FEDERAL COURT OF AUSTRALIA

MZYVA v Minister for Immigration and Citizenship [2013] FCA 50

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants 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 (Cth)

REASONS FOR JUDGMENT

INTRODUCTION

1    By a notice of appeal filed on 19 September 2012, the appellants appeal from a judgment of a Federal Magistrate who, on 6 September 2012, dismissed their application for judicial review of a decision of the second respondent (“the Tribunal”) made on 25 January 2012. The Tribunal affirmed a decision of a delegate of the first respondent (“the delegate”) made 28 June 2011, refusing the appellants’ application for a Protection (Class XA) visa.

2    On appeal, the first appellant appeared in person, assisted by a Gujurati interpreter. The second appellant is the wife of the first appellant and her application for a Protection visa depends upon his claims. Accordingly, in these reasons, unless otherwise indicated, “the appellant” refers to the first appellant.

FACTUAL BACKGROUND

3    The appellant, who is 28 years old, arrived in Australia on 18 August 2009, travelling on an Indian passport.

4    On 22 October 2010, he filed an application and supporting documentation with the Department of Immigration and Citizenship (“the Minister”) for a Protection (Class XA) visa.

5    On 20 April 2011, a delegate of the Minister invited the appellant to attend an interview on 4 May 2011. On 26 May 2011, the appellant provided further documentation in support of his visa application.

6    On 28 June 2011, the delegate decided to refuse to grant the appellant a protection visa, as the delegate was not satisfied that the appellants were non-citizens in Australia to whom Australia has protection obligations under the United Nations Refugees Convention of 1951, as amended by the Refugees Protocol of 1967.

7    On 20 July 2011, the appellant applied to the Tribunal for a review of the delegate’s decision.

8    On 24 August 2011, the Tribunal invited the appellant to appear before it in Mildura on 5 October 2011. After a number of adjournments, the Tribunal hearing was held on 17 January 2012.

9    At the Tribunal hearing on 17 January 2012, the appellant, assisted by an interpreter, gave evidence in support of the application. On 23 January 2012, the appellant provided a written response to the Tribunal’s request at the hearing for information pursuant to s 424AA of the Migration Act 1958 (Cth) (“the Act”).

10    On 25 January 2012, the Tribunal affirmed the delegate’s decision.

11    Before the Tribunal, the appellant principally claimed that he feared for his life if he returned to India, as he would be killed by people from, or associated with, the Bharatiya Janata Party (“BJP”), other Indian political parties or underworld gangs. The appellant claimed that in two separate incidents at his clothing shop, in September and December 2008, he was physically harmed by persons associated with the BJP or others because of his political beliefs. The appellant claimed that on the first occasion, a number of men came into his shop, refused to pay for clothes and grabbed him by the collar. The appellant claimed that in the second incident, several men who entered his shop slapped and verbally abused him for his work with the Congress party.

THE TRIBUNAL’s decision

12    The Tribunal accepted that the appellant was a citizen of India. The Tribunal expressed significant concerns about the appellant’s credibility, due to the inconsistencies between his written and his oral evidence, and because his written claims were 90-95% identical to another set of claims which were before the delegate. The appellant’s explanation of the identicality did not satisfy the Tribunal.

13    The Tribunal also expressed concerns about the delay between the appellant’s arrival in Australia and the lodgement of his visa application. Having considered the appellant’s explanation, the Tribunal stated that when combined with its overall concerns about the appellant’s credibility, the delay caused it to doubt that he had a well-founded fear of persecution.

14    The Tribunal accepted that the appellant was a Congress Party supporter who was involved in canvassing for that party in 2007 and 2008. It found, however, that his oral evidence did not support his written claims that people from the BJP had tried to kill him on many occasions.

15    Due to the significant inconsistencies between the appellant’s oral evidence, his written statement and the supporting documents, the Tribunal did not accept his claims about the alleged incidents in September 2008 and December 2008.

16    The Tribunal found that the appellant’s oral evidence about the details of the incident on 28 September 2008, including the persons allegedly present, was inconsistent with his written statement and supporting documents. Due to the inconsistency combined with its other concerns about the appellant’s credibility, the Tribunal concluded that the relevant incident did not occur as claimed.

17    The Tribunal gave little weight to the evidence of two persons who claimed to have been present at the incident on 1 December 2008, as it was directly contradicted by the evidence of the appellant himself, who stated that they were not present. Due to the inconsistencies between the appellant’s oral evidence, his written statement and the supporting documents, the Tribunal concluded that the alleged incident on 1 December 2008 did not occur.

18    The Tribunal gave little weight to the second appellant’s evidence about the incidents in September 2008 and December 2008, due to its overall concerns about the appellant’s credibility and veracity. The Tribunal accepted the appellant’s father’s evidence about incidents that occurred in Ridrol in 2010, but did not consider that it was relevant to the appellant, who was in Australia at the time.

19    The Tribunal did not accept that the appellant had been harmed or mistreated in the past by the BJP or any other person due to his political opinions. Having considered information, including country information presented by the appellant, the Tribunal did not accept that his role in canvassing for the Congress Party in 2007 and 2008 would have made him of interest to the BJP.

20    At [94] of its reasons, the Tribunal stated that it did not accept, on the evidence before it, that the appellant’s profile would give rise to a real chance that he might suffer serious harm in the foreseeable future on the basis of his political beliefs should he return to India. The Tribunal found that there was no real chance that the appellant would face persecution by reason of his actual or imputed political beliefs or any other Convention reason, if he returned to India now or in the reasonably foreseeable future. It concluded that the appellant did not have a well-founded fear of persecution for a Convention reason.

