MZYZO v Minister for Immigration
[2013] FMCA 247
•25 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYZO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 247 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – claimed failure to make an obvious enquiry about a critical fact – application dismissed. |
| Migration Act 1958 (Cth), s.36(2)(aa) |
| Minister for Immigration and Citizenship v MZYCE [2010] FCA 767 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| First Applicant: | MZYZO |
| Second Applicant: | MZYZP |
| Third Applicant: | MZYZQ |
| Fourth Applicant: | MZYZR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 900 of 2012 |
| Applicant: | MZYZN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 899 of 2012 |
| Judgment of: | Whelan FM |
| Hearing date: | 25 March 2013 |
| Date of Last Submission: | 25 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 25 March 2013 |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Counsel for the Respondents: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
MLG 900 of 2012
The First and Second Applicants are appointed litigation guardians for the Third and Fourth Applicants.
The Application filed 26 July 2012 and the Amended Application filed 10 October 2012 are dismissed.
The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $4,000.00.
MLG 899 of 2012
The Application filed 26 July 2012 and the Amended Application filed 10 October 2012 are dismissed.
The First and Second Applicants in matter MLG900/2012, as litigation guardians for the Applicant in this matter, pay the costs of the First Respondent in the amount of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 900 of 2012
| MZYZO |
First Applicant
MZYZP
Second Applicant
MZYZQ
Third Applicant
MZYZR
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
MLG 899 of 2012
| MZYZN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
Introduction
These are two applications which have been heard together. The four Applicants in the first matter are the First Applicant, his wife and two of their children. The Applicant in the second matter is the infant child of the First and Second Applicants in the first matter who was born after that application was made. The parents are the litigation guardians for all three children.
The Applicants seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 22 June 2012 with respect to the first four Applicants and a decision of 26 June 2012 with respect to the Applicant referred to as MZYZN. Both of those decisions affirmed previous decisions of the delegate of the Minister dated 19 August 2011 and 14 December 2011 in which it was determined not to grant protection visas to each of the Applicants. The Applicants seek that the decision of the Tribunal in each case be quashed and the applications be remitted to the Tribunal for determination in accordance with law.
Background
The Applicants are Indian citizens. They are Lubhana Sikhs. The First and Second Applicants arrived in Australia in September 2008. The Second Applicant was the holder of a sub class 573 student visa and the First Applicant held a dependent spouse visa. The Third Applicant, their son, remained in India, but later joined them in Australia in March 2010. The Fourth Applicant and MZYZN were both born in Australia.
On 21 September 2010 the first four Applicants lodged an application for protection visas. The First Applicant made specific claims under the Refugee Convention and the other Applicants – and later MZYZN - made claims as members of the same family unit. The First Applicant claims protection on the basis of race - specifically his Lubhana caste - and, as a member of a particular social group, being his family and on account of his Sikh religion.
On 19 August 2011, in the first matter, the delegate rejected the First Applicant’s claims finding that his claims were criminal in nature and not Convention-related. The delegate also found that state protection was available to the First Applicant in relation to the harm he claimed to fear.
On 6 September 2011, the Applicants in the first matter lodged an application with the Tribunal to review the delegate’s decision.
On 14 December 2011, in relation to MZYZN, the delegate found that the claims raised by the Applicant were personal matters and were not motivated by a Convention reason. On 21 December 2011, MZYZN lodged an application to the Tribunal to review the delegate’s decision.
The Tribunal’s decision
The Tribunal had before it the application made to the delegate and the material lodged by the Applicants in support of that application. It also had a written submission from the Applicants’ representative and a letter from the First and Second Applicants in support of their claim. On 11 April 2012, the First and Second Applicants gave evidence to the Tribunal and documents were also submitted in relation to the medical condition of their son.
On 24 April 2012, the Applicants’ representative submitted a further written submission and requested more time to submit additional documents in support of their claim. On 8 May 2012, a further written submission and documents were provided to the Tribunal.
On 1 June 2012, the Tribunal wrote to the Applicants’ representative putting to the Applicants particulars of information it had obtained from a search of the Police database in the area. The letter explained that the information was relevant as it may lead to the Tribunal finding that certain claims made by the First Applicant to have been charged and declared a proclaimed offender were not credible and that he may not face a real chance of persecution or suffer significant harm on this basis if he returned to India.
