FEDERAL COURT OF AUSTRALIA MZYWJ v Minister for Immigration and Citizenship [2012] FCA 1384 Citation: MZYWJ v Minister for Immigration and Citizenship [2012] FCA 1384 Appeal from: MZYWJ v Minister for Immigration & Anor [2012] FMCA 660 Parties: MZYWJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 707 of 2012 Judges: DODDS-STREETON J Date of judgment: 5 December 2012 Catchwords: MIGRATION – whether Refugee Review Tribunal failed to disclose certain adverse information in breach of s 424A of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth), ss 424A(1), 424A(3), s 424AA, 424B Date of hearing: 26 November 2012 Date of last submissions: 26 November 2012 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Appellant: The appellant appeared in person assisted by an interpreter Counsel for the Respondents: Mr J McKenna Solicitor for the Respondents: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 707 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZYWJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DODDS-STREETON J DATE OF ORDER: 5 DECEMBER 2012 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 707 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZYWJ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DODDS-STREETON J DATE: 5 DECEMBER 2012 PLACE: MELBOURNE REASONS FOR JUDGMENT Introduction 1 The appellant appeals from a decision of Federal Magistrate Riley who, on 7 September 2012, dismissed his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). 2 On appeal, the appellant appeared in person, assisted by a Hindi interpreter. The appellant did not file any written submissions. The first respondent relied on written submissions dated 15 November 2012. 3 The appellant is an Indian citizen who arrived in Australia on 12 December 2008 as a dependant of his wife, who held a student visa. On 11 March 2011, the appellant applied for a protection visa. On 1 August 2011, a delegate of the first respondent decided to refuse the appellant's application for a protection (class XA) visa. On 23 February 2012, the Tribunal affirmed the decision of the delegate. The tribunal decision 4 The appellant claimed to be a supporter of the Congress Party in Gujarat. Before the Tribunal, he claimed that he had always followed and supported the Congress Party, but had joined officially only two to four years ago. He claimed that he assisted or worked for a Congress "leader or Minister" called Nitin Patel who "made him a member". He acknowledged that Mr Nitin Patel was the only member of the Congress Party with whom he had any involvement or association. He acknowledged that the only work he had performed for the Congress Party was assisting Nitin Patel on one occasion by forwarding some posters for another person to distribute prior to a local election. 5 When questioned by the Tribunal, the appellant acknowledged that he did not know what particular roles or positions Nitin Patel held in the Congress Party. The Tribunal put to the appellant that according to its research, Nitin Patel was a member of the Bharatiya Janata Party ("BJP"), not the Congress Party. The appellant responded that there was a Nitin Patel in the BJP in Kardi, but maintained there was also a Nitin Patel in the Congress Party, who was "a small scale person". 6 Before the Tribunal, the appellant claimed that in early 2008, men from the BJP came to his shop, beat him using "wooden sticks, little swords, metal pipes and knives" and destroyed the shop. He claimed that after the attack, he attended a medical centre for treatment for his injuries. The appellant claimed that leading up to the incident, the leader of the group came to his shop daily and told him to close it down. The man took products but refused to pay for them. The attack arose from the resulting dispute between the appellant and the man. The appellant claimed that he reported the incident to police but they took no action. 7 The appellant claimed that shortly after the attack, he sold his share of his dairy product distribution business to his business partner as he feared that he would otherwise be attacked again. His parents advised him to cease his involvement with the business and arranged for him to get married. He claimed that after his involvement in the business ended, the man who had threatened him at his shop frequently came to his parents' house and threatened his family, although he did not hurt them. The appellant claimed that the man also contacted his former business partner and on three to four occasions, threatened to kill the appellant, although his business partner did not personally have any problems with the man. He claimed that BJP members threatened to kill him unless he left India, and the threats continued after he ended his involvement in his business. 8 The appellant claimed that after he came to Australia with his wife, his wife's family were harassed by the BJP and pressured her to divorce him due to his Congress Party links. He claimed that he returned to India in December 2010 for four to six weeks to have a minor operation and to visit his family. He did not experience any problems during the trip, but only because the BJP did not discover that he was in the country until after his return to Australia. The appellant claimed that after his visit to India, the harassment of his wife's family began, and his wife sought a divorce for that reason. He claimed that he could not relocate within India, as he would be tracked down wherever he went, and he feared being killed. 