FEDERAL COURT OF AUSTRALIA

MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256

MIGRATION – appeal from Federal Magistrates Court – protection visa – non-appearance of appellant before Refugee Review Tribunal – Tribunal dismissed application for review stating, among other things, that it would have asked appellant about certain matters, including that his initial visa application stated the only reason he did not want to return to India was that he wanted to continue his studies – whether lack of information is “information” for purposes of s 424A(1) – possibility of relocation in India a separate ground for refusal

Migration Act 1958 (Cth) s 424A(1), (3)(b)

MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 696 affirmed

Tran v Minister for Immigration & Multicultural Affairs [2002] FCA 1522 followed

NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 distinguished

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 cited

VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 cited

MZWPK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO VID 516 OF 2005

HEEREY J

29 AUGUST 2005

MELBOURNE

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     The appellant appeals from a decision of McInnes FM made on 12 May 2005: MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 696. The learned magistrate dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the appellant a protection visa under the Migration Act 1958 (Cth) (the Act). 

2                     When the matter was called on this morning the appellant, who is not legally represented, did not appear.  The appellant had been advised by a letter from the Court dated 20 July 2005 of the time of the hearing. Subsequent to that letter the appellant had sent a fax to the Minister's solicitors requesting an extension of time for preparing submissions and had sent a copy of that fax to the Court. So I proceed on the basis that the appellant was aware of the time fixed for the hearing of the appeal.  I note also that the appellant did not appear before the Magistrate nor before the Tribunal itself.

3                     The appellant is a male citizen of India.  He arrived in Australia on 27 February 1997 on a student visa.  On 17 April 2003, that is to say more than six years later, he lodged an application for a protection visa.  In that application the appellant attached a statement which included the following:

“If I return without completing my education I will be a shame to my parents and community back in India.  I would like to complete my studies and as a result I am applying for a visa so that I can achieve my goal.

I do realise that this is not a relating to the convention reason for applying refugee visa.  I wish to be allowed to stay here until I finish my studies and then I am happy to return to India.”

4                     The delegate of the Minister made a decision refusing to grant the visa on 22 May 2003 and that decision was affirmed by the Tribunal on 16 June 2004.  On 20 June 2003, the day the Tribunal received his application for review, the Tribunal wrote to the appellant noting that it received his application and advising him that it had asked the Department to send the file so that the Tribunal could review the appellant's visa application.  On 23 April 2004 the Tribunal wrote to the appellant inviting him to a hearing to be held on 15 June 2004.  The letter included the statement:

“The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”

5                     After some further correspondence the appellant wrote to the Tribunal on 9 June 2004 informing them that his solicitors were no longer acting for him in the matter and that he would do the case on his own.  He enclosed a statement which included claims that he had been approached by two student political parties when he was enrolled at the Air Technical Training Institute.  The two student parties supported the two main political parties of India and were “very active on campus”. There was quite often violence between the two groups.  Members of the student groups constantly “hounded” the appellant to join their parties.  The appellant made a number of complaints to the Institute and to the police but was told there was nothing much they could do.  The appellant claimed that he would be persecuted by supporters of both the two parties if forced to return to India, “especially West Bengal”. He could not rely upon the authorities for protection as the very party that he was in fear of was a strong supporter of the current government in West Bengal. 

6                     On 11 June 2004 the appellant wrote to the Tribunal stating:

“I write to inform you that I request the Tribunal to make the decision on the papers.  I am not attending the hearing on 15 June 2004. I apologise for the inconvenience caused to you.”

7                     In its decision the Tribunal stated that it had found the appellant's evidence to be “so general and inconsistent ” that it was unable to establish the relevant facts.  The Tribunal said that the appellant had initially stated that his sole reason for not wanting to return to India was that he had not completed his studies in Australia and that this would bring shame on his family and community.  He stated that he realised that this did not relate to the Refugee Convention but that he wished to be allowed to remain in Australia until he completed his studies.  The Tribunal referred to the letter of 8 June 2004 when the appellant claimed for the first time that he feared persecution from political groups in India and would not be able to obtain State protection.  The Tribunal continued:

“Had the applicant attended the hearing the Tribunal would have asked him why he had not mentioned this claim when he lodged his protection visa application and why he had initially stated that the only reason he did not wish to return to India was on account of his incomplete studies. It would have asked him why either of these parties would have a continuing interest in him given that he claimed that these groups only pursued him while he attended a particular training institution from 1990 to 1994. It would have asked him about the tardiness of his application and why he did not lodge a protection visa application in 1997 when he first arrived in Australia and why he waited until 2003 if he had experienced these problems during the period 1990 to 1994. It would have asked him if he had been involved in any political activity in Australia. The Tribunal would have also asked the applicant why he could not relocate to another part of India if he did not wish to return to West Bengal.”