21    As the second-named appellant did not make her own claims, and none had arisen on the evidence before it, the Tribunal concluded that there was no real chance that she would be subjected to serious harm if she returned to India, now or in the reasonably foreseeable future, by reason of the appellant’s political beliefs or for any other Convention reason.

22    The Tribunal concluded that it was not satisfied that the appellants were persons to whom Australia had protection obligations under the Refugees Convention. It concluded that they had not satisfied the conditions for a protection visa set out in ss 36(2)(a) and (b) of the Act. Accordingly, the Tribunal affirmed the decision under review, refusing to grant the appellants a Protection visa.

THE FEDERAL MAGISTRATE’S DECISION

23    In reasons for decision given on 6 September 2012, the Federal Magistrate considered the following grounds of the application for review:

1.     … it become imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.

2.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

3.    The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

4.    The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 25 January 2011 was effected by actual bias constituting judicial error.

24    The Federal Magistrate found that ground 1 was not made out, there was no information that enlivened s 424A(1) of the Act. His Honour found that the information upon which the Tribunal based its finding adverse to the appellant was either put to him at the hearing in accordance with s 424AA, or fell within the exceptions in s 424A(3). His Honour referred, in that context, to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [88].

25    His Honour found that the Tribunal complied with its obligations under s 425 of the Act. His Honour referred, in that context, to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [33] - [37].

26    The Federal Magistrate concluded that the Tribunal had complied with its statutory obligations and its decision was not affected by jurisdictional error.

27    The Federal Magistrate found that ground 2 was not made out, as the Tribunal demonstrated that it had discharged its statutory obligations and had arrived at a decision that was open on the material before it. His Honour found that the Tribunal had correctly articulated the applicable legal framework, considered the appellant’s evidence and country information, and had arrived at conclusions based upon its assessment of that evidence.

28    His Honour observed that the Tribunal’s credibility findings significant to the outcome of the case were findings of fact, and a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [64] - [67]) which were uniquely within its jurisdiction, rather than that of the Court: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291.

29    His Honour found that as the Tribunal, on the material before it, was unable to be satisfied that the appellant was a person to whom Australia had protection obligations, it had no option but to affirm the delegate’s decision. His Honour referred, in that context, to SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16] and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]-[17].

30    His Honour found that ground 3 was not made out, as the Tribunal was aware of the legal framework, including the requisite satisfaction required under ss 65(1), 36(2)(a) and (b) of the Act, the elements under Article 1A(2) of the Refugee Convention and s 91R of the Act. His Honour found that the Tribunal considered the appellant’s claims and evidence. Further, its decision was open on the evidence before it, and was not affected by jurisdictional error.

31    His Honour found that ground 4 was not made out. He observed that it was not the Tribunal’s role to investigate, save in exceptional circumstances, which did not apply in the present case. His Honour noted that the Tribunal was not required to make the appellant’s case for him, nor uncritically to accept any or all of his claims (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 551; Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191). His Honour was satisfied that the Tribunal had considered the appellant’s claim and evidence before making its findings and conclusions.

32    His Honour found that there was no evidence to substantiate the appellant’s claim that the Tribunal’s decision was affected by actual bias: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.

33    The Federal Magistrate concluded, at [32] of his reasons, that the appellant had failed to demonstrate jurisdictional error by the Tribunal, and that its decision was a privative clause decision. He dismissed the application for review.

THE APPEAL

34    The notice of appeal filed 19 September 2012 states the following grounds:

1.     The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the appellants claim and ignoring the aspect of persecution and harm in terms of Sec.91 R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Magistrate has dismissed the case without considering the legal and factual errors in the decision of the RRT.

35    The appellant filed no written submissions in support of his appeal.

36    At the hearing of the appeal, the appellant stated that the Tribunal failed to consider that he wished to stay in Australia only for a short time until the forthcoming election in India. He submitted that there was evidence that political candidates could be beaten and that hostilities could occur during elections.

Ground 1

37    In my opinion, ground 1 is not established. There is nothing to suggest the Tribunal acted in a “manifestly unreasonable way” when dealing with the appellant’s claim or ignored “the aspect of persecution and harm” in s 91 R of the Act. Nor were the appellant’s oral submissions that the Tribunal failed to consider other specified claims or evidence soundly based.

38    I have read the Tribunal’s reasons, which demonstrate that it discharged its statutory obligations and arrived at a decision that was open on the material before it. As the Federal Magistrate observed, the Tribunal correctly articulated the relevant legal framework, including the requirements of ss 65(1), 36(2)(a) and (b) of the Act, Article 1 A(2) of the Refugee Convention and s 91R of the Act.

39    The Tribunal considered in detail the appellant’s evidence and claims. Due to inconsistencies between the appellant’s oral evidence, his written statement and the supporting documents, the Tribunal did not accept that the incidents on 28 September 2008 and 1 December 2008 occurred as claimed or that there was a real chance that the appellant would suffer serious harm in the reasonably foreseeable future by reason of his political beliefs or any other Convention reason, should he return to India.

Ground 2

40    In my opinion, ground 2 is not established. Contrary to the appellant’s allegation, the Federal Magistrate’s reasons establish that his Honour gave detailed consideration to the Tribunal’s reasons and findings. His Honour considered sequentially and in detail each ground of the application for review, and ultimately found, persuasively, that the Tribunal’s decision was not affected by jurisdictional error.

CONCLUSION

41    In my opinion, the Federal Magistrate’s decision was not affected by any legal, factual or discretionary error. The appeal should be dismissed.

Associate:

Dated:    6 February 2013