FEDERAL COURT OF AUSTRALIA

MZYGR v Minister for Immigration and Citizenship [2010] FCA 883

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

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                     This is an appeal from an order of a Federal Magistrate dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (RRT).

2                     The sole ground of appeal on this appeal is:

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 424A(1).

3                     The appellant is a national of India who first arrived in Australia on 15 July 2008 on a Tourist visa for the purpose of participating in World Youth Day.  He departed Australia on 22 July 2008.  On 14 October 2008 he returned to Australia and on 19 November 2008 lodged an application for a Protection (Class XA) visa.  On 13 January 2009 a delegate of the first respondent refused the visa application.  On 9 February 2009 the appellant applied to the RRT for a review of the delegate’s decision.  On 8 September 2009 the RRT affirmed the delegate’s decision not to grant the appellant a Protection (Class XA) visa.  On 24 September 2009 the appellant applied in the Federal Magistrates Court for the judicial review of the decision of the RRT relying on the following grounds:

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.

4                     Subsequently the grounds were amended and an amended application was filed on 12 January 2010.  The grounds in the amended application were:

The grounds on which the Applicant seeks orders under section 39B of the Judiciary Act in relation to the decision are as follows:

The decision denies the Applicant an entitlement to remain in Australia.  If the Applicant is removed to India, he confronts the possibility of persecution within the meaning of the Convention.

1.         The Tribunal ignored/failed to consider Section 424A(1) of the Migration Act 1958 (Cth).

Particulars

(a)        The Tribunal failed to invite the applicant to comment on or respond to information needed to clarify his evidence or evidence the Tribunal relied upon and claims in writing in accordance with Section 424A(1).

2.         The Tribunal acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.

Particulars

(a)        The Tribunal failed to consider the Applicant’s express claim that he was at risk of persecution because of his religious beliefs and his association with a particular social group, namely member of the Yuva Dhara.

(b)        The Tribunal rejected the Applicants (sic) claims in relation to his religious beliefs on the basis that the Applicant’s profile was not sufficiently high.

(c)        The Tribunal rejected the Applicant’s claim on the basis of a dichotomy, unsupported by the evidence in relation to low profile and high profile activists, which amounted to a jurisdictional error.

(d)        The Tribunal made an adverse decision against the Applicant without providing him an opportunity to response (sic) in accordance with section 424A(1).

2. (sic)  The Applicant was denied natural justice.

Particulars

(a)        The Tribunal questioned the Applicant in a fashion that implied he was not a credible witness and therefore prevented the Applicant from putting his case forward.  The member failed to give proper consideration to the credible account of the Applicant.

(b)        The Tribunal has given undue weight in relation to the evidence, finding the ‘injuries’ suffered by the Applicant’s brother rather than the persecution suffered by the Applicant himself.  The Tribunal has taken into account irrelevant considerations that have denied the Applicant natural justice.

3.         The Tribunal failed to review and consider the Application for the purposes of Section 47, 65 and 414 of the Migration Act 1958.

Particulars

The Applicants refer to and repeat the particulars set out in paragraph 1, 2 and 3.

5                     Before addressing the Federal Magistrate’s reasons it is necessary to understand the decision of the RRT which was the subject of the application for judicial review.

6                     The appellant is a male who was born on 6 January 1980 and is a citizen of India who resided in Jalandhar Cantt in the state of Punjab in India.  His mother and his three siblings all reside in India.  His father is deceased.  He claimed that he was a Christian and of the Catholic faith.  He has had 12 years of education and his occupation prior to leaving India was as a photographer who operated a photographic shop.

7                     On his application for a Protection visa he said that he has been persecuted because of his religion.  A Hindu group, Bajrang Dal, treat Christians as enemies.  Bajrang Dal threaten Christians and, in particular, have threatened the appellant telling him he should convert to Hindu.  Because of those threats he went to a police station and lodged a complaint, but did not register any claim because “Bajrang Dal is a very big hindu organization”.

8                     On 31 December 2006 after attending Mass at his Church, he was attacked while going home and badly beaten.  He was also attacked with swords and suffered a cut to his nose.  He said he was saved by the occupants of a truck who came along the road.  He said his brother was also assaulted.

9                     He remained in his home for a number of days and then went on holidays, but whilst he and his family were away their home was broken into and everything destroyed.  All of their money was taken from the house.

10                  Up until the time he came to Australia for the World Youth Day things continued to get worse and he feared that he would be killed.

11                  After he returned to India he found that the situation had worsened since he had left and attempts were made to kill him.  As a result, he returned to Australia.

12                  The appellant gave evidence before the RRT and elaborated on his claims.  During the hearing he said that his family had sold gold so that he could buy the two tickets for him to come to Australia and to enable him to acquire $AUS9,000 which he brought with him.

13                  He said the Bajrang Dal had not carried out their threat, because although his mother had remained in the family home he and his brothers had gone into hiding staying in the homes of family friends.  He said that he sold a plot of land and sold some gold to get money to leave India.

14                  He was asked whether there was any other part of India he could live in, but he said the Bajrang Dal was widespread and that if he continued to do what he was doing he would be located.

15                  A second hearing was held on 7 May 2009 at which the appellant again attended when he was told that in a number of respects the RRT found it difficult to accept his evidence.

16                  During the hearing the appellant said that he could provide further information which would corroborate his claims that he had been attacked and the RRT agreed to give the appellant until the close of business on 22 May 2009 to submit the additional documents.

17                  At the first hearing on 1 April 2009 the appellant submitted a number of documents.  On 18 June 2009 he submitted further documents, after the second hearing.

