MZYYP v Minister for Immigration and Citizenship

Federal Court of Australia|2013-05-13|Before: Middleton J

INTRODUCTION 1 This is an appeal from a decision of the Federal Magistrates Court (as it was then known) delivered on 14 December 2012 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). 2 The appellant is an Indian citizen who arrived in Australia on 7 August 2009 on a dependent visa. On 17 August 2011 the appellant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 26 September 2011. 3 On 24 October 2011, the appellant sought a review of the delegate's decision with the Tribunal. The Tribunal affirmed the decision of the delegate on 22 May 2012.

background 4 The appellant claimed to fear persecution by the Akali Dal party. He claimed that he was an active member of the Congress Party and that he had campaign vigorously for the Congress Party candidate against the Akali Dal leader, Mr Kusul Deep, and that the Akali Dal lost the election to the Congress Party. 5 The appellant claimed that, following the election, he was constantly threatened by the Akali Dal and that they threatened his family. He claimed that the Akali Dal offered him a leadership position in their party but that he refused and continued working for the Congress Party. He claimed that after this the threats against him escalated. He claimed that the Akali Dal lodged a false case against him for robbery and working with Khalistan movement groups, and that he was taken by police, accused of being a terrorist, interrogated and beaten, and only released when his father paid the police a bribe. 6 The appellant further claimed that Akali Dal was working in conjunction with Hindu extremist groups to target him. He claimed that in 2008 after he was released, the Akali Dal threatened him by phone that if he failed to leave the country they would have him killed or implicate him in a case. He also claimed that government agencies were following him everywhere. He claimed that after he received this threat, he did not live at home but stayed with different relatives, moving from one relative to another, until his departure for Australia in 2009. 7 The appellant claimed that since coming to Australia he had been involved with the Congress Party's branch in Victoria. He claimed to fear being killed by the Akali Dal or other parties in opposition to the Congress Party should he return to India. 8 The appellant also claimed before the Tribunal that he feared harm from his in-laws because of his divorce from his wife. 9 The Tribunal found that the appellant was not credible, finding that his evidence was vague, lacked detail and was internally inconsistent. The Tribunal also found that the appellant's claims were implausible, in particular the claim that Hindu extremist groups were assisting the Akali Dal to target the appellant. The Tribunal did not accept that the appellant was a member of the Congress Party or that he had ever been involved with or worked for the Party. Consequently, the Tribunal did not accept that the appellant or his family had been threatened or harmed by the Akali Dal or any Hindu extremist groups, that the Akali Dal had ever tried to recruit the appellant, that the appellant had ever been arrested and beaten by police or the Akali Dal, that the appellant had been followed by government agencies, or that he had been involved with the Congress Party in Australia. The Tribunal also did not accept that the family of the appellant's ex-wife would seek to harm him as a result of his divorce. 10 For these reasons, the Tribunal was not satisfied that there is a real risk the appellant would face serious harm for a Convention reason should he return to India. The Tribunal was also not satisfied that the appellant would face a risk of significant harm as set out in the complementary protection criterion should he return to India.

the proceeding before the federal magistrate 11 In his application, the appellant relied upon the following grounds: 1. The Refugee Review Tribunal denied the applicant procedural fairness by reaching adverse conclusions that the applicant claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity 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 circumstances and the consequence of the claim. 12 In relation to ground one, his Honour found that the Tribunal's findings were open on the evidence, and that the Tribunal was not required to disclose to the appellant a "running commentary of its deliberations". His Honour also found that the Tribunal raised with the appellant the concerns that it had with his evidence, and that it afforded him the opportunity to comment on these concerns. 13 His Honour found that ground two (numbered ground three) failed, in the absence of further submission by the appellant, to demonstrate any breach of the Migration Act 1958 (Cth) (the 'Act'), and that ground three (numbered ground four) invited impermissible merits review. 14 For these reasons, the application was dismissed.

the appeal proceeding 15 The appellant's 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. 16 I now turn to these grounds of appeal.

Manifest unreasonableness 17 Assuming this is a ground properly before me, it having not been raised before the Federal Magistrate, the Tribunal's reasons for decision demonstrate that it was aware of its obligations pursuant to s 91R of the Act, and was not persuaded as to the veracity of the appellant's claims. The Tribunal's approach was open on the material before it. 18 I consider that the way in which the Tribunal proceeded was proper. 19 It is important to note that, during the hearing, the Tribunal questioned the appellant about aspects of his claim that it found confusing, implausible or inconsistent. The Tribunal also gave the appellant the opportunity to comment on country information going to the time of the assembly elections. Finally, the Tribunal invited comment on the information it considered may form the reason, or part of the reason, for affirming the delegate's decision. This information related to the appellant's claims regarding his arrest and the discrepancy in his evidence about living in Madras. The appellant commented on this information at the hearing. 20 After setting out principles relevant to its jurisdiction to make findings of credit, the Tribunal rejected the appellant's claims on the basis that his evidence was vague, lacking in detail, simplistic, inconsistent with previous claims and relevant country information, and was implausible. In circumstances where the Tribunal did not accept the appellant would engage in any political activities on his return to India, nor that he would be targeted by opposition party members or Hindu extremist groups, the Tribunal was not persuaded the appellant was entitled to complementary protection.

Legal and factual errors 21 As I have indicated, the Tribunal was not persuaded the appellant's claims were credible, and accordingly affirmed the delegate's decision. This assessment, in my view, was open on the material before the Tribunal and does not reveal any error. In respect of any error of law, as distinct from fact, the Tribunal identified and applied the correct legal framework, and its reasons do not, in my view, reveal any error. 22 Whilst the Tribunal's reasoning in respect of the appellant's entitlement to complementary protection contained two errors, where the Tribunal referred to "Ethiopia" and to submissions made by the appellant's advisor (where the appellant was self-represented), these references were isolated. The balance of the Tribunal's reasons refer to India as the country of nationality and refer to the appellant's own presentation of argument and submission. 23 Looking at the Tribunal's reasons fairly and as a whole, I consider the Tribunal did undertake its task in considering the specific case put by the appellant. 24 In my view, the errors should be construed as being typographical, and do not form a basis for finding jurisdictional error. 25 I do this on the basis of being fully satisfied that the Tribunal did undertake its task in dealing with the specific case before it, as I have already indicated.

CONCLUSIONS 26 In dismissing the application, the Federal Magistrate's decision was not a consequence of any legal, factual or discretionary error. The appeal should therefore be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

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