MZYWO v Minister for Immigration and Citizenship
[2013] FCA 470
•17 May 2013
FEDERAL COURT OF AUSTRALIA
MZYWO v Minister for Immigration and Citizenship [2013] FCA 470
Citation: MZYWO v Minister for Immigration and Citizenship [2013] FCA 470 Appeal from: MZYWO & Anor v Minister for Immigration & Anor [2012] FMCA 1258 Parties: MZYWO and MZYWP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 1117 of 2012 Judge: BARKER J Date of judgment: 17 May 2013 Catchwords: MIGRATION – appellants claimed well-founded fear of persecution on account of first appellant’s support of Congress Party in India and debts to money lenders – whether Tribunal committed jurisdictional error by breaching s 424A Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) s 424AA, s 424A(1), s 424A(2A), s 424A(3)(a), s 424A(3)(b), s 424A(3)(ba) Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 Date of hearing: 17 May 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the First Appellant: The Appellant appeared by telephone with the assistance of an interpreter Counsel for the Second Appellant: The Appellant did not appear Counsel for the First Respondent: Mr R Knowles Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1117 of 2012
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZYWO
First AppellantMZYWP
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE OF ORDER:
17 MAY 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs of the appeal to be taxed, if not agreed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1117 of 2012
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZYWO
First AppellantMZYWP
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BARKER J
DATE:
17 MAY 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
OVERVIEW
By an application filed with the Federal Magistrates Court (now the Federal Circuit Court of Australia) on 22 March 2012, the appellants sought judicial review of a decision of the second respondent (Tribunal) made on 29 February 2012 (Tribunal’s decision).The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant each of the appellants a protection visa.
On 10 December 2012, the Federal Magistrate (as he then was) ordered that the appellants’ application be dismissed with costs.
On 21 December 2012, the appellants appealed to the Federal Court from the judgment delivered by the Federal Magistrates Court. The appellants advance a single ground of appeal. They assert that the Federal Magistrate erred in not finding that the Tribunal had breached s 424A of the Migration Act 1958 (Cth) (Act).
On 14 January 2013, the Federal Court relevantly ordered that the appellants file and serve an outline of submissions no later than 10 business days before the hearing date, which the appellants failed to do so.
Just prior to the hearing the first appellant indicated that, due to his medical circumstances, he required an adjournment of the hearing. The Minister opposed this course. As a result, the Court provided for the first appellant to be heard on the appeal by telephone.
For the reasons that follow, the Court does not consider an adjournment appropriate and dismisses the appeal.
PROTECTION VISA APPLICATIONS
The appellants, who are Indian citizens, are husband and wife. On 12 August 2009, the husband, the first appellant, entered Australia as the holder of a student visa. On 9 February 2010, his wife, the second appellant, entered Australia as the holder of a student visa.
On 15 February 2011, the appellants applied for protection visas. The first appellant claimed that, on account of his support for the Congress Party (Congress), he would face, upon any return to India, a real chance of persecution at the hands of members and supporters of the Bharatiya Janata Party (BJP). He also claimed to fear harm in India at the hands of people who had loaned money to him and whom he had not repaid. His wife did not make any specific claims and instead relied on her membership of the same family unit as the first appellant.
On 4 July 2011, a delegate of the Minister refused to grant the first appellant and his wife protection visas.
REVIEW APPLICATIONS IN THE REFUGEE REVIEW TRIBUNAL
On 29 July 2011, the appellants applied to the Tribunal for review of the delegate’s decision.
On 23 February 2012, the Tribunal conducted a hearing, at which the first appellant, who was assisted by an interpreter, gave evidence and made submissions.
On 29 February 2012, the Tribunal made its decision, in which it affirmed the delegate’s decision to refuse to grant protection visas to the appellants.
The Tribunal accepted that the first appellant may have followed Congress instead of the BJP. The Tribunal did not, however, accept that the first appellant was an active supporter of Congress. The Tribunal also found that the first appellant had little, if any, involvement with Congress and its members. In this regard, the Tribunal found the first appellant’s evidence to be “vague, confusing and lacking in detail” and “implausible”. The Tribunal stated that the first appellant had a “lack of knowledge” of matters relating to Congress.