9 On 14 December 2011, the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) ("the Act"), inviting him to comment on or respond to adverse information, as follows: I am writing about the application for review made by you in relation to a decision to refuse to grant a Protection (Class XC) visa. In conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review. Please note, however, that the Tribunal has not made up its mind about the information. The particulars of the information are: 1. At the Tribunal hearing on 28 November 2011 you gave evidence that the only member of the Indian National Congress Party ('Congress Party') with whom you had an association was a man named Mr Nitin, whom you described as the leader of the Congress Party in your area. 2. By contrast, according to research undertaken by the Tribunal, the leader of the Congress Party in Gujarat since 2010 has been Siddharth Patel. Furthermore, according to the Tribunal's research, Nitin Patel is the BJP Member for Kadi in Gujarat and is the current Urban Development Minister. The Tribunal was unable to find information regarding an individual named Nitin Patel with a connection with the Congress Party, either as the leader of the Congress Party in Ahmedabad, Gujarat, or otherwise. The information contained in paragraphs 1 and 2 is relevant to the review as it could subject to your comments, lead the Tribunal to not accept your evidence regarding your involvement with the Congress Party or with Mr Nitin Patel, given that the information could appear to contradict your oral evidence on these matters. The information could also lead to the Tribunal having doubts about your credibility generally, leading it to not accept other parts of your evidence as well. This could lead to the Tribunal not accepting that you are a genuine refugee in need of Australia's protection. If so, this would be the reason or part of the reason for affirming the decision of the delegate under review. 10 The Tribunal described its subsequent exchange of correspondence with the appellant as follows at [69]-[72]: The applicant was directed to provide his response by 6 January 2012. 70. On 4 January 2012, the applicant wrote to the Tribunal requesting an extension of time in which to respond to the s.424A letter on the ground that: Unfortunately, there has been election going on in my village. Therefore, it is being difficult for me to extract more information due to unavailability of Nitin Patel. 71. The Tribunal agreed to this request, allowing the applicant until 20 February 2012 to provide his response. On 20 February 2012, the applicant provided to the Tribunal a brief s.424A response in which he claimed that he was the follower of Nitin Shah, the Congress Party member for Ahmedabad. The applicant also referred the Tribunal to the Gujarat Congress Party website, which allegedly confirmed this. The applicant requested further time in which to obtain written confirmation from Nitin Shah of his past membership of the Congress Party. 72. The Tribunal has decided to make its decision in this matter without allowing further time for the applicant to provide additional evidence regarding his involvement with Nitin Shah (or Nitin Patel). The Tribunal notes that the application was lodged in March 2011 and the delegate's decision refusing the application was made in August 2011. The applicant has therefore had ample opportunity to compile all relevant evidence in support of his claims. The Tribunal also notes that it specifically raised its concerns with the applicant regarding Nitin Patel at the hearing on 28 November 2011 and agreed to allow additional time for the applicant to produce evidence of his past association with Nitin Patel. The Tribunal also notes that it was not until his letter of 20 February 2012 that the applicant claimed that the Nitin Patel referred to at the hearing was in fact Nitin Shah. In the circumstances, the Tribunal is satisfied that the applicant has been afforded ample time to furnish all relevant evidence and information and it is appropriate for the Tribunal to make a finding on the application without further delay. 11 In its reasons given on 23 February 2012, the Tribunal found that the appellant was not a credible witness. The Tribunal found that independent country information disclosed that Siddharth Patel has been the leader of the Congress Party in Gujarat since 2010 and that the BJP member for Kadi in Gujarat was Nitin Patel. The Tribunal rejected the appellant's claims that there was a second person called Nitin Patel involved in the Congress Party, or alternatively, a person named Nitin Shah (not Nitin Patel) with whom the appellant was associated. On the basis of its research, coupled with its "other credibility concerns" and the appellant's failure (despite the significant time permitted) to provide contrary evidence, the Tribunal did not accept the appellant's claim that he had been involved with the Congress Party as a result of his connection with such a person. Indeed, the Tribunal did not accept that the appellant was ever involved with the Congress Party. 12 The Tribunal found the appellant to be a highly vague and evasive witness, whose claims contained a number of inconsistencies, both within his oral evidence and as between his written statement to the Department and his oral evidence. The Tribunal considered that many of the appellant's claims were not plausible. Further, in combination with its other credibility concerns, the Tribunal placed weight on the appellant's delay in seeking protection. While accepting that the appellant may have had disputes with customers over unpaid debts, the Tribunal did not accept that the disputes involved serious harm, or that the appellant suffered harm related to his business or his actual or imputed political activities. The Tribunal did not accept that the appellant was targeted by a former customer, or that the customer was a BJP member who targeted him due to his imputed or actual political activities. 13 The Tribunal stated at [90]: Viewed separately, the Tribunal's credibility concerns discussed above might not be sufficient to undermine the applicant's credibility or otherwise cause the Tribunal to doubt his claims regarding his risk of harm if he were to return to India. However, viewing all of its credibility concerns together, the Tribunal finds that the applicant is generally not a credible witness. The Tribunal has taken these credibility concerns into account when assessing each of the applicant's claims, as discussed below. 