WZANE v Minister for Immigration and Citizenship
[2009] FCA 482
•13 May 2009
FEDERAL COURT OF AUSTRALIA
WZANE v Minister for Immigration and Citizenship [2009] FCA 482
WZANE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
WAD 284 of 2008
MCKERRACHER J
13 MAY 2009
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 284 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: WZANE
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
13 MAY 2009
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the costs of the first respondent to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 284 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: WZANE
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MCKERRACHER J
DATE:
13 MAY 2009
PLACE:
PERTH
REASONS FOR JUDGMENT
INTRODUCTION
The appellant is a citizen of India. He arrived in Australia on 11 May 2007 on a subclass 420 (entertainment) visa. On 14 May 2007 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as the Department then was). That application was refused by a delegate of the first respondent on 29 June 2007. On 27 July 2007 the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. On 6 June 2008, the Tribunal affirmed the decision of the delegate of the first respondent to refuse to grant a protection visa to the appellant.
This appeal is from a judgment of a Federal Magistrate delivered on 21 November 2008 (WZANE v Minister for Immigration and Anor [2008] FMCA 1520). His Honour dismissed an application for judicial review of the decision of the Tribunal lodged on 25 July 2008.
THE APPELLANT’S CLAIMS
The appellant claimed to fear persecution for a reason prescribed by the Convention Relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967 (the Convention). This fear of persecution was said to be based on his conversion from Hinduism to Christianity. He stated that he was born into a traditional Hindu family and claimed to have belonged to Hindu organisations since 2002, including Rastriya Swayam Sevak Sangh (RSSS), Baj Rang Dal and Vishwa Hindu Parishad.
He claimed that the RSSS sent him to disrupt a Christian Pentecost mission meeting being held in his locality. He attended the mission meeting with 10 to 15 others to disrupt it in March 2005. After ‘heated discussions’ with ‘a Reverend’ in which the Reverend answered the appellant’s questions politely and ‘spoke to him calmly’, the appellant said he changed his mind and became a Christian after this meeting.
The appellant claimed that RSSS workers were angered by this and turned against him, physically attacking him on several occasions and threatening him and his family. He asserted that the police failed to take any action when the appellant made several complaints to them concerning RSSS workers’ attacks and threats.
The appellant claimed that he was brutally attacked by members of RSSS on 14 September 2006 which led to hospitalisation and subsequently being bedridden for a month. He was then ‘hounded’ by members of RSSS after that incident. The police failed to take any action against the RSSS because they were working with RSSS. The appellant said he reasonably believed that his life would be in danger if he remained in India.
BEFORE THE TRIBUNAL
The Tribunal found that only two of the several assaults claimed by the appellant had occurred. It found he had exaggerated the nature and effect of those two assaults. In relation to the first assault, the Tribunal found the details to have been exaggerated to the extent that he suffered no physical injury at all. In relation to the second, the 14 September 2006 assault, the medical report provided by the appellant describing his injuries led the Tribunal to conclude that the injury would not have confined ‘him to bed for a month’.
The Tribunal found that the appellant gave contradictory reports of the claimed attack on 14 September 2006 and after no response was received to the Tribunal’s request to respond to the apparent contradiction, it concluded that he had not been attacked by RSSS. It followed also that it was not satisfied that the police had not responded to his allegation of the attack. The Tribunal found that there was no evidence of continued harassment of the appellant or his family while the appellant was working away from his province.
The appellant’s evidence in relation to his involvement with RSSS was found by the Tribunal to be ‘lacking in detail and vague’. The Tribunal was not satisfied that the appellant was a member of RSSS or had any involvement with any other Hindu organisations, apart from the one incident of disrupting a Christian Pentecost meeting.
The Tribunal also noted that the subclass 420 (entertainment) visa granted the appellant admission into Australia on 28 November 2006 but that the appellant had chosen ‘not to take advantage of this visa’ (having left India in May 2007). This indicated that there was no immediate emergency and he did not fear for his life in September 2006. The appellant’s response to the Tribunal that he did not know about the grant of the visa was found by it to be ‘implausible having regard to the applicant’s allegations as to the emergency created by the alleged assault’.
