MZZBZ v Minister for Immigration

[2013] FCCA 158

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 158

Catchwords:
MIGRATION – Review of Migration Review Tribunal – procedural fairness – no matter of principle – application dismissed.

Applicant: MZZBZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1359 of 2012

Judgment of: Judge Riethmuller

Hearing date: 21 March 2013

Date of Last Submission: 21 March 2013

Delivered at: Melbourne

Delivered on: 21 March 2013

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms Whitemore

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed 29 October 2012 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed at $5,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1359 of 2012

MZZBZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. The applicant arrived in Australia in 2012 and applied for a protection visa a couple of months later.  His application for a protection visa was based upon his claim to be a refugee on the basis that he had converted to Christianity. 

2. In his visa application he explained that he feared he would be killed if he returned to India as a result of the views of the local Hindu extremists.  In his application he said:

   44. Who do you think may harm/mistreat you if you go back?

   The local Hindu extremists will try to harm me perhaps kill me if I go back to India. Those extremists are member of BJP and the years of BJP rule in Gujarat were marked by violence against Christian minorities. BJP leaders helped orchestrate religious violence in the state of Gujarat.

3. The applicant also claims to be entitled to a visa under the complementary protection provisions, although the facts that he relies upon were the same as his application for a visa relying upon the refugee convention. 

4. On 7 May 2012, a delegate of the minister refused to grant a visa.  The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Migration Act of Regulations.  On 1 June 2012, the applicant sought a review of the decision of the delegate with the Refugee Review Tribunal.  The Tribunal set out a summary of the applicant’s claims as follows:

   23. The Applicant’s substantive claims may be summarised as follows:

   ·    A friend at work told him about the Christian religion and took him to the local church a few times. He decided to entrust his life to Jesus Christ and trust Him for forgiveness of sin. He converted to the Christian religion after knowing its true meaning. He believes the Bible is literally the word of God and that Christ is literally the Son of God.

   ·    When locals realised that he had converted he became the target of verbal abuse and graffiti. He was publicly humiliated by Hindu extremist groups on many occasions. They asked him to return to the Hindu religion and attend the temple. When he refused he was taken to an unknown place and beaten mercilessly. When his mother heard of this she died of a heart attack.

   ·    Condemnation (for religious conversion) can be quite severe, ranging from social ostracism to punitive violence. He witnessed many people in rural areas being hanged by their relatives after converting to Christianity. He has seen converted Christians having to pretend they had re-converted to Hinduism, and participating in Hind religious festivals while village people watched.

   ·    Following this incident he never went out because a death threat had been made to him by upper caste Hindu extremists. He was ‘completely segregated and socially suppressed.’ He was traumatised and fearful for his safety.

   ·    His Christian friend told him that if he wanted a peaceful life he should go to a Christian country where he could practice his religion without fear of persecution.

   ·    He fears that if he returns to India local Hindu extremists will try to harm him or perhaps kill him. The extremists are members of the BJP (i.e. Bharatiya Janata Party) The period of rule by the BJP in Gujarat was marked by violence against Christian minorities. BJP leaders helped orchestrate religious violence in the state.

   ·    The authorities would not protect him. The Indian police regularly arrest Hindu converts to Christianity. Christians like him are regularly attacked by Hindu nationalist groups and the authorities turn a blind eye.  

5. Ultimately the Refugee Review Tribunal made findings that:

   43. I put to the Applicant that, having heard his evidence, I had strong doubts that he had ever been involved with the Christian church, in India or in Australia, or that he had ever been harmed in India for such a reason. He said he had no comment to make on this.

6. The Tribunal noted:

   49. The Applicant has provided no form of corroboration for his claims. At the hearing his explanation of his alleged contact with Christianity in India was markedly vague and devoid of circumstantial detail. He proved to have no more than the slightest knowledge of Christian belief and was evidently entirely ignorant as to the life of Jesus Christ. I find quite implausible his claim that a friend, who was a Christian, would take him to worship outside a church in Ahmedabad which was closed on Sundays. I also find implausible his claim that he worships in a church in Griffith, in utter ignorance of what is being said during the service and of the nature of the worship.

7. Ultimately the Tribunal was not satisfied

   …as to the credibility of the applicant’s claims to have converted to Christianity in India or to have been harmed for such a reason.

   (Court book 48)

8. As a result, the Tribunal made the following findings:

   51. In the light of all the information before the Tribunal I am not satisfied that the Applicant has ever had significant contact with the Christian religion, either in India or in Australia, or that he has in fact converted to Christianity. Nor am I satisfied that he was ever harmed for such a reason while he was living in India. Nothing has changed in this regard since he arrived in Australia and I am not satisfied there is a real chance that he would now face harm in India for such a reason. He does not claim to fear harm for any other reason and no other reason is apparent on the face of the information before the Tribunal.

   52. I am not satisfied that the Applicant has a well-founded fear of persecution because of his religion or for any other Convention reason should he return to India, now or in the reasonably foreseeable future and I am not satisfied that he is a refugee.

