FEDERAL COURT OF AUSTRALIA

MZYGV v Minister for Immigration and Citizenship [2010] FCA 1032

REASONS FOR JUDGMENT

1                                             This appeal is from the judgment of the Federal Magistrates Court of Australia given on 30 April 2010 and published as MZYGV v Minister for Immigration and Anor [2010] FMCA 288.  The learned federal magistrate dismissed an application by the appellant, seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal, which is the second respondent to this appeal, affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”), the first respondent to the appeal, to refuse to grant the appellant a protection visa. 

2                                             By s 36 of the Migration Act 1958 (Cth), there is a class of visas to be known as protection visas.  A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  It is convenient to call those two instruments, taken together, the “Convention”.  For present purposes, it is enough to say that Australia has protection obligations pursuant to the Convention to a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country

3                                             The appellant is a citizen of India, who arrived in Australia on 9 July 2008 as the holder of a tourist visa, for the purpose of attending World Youth Day.  On 31 October 2008, he applied for a protection visa.  The decision of the Minister to refuse to grant that visa was made by the Minister’s delegate on 19 December 2008.  The appellant then applied to the Tribunal for review on the merits of that decision.  The Tribunal’s decision was dated 30 September 2009, and was handed down or forwarded to the appellant on 1 October 2009.

4                                             The appellant claimed to have a well-founded fear of persecution, if he should return to India, for reasons of his religion and his political opinion.  In his application for a protection visa, he also claimed to be a member of a backward class of society, which the Tribunal took to mean that he claimed to have a well-founded fear of persecution for the reason of his membership of a particular social group. 

5                                             The Tribunal conducted hearings on two occasions, 10 March 2009 and 8 April 2009.  The appellant attended both and gave evidence and made submissions with the assistance of an interpreter in the Punjabi language.  Following the second of these occasions, the Tribunal wrote to the appellant in an attempt to comply with s 424A of the Migration Act, providing him with particulars of certain information that it thought might be the reason or part of the reason for affirming the decision of the Minister’s delegate, advising the appellant why that information was relevant to the Tribunal’s review and the consequences of it being relied on to affirm the decision under review, and invited the appellant to comment on or respond to that information.  The appellant replied in writing on 15 May 2009, in relation to the information to which the Tribunal referred.  The Tribunal also relied on a substantial amount of information from sources other than the appellant about the situation in India, being information that bore upon the claims made by the appellant.

6                                             In its reasons for decision, the Tribunal dealt with the appellant’s claims under four headings.  The first heading dealt with the appellant’s religion and his attendance at World Youth Day in Australia.  The Tribunal accepted that the appellant is a member of the Catholic faith and of a particular congregation.  It did not accept that he had experienced persecution for that reason, or because he may have converted from the Hindu religion some years ago.  It did not accept that he would face a real chance of persecution for the reason of his religion, if he should return to India in the reasonably foreseeable future.

7                                             The principal reason for the Tribunal’s lack of acceptance of the appellant’s claims was substantial inconsistencies in different accounts that he gave in his original application for a protection visa, and at the two hearings conducted by the Tribunal.  In particular, there were omissions from earlier accounts that the appellant claimed to have been remedying later on, but were matters that the Tribunal felt would not have been omitted if they were true.  Most notably, the appellant produced to the Tribunal a medical record concerning his loss of four fingers in 2004.  He claimed that he had lost those fingers as a result of a religiously motivated attack by five or six members of an extremist group.  The Tribunal relied on the appellant’s failure to mention this incident in his earlier account.  It did not accept that the appellant failed to mention the incident because he did not have documentary evidence for it.  The Tribunal relied on the fact that the appellant had mentioned a later attack, for which he also had no documentary evidence.  The Tribunal also pointed out that the document the appellant produced did not say anything as to the cause of the injury the appellant suffered. 