8                     The Tribunal concluded that the appellant had been put on notice that it was unable to make a favourable decision on the information before it, but he did not provide any further information to support his claim, despite ample opportunity to do so. Nor had he given the Tribunal opportunity to explore aspects of his claims with him. A number of relevant questions were therefore left unanswered.  The Tribunal was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution within the meaning of the Convention.

9                     The learned Magistrate held at [11] that he could not see any jurisdictional error in the manner in which the Tribunal had embarked on its fact-finding mission.  The Magistrate did not regard the Tribunal as having a duty to engage in an exchange of correspondence in relation to the questions raised, but rather saw those questions raised as “highlighting appropriately the deficiencies in the material then available to the tribunal.” The Magistrate said (at [11]) that when the appellant chose to allow the decision maker to rely upon the papers and to not attend the hearing, he could not subsequently be seen to complain about the lack of any further procedure or hearing time made available to him to put other material to the Tribunal which might be identified as deficiencies.  The Magistrate made reference to the decision of Kenny J in Tran v The Minister for Immigration & Multicultural Affairs [2002] FCA 1522 at [25] – [26].  I shall return to this authority in due course.

10                  The notice of appeal to this Court does not convey any rational meaning and I shall not consider it further but turn to the appellant's written submissions which were finally received on 25 August.  After a brief outline of the procedures to date the appellant says:

“I have read the decision of the Federal Magistrate and the Refugee Review Tribunal and I disagree with their conclusions when it says that my evidence is general and inconsistent and that it is unable to establish the relevant facts. The story of my circumstances as presented to the tribunal in my letter, explained everything in a very simple and straightforward manner. I realise that I chose not to appear before the tribunal, but there was enough of my story presented to the tribunal for it to make a decision. The tribunal says there are a number of relevant questions left unanswered. I say why did not the tribunal forward to me a letter with these relevant questions and I would have answered them and returned them to the tribunal. The tribunal should have provided reasons as to why it rejected my story. The Magistrates Court was wrong in accepting that the tribunal’s decision was correct.”

11                  On the hearing of the appeal counsel for the Minister very properly drew the Court's attention to the decision of Jacobson J in NAZY v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744, which was subsequent to the Magistrate's decision in the present case.

12                  In NAZY his Honour applied the decision of the High Court in SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.  In essence s 424A(1) of the Act imposes an obligation on the Tribunal to provide “the applicant” with “particulars of any information that the Tribunal considers … would be the reason, or a part of the reason, for affirming the decision that is under review.” The Tribunal must ensure the applicant understands why the information is relevant to the view and invite the applicant to comment on it.  By sub-s 3(b) that obligation does not apply to information “that the applicant gave for the purpose of the application.” SAAP holds that the "application" there referred to is the application before the Tribunal, so that sub-s (3) does not exclude the operation of the section where the information in question has been given by the applicant to the Department for the purpose of the initial visa application.  In NAZY Jacobson J found that the Tribunal had relied on certain material in the applicant's initial visa application and that this went to an "integral part" of the Tribunal's reasons; see at [29].

13                  Counsel for the Minister in the present case did not contend that NAZY was incorrect.  However, he submitted that it was distinguishable because in the present case there were a number of independent grounds quite unrelated to any matter depending on the statement made in the appellant's visa application.  I think that is correct.  While it could be said that the initial contrast that the Tribunal made between the case then presented and his initial statement would go both to the objective element of fear for a Convention reason and the subjective reliability of the appellant, the fact remains that a quite separate ground was the possibility of the appellant relocating within India. That was quite unaffected by any comparison between his case before the Tribunal and his visa application; see also VBAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [12], [17] and [33].

14                  In any event, and quite separately, I am satisfied that the reasoning of Kenny J in Tran is applicable here.  The real problem from the point of view of the appellant's case which the Tribunal has identified was simply the lack of any information. The word "information" in s 424A(1) I think imports at least some positive factual material. 

15                  No error has been identified in the Magistrate's reasons for dismissing the application and the appeal will be dismissed with costs.

Associate:

Dated:              29 August 2005