MZYJO v Minister for Immigration and Citizenship [2011] FCA 189 (3 March 2011)

Last Updated: 8 March 2011

FEDERAL COURT OF AUSTRALIA

MZYJO v Minister for Immigration and Citizenship [2011] FCA 189

Citation:		MZYJO v Minister for Immigration and Citizenship [2011] FCA 189
Appeal from:		MZYJO v Minister for Immigration and Citizenship [2011] FMCA 25
Parties:		MZYJO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		VID 1 of 2011
Judge:		RYAN J
Date of judgment:		3 March 2011
Date of hearing:	3 March 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	16
Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms S Koya
Solicitor for the First Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZYJO Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	RYAN J
DATE OF ORDER:	3 MARCH 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs, to be taxed in default of agreement.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZYJO Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	RYAN J
DATE:	3 MARCH 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from orders of the Federal Magistrate’s Court on 14 December 2010 dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”), which affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (“the Minister”). By that decision, the delegate refused to grant the appellant a protection visa.
2. The appellant is an Indian citizen who arrived in Australia on 20 November 2008. He applied for a protection visa on 6 January 2010. In a written statement in support of his visa application, he claimed to fear persecution in India by reason of his Christian religion. He asserted to the Tribunal that he had been mistreated and harassed by the Hindu majority since childhood. He also claimed that after he became a member of the All India Christian Council (“the AICC”) in 2002, and began working for that organisation in the Punjab, he attracted harassment and torture from members of the Bajrang Dal Vishwa Hindu Parishad (“the BDV”). The BDV sponsored anti-Christian persecution and harassment and caused 4000 Christians to be arrested after they protested at a march or demonstration against anti-Christian violence in New Delhi on 27 May 2007.
3. On 10 January 2008, according to the appellant, he attended a meeting at the office of the AICC to arrange a protest rally. The office was attacked by BDV members, and the appellant and two other AICC members received multiple injuries. As a result of these injuries, the appellant claimed, he was confined to a nursing home from 10 to 17 January 2008 and, although the incident was reported to the police, they took no action. In July 2008, the appellant travelled to Sydney as an Indian representative at the World Youth Festival on 9 July 2008 and returned to India on 23 July 2008. After his return, he said, he became a target of the BDV which regarded him as an influential Christian engaged in converting “low class Hindus” to Christianity. On 26 August 2008, he was attacked by some BDV members while riding a motor scooter. He fell to the ground, but was able to escape and fled his home locality of Bhodpur to New Delhi where his uncle lived. Later, taking advantage of his visa to travel to Australia, he left India on 19 November 2008. He maintained before the Tribunal that, in his absence, members of the BDV had damaged his family home and insulted his family, who have told him of threats on his life.
4. The appellant had established, in about 1998, a business of a photocopying shop in Bhodpur, which is still being conducted by one of his brothers who continues to live with the appellant’s parents and a sister in Bhodpur. Another brother is now living in France.
5. In oral evidence given to the Tribunal on 30 July 2010, the appellant expanded, and, in some respects, departed from, the written account of his alleged persecution, which I have just summarised. In the course of the hearing, the Tribunal taxed the appellant with the inconsistency between his written statement and his oral evidence. The substance of what was put to the appellant, and his response to the Tribunal, is indicated by this passage from the Tribunal’s reasons;

42 The Tribunal put to the applicant that there appeared to be a number of inconsistencies between his evidence in the hearing and what he had written in his statement attached to his protection visa application, and which he had also provided the Tribunal. The Tribunal noted that, according to his statement, after the incident in January 2008, he continued his activities with the AICC and then left the country to attend World Youth Day in Sydney. When he went back in August 2008, the incident occurred when he was stopped on the scooter, and it was only after that incident that he claimed to have gone into hiding, and these people went to his home to look for him, and his family warned him that they wanted to kill him, and his life was in danger, and that was when he went to his uncle in New Delhi. The Tribunal noted that there was nothing in his statement to suggest he went into hiding following the incident in January 2008, nor was there anything to suggest that these people were looking for him and that they had come to his house and business repeatedly following the incident in January 2008. The Tribunal put to the applicant, the fact that his story had changed somewhat from what he had originally claimed, raised some doubt regarding the veracity of these claims. The Tribunal also put to the applicant, the fact that he had returned to India from Australia in July 2008, suggests that he did not have a genuine fear of persecution, and raised further doubts about his claims that he was being pursued by members of the VHP after the incident in January 2008 and that he had been in hiding for some six months. The applicant stated that whatever he had provided in writing was correct, but sometimes he could not remember things.

