FEDERAL MAGISTRATES COURT OF AUSTRALIA
MZYGR v MINISTER FOR IMMIGRATION & ANOR	[2010] FMCA 340	

MIGRATION – Appeal – decision of Refugee Review Tribunal – section 424A – no matter of principle.	

Migration Act 1958, s.424A	

Applicant:	MZYGR	

First Respondent:	minister for immigration & citizenship	

Second Respondent:	Refugee review tribunal	

File Number:	MLG 1230 of 2009	

Judgment of:	Riethmuller FM	

Hearing date:	25 March 2010	

Date of Last Submission:	25 March 2010	

Delivered at:	Melbourne	

Delivered on:	25 March 2010	

REPRESENTATION
Counsel for the Applicant:	The applicant appearing in person.	

Counsel for the First Respondent:	Mr Brown	

Solicitors for the First Respondent:	Australian Government Solicitors	

Counsel for the Second Respondent:	There being no appearance by or on behalf of the Second Respondent.	

ORDERS
(1)	I order that the application be dismissed.
(2)	In the circumstances, I order that the applicant pay the respondent’s costs fixed at $5865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
melbourne	
MLG 1230 of 2009
mzygr	
Applicant

And

minister for immigration & citizenship	
First Respondent

refugee review tribunal	
Second Respondent

REASONS FOR JUDGMENT
(As Revised from Transcript)
1.	This is an application for judicial review of the decision of the Refugee Review Tribunal.  The applicant’s claim is that he is an active Christian and a member of a Catholic Christian group in India, and that as a result, he has been a victim of persecution from a Hindu activist organisation.  He says that he has been persecuted by the Hindu organisation because of his participation in the Christian religion and in his Christian group.
2.	The Refugee Review Tribunal sets out the nature of his claims in some detail, as follows:
	113.  The applicant claims that he is a Catholic and has been a prominent member of his local Catholic Yuva Dhara (CYD) in which he held the position of vice-president.  The applicant claims to fear persecution from members of Bajrang Dal for their belief that he is promoting Christian values and is seeking to convert Hindus to Christianity through his involvement with CYD and the Catholic Church.  The applicant claims that he fears persecution for the Convention reason of religion on the basis of his Christianity.
	114. Bajrang Dal is described in UK Home Office, Country Information report (Released August 2008) as the “youth wing of the Vishwa Hindu Parishad (VHP).  Banned between December 1992 and June 1993, Bajrang Dal was originally formed in the 1980s to counter ‘Sikh terrorism’ but has since then shifted to militant activism against the Muslim and Christian minorities”.
	115. The applicant claims that as a result of his profile within his local Catholic community, and in particular CYD, he has become a target of Bajrang Dal which has given rise to threatening phone calls made to him by individuals who have identified themselves as Bajrang Dal; and attack on his brother’s photographic shop during which his brother was assaulted, by men who identified themselves as Bajrang Dal, to the extent that he was hospitalised; an attack on the applicant by assailants who identified themselves as Bajrang Dal and death threats by Bajrang Dal unless the applicant desist in his promotion of Christianity.  The applicant further claims that the attack on his brother’s shop and the fear of persecution by Bajrang Dal has led to financial difficulties for his family and that his family home was robbed by Bajrang Dal.
	116. The applicant claims that the police would not accept his report of the assault on his brother and damage to the photographic shop and believes that he is unable to seek protection from them against the harm feared from Bajrang Dal.
	117. The applicant participated in World Youth Day (WYD) in Australia from 5 July 2007 until 22 July 2007 when he returned to India.  The applicant claims that on his return to India his circumstances worsened as Bajrang Dal interpreted his involvement in WYD as further evidence of his promotion of Christianity; the applicant claims that threatening phone calls resumed and Bajrang Dal tried to kill him.  The applicant claims that because of these death threats he hid by moving from place to place until on the advice of his priest he fled back to Australia where he can practice his Christianity without fear.
3.	The tribunal then goes on to carefully analyse the evidence before it in paragraphs 121 to 131, ultimately rejecting the applicant’s evidence, finding that he was not a credible witness.  In this regard, the comments of the tribunal are:
	132. In summary, having considered all of the evidence to the Tribunal with, at times, exaggerated and embellished claims made by the applicant, the Tribunal is of the view that the applicant’s claims lack credibility and substance and have been advanced simply to gain a migration outcome as opposed to being genuine claims of persecution.
