FEDERAL COURT OF AUSTRALIA

MZYHF v Minister for Immigration and Citizenship [2010] FCA 1250

REASONS FOR JUDGMENT

introduction

1                     The appellant is a citizen of India who last arrived in Australia on 5 September 2008. On 29 September 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent (“the Minister”) refused the application for a protection visa on 26 November 2008. On 15 December 2008 the appellant applied to the second respondent (“the Tribunal”) for a review of that decision.  The Tribunal upheld the delegate’s decision not to grant a protection visa to the appellant.

2                     The appellant sought judicial review before the Federal Magistrates Court.  Having failed in the application, the appellant now seeks to appeal from the judgment of the primary judge in MZYHF v Minister for Immigration & Citizenship & Anor [2010] FMCA 600.

3                     The appellant’s claim for protection goes to multiple grounds of persecution. Chiefly, her claim is with respect to her political views (actual or perceived). The appellant claimed she was involved as a ‘joint secretary’ of the “Anti Dalit women group” which was involved in anti-rape and anti-dowry campaigns in India, particularly on behalf of members of the Dalit (the caste sometimes crudely referred to as “untouchable”). As a consequence of her involvement, the appellant claimed, her family home was attacked, her sister was raped and she received threatening phone calls.

4                     For the reasons that follow I have determined that the appeal should be dismissed.

Delegate of the minister

5                     The decision of the Minister’s delegate was notified under cover of a letter dated 26 November 2008. 

6                     The delegate found that the appellant’s claims were based on her membership of a social group (her belonging to a low caste), and her religion (her conversion to Christianity).  The Minister found that the harm feared by the appellant (that she may be raped or killed) is serious harm and systematic and discriminatory conduct as outlined in the Migration Act 1958 (Cth) (“the Migration Act).

7                     The delegate found that the appellant may have had a genuine fear of harm, but there is not a real chance of persecution occurring.  The Minister found that the appellant’s fear of persecution, as defined under the United Nations Convention Relating to the Status of Refugees(“the Convention”), is not well-founded.

8                     On that basis, the delegate was not satisfied that the appellant was a person to whom Australia has protection obligations requiring the grant of a Protection (Class XA) Visa.  Accordingly, the delegate concluded that there was no obligation to consider any other criteria prescribed in the Migration Regulations Schedule 2 Part 866.  

9                     The delegate was not satisfied that the appellant was owed protection for the purposes of s 36 of the Migration Act and criteria 866.221 of the Migration Regulations.  The delegate thus refused to grant a Protection Visa to the appellant.

decision of the Refugee review tribunal

10                  The appellant lodged her application for review on 15 December 2008, but did not provide any further information at that time.  On 14 January 2009, the Tribunal wrote to her, notifying her that it had considered all the available material and was unable to make a favourable decision on that information.  The appellant was invited to give oral evidence at a hearing of the Tribunal on 24 February 2009.

11                  The hearing was assisted by a Punjabi / English interpreter.  Prior to the hearing, the appellant produced two documents, one of which was an untranslated handwritten letter, described as “letter from relative”.  There was no translation provided, and it was not useful to the Tribunal in its untranslated form.  The Tribunal arranged for the letter to be translated.

12                  The Tribunal found that the appellant was not a truthful or reliable witness in relation to her claims. It found that the appellant’s evidence lacked credibility, was inconsistent, and on some issues her version of events changed significantly under questioning by the Tribunal.

13                  The Tribunal was not satisfied that the appellant was associated with an anti-dowry or anti-rape movement or similar activities. The particular cases in which the appellant claimed to be involved were high-profile cases, and while superficial information was provided about those cases, the Tribunal found that her evidence varied significantly and was inconsistent with the reported details in significant respects. Moreover, it seemed unlikely that at 17 years of age, the appellant would have been in a position of leadership so shortly after becoming involved in the “Anti Dalit women’s group”.

14                  The Tribunal did not accept that at the time the appellant first left India in July 2008, she had a well founded fear of persecution for reason of her political opinion (actual or imputed). Inconsistencies in the appellant’s evidence led the Tribunal to conclude that it was unreliable and lacking in credibility. The Tribunal stated its view that if the appellant genuinely feared harm or had been in hiding prior to July 2008, she would not have voluntarily returned to India from her travels to Australia and New Zealand after only 14 days (as she stated she had done).

15                  The Tribunal did not accept the appellant’s claim that she felt persecuted as a result of her caste or social standing, as there was no evidence to show those factors had resulted in any past serious harm. There was no assertion of any such activity directed towards her recently, and she was unable to identify any specific instances in which she experienced harm of a type that would amount to persecution.

16                  The Tribunal did not accept that the appellant had experienced past persecution because of her Catholic religion or because of her or her family’s religious conversion. This view was formed on the basis that there was no evidence to substantiate a claim of violence or threats of a kind that would substantiate persecution for the purpose of the Convention. Moreover, the Tribunal considered that if the appellant experienced any past mistreatment, she would not have willingly returned to her country after travelling to New Zealand and Australia in July 2008.

decision of the federal magistrates court

17                  An application was filed in the Federal Magistrates Court on 12 December 2009 for review of the decision of the Tribunal.  The grounds stipulated in the application were as follows:

1.         That the Tribunal’s decision was in breach of s 424A(1) of the Act.

  (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 (sic).

18                  These grounds are based squarely around allegations that natural justice was not afforded to the appellant at the Tribunal.

19                  The learned Federal Magistrate found that the first ground of appeal was not made out, on the basis that the Tribunal did comply with s 424A through provision of a comprehensive letter identifying the relevant information and explaining the information and concerns that it held. 

