MZYYS v Minister for Immigration and Citizenship

[2013] FCA 301

FEDERAL COURT OF AUSTRALIA

MZYYS v Minister for Immigration and Citizenship [2013] FCA 301

Citation:		MZYYS v Minister for Immigration and Citizenship [2013] FCA 301
Appeal from:		MZYYS v Minister for Immigration & Anor [2012] FMCA 1215
Parties:		MZYYS v MINISTER FOR IMMIGRATION AND CITIZENSHIP  and REFUGEE REVIEW TRIBUNAL
File number:		VID 1053 of 2012
Judge:		NORTH J
Date of judgment:		5 March 2013
Date of hearing:	5 March 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	29
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Ms K Whittemore of Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1053 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYYS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	5 MARCH 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the costs of the first respondent, to be taxed or otherwise 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 1053 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYYS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	5 MARCH 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from orders made by the Federal Magistrates Court on 20 November 2012.  The federal magistrate dismissed an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), which was made on 21 May 2012.  In that decision, the Tribunal affirmed the decision of the delegate of the first respondent, Minister for Immigration and Citizenship (the Minister) not to grant the appellant a protection (class XA) visa.

2. The appellant is 23 years old and is a citizen of India.  He came to Australia in March 2009 on a student visa.  He applied for a protection visa on 22 August 2011.

   THE TRIBUNAL DECISION

3. Before the Tribunal, the appellant claimed that he feared persecution were he to return to India on the basis of an imputed political opinion.  He claimed that his father joined the Congress Party after retiring from the army in 2006.  In the Tribunal hearing, he said that his father was a member and supporter of the Congress Party.  He said that he had no idea why his father became involved with the Congress Party.  When asked if his father was politically active whilst in the army, the appellant replied that he could have been.

4. The appellant said that he did not know anything about politics and he was not politically active in India.  When asked why he left India in 2009, he said that there was a rivalry between Sher Singh, a member of the Akali Dal party and his father in their local area.  The appellant said that in mid-2007, he and some friends helped his father’s political campaign by distributing flyers and putting up posters.  A fight then broke out with Akali Dal supporters who wanted to put up their posters.  He said that the posters were put up at a primary school in the afternoon and one of the men who beat him and his friend was called Rinku, who was Sher Singh’s nephew. 

5. The appellant said that he was injured in the attack but not seriously.  He went to hospital where his wounds were dressed and then he left.  He did not get any hospital reports about the incident.  He said he reported the incident to the police.  The police arrested two of the men, Rinku and Kulla, shortly after the fight took place.  He said the men were released immediately without charge after paying a bribe.  Shortly after this attack, the appellant said his father made a plan for the appellant to leave India because the boys who attacked him would come around to his house looking for him after the fight.

6. Although the fight took place in mid-2007, the appellant did not leave India until early 2009.  He said that for a year of this period he was in Chandigarh, where he studied English in preparation for his IELTS test.  He visited home after six months and again for a few days before he went to Australia and nothing happened during his visits home.  

7. The Tribunal asked the appellant what would happen to him if he returned to India, almost five years after the incident.  He said to the Tribunal that he speaks to his family regularly and they told him it would be better if he stayed in Australia.  The Tribunal asked whether his family told him if these men were still looking for him.  He replied they were not looking for him but they could. 

8. The appellant said that his father had not been harmed or threatened as a result of his involvement in the Congress Party but that was because his father has the support of four brothers who live close by. 

9. The Tribunal asked the appellant why he did not apply for a protection visa when he first arrived in Australia and he replied that everything was going well until he could not find work and had to discontinue his studies.

10. The Tribunal considered these claims and noted that the appellant said he was not politically active and would not be politically active on his return.  The Tribunal assessed his claims on the basis of an imputed political opinion because of a fight he had with Akali Dal supporters and because his father is a Congress Party member. 

11. The Tribunal noted a number of inconsistencies between the appellant’s written evidence in a statement made in support of his visa application and the oral evidence which he gave to the Tribunal.  The Tribunal said at [46]:

    ·    In his written statement accompanying his original application, the applicant states that he was actively involved in demonstrations against a local Akali Dal leader and distributed flyers about his ‘corruptions’.  However at the hearing he said he was not politically active and did not mention his involvement in any demonstrations.  Instead he said that he put up Congress Party posters and flyers to help out his father… which resulted in a fight with Akali Dal supporters.  One of his attackers was a man called Rinku, who was the nephew of an Akali Dal member.

    ·    In his written statement he said he was attacked on his way home, surrounded and attacked with a sharp knife and stick.  However at the hearing he said he was attacked at a primary school and did not mention any weapons being involved in the attack.

    ·    In his written statement he states that he is in contact with his family regularly and was told by his parents that they are still looking for a chance to take revenge because the leader of the Akali Dal lost his reputation and leadership in the area because of the applicant.  As well he states that ‘they’ came to his house on a ‘few occasions’ after he left India to look for him and one time ransacked his house and threatened his parents.  However at the hearing the applicant said that these men had not been looking for him, but ‘could.’  Further, the applicant did not mention that the leader of the Akali Dal in his area had lost his reputation and leadership position because of him.