On 14 June 2012, the Applicants’ representative submitted a response to that letter. The response, among other things, requested the Tribunal to make discreet and confidential inquiries with the Superintendent of Police who was responsible for having the First Applicant declared a proclaimed offender.
The First Applicant’s claim and the Tribunal’s findings
The First Applicant claimed before the Tribunal that his family had moved from the Punjab to a village in Haryana state in 1995 where they were able to buy cheap land for farming.
In 2000, they became involved with another family in a land dispute. The First Applicant’s brother took this to Court and won in May 2003. The First Applicant claimed that he and his family had been continually abused and harassed by ‘upper caste’ Jats because they were from the lower Labhana caste. The First Applicant further claimed that the other party to the land dispute had attempted to hit him with a tractor and that, on 7 June 2008, when he was working on the farm, he had been attacked by members of the other family and was hit on the head with a shovel. His nephew had gone to warn his brother who had fired a rifle in the air causing the assailants to run away.
The First Applicant further claimed that the harassment by members of this Jat family had caused his sister’s death and had caused the Second Applicant to have several miscarriages.
The First Applicant claimed that arising out of the incident in June 2008 false charges were laid against him. He was released on bail but continued to suffer harassment. The First and Second Applicants left for Australia in September 2008. Since then, because of his failure to appear in Court, he had been proclaimed an offender.
The Tribunal made several adverse findings about the credibility of the First Applicant’s evidence. In particular, it did not accept that he and his family had been continually harassed by upper caste Jats and that this had continued on a daily basis until he left India in September 2008. The Tribunal did not accept that any miscarriage by the Second Respondent or the death of the First Applicant’s sister were caused by any harassment by the family involved in the land dispute. The Tribunal did not accept that the other party to the dispute had attempted to hit the First Applicant with a tractor or that he had been physically assaulted by them in June 2008. The Tribunal further rejected the First Applicant’s claim that he had been falsely charged under the Indian penal code, had spent time in jail and had been declared a proclaimed offender for failing to appear before the Court.
The Tribunal did not accept that the First Applicant was subject to persecution by reason of his caste or that he faced a real chance of persecution as a member of his brother’s family unit, nor did the Tribunal accept that the First Applicant would be detained on his return to India.
While the Tribunal accepted that the family had been involved in a land dispute, it found that any problems they had experienced with the other party to that dispute was as a result of the land dispute and not linked to the First Applicant’s membership of the Lubhana caste.
The Tribunal accepted that the First Applicant’s son required medical treatment but found, on the First Applicant’s own evidence, that his son had received treatment in India and did not accept that he would be denied medical treatment on his return to India.
The application of MZYZN relied on the case made by the First Applicant and was rejected on the same basis.
Grounds for review
The Applicants’ amended application for review relies on one ground only. That is that the Tribunal erred by failing to make an obvious inquiry about a critical fact and, as such, acted outside its jurisdiction. The particulars provided are as follows:
a) One of the Tribunal’s primary findings was that I lacked credibility. On the basis of this finding, the Tribunal dismissed large parts of my evidence which formed the basis of my claim that I feared persecution in India.
b) One aspect of my evidence that the Tribunal disbelieved was that I had been declared a Proclaimed Offender in India.
c) Prior to the Tribunal making a decision by letter dated 14 June 2012, my representative contacted the Tribunal suggesting that the Tribunal contact [a] Police Station in India to verify directly with the station that I was, in fact, a Proclaimed Offender. Two phone numbers were provided. Another letter of the same day was also sent to the Tribunal correcting the previous correspondence by providing confirmed correct phone numbers for the … Police Station.
d) The Tribunal failed to make this enquiry despite having the phone numbers easily at hand. This was an obvious enquiry to make as it went to a critical fact, namely whether or not I was a Proclaimed Offender. Had the Tribunal made the enquiry and discovered I was, in fact, a Proclaimed Offender it would have forced the Tribunal to review its findings as to my credibility and, thus, my claims for protection.[1]
[1] Amended Application filed 10 October 2012, page 3.
In written submissions in support of the application for review the Applicants referred to the failure by the Tribunal to accept the evidence of the First Applicant, that he had been arrested and detained as alleged. They referred to the submission made that the Tribunal member ought to make certain enquiries about the First Applicant’s police record.
