FEDERAL COURT OF AUSTRALIA

MZYYW v Minister for Immigration and Citizenship [2013] FCA 476

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellants pay the costs of the First Respondent to be taxed in default of agreement.

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 decision of the Federal Magistrates Court (as it was then known) delivered on 11 December 2012 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the ‘Tribunal’).

2    The appellants are citizens of India who arrived in Australia in March 2008. On 20 April 2011 the appellants applied for protection visas. The second appellant is the wife of the first appellant (which I will hereinafter refer to as the ‘appellant’) and had no claims of her own. A delegate of the first respondent made a decision to refuse the applications for the visa on 25 October 2011.

3    On 21 November 2011, a review of the delegate’s decision was sought with the Tribunal. The Tribunal affirmed the decision of the delegate on 5 June 2012.

background

4    The appellant claimed that he was a member of the Dalit Seva Samaj (DSS) and the Congress Party. He claimed that he intervened in a dispute between lower caste members and higher caste members, but that the lower caste members were arrested, and that he had needed the assistance of another DSS member to secure their release. The appellant stated that he tried to file a complaint against the higher caste members with the police but they refused to accept it because the persons complained of were rich and of a higher caste.

5    The appellant stated that as a result of this incident the higher caste members threatened him and his family and demanded money. The appellant claimed that he agreed, after consulting his family, to pay the money demanded by the higher caste members, but that when he offered them the money, they refused and asked him to leave the area.

6    The appellant later learnt that the higher caste members were politically connected and had links with the mafia.

7    As a result of this ordeal, the appellant claimed that he had trouble recruiting lower caste workers for his business, and that his business was ultimately shut down.

8    On the question of relocation, the appellant told the Tribunal that it was difficult for him to relocate outside his state due to language barriers and the fact that the higher caste members had political networks country wide.

9    The Tribunal did not accept that the appellant was a member of the DSS or the Congress Party due to a lack of displayed knowledge about either organisation. The Tribunal accepted that the appellant intervened in a dispute between persons of a lower caste and higher caste, but the Tribunal found that the higher caste members targeted the appellant to get money from him and not for any Convention reason. Further, the Tribunal did not accept that the appellant sought the help of a DSS member to secure the release of the lower caste persons as it did not accept the appellant was a member of the DSS. The Tribunal did not find that there was a real chance of persecution if the appellant returned to India. The Tribunal further noted that when the appellant was studying for his IELTS test to apply for his student visa to Australia, he stayed living at his home in the village. The Tribunal concluded that this did not indicate a strong subjective fear of harm from higher caste members.

10    The Tribunal also considered the appellant’s claims under the complementary protection criterion. The Tribunal was not satisfied that the appellant would suffer significant harm on the basis that he was a member of the DSS or Congress Party as those claims were rejected. In relation to the claims based on his intervention of the dispute, the Tribunal found that the appellant had stayed at his home for six months after the incident without suffering any harm. Similarly there were no incidents when the appellant returned to India in mid-2010, although the Tribunal noted that the purpose of the trip was for a medical purpose and that the appellant had stayed in hospital for 17 days.

the proceeding before the federal magistrate

11    In their application, the appellants relied upon the following grounds:

1.    The Tribunal constructively failed to exercise its jurisdiction;

Particulars:

The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.

2.    The applicant 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.

3.    The RRT has failed to investigate applicant’s claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 5 June 2012 was effected (sic “affected”) by actual bias constituting judicial error.

12    In respect of the first ground, his Honour found that the appellant had provided medical certificates indicating that he returned to India in mid 2010 for medical treatment. His Honour found that the Tribunal considered and accepted those documents, and that consequently ground one was not made out.

13    His Honour held that ground two was an attempt to review the merits of the Tribunal’s decision which was not available on judicial review.

14    His Honour considered the authorities and found that the weight to be afforded to the evidence and the Tribunal’s credibility findings were factual matters for the Tribunal. His Honour found there was nothing “unreasonable” in the Tribunal’s findings. His Honour found that the Tribunal’s findings that the appellant did not meet the definition of a “refugee” were open to it for the reasons it gave. Accordingly, his Honour found that there was an attempt to review the merits, and ground two was unsoundly based and should be dismissed.

15    In response to ground three, his Honour held that it was for the appellant to make out his case before the Tribunal and that the Tribunal was not under a duty to enquire. His Honour found that the allegation of bias was not made out. His Honour noted that the findings of fact were reasonably open to the Tribunal and were not amenable to review.

16    For these reasons, the application was dismissed.

the appeal proceeding

17    The appellants’ notice of appeal set out the following grounds:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R 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 contained in the decision of the RRT.

18    I now turn to consider these two grounds.

Manifest unreasonableness

19    In order to establish the Tribunal’s decision was infected by error for unreasonableness or illogicality, the appellant would need to establish that no reasonable decision maker could have arrived at the Tribunal’s decision to refuse to grant him protection on the same evidence as was before the Tribunal; see for example, Ministry of Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ. The Tribunal was ultimately not satisfied that the appellant was a DSS or Congress Party Member because of the vague evidence he gave about these parties and his role within them at the hearing. Nor was the Tribunal satisfied the appellant faced any more than a remote chance of harm from upper caste members as the appellant had returned to India in 2010 without incident, he had delayed in leaving India after the initial incident, and he delayed seeking protection upon his arrival in Australia. The Tribunal found this conduct was inconsistent with the appellant holding a subjective fear of harm. These findings are all open to the Tribunal following its assessments of the appellant’s plans and evidence. The Tribunal’s decision was not a decision that no rational, logical decision maker could make or arrive at, on the same evidence. Accordingly, ground one is dismissed.

Legal and factual errors

20    Ground two makes no attempt to particularise the purported legal and factual areas the Federal Magistrate failed to consider. I can detect no factual or legal error in the Tribunal’s decision. Moreover, the Federal Magistrate considered each ground of judicial review raised by the appellant in the proceedings below, and there is no legal error in his Honour’s findings that none of the grounds gave rise to jurisdictional error in the Tribunal’s decision. Accordingly, ground two should be dismissed.

CONCLUSION

21    Therefore, as no error has been demonstrated in the judgment or approach of his Honour, the appeal is dismissed.

Associate:

Dated:    21 May 2013