The Tribunal was also not satisfied that the appellant had converted to Christianity prior to his application for a protection visa as a letter dated 21 October 2007 from The Pentecostal Mission only described a person with a similar name to the appellant as ‘our new believer’ and that greater emphasis seemed to be given to the appellant’s Hinduism in his protection visa application.
The Tribunal therefore found there was no real chance that the appellant would suffer persecution for religious or any other Convention related reason if he returned to India.
THE FEDERAL MAGISTRATES COURT
The Federal Magistrate identified the ‘issues’ before him as follows. It was asserted by the appellant that the Tribunal had erred by its:
a)failure to take into account integers central to the applicant’s claim;
b)failure to exercise its review function;
c)denial of procedural fairness; and
d)failure to investigate the applicant’s claim.
In a lengthier affidavit of 20 October 2008 the appellant further supported his application with the following arguments:
a)that the Tribunal misinterpreted the facts;
b)that the applicant’s account of the attack on 14 September 2006, including the fact that he was attacked with a piece of timber, was correct, and that the newspaper and police reports highlighted the more sensational allegations about the attack including the use of a sword by one of the attackers;
c)that it was not true that he had exaggerated the extent of his injuries and that due to the shoulder injury he was incapacitated to take up any activities;
d)that the influence of RSSS is such that the police altered the police report to exclude reference to their involvement; and
e)that his agent was to do everything possible to get him a visa and to notify him upon grant of the visa, but that the agent did not contact him regarding the approval of the visa until April 2007 and that he is unable to understand why.
His Honour observed that much of this content was argumentative, taking issue with the Tribunal’s findings and attempting to reargue the merits of the application.
His Honour considered grounds a), b) and d) together as he found that they essentially alleged a failure by the Tribunal to consider or to investigate the appellant’s claims and to exercise the review function. His Honour dealt with ground d) by observing that it is not a function of the Tribunal to inquire or to investigate (other than in exceptional circumstances). The Tribunal’s function is to consider an application as put forward by an applicant.
In relation to grounds b) and d) his Honour found that the Tribunal had considered the ultimate question, namely whether it was satisfied that the appellant had a well founded fear of persecution for a Convention reason. His Honour held that the Tribunal had properly considered the ultimate question having regard to the prescribed criteria, ss 36(2) and 65(1) of the Migration Act 1958 (Cth) (the Act), the definition of ‘refugee’ and whether there was a well founded fear based on a ‘real chance’ of persecution for a Convention reason. His Honour further found that the factual findings made by the Tribunal were open on the evidence before it.
Before the Federal Magistrates Court, the appellant also alleged denial of procedural fairness (ground c)). His Honour noted that the Tribunal’s obligations concerning procedural fairness are codified in s 422B of the Act. His Honour found that there was nothing in the manner of the conduct of the proceedings by the Tribunal which gave rise to a failure to afford the appellant procedural fairness. His Honour stated that in general terms, the appellant put his case to the Tribunal, the Tribunal considered his claims, and where the Tribunal had concerns with respect to the information provided to it, it had sought further information.
As no jurisdictional error was established, his Honour dismissed the application.
GROUNDS OF APPEAL
The notice of appeal before this Court, in express terms, raises the following grounds:
a)Jurisdictional error
b)Breach of Procedural Fairness
c)Breach of natural justice
The appellant has provided the following particular in support of the grounds:
I claim the RRT breached section 424A(1)(a) of the Migration Act 1958 (Cth), by failing to provide particulars of information, that formed the reason or part of the reason for affirming the delegate’s decision. My RRT decision has a number of adverse information, which became the reasons for my application refusal. The reasons were not put to me in writing before the RRT had made a decision.
At the hearing of the appeal before me the appellant sought leave to adduce further evidence. He wished to put before the Court a newspaper article. He could not recall the date of the article but it was some time in 2006. He explained that the newspaper article provided ‘more truth’ of the version of events that he had given to the Tribunal. When asked if and why he had taken no steps to produce the article before the hearing of the appeal, he indicated that it was difficult to arrange that because he had ‘only a wife and an elderly mother at home’. No further explanation was provided.
