FEDERAL COURT OF AUSTRALIA

MZYER v Minister for Immigration and Citizenship and Refugee Review Tribunal [2010] FCA 522

SUPPLEMENTARY REASONS FOR JUDGMENT

1    On 26 May 2010, I ordered that the appeal be dismissed and that the appellant pay the first respondent’s costs of the appeal: see MZYER v Minister for Immigration and Citizenship [2010] FCA 522.

2    As it has come to my attention that the transcript of the hearing before me on 26 May 2010 may include references to the appellant’s name, I now make a further order that the name of the appellant, where shown in the transcript or otherwise, is not to be published, pursuant to Federal Court of Australia Act 1976 (Cth) s 50.

Associate:

Dated:    10 November 2010

THE COURT ORDERS (IN ADDITION TO THE ORDER OF 26 MAY 2010) THAT:

1.    The name of the appellant, where shown in the transcript or otherwise, not be published pursuant to s 50 Federal Court of Australia Act 1976 (Cth).

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 Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    By a notice of appeal dated 22 December 2009, the appellant, MZYER, pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) seeks judicial review of the decision of Federal Magistrate O’Dwyer given on 2 December 2009.

2    O’Dwyer FM dismissed the appellant’s application to review a decision of the second respondent, the Refugee Review Tribunal (“Tribunal”), dated 30 April 2009 by which the Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (“the Minister”), to refuse to grant the appellant a Protection (Class XA) Visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

3    In the notice of appeal, the appellant relies on the following ground:

1.    The FM 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 425A(1).

4    The orders sought are as follows:

1.    Leave be granted to include additional grounds for review of the decision of the Tribunal on the grounds of jurisdictional error.

2.    The application be allowed.

3.    There be an order in the nature of certiorari to quash the decision of the Tribunal.

4.    There be an order in the nature of mandamus requiring the tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa sought by the applicant.

5.    The first respondents pay the applicants costs.

5    At the hearing of the appeal, the appellant did not attend when the case was first called. The appellant was called several times, but did not appear. In consequence, I proceeded to hear the appeal in the appellant’s absence pursuant to O 52 r 38A(1)(d) of the Federal Court Rules. I reserved my decision, the Court was adjourned and the interpreter who was in attendance to assist the appellant left the Court. Shortly thereafter, the appellant arrived at the Court. He explained that he was delayed due to a five hour journey from his place of residence. Pursuant to O 52 r 38A(2), I directed that the hearing resume as soon as an interpreter was available. That course was not opposed by the first respondent.

6    Ultimately, the hearing resumed later this day, with an interpreter in attendance by telephone.

7    At the hearing, I invited the appellant to make submissions. He stated through the interpreter that he had problems in India and therefore wanted to stay in Australia. On several occasions I asked the appellant to identify the adverse information allegedly not disclosed by the Tribunal, referred to in the notice of appeal. The appellant was unable to comply. The appellant stated that he appealed because he did not get a good response from the Tribunal and sought to stay in Australia until the problems in India were resolved.

8    The appellant had not filed or served written submissions in compliance with the directions of the Registrar made on 28 January 2010.

9    Therefore, no submissions relevant to jurisdictional error were advanced by the appellant.

10    The appellant, a 31 year old citizen of India, arrived in Australia on 5 September 2008 on a visitor’s visa to attend the World Youth Festival in Sydney. He had a valid Indian passport. He departed Australia after the festival but, with his visa still valid, returned to Australia. On 1 October 2008, he applied for a protection visa based on an asserted wellfounded fear of persecution for political and religious reasons in India. His application was supported by a written statement and his passport.

11    On 2 December 2008, the Minister’s delegate notified the appellant of the decision to refuse him a protection visa. On 8 December 2008, the appellant applied to the Tribunal for a merits review of the delegate’s decision.

12    On 19 December 2008 the Tribunal, by letter, invited the appellant to appear before it on 22 January 2009. The appellant filed a response on 8 January 2008.