8                                             Under the second heading, the Tribunal dealt with the ground of the appellant’s political opinion and his association with the Congress party.  It accepted that the appellant was involved in recruiting and promotion activities for the Congress party in his local area.  It accepted that he supervised other party workers, collected funds, enrolled new members, distributed flyers and other material, and organised processions and meetings.  It accepted that, during and after the 2007 election campaign, the appellant worked for a particular Congress party candidate.  The Tribunal did not accept that the appellant was a high profile member of the Congress party, or held any senior or leadership position.  It reached this conclusion largely on the basis of the appellant’s own description of his political activities.  The Tribunal therefore did not accept that the appellant was of interest to extremist organisations for the reason of his political activities or that he was targeted or attacked by members of those organisations.

9                                             The Tribunal referred to an inconsistency between accounts of the injuries the appellant said he had suffered as a result of a particular attack in January 2007.  The Tribunal accepted that there may have been some intimidation by opponents of the Congress party, but did not accept that such intimidation amounted to serious harm of the type contemplated by s 91R(2) of the Migration Act, so as to constitute persecution.  The Tribunal also rejected the appellant’s account of an attack on his house involving his wife, sister-in-law and mother.  In addition, the Tribunal accepted the appellant’s evidence that he proposed no longer to be involved in political activities if he were to return to India.  It therefore did not accept that he would be pursued for his past involvement in low-level political activities.

10                                          Under the third heading, the Tribunal dealt with a particular claim of the appellant in relation to his political opinion.  It rejected a claim that he was a member or supporter of an organisation known as Dera Sacha Sauda.  The appellant had disavowed that he was a member or supporter of this organisation in his evidence to the Tribunal.  The Tribunal did accept that the appellant had an association with the spiritual leader of that organisation by reason of association with the Congress party.  The Tribunal also accepted that the appellant attended a meeting in May 2007, as a result of which violence erupted.  Sikhs were upset by the spiritual leader dressing as a Sikh guru, and inflicted violence on members of the Congress party and the organisation concerned.  The Tribunal did not accept, however, that the appellant was attacked as a consequence of attending that meeting.  This was because of inconsistencies in the various accounts the appellant gave, which were critical to his claims, and his vagueness about the timing of the event.

11                                          Under the last heading, the Tribunal dealt with the claim, made but not pursued by the appellant, that he feared persecution because of a membership of a backward class or low caste.  The Tribunal recognised the possibility that the appellant may have experienced some instances of past discrimination because of class or caste but, in the absence of any allegation of harm for this reason, did not accept that he had experienced persecution.

12                                          The Tribunal found that the appellant had been educated and employed in regular work before leaving India, and would continue to be employed if he returned to India.  Nor did it accept that the reason for the appellant’s decision to travel to Australia was in any way related to fear of harm in India for reasons of actual or imputed political opinion, race, religion or membership of any particular social group.  The Tribunal did not accept that the appellant was a credible witness in respect to the circumstances of his decision to leave India.

13                                          The appellant’s application to the Federal Magistrates Court was in a form described by the federal magistrate as a template, consistent with a number of others that the federal magistrate had seen, even as to spelling and grammatical errors.  The application raised an unspecified allegation of a failure by the Tribunal to comply with s 424A of the Migration Act, by relying on adverse information not disclosed to the appellant.  The grounds also made allegations of error of law, lack of procedural fairness, jurisdictional error, denial of natural justice and “failed to provide further opportunity before the tribunal [sic].”

14                                          In his reasons for judgment at [13], the federal magistrate referred to a finding by the Tribunal that the appellant’s evidence was inconsistent, vague, imprecise and, at times, implausible.  The Tribunal’s finding also included the appellant’s inability to provide detail or consistency around key aspects of his circumstances.  At [15]-[16], the federal magistrate rejected the ground based on s 424A of the Migration Act, on the basis that the Tribunal had complied with that provision as to certain information.  Other information was supplied by the appellant during the process leading to the decision of the Minister’s delegate and was therefore excluded from any obligation under s 424A(1) by s 424A(3)(ba).  The Tribunal also referred to information that was excluded from any such obligation by s 424A(3)(a) of the Migration Act.  At [17]-[18], the federal magistrate referred to the absence of any basis for any allegation of denial of procedural fairness or of denial of natural justice.