The Applicants referred to the decision of the High Court in Minister for Immigration and Citizenship v SZIAI (“SZIAI”).[2] They submitted a decision-maker may be obliged to make enquiries in certain circumstances. There may be a jurisdictional error where there has been “a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained”,[3] where this has a “sufficient link to the outcome to constitute a failure to review”.[4]
[2] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.
[3] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25].
[4] Ibid.
The Applicants submit the enquiry was an obvious one. It was about a critical fact and was easily ascertained. It had a sufficient link to the outcome that there was a failure on the part of the Tribunal to conduct a review and it follows that there was a jurisdictional error on the part of the Tribunal.
In oral submissions the First Applicant questioned the Tribunal’s finding in relation to the confidentiality of the enquiry and asked why would he give the telephone number of the Superintendent of Police if he expected the enquiry to be confidential? This is inconsistent with the submission of his representatives at Court Book page 242.
The First Applicant also submitted that the documents he had provided were not false. In making that submission he appears to have misconceived the role of the Court. It is not the role of this Court to make a separate finding about matters of fact where findings have already been made by the Tribunal.
The First Respondent’s submissions
The First Respondent summarised the matters leading to the Tribunal’s decision not to contact the Superintendent of Police. The First Respondent referred to the Tribunal making its own enquiries of the relevant Police database of proclaimed offenders. Its search did not return a result that matched the First Applicant’s name with the First Information Report (“FIR”) number he had provided to the Tribunal. The Tribunal properly put this adverse information to the First Applicant.
In response the Applicants’ representative made a number of submissions and requested that the Tribunal telephone the superintendent of the relevant Police district to verify that the First Applicant had been declared a proclaimed offender. The request specifically asked that the enquiry be made
…with a degree of confidentiality and discretion given that the authorities in his home area were looking for him and were currently unaware that he was in Australia and that further problems might arise for his family who remains in India at this time. [5]
[5] Court Book, page 242.
The Tribunal found that the First Applicant’s explanation for why his name was not included in the database were “speculative, unsupported and contradictory” [6] and were “implausible”.[7]
[6] Court Book, page 287 at [102].
[7] Court Book, page 287 at [102].
The Tribunal expressly had regard to the request of the Applicants’ representative to make the enquiry of the Superintendent of Police and found that to make such an enquiry “discreetly and confidentially was impracticable”.[8] The First Respondent submitted that it was for the First Applicant to make out his case before the Tribunal. The Tribunal does not have any duty to make further enquiries.
[8] Court Book, page 288 at [102].
The First Respondent also referred to the case of SZIAI[9] and to the finding of the High Court in that respect. It referred to the three relevant considerations:
·whether the enquiry that the Tribunal failed to make was an obvious enquiry;
·whether the enquiry concerned a critical fact, the existence of which was easily ascertained; and
·whether the enquiry supplied a sufficient link to the outcome to constitute a failure to review.
The First Respondent submitted if any one of these considerations was absent then the Tribunal’s failure to make an enquiry would not amount to jurisdictional error.
[9] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.
The First Respondent submitted the enquiry was not obvious. This was because the First Applicant claimed to fear harm on his return to India as a proclaimed offender and it was not obvious for the Tribunal to contact the person who had declared him to be a proclaimed offender. The First Applicant himself had expressed concern about the manner in which such enquiries were to be conducted because the authorities were looking for him and were not aware that he was in Australia and further problems could arise for his family in India. It was, therefore, not obvious for the Tribunal to contact the Superintendent of Police when those concerns had been raised.
Further, the Applicants’ representative informed the Tribunal that the First Applicant’s brother had already attended the police station to obtain the police reports, but his request had been refused. The First Applicant’s brother had been told that the First Applicant had to attend in person at the police station to obtain them.
Second, the First Respondent maintained that the fact was not easily ascertainable. The Applicants requested that the enquiry be made discreetly and confidentially with no indication of how this could be achieved. The Tribunal expressly found that the Applicants’ request was impracticable. In relation to the question of whether there was sufficient link to the outcome, the First Respondent submitted that the Tribunal had before it evidence that rebutted the claim that the First Applicant was a proclaimed offender in India. This evidence came from the relevant Police database and the Tribunal did not accept the First Applicant’s explanations as for why his name was not contained on that database.
Nor did the Tribunal accept on the basis of its adverse credibility findings that the First Applicant had been involved in the June 2008 incident which he claimed brought about the false case against him. Accordingly, it could not be said that, had the Tribunal undertaken the enquiries, a different result would have ensued.