The Tribunal Hearing

13    On 22 January 2009, the appellant appeared before the Tribunal and gave oral evidence assisted by an interpreter.

14    The Tribunal had before it the Department’s file relating to the appellant, including his statement, material referred to in the delegate’s decision and other material available to it from a range of sources, including independent country information. In the appellant’s statement to the Department, he claimed:

1.    to be a 29 year old Indian belonging to a Christian family and backward class, who had joined the Indian National Congress (“INC”) youth wing in 2000;

2.    that he worked for the INC party in the 2002 elections, thereby angering certain persons, so that in June 2002 he was attacked, suffered multiple injuries and was hospitalised; and although he reported the attack to police, no action was taken due to political pressure;

3.    that he worked as a party member against dowry practices and in June 2006, intercepted a dowry transaction in his locality; and on 15 August 2008 (after returning from the World Youth Festival in Sydney) he again intercepted a dowry transaction, for which he was attacked on 16 August 2008. He received multiple injuries, was hospitalised for seven days and was subsequently sought by the hostile parties and the police; and

4.    that he feared for his life and after leaving India for Australia on a valid visa, he was informed by family members that the police and other members of a hostile organisation regularly came in search of him, having arrested and badly tortured two of his colleagues.

15    The Tribunal questioned the appellant at length and in great detail about the matters in his application, and asked him if he had anything to add.

16    The Tribunal put to the appellant that there was legislation in India outlawing dowry demands. The appellant stated that he was aware of the law.

17    The Tribunal put to the appellant that the application did not include detailed information about his alleged persecution as a Christian and invited him to provide further information.

18    The Tribunal questioned the appellant about his work, including for the INC. He stated that he was beaten in 2001 because he was a member of INC and was hospitalised for four or five days.

19    The Tribunal questioned the appellant about the details of the attack and inconsistencies in his account of the attack or attacks in 2001, 2002, 2006 and 2008, including their dates, circumstances and consequences.

20    The Tribunal questioned the appellant about inconsistencies between the accounts of his dowry interception and his reporting of attacks to the police given in the written statement and his oral testimony to the Tribunal.

21    The Tribunal put independent country of origin information to the appellant concerning the existence of a legitimate judicial system and that it was not illegal to be a Christian in India. It asked him why he did not pursue his claims in India.

22    The Tribunal questioned the appellant about whether he was safe with his uncle in Delhi and about his claimed high political profile and Christian and community activities.

23    The Tribunal put to the appellant that in his written statement he attributed the attacks to his political views, but before the Tribunal, he attributed it to his Christianity, indicating inconsistencies that might lead the Tribunal to doubt his credibility.

24    The Tribunal again put to the appellant independent country information that India had a functioning electoral system and government and freedom of religion. The appellant said that he would provide further information about Christianity in India and other matters.

25    The Tribunal granted the appellant four weeks to provide to it any further information on which he wished to rely. (The appellant provided no further material by the specified date).

The Tribunal’s Findings

26    The Tribunal assessed the appellant’s credibility adversely. The Tribunal found that, due to the appellant’s “tendency to change and embellish his story” about major events, he was not a credible witness.

27    The Tribunal noted that the basis for the appellant’s case was information he provided, which was scant, vague, lacking in detail, inconsistent and without supporting evidence. The Tribunal found that the appellant was not a member of the INC, did not join INC youth wing in 2000 and did not have the high profile he claimed. It found that the appellant had significantly increased the number of attacks claimed in his original statement and had given different reasons for his claimed persecution, and implausible accounts of his injuries and treatment.

28    The Tribunal found that the appellant was not hospitalised or attacked as claimed. The Tribunal found that the alleged violent incidents were fabricated by the appellant for the purposes of the Visa Protection application.

29    The Tribunal found the appellant’s various accounts of persecution for his religious beliefs were vague, limited, lacked detail and were fabricated for the purposes of his Visa Protection application.

