MZZBZ v Minister for Immigration and Citizenship

[2013] FCA 792

FEDERAL COURT OF AUSTRALIA

MZZBZ v Minister for Immigration and Citizenship [2013] FCA 792

Citation:		MZZBZ v Minister for Immigration and Citizenship [2013] FCA 792
Appeal from:		MZZBZ v Minister for Immigration & Anor [2013] FMCA 158
Parties:		MZZBZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 262 of 2013
Judge:		DODDS-STREETON J
Date of judgment:		9 August 2013
Catchwords:		MIGRATION  – appellant claimed to have a well‑founded fear of persecution in India due to his alleged conversion from Hinduism to Christianity – leave refused to raise new grounds of appeal – new grounds have no reasonable prospects of success
Legislation:		Migration Act 1958 (Cth) ss 36(2)(aa), 36(2)(a) and 91R The Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“Refugees Convention”)
Date of hearing:	5 August 2013
Date of last submissions:	5 August 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Appellant:	The appellant appeared in person assisted by an interpreter
Counsel for the Respondents:	Ms K Whittemore of Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 262 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZBZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DODDS-STREETON J
DATE OF ORDER:	9 AUGUST 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs.

3.The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

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 262 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZBZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DODDS-STREETON J
DATE:	9 AUGUST 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. By a notice of appeal dated 8 April 2013, the appellant appeals from the decision of a Federal Magistrate given on 21 March 2013.  The Federal Magistrate dismissed the appellant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal, (“the Tribunal”), given on 4 October 2012, which affirmed the first respondent’s refusal to grant the appellant a Protection (Class XA) visa.

2. Before me, the appellant, who was not legally represented, appeared with the assistance of an interpreter.  The appellant did not file written submissions and did not orally address the grounds of appeal.  The appellant stated that he had decided to return to his own country but wished to stay in Australia until January 2014.

3. The respondent relied on written submissions dated 24 July 2013.

4. The appellant is an Indian citizen who arrived in Australia on 24 January 2012 on a subclass 676 (Tourist) visa granted on 16 December 2011.  On 9 March 2012, the appellant applied to the Department of Immigration and Citizenship for a protection visa.  On 16 April 2012, the appellant lodged a second and identical application after he was invited to submit details of any claims he might have under complementary protection provisions.

5. When invited to contact the Department of Immigration and Citizenship to arrange an interview the appellant did not respond.

6. On 7 May 2012, a delegate of the first respondent decided to refuse the appellant’s application for the visa.

7. On 1 June 2012, the appellant applied to the Tribunal for review of the delegate’s decision.  On 4 October 2012, the Tribunal affirmed the decision of the first respondent, by his delegate, not to grant the appellant a Protection (Class XA) visa.

8. On 29 October 2012, the appellant applied to the Federal Magistrates Court of Australia, now the Federal Circuit Court of Australia, for judicial review of the Tribunal’s decision.  On 9 November 2012, the first respondent filed a response.  The appellant was not legally represented at the hearing before the Federal Magistrates Court.  On 21 March 2013, Federal Magistrate Riethmuller dismissed the appellant’s application.

   THE APPELLANT’S CLAIMS

9. The appellant claimed to have a well‑founded fear of persecution in India due to his conversion from Hinduism to Christianity.

10. In his visa application and before the Tribunal, the appellant claimed that:

    (a)He converted to the Christian religion after a friend at work told him about the Christian religion and took him to the local Church “a few times”.  Before the Tribunal the appellant stated that he converted to Christianity in November 2011 and his friend took him to a Christian Church on 1 November 2011.

    (b)When local people realised that he had converted to Christianity he became the target of “verbal abuse and graffiti” and was “publicly humiliated by Hindu extremists group many times”.

    (c)When he refused to return to the Hindu religion and visit the temple he was “taken to an unknown place and beaten mercilessly”.  Before the Tribunal, the appellant first claimed he was beaten by Hindus and, at another point, by members of the Bharatiya Janata Party (“BJP”).  Ultimately he conceded that he did not know who assaulted him.

    (d)After he was beaten he “never went out because of a death threat had been made to him by upper cast Hindu extremists”.   Before the Tribunal the appellant stated that the death threats were made against him by upper caste Hindu extremists belonging to the BJP and, at another point, by “society people”.

    (e)He was “completely segregated and socially suppressed”.

    (f)His Christian friend told him that he should go to a Christian country where he could practise his religion without fear of persecution.  Before the Tribunal he stated that his Christian friend suggested Australia.

    (g)In his visa application he stated that he feared persecution from “the Hindu nationalists group” and “local Hindu extremists [who] are members of BJP” if he returned to India.  Before the Tribunal, he claimed that he feared that members of the BJP in Gujarat would try to harm him or kill him if he returned to India.  The appellant also maintained that “India” or “society people” whose names he did not know and whom he had not seen had threatened him.