Conclusions
The sole ground stated by the Applicants in both these matters for review relates to the failure by the Tribunal to make confidential and discreet inquiries of the Superintendent of Police of the relevant Police district to verify that the First Applicant had been declared a proclaimed offender.
The Court must start from the general proposition that it is for the Applicant in a matter before the Tribunal to present to the Tribunal whatever evidence or argument he or she wishes to advance in support of claims under the Refugee Convention. In these matters the Applicants had several opportunities to do so in writing and were also present at a hearing where oral evidence was taken. Consistent with that general proposition is the proposition that, while the Tribunal has the power to seek evidence, it is not under a general duty to make all enquiries “to seek the truth exhaustively”, as Gray J phrased it in Minister for Immigration and Citizenship v MZYCE.[10]
[10] Minister for Immigration and Citizenship v MZYCE [2010] FCA 767 at [35].
The extent to which any such obligation exists was considered by the High Court in SZIAI.[11] At paragraph [25] of its decision the Court said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a duty to inquire, that term is apt to direct consideration away from the question, whether the decision which is under review is officiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.[12]
[11] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.
[12] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25].
In these matters the Tribunal had made its own enquiries of the relevant Police database of proclaimed offenders. The results were not consistent with the First Applicant’s claims.
The Applicants were given the opportunity to respond to that information.
In response, the Applicants’ representative made a number of submissions:
·not all records are on the database;
·only the most serious proclaimed offenders are archived on the centralised website;
·online archiving has only been a more recent practice in India;
·the First Applicant’s brother had attended the police station to obtain original police records and was told that the First Applicant would need to attend himself to get them;
·the referring authority is the Superintendent of Police who can be contacted directly, however the First Applicant requests “that a degree of confidentiality and discretion be exercised in communication with the Superintendent of Police’s … office”.[13]
[13] Court Book, page 242.
The Tribunal made certain findings about the First Applicant’s explanation as to why his name was not included in the database and also found that to make inquiries in the manner proposed by the First Applicant was impracticable.
I accept the First Respondent’s submission that an enquiry of the Superintendent of Police for the region was not an obvious enquiry for the Tribunal to make. Simply, to make those enquiries may have had an adverse impact on the First Applicant - so much is apparent from the fact that the First Applicant sought that the Tribunal should exercise discretion in making the enquiries.
Second, it is not apparent how the information could be obtained without the Tribunal informing the Superintendent of Police of the reasons for the enquiry, particularly as, on the Applicants’ case, the First Applicant’s brother had already tried to obtain information from the police and had been told that such information would only be released personally to the First Applicant. It is, therefore, not apparent that the information could be easily obtained.
Third, the Tribunal had before it the oral and written evidence of the First Applicant and the documentary evidence he had produced. The Tribunal made certain findings adverse to the Applicants based on the totality of the information before it. It is not clear that, if the Tribunal had made the enquiry, it would have been bound to come to a different conclusion or that the failure of the Tribunal to make the enquiry was so unreasonable as to constitute a failure to review.
On the material before it, the Tribunal was entitled to reach the conclusions it did, in relation to the extent of the harassment suffered by the Applicants and, also, that the cause of that harassment was a land dispute with another family and not persecution of the Applicants on the basis of their membership of the Labhana caste or of their family.
Having come to that conclusion, whether the First Applicant had been charged with some offence and/or proclaimed to be an offender, was not critical to his claim for refugee status, nor would it have affected the Tribunal’s conclusion with respect to s.36(2)(aa) of the Migration Act 1958.
As the Second, Third and Fourth Applicants and MZYZN’s claims were contingent on the findings with respect to the First Applicant, it is not necessary to deal with their claims further.
The First and Second Applicants submitted a letter to the Court and certain documents. The letter deals with a range of matters not relevant to the ground for review and appears to misconceive the role of the Court in such a review. The Court is not dealing with the merits of the original application for refugee status, but only the issue of whether the Tribunal has made an error going to its jurisdiction. There is nothing in that letter which would cause the Court to come to the view that, on the basis of some other unarticulated ground, the Tribunal had fallen into jurisdictional error in making its decision to affirm the decision not to grant the Applicants’ protection visas.
For these reasons the applications in these matters are dismissed.
The First and Second Applicants are ordered to pay the First Respondent’s costs in the sum of $8,000.00.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 11 April 2013
0
2
1