30    The Tribunal did not accept that the appellant was sought by the police and others due to his religious beliefs or activities, was a high profile Christian or INC activist, or had attempted to prevent dowry practices as he claimed.

31    The Tribunal accepted that the appellant was a Christian, but did not accept that he faced a real chance of serious harm for reasons of religion should he return to India in the reasonably foreseeable future. The Tribunal referred to the appellant’s expressed desire to furnish further information in relation to harms he claimed to fear or to have endured, and his failure to provide it when the opportunity was extended which it found cast serious doubt on his entire testimony.

32    The Tribunal stated that in assessing whether the appellant’s claimed fear was wellfounded, it had “considered the totality of the claims and circumstances of past harm alleged by [the appellant]”.

33    The Tribunal did not accept that any of the events detailed in the appellant’s written statement or asserted in the hearing before it actually occurred, or occurred because of his claimed activities as a Christian, a political party member or in dowry prevention.

Hearing before the Federal Magistrate

34    At the hearing of the application before O’Dwyer FM, the appellant was unrepresented, but was assisted by a Punjabi interpreter. He had not filed and served written submissions as directed, thus permitting dismissal of his application under Rule 13.03A(1)(a) and Rule 13.03B(1)(a) of the Federal Magistrate Court Rules 2001. In recognition of the difficulties faced by an unrepresented person whose first language was not English, O’Dwyer FM invited the appellant to present his case orally.

35    The grounds of the application under the Act heard by O’Dwyer FM were:

1. That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth)

Particulars:

(a) There was certain adverse information used by the Tribunal to affirm the decision under review.

(b) The Tribunal did not disclose the information in accordance with s 424A(1).

2. That the tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error.

3. That the tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.

36    The appellant sought writs of certiorari, prohibition and mandamus to quash the decision of the Tribunal and require it to review according to law the Minister’s decision to refuse him a protection visa.

Decision of the Federal Magistrate

37    O’Dwyer FM observed that he had carefully read the Tribunal’s decision and found it thorough, providing reasons for all findings, which were “certainly open to it on the evidence presented at the hearing”.

38    O’Dwyer FM stated:

8. Significantly, the Tribunal made an adverse finding about the credit of the applicant. In addition to the logic displayed in its reasons as to why it found as it did, it had the added advantage of observing the applicant give his evidence. It is always very difficult where credit findings are made for an applicant to thereafter review the decision made where the decision pivots on an adverse assessment of credit.

9. Some of the determinant findings made by the Tribunal were:

    the applicant had not joined the Indian National Congress Youth Wing as claimed;

    the incidences of violence in relation to the applicant's work, in respect of him preventing dowry claims, were fabricated; and

    his claims were made for the purpose of progressing and assisting his protection visa application.

10. The Tribunal made numerous other findings about the claims made by the applicant, and, in broad terms, rejected them with the end consequence that the Tribunal found that the harm claimed to have happened did not happen, and that there was no real chance of harm occurring to the applicant in the reasonably foreseeable future if the applicant was to return to India. The Tribunal, therefore, found that it was not satisfied that the applicant faces a real chance of serious harm for reasons of religion, political opinion or, indeed, any other Convention related reason if he were to return now, or in the reasonably foreseeable future, to India. As I said earlier, those findings were open to the Tribunal.

39    Ground 1 of the application was an alleged breach of s 424A(1) of the Act.

40    Section 424A of the Act provides:

Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

    (a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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; and

    (b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

    (a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

    (b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

    (a)    that 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; or

    (b)    that the applicant gave for the purpose of the application for review; or

    (ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

    (c)    that is nondisclosable information.

41    O’Dwyer FM concluded that there was no breach of s 424A (having studied the Tribunal’s decision to detect any such breach, as the appellant was unable to expand on the allegation).

