MZWOG v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from the decision of the Federal Magistrates Court dismissing the appellant's application to review a decision of the Refugee Review Tribunal affirming a delegate's decision to refuse him a protection visa. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 the Chief Justice has determined that this appeal be heard and determined by a single judge. 2 The appellant did not appear at the hearing of the appeal. There is no doubt that he was aware that the appeal was to be heard today. He had, however, filed contentions of fact and law which I have considered. I acceded to the Minister's application that I proceed with the hearing of the appeal pursuant to order 52, rule 38A(1)(d). In the circumstances the appellant has been heard, though he has not availed himself of the opportunity to support his written contentions orally. 3 The appellant's claims and the Tribunal's reasons for rejecting them are contained in its written reasons. Those claims and reasons are also summarised in the Magistrate's reasons for decision. It is not necessary to repeat them here. It will be sufficient, when considering the grounds of appeal, to refer to those parts of the Tribunal's and the Magistrate's reasons that are relevant thereto. 4 There are three grounds of appeal. They are the same as those propounded before the Magistrate: "(a) It is an irrelevant consideration that the Lok Dal Party did not have a wide national following. My fear of persecution was primarily in the state of Haryana. The fact that threats had been made to me, but had not been acted upon is an irrelevant consideration. (b) The Tribune newspaper which was relied upon by me which the Tribunal considered was a fake has another namesake and this should have been taken into consideration when coming to its decision. (c) The issue of relocation was not dealt with as outlined in the full court case of Randhawa. The tribunal should have considerd whether I would be able to relocate to one of the areas within my own state or to another state." 5 For reasons that will become apparent, it is appropriate to deal with ground (b) first. As to this, the Magistrate said: "Whilst the applicant before this Court may seek to explain … the difficulties with the newspaper reports, I am satisfied on the material before me, including those parts of the Refugee Review Tribunal's decision referred to earlier in this judgment, that the applicant was given every opportunity to make comment on the newspaper articles and the RRT had clearly raised to the extent that it was obliged to do so the prospect that it may make a finding that the newspaper articles sought to be relied upon by the applicant were fakes." 6 There were two newspaper articles in question. As to the first, the Tribunal said: "[The applicant] was asked where he had obtained this photocopy [of the article] and said that the newspaper came to his home. The applicant was advised that the Tribunal had obtained a copy of the front page of the same newspaper from the National Library of India. The copy that the Tribunal had obtained did not contain the article relating to him. In its place there was an article relating to the relics of Bamiyan Buddha on sale. It was put to the applicant that this suggested to the Tribunal that the copy he had provided to the Immigration Department was a fake. He was asked for his comments and he said he was surprised." 7 As to the second article, the Tribunal said: "On 22 January 2003 the Tribunal received a copy of page 8 of The Tribune from Tuesday 13 February 2001 from the National Library of India. On 4 February 2003 the Tribunal forwarded it to the applicant advising him that it was very different from the page he provided to the Department that purported to be a copy of the same page. It was also pointed out to the applicant that the copy provided by him contained several articles that had a date of 1 April. He was advised that the Tribunal may reach the conclusion the copy provided by him was a fake. He was invited to comment on this information. As at the date of decision no response had been received from the applicant to this letter." 8 Later in its reasons the Tribunal said it had asked the appellant to provide the originals of the articles, but he had not done so. The Tribunal found that each article was a fake. It found that the applicant had submitted fraudulent documents with his application. 9 Having set out the above passages the Magistrate said that the appellant conceded that the fake newspapers issue had been brought to his attention by the Tribunal, and that he did not then "volunteer an explanation that the newspapers may have been different editions in different regions or states". 