FEDERAL COURT OF AUSTRALIA

MZWIF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1701

MIGRATION – no question of principle – appeal dismissed

SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303, applied

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264, applied

MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1263, followed

MZWQE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1364, followed

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] 215 ALR 162, referred to

MZWIF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 493 OF 2005

MARSHALL J

24 NOVEMBER 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellants pay the first respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellants are citizens of India. They are husband, wife and child. They applied to the then Minister for Immigration and Multicultural Affairs for protection visas to enable them to remain in Australia. They claim that they have a well founded fear of persecution on account of their religion, if they return to India. They are Catholics who claim to fear persecution from Hindu and Muslim extremists.

2                     A delegate of the Minister rejected the applications for protection visas. The appellants sought a merits review of that decision in the Refugee Review Tribunal. The Tribunal affirmed the decision of the delegate.

3                     The Tribunal did not accept that the appellants were at risk of persecutory treatment at the hands of Muslims when they left their home in Andhra Pradesh. The Tribunal found that some localised tensions of an insignificant nature occurred in Andhra Pradesh. The Tribunal was satisfied that if the appellants returned to their home area they would not be subjected to persecutory treatment by Muslims because of their religion.

4                     After noting that the appellants had not been targeted by Hindus before leaving India, the Tribunal considered whether they would be at risk of attack from Hindu extremists if they returned to Andhra Pradesh. The Tribunal found that, in Andhra Pradesh, Hindu extremists did not harass Christians in a serious manner. It noted that the Christians, perceived by Hindu extremists to be evangelists, would be most likely to be harmed but that the adult appellants were not evangelical Christians.

5                     The Tribunal did not have the requisite state of satisfaction that the adult appellants were persons to whom Australia owed protection obligations. The fate of their daughter’s application depended on their success of their applications, as the child appellant raised no independent claims of her own.

6                     The appellants sought judicial review of the Tribunal’s decision before the Court below. Federal Magistrate Riethmuller dismissed that application.

7                     The appellants, who are represented by the husband appellant, filed an outline of submissions in advance of the hearing of the appeal. The first five paragraphs of that outline seek to agitate matters of fact rather than to identify errors of law. The assessment of the material before the Tribunal is a matter for the Tribunal; see SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 303 at [12].

8                     The sixth paragraph of the appellants’ outline complains that the Tribunal failed to put to the appellants, for their comment, the country information on which it relied in coming to its decision. The appellants do not identify the particular information they say they did not have an opportunity to comment on. The Tribunal noted that it invited the husband appellant to comment on the 1999 Annual Report by the US Bureau of Democracy, Human Rights and Labor. There is no evidence that it did not invite the appellants to comment on other country information referred to in the decision. In any event, there is no statutory obligation on the Tribunal to disclose general country information; see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.

9                     In the seventh paragraph of the appellants’ outline they say, in effect, that the Tribunal did not deal with an aspect of the claim made by the wife appellant. She alleged that she had gone into hiding in response to feared persecution. The Tribunal found that she remained at her original address and lived there from 1994 until she came to Australia. That finding is at odds with the above claim which the wife appellant asserts that the Tribunal allegedly did not deal with. This aspect of the appellants’ contentions is rejected.

10                  In the eighth paragraph of the outline the appellants complain that certain questions were not put to the wife appellant by the Tribunal. That is not a proper basis for judicial review. The appellants had the opportunity to raise those matters themselves had they so wished.

11                  In the ninth paragraph of the outline the appellants say that the Tribunal failed to put to the wife appellant, in writing for her comment, the evidence of the husband appellant that the church group she had been involved in had been closed. There was no requirement on the Tribunal to put such a matter, in writing, to the wife appellant, as she was a party to the review application before the Tribunal; see MZWMQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1263 at [24]. Further, the information concerned was not integral to the reasoning process of the Tribunal; see MZWQE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1364 at [8].

12                  In the tenth paragraph of their outline, the appellants rely on Arts 9 and 18 of the International Convention of Civil and Political Rights. As the Convention has not been incorporated into Australian domestic law it cannot found a basis for judicial review of a decision of the Tribunal. This submission is further undermined by the fact that the Tribunal rejected the appellants’ claims that they feared persecution on the basis of their Catholicism.

13                  The last paragraph of the outline takes issue with the Tribunal’s statement of the well founded fear test. That criticism is misplaced. A mere possibility of the existence of the requisite persecution is not the correct test.

14                  The appeal is dismissed. The Tribunal will be added as a respondent in accordance with the judgment of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] 215 ALR 162. The appellants must pay the Minister’s costs of the appeal.

Associate:

Dated:              24 November 2005