6. The Tribunal also put to the appellant a body of “country information” which tended to suggest that the incidence of attacks and violence against Christians in India was not high, having regard to the size of the population of which 2.3% were Christian. As well, the Tribunal put to the appellant that the available information “suggests there is freedom to practise religion in India, and Christians often hold large prayer meetings, without violence or protest.” In addition, the Tribunal noted that the AICC had documented 73 attacks on Christians, excluding those in Karnataka and Orissa, and put to the appellant that “given that there are millions of Christians in the country, this information did not suggest that all Christians face a real chance of persecution in India.” Apart from referring to newspaper articles, which he had supplied and which recounted sacrilegious anti-Christian activity in Jalandar and Punjab, the appellant did not comment on what the Tribunal had drawn from the country information which it had instanced.
7. The Tribunal accepted that the appellant is a practising Catholic and had been baptised in that faith at a young age. However, it went on to observe, at [49] of its reasons:

... The Tribunal does not accept that the applicant suffered mistreatment and harassment from Hindu sects from his childhood. The Tribunal notes that when asked in the hearing what mistreatment and harassment he was subjected to, the applicant could not think. The Tribunal does not accept that if the applicant had been the victim of harm for so many years, given that he was claiming to have been subjected to such treatment since he was a child, he would not be able to recount even one example. When prompted by the Tribunal, the applicant referred to school yard fights and arguments he had with school mates who belonged to different religions. The Tribunal does not accept, on the vagueness of the applicant’s evidence, that these scraps were necessarily related to religion. In any event, the Tribunal does not accept such school yard altercations constitutes serious harm within the meaning of the Convention. The Tribunal notes that the applicant claimed to have experienced no other difficulties. The Tribunal, therefore, does not accept that the applicant was mistreated or harassed because of his religion from childhood.

8. The Tribunal then went on to indicate that it did not accept that the appellant was a very active or high profile member of the AICC. It regarded his knowledge of its work as rudimentary and found that the AICC focused on supporting the rights of Christians to practise and propagate their religion as defined in the Indian Constitution, rather than proselytising among non-Christians. It did not accept the appellant’s claim to have been harassed and to have been tortured by members of the BDV while he was a member of the AICC. The Tribunal also noted that the appellant’s evidence at the hearing was that only in 2008 had he experienced difficulties because of his Christian religion. The Tribunal then continued at [51] and [52] of its reasons:

51. In regard to the events of 2008, the Tribunal does not accept that the applicant was injured during an attack on AICC officers in January 2008 by VHP or BD members. The Tribunal found the applicant’s evidence to be vague and contradictory. He could not recall where this attack took place, other than it being at an AICC office. When asked about the injuries he sustained, the applicant claimed that he received multiple injuries which required him to be hospitalised for a period in January 2008. However, the applicant was unable to provide any further details regarding the nature of his injuries, other than that it was his knee and arm. The Tribunal does not accept that if the applicant was hospitalised for seven days, he would not be able to explain what sort of injuries he sustained or what treatment he received, other than receiving medicine and having bandages. The Tribunal also finds the time the applicant spent in hospital appears to be disproportionate to the vague description of his injuries which he provided in the hearing. The Tribunal finds it farfetched that the applicant would require a seven day stay in hospital for what he described as superficial injuries which he was given medicine for. The Tribunal also notes that the applicant provided inconsistent evidence regarding the reporting of this incident to the police. Although the applicant initially stated in the hearing that he did report the incident to the police, he subsequently stated that he did not, because he was essentially scared of reprisals. However, in the applicant’s statement, he claimed he had lodged a report to the police, but no action was taken. For the reasons provided above, the Tribunal does not accept that the applicant was attacked and injured by members of either BD or VHP in January 2008.
52. Similarly, the Tribunal does not accept that the applicant was accosted by members of either BD or VHP when riding on his scooter in August 2008. The Tribunal notes that initially the applicant stated in the hearing that nothing happened after he returned to India in July 2008, and that there was only the one incident in January 2008. It was only after the Tribunal prompted the applicant, that he raised this further incident, although he could not remember when it actually occurred. The Tribunal found the applicant’s account of this event to be somewhat confusing and contradictory. The applicant claimed that one night from work, when he was going somewhere, that these people recognised him and tried to hit him. However, as the Tribunal put to the applicant, he claimed to be in hiding at this time, and his brother was taking care of his business. The applicant suggested that he may not have been going to the shop, but going somewhere for work. He subsequently stated that he was going from a friend’s house to do some work, and when asked what work he was doing, the applicant stated that he was going to get some things that his friend needed. Later in the hearing, the applicant stated that in fact his friend’s sister was getting married, and they were moving some items for his friend. The applicant also claimed that his friend lived in the same area as him. The Tribunal finds it implausible that if the applicant was in hiding, as he alleges, he would stay in the same area as his home where people were looking for him. The Tribunal does not accept that if the applicant feared for his life, because he was being threatened, and as a result he was in hiding, he would come out of hiding to attend a function at his friend’s home because they had a good relationship. Given the discrepancies, and general implausibility of aspects of the applicant’s evidence, as discussed above, the Tribunal does not accept that this second incident occurred.