10 The claim that in deciding that the newspaper articles submitted by the appellant were fakes the Tribunal should have taken into consideration the fact that the newspaper "has another namesake" cannot be accepted. The Tribunal put to the appellant its concerns about the authenticity of the articles provided by him. As to the first of them, his response was that he was "surprised". As to the second, he did not avail himself of the opportunity to allay the Tribunal's concerns. He did not reply to its letter. The "consideration" that was said to have been neglected by the Tribunal was not put to it. Its fact finding, based on the material before it and the appellant's failure to provide an explanation, cannot be impugned by reference to material later put to the Magistrate. That is what the Magistrate intended to convey by the passage set out at [4], though the matter is expressed in a somewhat different way. The essential point is that the Tribunal does not commit a jurisdictional error by failing to take into account a relevant consideration, unless that consideration was raised by the material before it. 11 I turn to the third ground of appeal, the issue of relocation. The Tribunal's reasons for its conclusion that the appellant did not have a well founded fear of persecution was expressed as follows: "The Tribunal accepts that the applicant was involved with the Indian National Congress Party. It accepts that if he was instrumental in orchestrating a second election because of allegations of fraud in two seats against the Indian National Lok Dal Party, … members of the Indian National Lok Dal Party may wish to take revenge against him. The Tribunal would however have expected the applicant to have been able to provide some newspaper cuttings of information about the subsequent election that was held as a result of fraud or some report in the sources the Tribunal has consulted. However, the Tribunal does not accept that members of this Party are attempting to kill the applicant or force him to leave the Party. The Tribunal accepts that the applicant may have received telephone threats, but these threats have not been acted upon. The applicant remained in Haryana for a lengthy period of time and was not harmed by members of the Indian National Lok Dal. Further, the applicant obtained the protection of the police in India. The Tribunal finds that the applicant has exaggerated the extent of the threats from the INLD. The Tribunal therefore finds that although he may have been subject to threats by the Indian National Lok Dal Party there is no real chance that he will be persecuted by members of that Party and his fear of persecution is not well founded." 12 It was accordingly unnecessary for the Tribunal to deal with the issue of relocation, and nothing would have turned on any error it may have made in its consideration of that question. However, it made no error. The fact that it did not refer to Randhawa v MILGEA (1994) 52 FCR 437 is neither here nor there so long as it correctly understood and applied the law on relocation, which it did. 13 The first sentence of the first ground of appeal is related to the third ground. It was in connection with its consideration of relocation that the Tribunal said: "Further, even if the applicant was at risk from members of the Indian National Lok Dal Party, the Tribunal notes that it is only in his home state of Haryana that the Indian National Lok Dal Party is strong and in power. The Tribunal does not accept the applicant's assertion that the Party operates in other States under different names." As I have said, in view of its conclusion that the appellant did not have a well‑founded fear of persecution if he returned to his home state, the Tribunal did not need to consider relocation. However it did so, and it was plainly relevant for it to take into account that the Party the appellant feared was strong and in power only in Haryana. 14 The second sentence of the first ground of appeal may be accepted. However, the claim in the third sentence that the fact that the threats that may have been made to the appellant had not been acted on was an irrelevant consideration cannot be accepted. The passage in the Tribunal's reasons where this matter is dealt with is set out at [10]. The relevance of that consideration, in its context with the other considerations there set out, is obvious. 15 There is no substance in any of the grounds of appeal. In his written submissions, the appellant adds a matter not covered by the grounds. This is that having accepted that the appellant was instrumental in orchestrating a second election because of allegations of fraud in two seats against the Indian National Lok Dal Party, with the result that members of that Party may wish to exact revenge against him, the Tribunal nevertheless said it would have expected him to have provided newspaper cuttings about the subsequent election held as a result of fraud. As is apparent from the passage set out at [10], the appellant has misread the Tribunal's reasons. On a fair reading, the Tribunal did not accept that the appellant was instrumental in orchestrating a second election. This was because the appellant had not provided newspaper reports of a second election resulting from fraud in the first, and because the Tribunal's own researches had not disclosed any such report. Accordingly, it did not accept that members of the party may seek revenge. That is apparent from the fourth sentence of the passage at [10]. 16 The appeal must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.