FEDERAL COURT OF AUSTRALIA

MZYFN v Minister for Immigration & Citizenship [2010] FCA 170

THE COURT ORDERS THAT:

1.                  The appeal is dismissed with costs.

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

1                     The appellant appeals from a judgment of the Federal Magistrates Court of Australia which dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal; see MZYFN v Minister for Immigration [2009] FMCA 1260. The Tribunal had affirmed a decision of the first respondent to deny the appellant a Protection (Class XA) visa.

2                     Before the Tribunal, the appellant claimed to fear persecution by reason of his religion and his political opinion if he were returned to India in the reasonably foreseeable future. The appellant claimed to be a Catholic and a supporter of the Congress Party. The Tribunal did not accept the appellant as a credible witness. It found that the appellant had not been persecuted due to his religious affiliation or political opinion and that he was merely “a nominal Christian” with no political conviction. The Tribunal also rejected the appellant’s claim that he had been the subject of a physical attack due to his political opinion or religious affiliation. The Tribunal considered that even if the appellant was physically attacked, such an event occurred as a result of a criminal act unrelated to any claim under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) and the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

3                     The Tribunal also found that, even if it accepted the appellant’s claims, the appellant could safely relocate within India to avoid further persecution. In that regard, the Tribunal noted that Christians are in majority or “significant minority” in several states of India and the Congress Party dominated recent election results in many states and is in power nationally.

4                     The appellant claimed before the Federal Magistrates Court that the Tribunal had breached s 424A (1) of the Migration Act 1958 (Cth), made an error of law and denied the appellant procedural fairness and natural justice.

5                     The Federal Magistrate observed that s 424A of the Act was not invoked because, in rejecting the appellant’s application, the Tribunal did not rely on information adverse to the appellant personally. That observation was correct. The information referred to by the Tribunal was not specifically about the appellant or any other individual. Rather, the information relied on by the Tribunal related to classes of persons of which the appellant is a member; namely Christians or supporters of the Congress Party in India. His Honour rightly dismissed the appellant’s s 424A ground.

6                     The Court below also rejected the further contentions concerning an alleged error of law and a denial of procedural fairness and natural justice. The appellant did not identify the alleged error of law. The only specificity in the appellant’s alleged grounds of judicial review referred to an alleged failure to provide a further opportunity to appear before the Tribunal. In this respect, his Honour observed at [20] of his reasons that the appellant “was given two opportunities to appear before the Tribunal and did not…at any time request a further hearing”.

7                     The appellant’s notice of appeal to this Court only raises the s 424A issue. The appellant did not identify the information said to be adverse to his claims which was relied on by the Tribunal to reject his application for a protection visa. That appeal ground is dismissed. No other basis was advanced by the appellant to disclose any appellable error in the reasons for judgment of his Honour.

8                     The appeal is dismissed with costs.

Associate:

Dated:         2 March 2010