    (h)He claimed that the police would not protect him as they regularly arrest Hindu converts to Christianity and the authorities turn a blind eye to the fact that Christians are regularly attacked by Hindu nationalist groups.

    (i)Before the Tribunal, the appellant claimed that he had attended a church each Sunday since his arrival in Australia. When questioned, he did not know the church’s name or denomination and agreed that the clergyman had not seen him.  He conceded that he had not been baptised or taken instruction in the Christian faith.  He acknowledged that he could not understand the church services, which were conducted in English.

11. The Tribunal put to the appellant a number of apparent inconsistencies, including his assertion that he decided to go to Australia at one point because his friend so advised him, but, at another point, because he was beaten.

    THE TRIBUNAL’S DECISION

12. The Tribunal found that the appellant was a citizen of India.

13. The Tribunal was not satisfied with the credibility of the appellant’s claims.  The Tribunal put to the appellant that it had strong doubts that he had ever been involved with the Christian church in India or Australia or that he had ever been harmed in India.  The appellant said that he had no comment on this and nothing further to add.

14. The Tribunal found that the appellant had proved “no more than the slightest knowledge of Christian belief and was evidently entirely ignorant as to the life of Jesus Christ”.  The Tribunal found that the appellant’s claim that he and his friend worshipped outside the church in Ahmedabad because it was closed on Sundays to be “implausible”.  Similarly, the Tribunal found it “implausible” that the appellant worshiped in a church in Griffith, Australia “in utter ignorance of what is being said during the service and of the nature of the worship”.  The Tribunal was not satisfied that the appellant had “ever had significant contact with the Christian religion, either in India or in Australia, or that he has in fact converted to Christianity.”

15. The Tribunal found that the appellant’s claims of persecution, including beating, in India due to his conversion to Christianity were “vague”.  The Tribunal observed that “his responses gave no indication that he was speaking from any direct, authentic experience but suggested instead that he was simply reciting a few badly rehearsed answers”.

16. The Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention (the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967) and therefore the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). Nor was the Tribunal satisfied that the appellant was a person to whom Australia has protection obligations under s 36(2)(aa) of the Act.

    THE FEDERAL MAGISTRATES COURT’S DECISION

17. The grounds of review before the Federal Magistrates Court were 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 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.

    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.

18. Federal Magistrate Riethmuller rejected each ground of appeal and dismissed the application with costs.

19. Federal Magistrate Riethmuller dismissed the first ground of appeal.  Although the appellant, orally submitted he was unwell and therefore unable to express himself clearly or coherently before the Tribunal, the Federal Magistrate noted that the Tribunal hearing had been rescheduled due to the appellant’s ill health and there was no evidence to suggest that the appellant was unwell on the hearing day.  Federal Magistrate Riethmuller was satisfied that the appellant was provided with an appropriate opportunity to be heard.

20. Federal Magistrate Riethmuller dismissed the second ground of appeal.  His Honour found that as the Tribunal did not accept the appellant’s primary claims, it was not required to consider the standard of state protection India provided for minorities.

21. Federal Magistrate Riethmuller dismissed the third ground of appeal.  His Honour noted that when asked on what basis he alleged bias, the appellant stated that he thought the Tribunal was biased against him because he had made many mistakes in his answers.  Federal Magistrate Riethmuller observed that the Tribunal’s job was to “make findings of fact” and that “[i]f a person does not give evidence in a coherent and credible fashion then the Tribunal is not likely to accept their version of events.”

    THE APPEAL

22. The appellant’s notice of appeal dated 8 April 2013 enumerated the following grounds of appeal:

    1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants 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 Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction ”was not arrived in accordance with the requirements of the Migration Act.

23. The grounds of appeal were not raised before the Federal Magistrates Court.  Accordingly the appellant required leave to raise the new grounds before this Court.  In my opinion, leave should be refused as the new grounds have no reasonable prospects of success.  The grounds of appeal are not only, as the first respondent submitted, formulaic but are unparticularised and so lacking in specificity that no precise complaint can be discerned.

24. Under ground one, the appellant does not identify the aspect of s 91R of the Act allegedly ignored by the Tribunal. There is, in any event, nothing to suggest that the Tribunal ignored, misunderstood or misapplied s 91R in any respect. The Tribunal, in its reasons, discussed s 91R accurately and at some length.

25. Nor is there any basis on which to conclude that the Tribunal’s decision was manifestly unreasonably.

26. Ground two was expressed very generally and its precise meaning was unclear. As the first respondent submitted, if and in so far as ground two amounts to an assertion that the Tribunal, in rejecting the appellant’s claims, failed to comply with the Act, it is without any apparent basis.

27. The Tribunal comprehensively considered the appellant’s claims in the light of the applicable law and concluded, on the basis of cogent reasoning that his account of matters “at the heart of his claims” was vague, uncorroborated and not credible.

    CONCLUSION

28. In my opinion, leave to appeal should be refused.  The appeal should be dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.

Associate:

Dated:        9 August 2013