12. The Tribunal then continued at [47]:

    Given these inconsistencies between the applicant’s written and oral evidence the Tribunal does not accept that he was involved in a fight with Akali Dal supporters in 2007, including ‘Rinku’.  It follows that it does not accept that the men were arrested, released and subsequently threatened the applicant’s parents as claimed.  The Tribunal does not accept that Akali Dal supporters have sought the applicant’s whereabouts to seek revenge in the past as claimed.  On this basis, the Tribunal finds that there is not a real chance the applicant would be persecuted on return to India by Akali Dal supporters.  The Tribunal does not find that there is a real chance the applicant would be persecuted on return to India by Rinku or his affiliates for a Convention reason of his imputed political opinion or any Convention reason.   

13. The Tribunal went on to consider whether the appellant might have a claim based on his membership of a particular social group, namely his family, based on his father’s involvement with the Congress Party.  The Tribunal observed that at the hearing the appellant gave evidence of a rivalry between Sher Singh, a member of Akali Dal, and his father, a member of the Congress Party.  The Tribunal noted that the appellant did not mention Sher Singh in his written statement accompanying his visa application.  At the hearing, he claimed that there was rivalry with Sher Singh but did not provide any further details. 

14. Consequently, the Tribunal found that the appellant did not face a real chance of persecution on return to India based on his father’s purported rivalry with Sher Singh now, or in the reasonably foreseeable future. 

15. The Tribunal accepted the appellant’s claim that from his father’s involvement with the Congress Party, there were minor fights between his supporters and supporters of the Akali Dal.  While the Tribunal accepted that the appellant’s father may have been involved in such minor fights, the Tribunal found that this did not constitute serious harm as to amount to persecution.

16. The Tribunal also considered and rejected that the complementary protection provision of s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) applied.

    THE JUDGMENT OF THE FEDERAL MAGISTRATE

17. The appellant then applied to the Federal Magistrates Court for a review of the decision of the Tribunal.  He relied on four grounds as follows:

    1.The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusion that [the] applicant[‘s] claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to [be] heard in respect of those matters.

    2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived [at] in accordance with the requirements of the Migration Act.

    3.The Tribunal’s decision was unjust and was made without taking into account the full gravity of [the] applicant[’s] circumstances and the consequence of the claim.

    4.The applicant satisfy (sic) 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.    

18. The federal magistrate rejected the first ground on the basis that the Tribunal decided the application by rejecting the appellant as a credible witness and that basis was made known to the appellant in the course of the hearing. 

19. The federal magistrate considered and accepted that the Tribunal acted in compliance with the requirements of procedural fairness under s 425 of the Act.   Further, the federal magistrate found that s 424A of the Act did not apply because the basis of the decision was the rejection of the appellant as a credible witness.

20. In relation to the other grounds, the federal magistrate regarded each ground as an attempt to challenge the merits of the claim and pointed out that this was not a task permitted to be undertaken by the Federal Magistrates Court.  In relation to grounds three and four, the federal magistrate noted that the grounds were not particularised. 

    THE APPEAL

21. On 11 December 2012, the appellant filed a notice of appeal in this Court.  He relied on two grounds as follows:

    1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants (sic) claim and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act.  The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 

    2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. 

22. The appellant did not comply with the direction to file written submissions.  He appeared at the hearing of the appeal in person.

23. The appellant was asked what he meant by each of the two grounds of appeal.  The appellant told the Court that the decision of the Tribunal was wrong in that it should not have rejected his evidence that he feared persecution on return to India. 

24. It was explained to the appellant that the role of this Court was to consider whether the federal magistrate had made any errors in considering whether the Tribunal had fallen into jurisdictional error in its decision.  It was explained that it is not the role of the Court on appeal to rehear the facts of his application for a protection visa.  Asked to comment after that explanation, the appellant again said that he feared persecution if he returned to India.

25. The appellant did not seek to make good the grounds of appeal.  Indeed, if he had wished to pursue ground one, he would have needed leave because this matter was not raised before the federal magistrate.  Ground two did not explain what errors are referred to.  In any event, the federal magistrate gave consideration to the grounds of appeal and no error is apparent in the way she dealt with the matter.  Further, there is no obvious error in the way the Tribunal dealt with the case. 

26. A final observation should be made about the way the Tribunal approached the determination of the application.  It placed central reliance on the inconsistencies between the visa application, the statement supporting the visa application and the oral evidence of the Tribunal.  There is a place for such a form of reasoning.

27. On the other hand, that approach can be compared with the approach taken by the delegate, as follows:  

    The claims presented by the applicant in both his written statement and at interview were vague, un-evidenced, and lacked credibility.  At interview, the applicant’s demeanour was unsure and most answers were delayed, lacking familiarity.  Statements regarding his father’s political involvement and his support of that activity lacked any real detail, specific dates, or supporting documentation.  While the applicant stated that he could ask for evidence of his father’s involvement and the police charge relat[ing] to the claim[ed] attacked (sic) if necessary, I do not accept that if this evidence exists the applicant would not have included it in support of the application.  Furthermore, aside from my strong concerns regarding the veracity of the claimed political activity, attack, and overall nature of the claims, if this evidence does exist it indicates that Indian police have demonstrated a willingness to protect the applicant.  I do not accept the applicant’s statement that the police “do nothing” and must be bribed given his simultaneous testimony that they did act on his report by arresting 4 suspects but he does not know if his father paid a bribe for them to do so. 

28. While the current philosophy of judging tends to place less reliance on demeanour, the picture painted by the delegate gives a clear vision of the reason why the appellant’s case could not be accepted.  It might be unwise to rely on demeanour as determinative.  But often, some reference to demeanour will be useful. 

29. For these reasons, the appeal must be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       5 April 2013