Patel to justify my case. Unfortunately, there has been election going on in my village. Therefore, it is being difficult for me to extract more information due to unavailability of Nitin Patel.
The applicant asked for, and was granted, an extension of time. He said in his second response to the s.424A letter in a letter dated 16 February 2012 (CB120):
… you ask me to provide some information regarding leader name mrNitin as you search on internet and found that Nitinpatel is currently minister in BJP’s government in Gujarat and you can not find person name mrnitin in congress party but as I told you before I am follower of mister nitin shah and he is G.P.C.C. Delegates member for Ahmedabad city as you can find all detail about him on Gujarat congress party’s website as I am providing below.
From all of these circumstances, it seems that the applicant was under no misapprehension about what the Tribunal meant in its s.424A letter and fully understood the significance of the relevant information.
I consider that the error in the s.424A letter, in naming Mr Nitin, rather than Mr Nitin Patel, did not result in the letter failing to meet the requirements of s.424A of the Act. Consequently, this ground is not made out.
Ground 2
The second ground of review in the application filed on 15 March 2012 is:
That the tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error[.]
The applicant did not give any particulars of this ground. Except in relation to matters addressed under the next ground, I am unable to discern any foundation for this ground. Accordingly, it is not made out.
Ground 3
The third ground of review in the application filed on 15 March 2012 is:
That the tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal[.]
The applicant provided no particulars of this ground. It appears to concern a request by the applicant in his letter dated 16 February 2012 to the Tribunal for further time to respond to the s.424A letter. The applicant said:
… I ask for time before Tribunal so I can get written conformation (sic) from [Nitin Shah] that I was member of congress party … .
The Tribunal dealt with this request at paragraph 72 of its reasons, saying:
The Tribunal has decided to make its decision in this matter without allowing further time for the applicant to provide additional evidence regarding his involvement with Nitin Shah (or Nitin Patel). The Tribunal notes that the application was lodged in March 2011 and the delegate’s decision refusing the application was made in August 2011. The applicant has therefore had ample opportunity to compile all relevant evidence in support of his claims. The Tribunal also notes that it specifically raised its concerns with the applicant regarding Nitin Patel at the hearing on 28 November 2011 and agreed to allow additional time for the applicant to produce evidence of his past association with Nitin Patel. The Tribunal also notes that it was not until his letter of 20 February 2012 that the applicant claimed that the Nitin Patel referred to at the hearing was in fact Nitin Shah. In the circumstances, the Tribunal is satisfied that the applicant has been afforded ample time to furnish all relevant evidence and information and it is appropriate for the Tribunal to make a finding on the application without further delay.
The Tribunal was empowered under s.424C of the Act to proceed to decide the matter without giving the applicant further time. Section 424C relevantly provides:
(2) If the applicant:
(a)is invited under section 424A to comment on or respond to information; and
(b)does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
The Tribunal had a discretion in relation to this matter. I am unable to detect any jurisdictional error in the Tribunal’s exercise of its discretion. The refusal of further time was reasonable, in circumstances in which the application had been on foot for almost a year, and the applicant had not mentioned Nitin Shah until about 11 months after the application was lodged. This ground is not made out.
Whether the Tribunal failed to consider a claim
The first respondent raised an issue concerning whether the Tribunal had considered all of the applicant’s claims. Specifically, the first respondent noted that the applicant claimed in answer to question 44 in his protection visa application that he feared harm from “local police and political group”.
However, the applicant’s narrative of his claims referred only briefly to the police. He said in his initial statement:
So I went to police station but police said this is very small incident related to your business and customers. We do not have time to investigate this type of small matters than they did not consider my complain seriously for the sake of writing just they wrote my complain.
It seems to me that, properly understood, the applicant did not claim to fear harm from the police, other than the harm of the police not taking his complaint seriously. At paragraph 94 of its reasons, the Tribunal rejected the applicant’s claims to have been involved in any serious dispute with his debtors, and rejected his claims to have made a complaint to the police. The Tribunal also rejected the applicant’s claim that:
… the police failed to adequately respond, either due to the influence of the BJP party, local mafia or otherwise … .
Moreover, in paragraphs 91 to 98 of its reasons, the Tribunal comprehensively rejected all of the applicant’s claims to face persecution, as those claims were explained in the applicant’s written statement and oral evidence. In these circumstances, it does not seem to me that the Tribunal failed to consider a claim made by the applicant.
In any event, the Tribunal found, for reasons which it gave, that, even if the applicant did face persecution for the reasons that he claimed, he could safely and reasonably relocate within India. This finding does not appear to have been challenged. I am unable to detect any jurisdictional error in relation to it.
All in all, no jurisdictional error has been identified in this matter. Consequently, the application must be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 7 September 2012
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