	135. The Tribunal accepts that the applicant is Catholic and has had a role within his church community but does not accept that this equates to the perception that the applicant is attempting to convert Hindus to Christianity or necessarily that these activities are indicators of the promotion of Christianity to non-Christians.  Additionally the applicant returned to his home state in India, a place where he claimed he was the victim of threats of assault and physical assault, his brother assaulted and property damaged and stolen and that he remained there for almost three months does not indicate to the Tribunal that the applicant has even a subjective fear of persecution as claimed.
	136. Considered cumulatively, the Tribunal finds that there is not a real chance that the applicant would face persecution for the Convention reason of religion or for any other Convention reason, now or in the reasonably foreseeable future, should he return to India.  The Tribunal finds that the applicant’s fear of persecution is not well-founded.
4.	The primary submission of the applicant before this court is that he is at risk if he is to return to India, and the tribunal ought to have accepted his evidence.  Whilst he believes he could seek protection in India, he does not believe it would be effective.
5.	His written material was prepared by someone else, who he described as a friend of a friend with a name that is ‘difficult to pronounce’.  Unfortunately, the material is difficult to follow; however, I will consider each of the matters raised as best I am able.
Ground 1
6.	The first ground relates to section 424A.  The applicant alleges that the tribunal failed to give him particulars of information that would be the reasonable part of the reason for affirming the decision.  The written submissions prepared for him failed to identify any such information.  The written submissions at their highest say:
	The applicant submits that the Tribunal made an adverse decision against the claims made by the Applicant affirming the decision made by DIAC without giving any notice under section 424A(1) as required by the legislation. (Court Book 121-136)
7.	The section does not require the tribunal to give a person an outline of the decision it intends to make to allow them to comment upon it.  To the extent that the person who prepared the document included this paragraph, it is simply wrong at law.
8.	At the hearing today, I attempted to find out from the applicant whether he could identify any document or information that would come within 424A.  He referred to documents that he had received, it seems, after the tribunal decision was made.  It is clear from the decision of the tribunal that the applicant sought an opportunity to provide further documents after the hearing.  That is, the second hearing in this case.  The tribunal allowed him time to do so, recording in their decision:
	131. The Tribunal considered the documentation provided to it by the applicant that, in essence, refers to events of violence toward Christians in India.  This is supported by country information cited above.  However these events have no connection with any of the circumstances claimed by the applicant.  The applicant told the Tribunal that he was able to obtain documents to support his individual claims and that he was able to provide a newspaper article relating to his alleged assault on 31 December 2008.  Despite being provided time to do so the applicant did not submit any such article nor did he seek additional time to provide this information.  Further, given the applicant made his application for a protection visa on 20 November 2008, the Tribunal is of the view that the apparent lack of urgency in sourcing these documents diminishes his claims overall.
9.	At paragraph 134, the tribunal identified that they received documents and a submission from him on 18 June 2009 and considered this information.  The tribunal did not ultimately make a decision until 8 September 2009.  There is no evidence before me to show that further information was sent to them or that they were actually asked to give further time for further information.  The appellant says that he has received more information, that he has not filed an affidavit annexing it, nor could he identify the date that he got it, other than to say ‘after the decision of the tribunal’.
10.	On the material before me, it could not be concluded that he was not given a fair opportunity to put his case before the tribunal, nor that the tribunal relied upon information contrary to the requirements in s.424A.
Ground 2
11.	The second ground of appeal is allegations that the tribunal acted in excess of jurisdiction, or asked itself the wrong questions, or ignored material, or relied on irrelevant material. There are four particulars given.
a)	First, it is said that the tribunal failed to consider his claim that he was at risk of persecution because of his religious beliefs and his association with the particular Christian group.  The tribunal clearly approached the case on the basis that his claim was for persecution because of his religious beliefs and membership of the religious group.  It does not appear to me that there was any issue before the tribunal about him being a Christian or a member of the particular group.
