MZZZH v Minister for Immigration and Border Protection
[2015] FCA 819
•10 August 2015
FEDERAL COURT OF AUSTRALIA
MZZZH v Minister for Immigration and Border Protection [2015] FCA 819
Citation: MZZZH v Minister for Immigration and Border Protection [2015] FCA 819 Appeal from: MZZZH & Anor v Minister for Immigration & Anor [2015] FCCA 116 Parties: MZZZH and MZZZI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: VID 38 of 2015 Judge: DAVIES J Date of judgment: 10 August 2015 Catchwords: MIGRATION – Protection (Class XA) Visa – Appeal from decision of Federal Circuit Court – No error of law – Appeal dismissed Legislation: Migration Act 1958 (Cth) s 424A Cases cited: VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1Date of hearing: 10 August 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Counsel for the First Appellant: The First Appellant appeared in person Counsel for the Second Appellant: The Second Appellant did not appear Counsel for the First Respondent: Ms C Symons Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent entered a submitting appearance, save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 38 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZZH
First AppellantMZZZI
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
10 AUGUST 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
2.The appeal be dismissed.
3.The First Appellant pay the costs of the First Respondent.
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 38 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZZH
First AppellantMZZZI
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE:
10 AUGUST 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
The appellants have appealed the decision of the Federal Circuit Court of Australia (“the FCCA”) dismissing their application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of the First Respondent (“the Minister”) to dismiss their application for a Protection (Class XA) Visa.
The Tribunal did not accept the First Appellant’s claim to fear persecution for political reasons. The First Appellant had claimed to be a high-ranking member of the Indian Congress Party with a prominent role in the 2012 elections. He had claimed that he would be killed if he was returned to India. The Tribunal was not satisfied that the First Appellant had presented a credible or reliable set of claims in his application. The Tribunal found that whilst he may have been an ordinary member of the Congress Party, he did not have the prominent or active role that he claimed, either generally or during the 2012 election. The Tribunal also found that, as an ordinary party member, country information did not support the proposition that ordinary party members of major parties face a real chance or risk of harm in the common functions that they perform, such as campaigning during elections. The Tribunal found that the First Appellant was not of relevant adverse interest to anyone in India and that, as an ordinary Congress Party member, he could return home and would not face a real chance or risk of serious harm for any reason, or a real risk of significant harm. The Tribunal also found that the First Appellant would, in any event, be reasonably able to relocate within India, as any chance or risk of harm would be confined to his home area.
The First Appellant applied for judicial review on the following grounds:
1.I applied for the protection visa to department of immigration which was refused.
2.Then I apply to [the Tribunal] for review of that decision.
3.I think [the Tribunal] and department of immigration did not look [at] my situation.
The First Appellant appeared on his own behalf before the FCCA. The FCCA treated his grounds as if he alleged that the Tribunal was in jurisdictional error because the Tribunal had failed properly to consider the evidence given by him. The FCCA found no jurisdictional error in the decision of the Tribunal.
The First Appellant has appealed the decision of the FCCA on a new ground:
The [FCCA] failed to find that the Tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.
a.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 grounds of appeal did not particularise the adverse information used by the Tribunal. The First Appellant appeared but in response to the Court’s invitation to identify the adverse information used by the Tribunal, the First Appellant did not make any substantive submission.
The Tribunal did rely on certain country information, but the Tribunal was not obliged to give particulars of that information to the First Appellant, nor invite the First Appellant to comment on or respond to that information, as such information was not specifically about the First Appellant and falls within the exception in s 424A(3)(a) of the Migration Act 1958 (Cth): VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80 at [50] per Kenny J. Further, the Tribunal was not obliged to give advance written notice of its prospective reasoning process that the First Appellant’s claims were not credible: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at [18]. As no other basis arises from the Tribunal decision to support the ground, the appeal must be dismissed.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 10 August 2015
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