The Tribunal also did not accept that the first appellant had experienced any problems from the BJP or its members. The Tribunal found the first appellant’s evidence about this issue to be “entirely inconsistent and contradictory”, “implausible” and “far-fetched”.
On the basis of these findings, the Tribunal did not accept that, if the first appellant returned to India, he would face a real chance of persecution at the hands of the BJP, its members or other opposition groups and their members. The Tribunal found that the first appellant would not have any profile as a Congress supporter.
The Tribunal otherwise did not accept that the first appellant’s father had borrowed money from money lenders or that they had sought repayment from the first appellant’s father. In relation to the first appellant’s evidence, the Tribunal referred to “vagueness and limited knowledge of central issues relevant to this particular claim”. The Tribunal found that “there was never a debt owed as the applicant claims”. The Tribunal also found that, in any event, this claim did not relate to any fear of harm for a reason set out in the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (Convention). The Tribunal also found that, having regard to country information about India, there was state protection in India and it would not be denied to the first appellant for a Convention related reason.
For these reasons, the Tribunal did not accept that the first appellant had a well‑founded fear of persecution in India for a Convention related reason. As such, the Tribunal was not satisfied that either the first appellant or his wife was a person to whom Australia owes protection obligations under the Convention. Accordingly, the Tribunal affirmed the decision of the Minister’s delegate not to grant protection visas to the appellants.
JUDICIAL REVIEW IN THE FEDERAL MAGISTRATES COURT
On 22 March 2012, the appellants applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. On 10 December 2012, the Court heard and determined the application. The Court ordered that the application be dismissed with costs.
The appellants advanced three grounds of judicial review:
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.
The Federal Magistrates Court rejected each ground.
The Federal Magistrates Court’s findings in respect of the second and third grounds of review are not the subject of the present appeal to the Federal Court. The appellants in effect now challenge only the findings made by the Federal Magistrates Court in respect of the first ground. In relation to that ground, the appellants allege that the Tribunal had failed to comply with s 424A of the Act. The Federal Magistrates Court found that the Tribunal did not base its decision on information that should have been disclosed to the first appellant under s 424A.
APPEAL TO THIS COURT
On appeal to this Court, the appellants argue that the Federal Magistrates Court erred in not finding that the Tribunal breached s 424A of the Act. As noted above, they have not served any submissions in support of this argument as required by order of the Court on 14 January 2013. It is assumed they formulate the sole ground of appeal in the same way that it was formulated in the Federal Magistrates Court.
Section 424A relevantly provides that, in certain circumstances, the Tribunal must give to an applicant, in writing, particulars of information “that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” and invite the applicant to comment on that information.
In their notice of appeal filed on 21 December 2012, the appellants state that:
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).
The appellants do not, however, identify the “adverse information” which they claim attracts the application of s 424A of the Act.
The Tribunal’s decision rested on its assessment of the credibility of the first appellant’s own evidence and its assessment of general country information about India.
The term “information” in s 424A does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 96 ALD 1 at [18]; see also ss 424AA and 424A(2A) of the Act. Nor does it, generally speaking, extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to such deficiencies.
Further, the first appellant’s evidence, whether given in support of the application for protection visas or the application to the Tribunal for review, was information to which s 424A did not apply: s 424A(3)(b) and (ba). General country information about the situation in India was also information to which s 424A did not apply: s 424A(3)(a).
At the hearing in the Tribunal, the Tribunal directly raised with the first appellant its concerns arising out of the evidence before it.
In these circumstances, the appellants have not shown any error affecting the decision of the Federal Magistrates Court. The findings of the Federal Magistrate do not disclose any appellable error. His Honour in the Court below was correct to find that the Tribunal did not breach s 424A of the Act.
As to the matter of adjournment, the first appellant attended the hearing by telephone having earlier indicated that he desired the adjournment of the hearing by reason of a recent medical procedure, that intimation being opposed by the Minister. Given that the first appellant could only produce a pro forma medical certificate from a medical practitioner reciting he was “unfit to continue his usual occupation”, and his availability to participate in the hearing by telephone, the Court considered it unnecessary to adjourn the hearing.
CONCLUSION AND ORDER
For the reasons given above, the appeal should be dismissed with costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 17 May 2013
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