   53. I have also considered whether the Applicant might meet the alternative criterion for complementary protection. Having done so however I am not satisfied that the information before the Tribunal provides any basis for finding there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to India, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act. 

9. Tribunal therefore refused the applicant’s application for a protection visa and affirmed the decision of the delegate.  The applicant applied to the Federal Magistrates Court on 29 October 2012 for judicial review of the decision, listing three grounds. 

Ground one

1. The applicant’s first ground is expressed as follows:

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

2. The applicant explained during the course of the hearing that the substance of this ground was that he was ill at the time of the hearing and was not able to express himself clearly or coherently. 

3. The applicant referred to a medical certificate that he said had been provided.  The medical certificate is the one reproduced at page 95 of the court book.  That is a certificate from a general practitioner that simply says:

   This is to certify that [MZZBZ] is receiving medical treatment, and for the period Monday 6 August 2012 to Friday 10 August 2012 inclusive he was unfit to continue his usual occupation.

4. It appears that as a result of this certificate, the Tribunal cancelled the hearing that was to be held on 10 August and scheduled another hearing on 27 August (see court book page 92).  There is no evidence before me that the applicant was ill on 27 August, nor is there any proper evidence about the nature of any illness or the effect it may have had upon him.  He was certainly able to be present at the hearing and provide some answers, although he did not present a case that the tribunal found credible. 

5. I am not persuaded that in this respect the applicant has shown that he was not provided with a proper opportunity to be heard.  It is also clear from the Tribunal’s decision (see paragraph 43) that the Tribunal raised squarely with the applicant that it had doubts about whether the applicant had ever been involved with the Christian church in India or Australia.  The Tribunal asked the applicant was there anything he wished to add, and he said there was not.  In the circumstances, the applicant has not made out ground 1. 

Ground 2

1. The second ground of the applicant is as follows:

   2. The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask.

   Particular:

   (a) Whether the Indian authorities provided a standard of protection for minority people comparable with international standards. 

2. In this case, the applicant’s primary claims were not believed, and therefore on the view taken by the Tribunal, he was not a person in need of protection.  For this reason, the Tribunal were not required to go on to consider this aspect of his application.  As the respondent sets out in their outline of submissions:

   25. The second ground of review is misconceived. As the Tribunal did not accept the applicant had a well founded fear of persecution or that he faced a real risk of significant harm, it was not required to proceed to consider whether he could be afforded state protection. The question simply did not arise.

3. I therefore conclude that the applicant cannot succeed under this ground. 

Ground 3

1. The third ground that the applicant relied upon was expressed as follows:

   3. The RRT has failed to investigate applicant’s claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 5 October 2012 was effected by actual bias constituting judicial error. 

2. At the hearing before me, I asked the applicant what it was that he relied upon to show bias.  He explained that he thought the Tribunal member was against him as he made many mistakes in his answers.  It does seem to me that this is bias in the sense that the law understands it.  It was the job of the Tribunal to make findings of fact.  If a person does not give evidence in a coherent and credible fashion then the Tribunal is not likely to accept their version of events.  To the extent that this ground relies upon such a claim, it should be rejected.  Again, the first respondent in their submissions provide appropriate comment stating:

   27. This ground misconceives the role of the Tribunal. It was for the applicant to make out his case before the Tribunal. There was no obligation on the Tribunal to investigate or make enquiries into the applicant’s claims.

   28. As outlined at paragraphs 9-13 of these submissions, the Tribunal considered all of the applicant’s claims to fear harm but rejected them because it did not accept that they were true. The Tribunal’s adverse credibility findings were clearly open to it on the evidence before it. That the applicant does not agree with the Tribunal’s factual conclusions is not indicative of error and the Court cannot review the merits of the Tribunal’s decision.

   29. The applicant’s allegation of actual bias is also without basis. An allegation of actual bias is very serious and is one that must be firmly and distinctly made and clearly proven. In the absence of evidence of what occurred at the Tribunal hearing (such as a transcript of the hearing), there is no evidentiary basis for the serious allegation that he seeks to raise.

   31. The Tribunal considered the applicant’s evidence and claims and gave cogent reasons for not accepting them. No inference of bias or pre-judgment can be drawn from the mere fact of adverse findings in the Tribunal’s reasons. The material before the Court does not provide any foundation for the allegation that the Tribunal approached the matter with a closed mind or did not act in good faith. 

3. On the material before me I am not persuaded that the applicant has identified a reviewable error in this regard.  As a result, I must therefore dismiss the application.

4. I order that the application be dismissed.

   RECORDED : NOT TRANSCRIBED

1. The applicant has been unsuccessful in these proceedings.  In judicial review proceedings, ordinarily costs follow the event.  There is nothing in the facts or circumstances of this case to indicate that any other order should be made.  The successful party ought to have their reasonable costs.  The costs sought by the Minister are less than the scale fee in the rules.  Having regard to the scale fee and the nature of the matter, I am persuaded that the costs sought are in a reasonable sum. 

2. I therefore order that the applicant pay the respondent’s costs fixed at $5400.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller.

Date: 29 April 2013