9. The Tribunal noted various inconsistencies between the appellant’s written statement and his oral testimony before the Tribunal. It found certain parts of his account implausible and considered that “the fact that the applicant returned to India after travelling to Australia for World Youth Day, strongly suggests that the applicant did not have a genuine fear of persecution, and raises further doubts about the veracity of the applicant’s claims.”
10. The Tribunal then went on to link the country information to its finding about the claims related specifically to the applicant and concluded, at [54] of its reasons:

Given the Tribunal’s findings above, the Tribunal does not accept that the applicant was under constant and continuous persecution in India because of his Christian religion. As the Tribunal finds that the applicant has not experienced any problems or difficulties in the past because of his Christian religion, the Tribunal does not accept that if he returns to India now, he would face a real chance of persecution for reasons of his Christian religion. The Tribunal has taken into consideration the independent information put to the applicant in the hearing from the most recent US Department of State International Religious Freedom Report which states that the Indian Constitution provides for freedom of religion and the vast majority of Indians, of all religious groups, live in peaceful co-existence, although there were some organized communal attacks upon minority religious groups. However, the country’s democratic system, open society, independent legal institutions, vibrant civil society, and free-wheeling press, all provide mechanisms to address violations of religious freedom when they occur. In light of this information, and the fact that the applicant has been able to practice his Christian faith without experiencing any difficulties in the past, the Tribunal finds that the applicant does not face a real chance of persecution for reason of his religion if he returns to India now or in the reasonably foreseeable future.

11. After noting that the appellant, in response to a specific invitation, had disavowed any reason, other than his religious adherence, as a ground of the persecution which he claimed to fear, the Tribunal concluded that fear to be not well founded so that he did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”). The appellant then applied to the Federal Magistrate’s Court for an order quashing the decision of the Tribunal and for various consequential orders. The grounds which he invoked in support of that application were:

(1) That the Tribunal decision was in breach of section 424A(1) of the Migration Act 1958 (Cth) –

Particulars of that ground were;

(a) There was certain adverse information used by the Tribunal to affirm the decision; and
(b) The Tribunal did not disclose that information to the applicant in accordance with s 424A(1).

The other two grounds were;

(2) The tribunal made an error of law and lacked procedural fairness and therefore committed jurisdictional error;
(3) That the Tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal.

12. The learned Federal Magistrate noted, at [4] of her reasons published on 14 December 2010, that the appellant had not sought to amend his application and had not provided any further and better particulars of the grounds relied on. In relation to ground (1), it was pointed out that:

The only information which the applicant identified was the information which he, himself, had provided to the Tribunal.

Her Honour further considered that the appellant had, in effect, abandoned grounds (2) and (3) of his application. That is consistent with the fact that the sole ground in the appellant’s notice of appeal to this Court is:

(2) The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall under jurisdictional error.

The single particular of that ground in the notice of appeal to this Court is;

(a) There was certain adverse information used by the Tribunal to affirm the decision under review, and the Tribunal did not disclose the information in accordance with s 424A(1).

13. After noting at [7] of her reasons that the matters which had led to the Tribunal’s finding that the appellant’s evidence concerning the two events on which he relied was inconsistent and implausible had been put to the appellant by the Tribunal, the learned Federal Magistrate referred to a passage from the judgment of the High Court in SZBYR v The Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, and to another passage from of a Full Court of this Court in VAF v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471, at [24]. Her Honour then concluded:

I am satisfied that in this case the information referred to by the applicant does not fall within the ambit of s 424A(1). I am, therefore, satisfied that ground (1) of the application is not made out, as neither ground (2) nor (3) have effectively been pursued in these proceedings, and nothing before me would indicate any basis for an application on those grounds to be successful. I am, therefore, satisfied that the application should be dismissed.

14. In support of his appeal to this Court, the appellant, who was assisted by an interpreter, simply claimed that everything he had said previously was true and correct and he had a genuine fear of persecution if he returned to India. He further indicated that any inconsistencies in his previous accounts had resulted from confusion.
15. Having carefully examined the reasons of the Tribunal, I have been unable to discern any jurisdictional error in those reasons. In particular, I do not consider that the way in which the Tribunal heard and resolved the application for review of the delegate’s decision attracted the obligation erected by s 424A of the Act. As the High Court explained in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609, at [18]:

... if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision, because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v The Minister for Immigration and Multicultural and Indigenous Affairs, that the word “information”

“.... does not encompass the Tribunal’s subjective appraisals, thought processes or determinations, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc ...”

If the contrary were true, s 424A would, in effect, oblige the tribunal to give advance written notice, not merely of its reasons, but of each step in its prospective reasoning process. However broadly “information” be defined, its meanings in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. ...

16. In my view, similar considerations apply where the reasons for the Tribunal’s decision are founded from its view that the account given by an applicant is implausible. I consider that the observations of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, at 423 [67] can be paraphrased to apply with equal force to the type of reasoning which was undertaken by the Tribunal in the present case. It follows that no jurisdictional error has been demonstrated in either the conclusion reached by the Tribunal or the affirmation of that conclusion by the learned Federal Magistrate. The Act does not entrust, to either the Federal Magistrates Court or this Court, the task of considering the merits of an application or whether an applicant has, in fact, demonstrated a well-founded fear of persecution. The function of each Court is confined to the correction of jurisdictional error. In the absence of any such error in the present case, it follows that the appeal must be dismissed with costs.
    

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated: 7 March 2011