FEDERAL COURT OF AUSTRALIA

MZYMV v Minister for Immigration and Citizenship [2012] FCA 171

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate (MZYMV & Minister for Immigration and Citizenship [2011] FMCA 907) in which the Federal Magistrate dismissed the appellant’s application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) visa (“Protection Visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3     The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

4    For the reasons that follow, I have determined to dismiss the appeal.

BACKGROUND

5    The appellant is an Indian citizen who arrived in Australia on 5 May 2007 on a subclass 572 visa. On 25 August 2010 the appellant lodged an application for a Protection visa with the Department of Immigration and Citizenship on the grounds that he feared harm and persecution in India because of his political activity. The appellant is of the Sikh religion and claimed to be a member of the Akali Dal political party. He made numerous claims about his related political activity, and the alleged resultant persecution, set out at [25] of the Tribunal’s decision. The appellant made the following claims:

    he spoke out against atrocities committed by the Indian Army when it raided the Golden Temple of the Sikh religion, and many hundreds of thousands of people were killed;

    between 1987 and 1983 there were genocidal killings of young Sikhs and the appellant “from different platforms raised his voice”;

    he continuously insisted on investigations and demanded an inquiry;

    he became very famous in relation to his speeches and those speeches were greatly admired by the Sikh population;

    the Indian authorities never investigated the (unspecified) matter;

    he was harassed by authorities many times in different ways;

    he had proved in public, and at general meetings, that in 1984 the Indian authorities had never investigated the massacre of the Sikhs;

    Indian intelligence agencies accused the appellant of being a Pakistani agent or spy;

    he and his family were under constant harassment;

    he is a person of interest to (unspecified) societies; and

    he was tortured and had undergone a lot of persecution and is unable to get protection.

6    A delegate of the first respondent (“the delegate”) invited the appellant to attend an interview to provide more information regarding his claims. The appellant failed to attend the interview with the delegate, and the delegate refused to grant a Protection visa to the appellant on the basis that in the appellant’s absence, it was not possible to test the credibility of his submitted claims. The appellant then applied to the Tribunal for a review of the delegate’s decision. The appellant was invited to appear at a hearing before the Tribunal, however, the appellant failed to attend the Tribunal hearing.

THE TRIBUNAL’S DECISION

7    The Tribunal did not accept that the appellant had a well founded fear of persecution should he be returned to India. The Tribunal noted that the appellant had provided few details concerning his claims, had not attended the hearing, and given that the Tribunal was unable to question him, his claims were left unclarified. Consequently, the Tribunal at [34] did not accept the appellant’s claim that he was a member of the Akali Dal political party, or his claimed activities, or the harm and persecution which the appellant relied upon.

8    On 4 May 2011 the Tribunal affirmed the decision under review and dismissed the appellant’s claims.

THE FEDERAL MAGISTRATE’S DECISION

9    The appellant initially lodged an application in the Federal Magistrates Court relying on four asserted grounds of review and subsequently lodged a letter headed “Amended Application”. In summary, the grounds of review asserted in the initial application were that:

1.    The appellant’s case was not heard according to law, and a jurisdictional and legal error had been made because the appellant had supplied all relevant information to his claim.

2.    There was a complete failure on the part of the Tribunal to take into account the atrocities and the persecution which the members of the Akali Dil Mann group had suffered, including a failure to consider country information on that subject.

3.    By reference to a wide range of facts and circumstance the appellant and his family had been harassed and persecuted and the appellant’s life was in danger from the Indian authorities.

4.    There had been a legal error coupled with a jurisdictional error as the decision makers had heavily relied on the findings of the Minister’s delegate. The Tribunal did not apply an in depth assessment of the appellant’s claims. The appellant was unable to appear before the Tribunal as no interview letter was sent to the appellant’s address.

10    The appellant’s “Amended Application” sets out alleged facts in relation to the history of persecution faced by Sikh’s in India by the Hindu majority, and again sets out the appellant’s claims, summarised at [5]. In addition, in the “Amended Application”, the appellant claimed that the Tribunal erred by drawing adverse inferences against him as a result of his failure to appear at the interview.

11    The Federal Magistrate dismissed each of the grounds relied upon by the appellant. Grounds 1 to 4, which I have summarised above, are not pursued on this appeal and it is only necessary that I explain the manner in which the learned Magistrate dealt with the contents of the “Amended Application”.

12    In relation to the “Amended Application”, the Federal Magistrate identified two further grounds. He identified ground five as constituting a wide range of asserted facts relating to the history of the persecution of Sikhs, the Akali Dal, and the appellant, which the Magistrate regarded as an impermissible invitation to review the merits of the Tribunal’s decision. In relation to the sixth ground identified from the “Amended Application”, being that the Tribunal erred by drawing adverse inferences against the appellant as a result of his failure to appear at the interview, the Federal Magistrate dismissed this ground on the basis that the Tribunal had not rejected his claims simply because he had not appeared, but had reviewed the written material before it and given its content was not satisfied to the requisite standard that the claims were established.

13    The Federal Magistrate dismissed the application.

GROUNDS OF APPEAL IN THIS COURT

14    On 11 November 2011 the appellant filed a Notice of Appeal in this Court. The grounds of appeal are relevantly identical to the letter filed as the “Amended Application” in the Federal Magistrates Court, discussed above at [10].

15     At the hearing on 27 February 2012, the appellant was self-represented. The appellant relied on written submissions filed on 10 February 2012. Those submissions are identical to the appellant’s grounds of appeal.

16    All but the last sentence of those grounds comprise alleged factual information regarding persecution of the Sikh’s and a restatement of the appellant’s claims summarised at [5]. There is no reference to any particular error in the decision of the Federal Magistrate or how the Tribunal’s findings constitute jurisdictional error. I agree with the Federal Magistrate’s reasons at [16] to [17], that this material merely amounts to an attempt by the appellant to have the merits of the Tribunal’s decision reviewed. It is neither the role of the Federal Magistrates Court nor of this Court to review the merits of the appellant’s claims: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ).

17     The last sentence of the grounds of appeal may be treated as an allegation that the Federal Magistrate erred in failing to find that the Tribunal erred by drawing an adverse inference against the appellant based on the appellant’s failure to attend the Tribunal’s hearing. Again, I am unable to find any error on the part of the Federal Magistrate. I agree with the Federal Magistrate’s reasons at [18]-[20]. There is no basis for the claim that the Tribunal drew any adverse inference against the appellant based on his failure to appear at the hearing. At [33] the Tribunal states merely that it was unable to question the appellant in relation to his claims leaving his claims unclarified, and at [34] the Tribunal notes that it did not accept the appellant’s claims because the appellant had provided “so few details concerning his claim…”. In the absence of supporting oral evidence from the appellant, the Tribunal was entitled to find that it was not satisfied that the appellant’s claims were established: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] (French, Emmett and Dowsett JJ). There is no requirement for the Tribunal to accept an appellant’s claims at face value, and the weight to be given to any such claims is a matter for the Tribunal to assess as part of its fact finding function: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282.

18    I can find no error in the approach taken by the Federal Magistrate in reviewing the Tribunal’s decision.

DISPOSITION

19    For those reasons the appeal must be dismissed. The appellant should pay the first respondent’s costs of the appeal. I will make orders to that effect.

Associate:

Dated:    2 March 2012