20                  With regards to the second ground, His Honour pointed to the time granted to the appellant to provide further material (which she did not take advantage of), and found that the Tribunal had relied upon country information, which was fully within its rights to do.  These factors went to the Federal Magistrate’s finding that the complaint of a lack of procedural fairness was not made out.

21                  The Federal Magistrate likewise found that the third ground was not made out.  The appellant claimed that she was denied natural justice, but the primary judge found that the Tribunal was not required to invite her to a further hearing.  No further information was provided, either in the appellant’s section 424A response or otherwise, that required a further hearing.  The appellant had not requested a further hearing.

22                  The view of the Federal Magistrate was that the Tribunal’s decision represents a clearly reasoned response to the appellant’s claims, and does not disclose any jurisdictional error.  The application was dismissed with costs.

Application to federal court

23                  The appellant lodged a notice of appeal in this Court on 1 September 2010, providing a single ground for review:

1.      The FM failed to find that the Tribunal’s decision was in breach of s424A(1) of the Act and therefore fall under jurisdictional error.

24                  The natural justice hearing rule is articulated in s 422B of the Migration Act and codified in Division 4 Part 7 of that Act.  The natural justice rule is confined to the provisions in Division 4 Part 7 of the Migration Act: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.  Division 4 includes s 424A.

25                  Section 424A provides as follows:

424A   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 non‑disclosable information.

26                  In substance, s 424A(1) provides that the Tribunal may obtain any information that it considers relevant in conducting the review, but that it must have regard to that information in the making of a decision. Section 424A also provides that a written invitation to provide information must be given to the appellant.

27                  In MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 at [34], I dealt with the requirements imposed on the Tribunal by s 424A and also s 424AA.  In that decision, I noted the policy and purpose of s 424A and s 424AA as expressed by the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415at [71]-[72].  Relevantly, the policy and purpose is that the Tribunal should be compelled to:

(a)        put the visa applicant on fair notice of critical matters of concern to the Tribunal;

(b)     ensure that the visa applicant understands the significance of those matters to the decision under review; and

(c)     give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

28                  Further, the nature and content of the obligations upon the Tribunal under s 424A(1) were recently summarised by Flick J in SZMTJ v Minister for Immigration and Citizenship and Anor (No 2) [2009] FCA 486.  I respectfully agree with his Honour’s observations at [52] that each of the requirements of s 424A are not to be treated as though they were divorced one from the next.  The greater degree of clarity in the particulars of any information provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant.

29                  In relation to s 424A(1)(a), Flick J at [45] emphasised that a visa applicant is to be provided with “sufficient specificity” of the information to be relied upon.  Language which fails to identify information with “sufficient specificity” and which fails to set out information “unambiguously” may fail to comply with s 424A(1)(a):  see for example MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J.

30                  In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A.  His Honour noted that prior versions of s 424A had referred merely to “particulars of any information”.  The requirement that “clear particulars” be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth).  As his Honour noted, that change in language cannot be ignored.  The change came at the same time that s 424AA was introduced and thus the facility provided to the Tribunal to communicate orally its intended reliance upon “information”, rather than in writing under s 424A.  Although the language of s 424A(1)(a) was also brought into line with that of paragraph (a) of s 424AA, it may be inferred that the change from “particulars” to “clear particulars” was somewhat motivated by the concern that extra care be taken in the giving of particulars, especially as particulars could now be given orally.

31                  As Flick J further noted at [44] of SZMTJ, s 424A(1)(b) imposes what has been said to be “strict requirements”.  His Honour referred to the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807, where Rares J said that
s 424A(1)(b) required the Tribunal to ensure, as far as reasonably practical, that it identified to the visa applicant why the information was relevant to the review.  Such an identification is necessary to avoid the visa applicant being left to choose between uncertain inferences that might otherwise be available.  The visa applicant needs to be told by the Tribunal why the information is relevant to the review.  That obligation is not fulfilled if the Tribunal leaves it to chance that the visa applicant appreciates the relevance of the information from the course of the hearing, or from other circumstances surrounding the way in which the review was being conducted: SZEOP at [36].  

32                  In the present case, the Federal Magistrate held that the Tribunal did comply with       s 424A.  I can see no error in that conclusion.  The s 424A letter put the appellant on fair notice of critical matters of concern to the Tribunal, ensured that the appellant understood the significance of those matters to the decision under review; and gave the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

33                  There is just one aspect of the reasons for judgment of the Federal Magistrate that causes me some small concern.  Paragraph [2] reads:

The grounds of the application are extremely familiar to the Court.  They are the same, even as to spelling errors, as those provided in a number of recent cases.  They were plainly not prepared by the applicant because she speaks no English.

While there is no express indication that the Federal Magistrate believes that the repetition of claims common to earlier cases goes to their validity, it is important that such an implication (if it is present) be rejected.  It is clear that a non-English speaking litigant in person in a migration case might seek help from any and every possible source.  It may be the case that many applicants seek assistance from the same source.  That claims are stated in identical terms to those in earlier cases on a similar subject matter is thus not surprising.  That situation should not, without more, be regarded as demonstrating some lack of bona fides.  If the matter referred to by the primary judge has been taken into account in determining the substantive application before him, it may constitute error.  However, I am not persuaded that paragraph [2] was anything more than a passing comment which played no part in the decision reached by the Federal Magistrate.  As such I find no error.

34                  I find that the appellant’s ground for appeal is not made out.  Accordingly, the appeal should be dismissed.  I will make orders dismissing the appeal and requiring the appellant to pay the Minister’s costs.

Associate:

Dated:         16 November 2010