15                                          At [19]-[22], the federal magistrate dealt with matters that the appellant had raised in oral submissions before the Federal Magistrates Court.  These involved references to the loss of his fingers and other injuries, to the allegations that he had been attacked twice by members of an extremist organisation, and to his provision of medical evidence.  The federal magistrate described these as matters relating solely to merits review.  His Honour said there was nothing to suggest that the Tribunal failed to have regard to the matters the appellant put before it.  At [22], his Honour also rejected any suggestion of a failure to comply with s 425 of the Migration Act by failing to provide a hearing of the required kind.  At [23], his Honour described the application as “wholly unparticularised.”  His Honour concluded that none of the grounds asserted was made out.  At [24], his Honour said:

having read the Tribunal’s decision, I am of the clear view that the Tribunal was well-seized of the task it was being required to perform and did not in any way fall into jurisdictional error

16                                          The appellant’s notice of appeal, filed in this Court, contains only a single ground of appeal, referring to s 424A of the Migration Act.  The document does not itself refer to any particular information that is alleged to fall within the Tribunal’s obligations under s 424A(1) of the Migration Act.  Although the notice of appeal seeks a grant of leave to include additional grounds, no such additional ground has been suggested.  When I asked the appellant to make submissions that would assist him to succeed in his appeal, his principal concern was to argue the merits of his claim for a protection visa.  He referred to the fact that he had supplied documentary evidence to the Tribunal in support of his claim about the incident in which he lost his fingers.  I drew to his attention the portion of the reasons for decision of the Tribunal in which the Tribunal dealt with that documentary evidence.  I attempted to press the appellant for a reference to some information he said the Tribunal had relied on without first providing the appellant particulars of that information, an indication of its relevance and an opportunity to respond or comment.  The appellant was unable to refer to any such information on which the Tribunal relied.

17                                          The appellant expressed the hope that a lawyer might be able to assist him to make good his appeal.  I drew to his attention the fact that the federal magistrate had failed to find any ground on which the appellant might succeed.  I also indicated to him that I am unable to see any ground on which he might succeed.  Counsel for the Minister referred to a letter sent to the appellant on behalf of the Minister, advising him of various organisations which might assist him by giving him legal advice.  The appellant then said that he had shown his documents to a lawyer who had told him that his case was not strong.  In these circumstances, there would seem to be no point in adjourning the hearing of the appeal to enable the appellant to obtain further legal advice.

18                                          It is not surprising that the appellant did not have a complete grasp of the function of this Court in a case such as this.  I endeavoured to explain to him that neither the Federal Magistrates Court nor this Court has the power to make changes to the facts as found by the Tribunal.  The functions of the Federal Magistrates Court and this Court are limited to determining whether there has been error on the part of the Tribunal in relation to the application of the law or the failure to provide correct process.  Errors of this kind are described as jurisdictional errors.  Jurisdictional errors mean that the Tribunal has failed to perform its statutory function and must be required to perform it again correctly.  There is no room on an application for judicial review to the Federal Magistrates Court, or on appeal to this Court, for argument that the Tribunal has reached wrong conclusions of fact.

19                                          For these reasons, the appellant’s appeal must be dismissed. 

20                                          Counsel for the Minister has asked for an order for costs against the appellant.  The appellant has been unable to advance any reason why the usual principle, that costs follow the event, should not apply.  It follows that I should order that the appellant pay the Minister’s costs of the appeal.

21                                          The orders of the Court are:

1.         The appeal be dismissed. 

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

Associate:

Dated:         21 September 2010