b)	The next matter complained of was that the tribunal rejected his evidence in part on the basis that they did not believe he had a sufficiently high profile within the group.  This was one of the many factual matters that the tribunal considered in determining whether to accept or reject his evidence.  It was not a factor that was the turning point in the tribunal’s decision, but one of a number of factors that they took into account.  I’m not persuaded that the tribunal were in error in considering the level of his profile.  Their finding with respect to his profile is a matter of fact for the tribunal.  Findings of fact are not open to judicial review.
c)	The third point is effectively the same one again, alleging that the tribunal fell into error by categorising his profile within the group as either high or low.  It does not seem to me that the actual fact-finding of the tribunal sought to categorise him as either of high or low profile, but rather to assess his profile within the group and draw inferences from that.  At paragraph 127, the tribunal says:
	127. In short, the tribunal does not accept that the applicant has a profile in his church community that would cause him to be a target of Bajrang Dal or any other group.
d)	The fourth matter relied on in support of this ground is a repeat of the ground relating to section 424A.  
Ground 3
12.	The third ground is a claim that the tribunal denied him natural justice.  It is alleged that he was questioned “in a fashion that implied he was not a credible witness and therefore prevented the applicant from putting his case forward.”  
13.	The tribunal members’ task is always a difficult one in cases such as this.  They must carefully consider the evidence of an applicant and it is appropriate for them to test that evidence.  This will often involve putting difficult questions to an applicant to enable them to properly assess the weight to be given to his or her evidence.  This is not dissimilar to cross-examination that sometimes occurs in court.  Many people feel that they have had a difficult time when questioned in court and tribunal hearings, particularly in cases involving serious matters.  That of itself is not a basis for judicial review.  In order to show that the questioning in this case went beyond the bounds of what was reasonable, the applicant needed to provide proper evidence, such as a transcript or tape recording, and identify passages or incidents that demonstrated his claim.  This has not been done.
14.	The next part of the claim relates to the weight that the tribunal placed upon evidence with respect to injuries suffered by the applicant’s brother. The evidence with respect to his brother was part of the factual material before the tribunal. It does not appear to me that the tribunal have been overwhelmed by this piece of evidence or seen it as a decisive piece of evidence in the matter. Rather, they have considered it along with much other evidence before reaching their ultimate conclusions.
15.	Finally, the applicant’s advisor again referred to section 424A, which I have already dealt with.
Ground 4
16.	The fourth ground that the applicant relies upon was “the tribunal failed to review and consider the application for the purposes of sections 47, 65 and 414 of the Migration Act 1958”.  The particulars in the application make clear that this is a catchall ground relying upon the matters referred to in the first three grounds.
17.	In the circumstances of this case, the applicant has not demonstrated a ground for judicial review. I therefore have no choice but to refuse his application.
[further argument ensued] 
Application for costs
18.	The minister is asking that his legal fees be paid by the applicant on the basis that the applicant lost his case.  The amount that the minister is asking for, $5865, is in the court rules as being the standard fee for this type of application.
19.	In this matter, the applicant has been entirely unsuccessful.  A review of his application and contentions of fact and law indicate that it would have been difficult for anyone to see a prima facie case.
20.	The applicant says that he has hurt his finger recently, which has received a cut and sutures, and is out of work at present.  These are not matters which result in costs not following the event, which is the usual practice of the court in these types of matters. 
21.	The quantum of costs sought by the minister is the scale fee.  I will order the applicant to pay the respondent’s costs fixed at $5865.  
22.	At this stage, I do not make specific orders for time to pay, expecting that the minister will be realistic in demands, and if such a time is specifically required, application can be made for a stay of the costs order.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  Katherine Sudholz

Date:  13 May 2010