MZYXV v Minister for Immigration and Citizenship

Federal Court of Australia|2013-05-16|Before: Tracey J

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court (as it was then known) delivered on 31 January 2013 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"): see MZYXV v Minister for Immigration [2013] FMCA 45. 2 The appellants are Indian citizens who arrived in Australia in 2010. On 24 May 2010 the first appellant applied for a protection visa. The second appellant, who is the wife of the first appellant, was included in this application as a member of the first appellant's family unit. The second appellant did not make her own separate claims for protection but relied on the claims of her husband. A delegate of the first respondent made a decision to refuse the application for the visa on 14 April 2011. 3 On 11 May 2011, the appellants sought a review of the delegate's decision by the Tribunal. The Tribunal affirmed the decision of the delegate on 23 April 2012.

BACKGROUND 4 The first appellant ("the appellant") claimed to have defected from the Bharatiya Janata Party ("BJP") after becoming concerned about corruption and to have joined the rival Congress Party. He claimed that the popularity of the Congress Party was increased in his area as a result of his hard work and donations to the party. He also claimed that his work for the Congress Party raised his profile in his home town. 5 The appellant claimed that in 2007 he was threatened by BJP members, who warned him to stop donating to and campaigning for the Congress Party, and that they ransacked his electrical goods store and assaulted him when he refused. 6 Although he said during the first Tribunal hearing that he had not been present when the store was attacked and was later told about it by employees, he claimed at the resumed Tribunal hearing that he had needed to flee the store during the attack and had cut his hand on broken glass. 7 He also claimed that BJP supporters visited his home and made threats against his family on two occasions in or around mid-2008 and in late 2008. He said that he did not want to return to India with the second appellant as he is concerned that things will escalate, especially fearing that things may become more serious during election periods, and that he is frightened and stressed by the situation. 8 Although the Tribunal generally accepted the appellants' claims, it found that some aspects of those claims had been embellished by him in order to strengthen his application. It cited the example of the claims relating to the ransacking of the appellant's store. It preferred the evidence given at the first hearing and did not accept the appellant's subsequent claim that he was injured fleeing from the attackers. The Tribunal accepted that the appellant had a subjective fear of persecution, but found that, given that the threats did not escalate and were not acted on by those feared by the appellant during the two years which passed between the threats being made and his departure for Australia, the fear was not well founded. The Tribunal considered that the threats were empty, and that, even if there was an increase in pressure, this would not necessarily mean that the situation would become serious. The Tribunal did not accept that, were the appellants were to resist the anticipated threats this would lead to a more serious situation developing in which the appellants might face serious harm or that they would be placed in a compromised economic position affecting their ability to subsist. 9 For these reasons, the Tribunal did not accept that the appellants would face a real chance of serious harm for a Convention reason, or a risk of significant harm under the complementary protection criterion, should they return to India.

THE PROCEEDING BEFORE THE FEDERAL MAGISTRATE 10 The appellant sought judicial review of the Tribunal's decision. In their application, they relied upon the following grounds: "1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters. 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 Tribunal's decision was unjust and was made without taking into account the full gravity of applicant (sic) circumstances and the consequences of the claim." 11 The Federal Magistrate held that the findings of the Tribunal were open to it on the evidence and that the Tribunal had gone to great lengths to ensure that the appellants were afforded the opportunity to be heard. His Honour found that there was material before the Tribunal which supported the conclusion that the appellants did not satisfy the relevant tests and that the Tribunal had carefully considered the gravity of the appellant's claims. 12 The application was dismissed.

THE APPEAL 13 The appellants appealed to this Court. 14 Their 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 applicants 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." No particulars of these grounds were provided. 15 The first appellant appeared in person on the hearing of the appeal. He had the assistance of an interpreter. The first appellant made submissions on behalf of himself and his wife. 16 The first appellant said that he had not drawn the notice of appeal. This had been done by friend who was a student. It was possible that the student (who was not a lawyer) may have obtained some assistance from a third person who may have been a lawyer. The notice of appeal had not been translated for the first appellant before he signed it. 17 The first appellant was not familiar with the terms of s 91R of the Migration Act 1958 (Cth) to which reference is made in the first ground of appeal. He was unable to explain the nature of the error attributed to the Federal Magistrate in that ground. 18 When asked to identify any legal errors in the Tribunal's decision which the Federal Magistrate had failed to consider, the first appellant said no more than that he feared for his life if he returned to India in 2013 because an election was due to be held in that country. 19 Counsel for the Minister objected to the appellants being permitted to rely on the two grounds appearing in the notice of appeal. This was because those grounds had not been argued before the Federal Magistrate and, in any event, they had no prospect of success. 20 I have read the reasons for decision of the Tribunal and the Federal Magistrate. I can detect no appellable error in the Federal Magistrate's approach. On the contrary, I consider it to be correct.

DISPOSITION 21 An appellant who wishes to pursue grounds on appeal which were not advanced at first instance must obtain leave to do so. Although the appellants did not, in terms, seek such leave I am prepared to proceed on the basis that such an application was before the Court. Such an application must be refused in the absence of any material supporting the granting of leave: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]; Aurpeerapatthana v Minister for Immigration and Citizenship [2011] FCA 887 at [15]-[18]. There is, in any event, as the Minister contended, no substance in either of the grounds. 22 The appeal must be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

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