The Tribunal already had before it a newspaper article and translation. It had considered the article. The appellant did not suggest there was additional evidence in the newspaper article which had not been before the Tribunal but simply indicated that it provided further corroboration. The appellant did not suggest that he had been denied the opportunity by the Tribunal to put this additional newspaper article before the Tribunal. The communications between the appellant and the Tribunal were reasonably extensive and there was little doubt that the Tribunal would have had the opportunity to consider such a request had it been made.
The application to adduce the unavailable evidence was opposed by the first respondent. The appellant’s explanation of why the issue had not been previously raised was less than convincing but, in any event, the additional evidence could only go to the merits of the determination of his application. There was no suggestion that he had been denied the opportunity to put the evidence before the Tribunal.
A further matter raised by the appellant in the hearing before me was that because of his poor understanding of English he had not understood the letters which he had received from the Tribunal. This was the first occasion on which this suggestion was raised. As counsel for the first respondent correctly submitted, there was quite a chain of correspondence between the Tribunal and the appellant and at no time, then or subsequently, had the appellant suggested that he had been unable (albeit with the assistance of interpretation) to comprehend the correspondence received. The nature of the appellant’s correspondence, including replies to questions put, requests for extensions of time and such like did not support this new complaint. The complaint not having been previously raised at any time and being capable of only supporting what was, in substance, the sole ground of appeal (being the lack of compliance with the statutory procedural fairness obligation), no serious weight could be given to the new suggestion.
CONSIDERATION
Breach of s 424A
In the appellant’s written submissions, he claimed that a s 424A letter was not sent to him about the issues raised during and after the hearing. He submitted that the Tribunal did not give any weight to documents provided by him before and after the Tribunal hearing, and that it did not accept some of his Convention claims. He claims that failure to provide him with the adverse information for his comments reveals jurisdictional error.
By s 424A(1) of the Act, the Tribunal is required to provide the applicant with (in a way it deems appropriate in the circumstances) clear particulars of any information that it considers may be the reason, or a part of the reason, for affirming the decision that is under review. The Tribunal must ensure as far as is reasonably practical that the applicant understands why the information is relevant to the review, and the consequences of it being relied on if affirming the decision that is under review. The Tribunal must invite the applicant to comment on or respond to it. The obligation contained in s 424A(1) does not apply where the information was given by the applicant for the purposes of the review (424A(3)(b)) or where the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member (424A(3)(a)).
In this case, the Tribunal carefully considered the appellant’s claims and the evidence provided by the appellant for the purposes of the review. In particular, the Tribunal’s decision record indicates that the Tribunal considered the medical certificate provided by the appellant, the First Instance Report from Kerala Police, a letter from the Pentecostal Mission and the newspaper article submitted by the appellant. There is no indication that the Tribunal omitted or erroneously disregarded evidence provided by the appellant.
The Tribunal is not required to disclose to the appellant its subjective appraisals, thought processes or determinations, nor does it have an obligation to put to the appellant conclusions arrived at by the Tribunal in weighing up the evidence: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477.
Ultimately, the Tribunal was not satisfied that the appellant feared harm due to his conversion to Christianity. This conclusion was open to the Tribunal on the evidence before it.
Procedural Fairness
The second and third grounds raised by the appellant allege that he was denied procedural fairness or natural justice. Section 422B of the Act provides that Div 4 of Pt 7 ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. Broadly, this entails inviting the appellant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425) and the requirement for the Tribunal to give the appellant certain information and invite them to comment on that information (s 424A). In the present case, the appellant appeared before the Tribunal, assisted by an interpreter, to give evidence and make submissions. He was also sent an invitation to comment pursuant to s 424A of the Act on two occasions in relation to the alleged attack the subject of the police report. The appellant was invited to comment on the apparent inconsistency between his description of the attack at the hearing and the description contained in the police report. The appellant did not take up the Tribunal’s invitation to comment.
The appellant has not established any error of law in the reasoning of the Tribunal or the Federal Magistrate, nor has he identified any breach of procedural fairness. Accordingly, the appeal will be dismissed. The orders made are:
1.The appeal be dismissed.
2.The appellant is to pay the costs of the first respondent to be taxed if not agreed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 13 May 2009
The Appellant represented himself Counsel for the First Respondent: A Gerrard Solicitor for the First Respondent: Australian Government Solicitor
Date of Hearing: 8 May 2009 Date of Judgment: 13 May 2009
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