14 Further, the Tribunal found that even if it had accepted the appellant's claims, it would be reasonable for him to relocate within India. The Tribunal did not accept that the appellant had a well-founded fear of persecution for a Convention reason. Proceedings in the federal magistrates court 15 In his application for review by the Federal Magistrates Court filed on 15 March 2012, the appellant relied on the following grounds: 1. That the tribunal's decision was in breach of section 424A(1) of [the Act]. Particulars There was certain adverse information used by the Tribunal to affirm the decision under review. The Tribunal did not disclose the information in accordance with s 424A(1). 2. That the tribunal made error of law and lack 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 16 The Federal Magistrate dismissed the application. Her Honour found that the Tribunal complied with its obligations under s 424AA(b)(i) of the Act. Although there was nothing in the Tribunal's reasons to indicate it had complied with s 424AA(b)(iii) and the Tribunal made one reference to "Mr Nitin" (rather than Mr Nitin Patel) in the s 424A letter, the Federal Magistrate found that the appellant fully understood the significance of the relevant information. On that basis, her Honour found that ground 1 was not made out. 17 Her Honour was unable to discern any foundation for ground 2, given the lack of particulars, submissions or evidence, and as such, found that it was not made out. 18 Her Honour found that ground 3 was not made out, as there was no jurisdictional error in the Tribunal's exercise of its discretion to refuse further time, and the decision was reasonable in the circumstances. the appeal 19 The notice of appeal dated 24 September 2012 states: Grounds of appeal 1. 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. (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). (b) Orders sought 1. Leave be granted to include additional grounds for review of the decision of the Tribunal on the grounds of jurisdictional error. 2. The application be allowed. 3. There be an order in the nature of certiorari to quash the decision of the Tribunal 4. There be an order in the nature of mandamus requiring the tribunal to review according to law the decision of the delegate of the Minister to refuse a protection visa sought by the applicant. 5. The first respondents pay the applicants costs. 20 Section 424A(1) of the Act provides: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. 21 Before me, when asked to identify the information which the Tribunal failed to disclose, the appellant referred to a mistake about Nitin Patel. The appellant did not advance any further submissions. 22 The first respondent submitted that the appellant failed to identify any error in the Federal Magistrate's decision and the Tribunal did not breach s 424A of the Act. 23 Section 424A(1) requires the Tribunal to give the appellant particulars of information that would be the reason, or part of the reason, for affirming the decision under review. As the respondent submitted, the appellant did not, either in the appeal or before the Federal Magistrate, identify with any precision any adverse information used by the Tribunal to affirm the decision, which had not been disclosed to him. 24 Despite the lack of clarity attending the adverse information allegedly not disclosed to the appellant, it appeared to concern the role or status of Nitin Patel. The Tribunal's concerns about the appellant's credibility arose in part from his claim that he became involved in the Congress Party due to the good work of "Nitin Patel", whom the Tribunal found to be a member of the opposition party. That information was, however, clearly disclosed both in the course of the hearing and by the Tribunal's letter to the appellant dated 14 December 2011, which, in accordance with ss 424A(1) and 424B of the Act, invited a written response and specified the period within which it should be given (6 January 2012). 25 While the Tribunal's letter contained typographical errors and in paragraph 1 referred to "Mr Nitin" rather than "Mr Nitin Patel", the relevant person was described in the three remaining references as "Nitin Patel". Further, the letter clearly explained the difference between Mr Nitin Patel and Mr Siddharth Patel. The letter was to be read in the context of the Tribunal's extensive preceding discussion with the appellant about Mr Nitin Patel at the Tribunal hearing. The appellant's response to the letter also indicated that he was under no misapprehension about, and understood, the meaning and significance of the information. Moreover, the information in paragraph 1 of the Tribunal's letter related to information that the appellant gave for the purpose of the application within the meaning of s 424A(3)(b) and the Tribunal's obligation to provide particulars under s 424A(1) did not apply. The Tribunal did not fail to give the appellant clear particulars of the information relating to Nitin Patel, or to disclose any other adverse information used to affirm the decision under review, subject to the exemptions in s 424A(3) of the Act. 26 Therefore, in my opinion, the Federal Magistrate did not err as alleged. 27 While the appellant did not pursue, on appeal, grounds 2 and 3 of his application for review before the Federal Magistrate, in which he alleged that the Tribunal erred by failing to afford him further time or opportunity to obtain evidence, and by failing to consider all his claims, I am satisfied that the Federal Magistrate correctly held that error on those grounds was not established. Conclusion 28 In my opinion, the appeal should be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton. Associate: Dated: 5 December 2012