42    O’Dwyer FM stated that the information used (or part of which was used) by the Tribunal to form its decision was either “country information of general application” or “information provided by [the appellant] himself.”

43    In relation to grounds 2 and 3, which when combined amounted to allegations of breach of natural justice or procedural fairness, O’Dwyer FM found that the Tribunal had complied with all obligations required to fulfil procedural fairness and natural justice spelt out in s 422B of the Act.

44    Section 422B of the Act states that Division 4 of Part 7 of the Act is to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

45    In Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, Gleeson CJ at [37] stated, in relation to breach of the rules of procedural fairness in the Tribunal’s decision:

[37] A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. … Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

46    O’Dwyer FM stated that “the Tribunal invited a response to the information provided by the [appellant] when it was challenged by the Tribunal. None of the information used by the Tribunal was information relating to [the appellant] that was not brought to his attention and about which he was not invited to comment.”

47    The basis of the appellant’s claim that a further hearing should have been held was unclear, but it appeared to refer to s 425 of the Act, under which the Tribunal must invite an applicant to present evidence and arguments relating to “issues arising in relation to the decision under review”. The Tribunal must frame the issues arising on review: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [33], [37]. An appellant must demonstrate that the Tribunal failed to notify him of an issue which was decided adversely to him: SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 at [18] per Edmonds J.

48    O’Dwyer FM found the claim to be without substance. He stated:

In relation to the claim that there ought to have been a further hearing before a decision being made, I say that is without substance. A full and fair hearing was granted to the applicant. All the integers of his claim were considered, and findings made accordingly. There appears to be no basis that would have necessitated any further hearing. I am not satisfied that these grounds are made out; that is, grounds 2 and 3.

49    O’Dwyer FM concluded that the appellant had not established any ground of his application for judicial review and dismissed it with costs.

Conclusion

50    In my opinion, the Federal Magistrate correctly found that the information to which the Tribunal had regard was information which fell within s 424A(3) of the Act, to which the obligation in s 424A(1) does not apply.

51    It was:

(a)    information which the appellant gave during the process leading up to the delegate’s decision under review, viz, the appellant’s application and statement, which fell within s 424A(3)(ba); or

(b)    information that the appellant gave for the purposes of the application to review, which fell within s 424(3)(b); or

(c)    independent country information that was not specifically about the appellant or another person and was just about a class of persons of whom the appellant or another person was a member, which fell within s 424(3)(a) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572).

52    If, contrary to the above conclusions, any information to which the Tribunal referred was not within the exceptions under s 424(3) of the Act, it was nevertheless not, in my opinion, information which constituted the reason or a part of the reason for affirming the decision under review within the meaning of s 424A(1).

53    As the reasons of the Tribunal made clear, it affirmed the delegate’s decision due to disbelief of the appellant’s evidence arising from the inconsistencies it displayed and the lack of other evidence of his account of events.

54    In SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 96 ALD 1, (“SZBYR”) the High Court stated that “section 424 does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of “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” (at [15]).

55    The High Court further stated (at [22]) that:

“if the reason why the tribunal affirmed the decision was disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as “information” within the meaning of para (a) of s 424A(1). …If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in the reasoning process. However broadly “information” be defined, its meaning in the context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence [18] … s 424A has a more limited operation … its effect is not to create a back door route to a merits review in the Federal courts of the credibility findings made by the tribunal”.

56    In the present case, the Tribunal put all relevant matters to the appellant and invited his response. It also afforded him time to furnish any further information, although the appellant did not make use of that opportunity.

57    The appellant is an unrepresented litigant in difficult circumstances who advanced no submissions relevant to the error alleged in his notice of appeal. I have, however, carefully read the Tribunal’s decision.

58    I am persuaded that, as the Federal Magistrate held, the appellant was afforded procedural fairness, and that there was no breach of s 424A(1) of the Act or other jurisdictional error.

59    In my opinion, the appeal should be dismissed.

Associate:

Dated:    26 May 2010