18                  The RRT accepted that the appellant was a citizen of India, a Christian, a Catholic and a member of his local Catholic Yuva Dhara group (CYD) and vice-president of that group.  It accepted that as a member of CYD he participated in the preparation and organisation of Church events but did not accept that the appellant was a major player in the organisation of events within his Church community.  In particular, it did not accept his claim that the position he held in CYD entailed him seeking the conversion of non-Christians or the promotion of Christianity to non-Christians.

19                  The RRT said that the Bajrang Dal was described in the literature as the “youth wing of the Vishwa Hindu Parishad.  Banned between December 1992 and June 1993, Bajrang Dal was originally found in the 1980s to counter ‘Sikh terrorism’ but has since then shifted to militant activism against the Muslim and Christian minorities.”

20                  The RRT did not accept that the appellant has a profile of the kind that would cause him to be a target of Bajrang Dal or any other group.

21                  The RRT did not accept that the appellant was assaulted for the reasons given or that members of the Bajrang Dal tried to kill him.  It found that if his brother was assaulted as he claimed and his brother’s shop vandalised by Bajrang Dal or others, it was not for the reasons given.  It rejected the appellant’s claims that police assistance was not forthcoming on the occasion of his brother’s assault or when the appellant was assaulted.

22                  The RRT rejected his claim that he reported matters to his priest who failed to pass the information on to authorities.  It rejected his claims that his home was robbed.  The RRT noted that the appellant had not submitted a number of documents which he said would have supported his claims, although ample time had been given to him to access those documents from India and to provide them to the RRT.

23                  It found that the appellant exaggerated and embellished his claims, and that his claims lacked credibility and substance, and had been advanced simply to obtain a migration outcome.

24                  The RRT considered the issue of State protection and found that the authorities are working hard to contain, if not eliminate, religious violence and “the evidence does not indicate the failure of effective protection by the authorities or the discriminatory withholding of State protection for any reason”.

25                  The RRT rejected his claims and affirmed the decision of the Minister’s delegate.

26                  The Federal Magistrate considered each of the grounds advanced by the appellant, only the first of which is relevant having regard to the single ground of appeal set out above.  In relation to ground 1, the Federal Magistrate said that the written submissions did not identify any information that would qualify for the purposes of either s 424A or s 424AA as being the reason or part of the reason for affirming the decision under review.  He noted that the written submissions which had been prepared for the appellant did not identify any such information.  The written submissions merely said:

The applicant submits that the Tribunal made an adverse decision against the claims made by the Applicant affirming the decision made by DIAC without giving any notice under section 424A(1) as required by the legislation (Court Book 121-136).

27                  The Federal Magistrate rejected that contention, which he said was “simply wrong at law”.  He said that at the hearing he attempted to elicit from the appellant whether the appellant could identify any document or information that would come within s 424A.  However, it would appear that the appellant’s claims related to information which he tried to provide to the RRT after the RRT had made its decision and had no relationship whatsoever with s 424A.

28                  In relation to the second ground, which is not pressed on this appeal, the Federal Magistrate addressed each of the four particulars and concluded that the ground had not been made out.

29                  As to the third ground, again which is not pressed on the appeal, the Federal Magistrate concluded that there was no denial of natural justice and that the RRT had conducted itself appropriately in the manner in which it conducted its hearing.  It also found that the weight which the RRT had placed upon the evidence given by the appellant was a matter for the RRT.

30                  The Federal Magistrate found that the fourth ground was merely a “catch all” ground relying upon the matters raised in the first three grounds and dismissed that ground.

31                  On this appeal no particulars are given of the information which it is said was not disclosed in accordance with s 424A(1) of the Act.  Nor does the ground of appeal particularise error on the part of the Federal Magistrate who dismissed this ground on the application for review.

32                  The appellant was unrepresented on the appeal as he had been in the Federal Magistrates Court.  He handed up to the Court a reference from Father Robert McCulloch of Columbans Mission Centre dated 3 August 2010.  Father McCulloch has been a missionary in Pakistan since 1978 and is aware of the religion-based discrimination and threats which Christians face on a daily basis in both Pakistan and India.  He knows the appellant and certifies him to be a practising Catholic who has proved to be a good, peaceful, industrious and reliable person.

33                  The appellant also handed up a newspaper article in the Hindi language relating to a disturbance at a Catholic Church which resulted in the attendance of the Army.  The article was read to me by the interpreter.

34                  Whilst I accepted both documents, neither document is in fact relevant on this appeal and, in particular, to the sole ground of appeal.

35                  I explained to the appellant that he should endeavour to show me the information which he said was in the possession of the RRT which would be the reason or part of the reason for the RRT affirming the Minister’s delegate’s decision.  The appellant found the concept difficult.  First he told me that the RRT did not believe him, nor did the Federal Magistrate listen to him.  Next he said that the RRT did not accept as true the documents which he gave to the RRT.  He said the RRT failed to give him sufficient time to get further information.

36                  In an endeavour to give the appellant every opportunity to put anything which would support the ground of appeal, I put the proposition to him in a number of different ways on a number of different occasions.

37                  Eventually he said that the ground of appeal had been drafted by his friend and he was not able to add to it.  He said he wanted the matter to be returned to the RRT so that he could provide further information to the RRT.  Lastly he put that he made his application and instituted this appeal in an endeavour to save his life and he requested that the government save his life.

38                  In the end result, the appellant was not able to identify any information which the RRT had failed to provide him which might have been the reason or part of the reason for the RRT affirming the first respondent’s delegate’s decision.

39                  I have read the RRT’s decision and the Federal Magistrate’s reasons carefully and I am not able to discern any information which s 424A obliged the RRT to give to the appellant prior to reaching its decision which was not given.  The appellant is not able to identify such information and, in those circumstances, the appeal must be dismissed.  The appellant must pay the first respondent’s costs.

Associate:

Dated:         19 August 2010