Federal Circuit Court of Australia MZZJR v Minister for Immigration

[2013] FCCA 1643

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZJR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1643

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – Applicant’s medical certificate found by the Refugee Review Tribunal to be fraudulent –Applicant not a credible witness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

Applicant: MZZJR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 524 of 2013

Judgment of: Judge Hartnett

Hearing date: 14 October 2013

Delivered at: Melbourne

Delivered on: 18 October 2013

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Rogers

Solicitors for the First Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to ‘Minister for Immigration and Border Protection’.

2. The Application filed 19 April 2013 be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 524 of 2013

MZZJR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 14 March 2013.  By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) to refuse the Applicant a Protection (Class XA) Subclass 866 visa.

2. The Application was filed on 19 April 2013.  The grounds of the application, as set out therein, are as follows:-

   “1. RRT told me that the medical certificate provided was fraud.  I want to say that all the document (sic) I provided was true to my knowledge.  I didn’t had (sic) any intention to provide fraud documents.  RRT also ask (sic) me the English version of all the documents.  Unfortunately I couldn’t organise it within the time frame.  If I could get more time I can organise all the documents in English version.”

3. The First Respondent sought, in his Response filed 30 April 2013, dismissal of the Applicant’s application. On 5 June 2013, Registrar Caporale made an Order pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) dismissing the application and ordering the Applicant pay the First Respondent’s costs in the sum of $1,331. On 16 July 2013, Registrar Caporale made an Order which amongst other things set aside that earlier Order made 5 June 2013.

4. The Applicant relies in the proceedings on the Application filed 19 April 2013 together with a number of affidavits sworn by him and filed 5 September 2013, all of which annex various documents.  The First Respondent relies upon the Response filed 30 April 2013 together with a Court Book filed 30 July 2013 the contents of which are evidence in the proceedings, and Contentions of Fact and Law filed 19 September 2013.

History

1. The Applicant is a national of India.  He first arrived in Australia on 9 June 2009 as the holder of a Student (Temporary) (Class TU) Subclass 572 visa.  He did not apply for a Protection (Class XA) Subclass 866 visa (‘protection visa application’) until he lodged same at the Melbourne regional office on 1 June 2012.  On 26 July 2012, the delegate refused the protection visa application.  The Applicant then applied to the Tribunal for a review of the delegate’s decision on 10 August 2012.

2. The Applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments on 22 January 2013.  The Applicant appeared at a rescheduled hearing on 5 March 2013.  On 14 March 2013, the Tribunal made its decision and, on 15 March 2013, the Tribunal provided written notification of its decision providing a copy of its Statement of Decision and Reasons dated 14 March 2013 (‘the Decision Record’) to the Applicant.

3. The lodging of the protection visa application by the Applicant provided him with a bridging visa which allows him to stay in Australia lawfully while his protection visa application is being processed.  That includes the review process.  When the Applicant’s Student (Temporary) (Class TU) Subclass 572 visa expired on 2 August 2011, the Applicant remained unlawfully in Australia until the lodging on 1 June 2012 of the protection visa application.

The Tribunal hearing

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

2. The Applicant submitted a large number of documents at the hearing many in Tamil and untranslated.  They were referred to in the Findings and Reasons of the Decision Record.

The Applicant’s claims for protection 

1. Attached to the protection visa application was a statement dated 30 May 2012 setting out the Applicant’s claims for protection.  Annexed to the statement were a number of documents.  In the statement dated 30 May 2012, the Applicant claimed that:-

   a)he experienced problems because of his political opinion and would suffer persecution if forced to return to Tamil Nadu, India;

   b)his father was a businessman and his family were well known in the area;

   c)in 2006 his family experienced problems from supporters and members of the Dravida Munnetra Kazhagam party (‘DMK party’) because he and his family supported the All India Anna Dravida Munnetra Kazhagam party (‘the AIADMK party’);

   d)he reported the problems to police but got no real help and in retaliation his neighbour stacked a truck load of bricks outside their house preventing the family from entering and exiting;

   e)when the DMK party won the election the family’s problems escalated and their neighbour was able to force the family from their house with the help of others in the DMK party;

   f)the Applicant and his father later changed their support to the Congress party and both became very active members of the Congress party;

   g)the Applicant and his family received threats from the AIADMK party supporters for changing sides and supporting the Congress party and their home was attacked on a number of occasions when rocks would be thrown at the windows and walls;

   h)the Applicant returned to visit his family in February 2010 but due to fear for his safety he kept a very low profile; and

   i)should the Applicant be returned to India there is a real chance of persecution at the hands of AIADMK party supporters.  The risk is particularly great as the Applicant formerly supported the AIADMK party.

The Tribunal’s Decision

1. As is set out accurately in the First Respondent’s Contentions of Fact and Law filed 19 September 2013, the Tribunal accepted only a small portion of the Applicant’s claims and found him not to be a credible witness.  The Tribunal, therefore, did not accept key parts of the Applicant’s claims as set out in the Decision Record.  The Tribunal accepted that:-

   a)the Applicant’s father was a business person who owns a shop;

   b)a house that the Applicant’s family owned was demolished in 2006; and

   c)the Applicant returned to India for his brother’s wedding in February and March 2010.

2. The Tribunal rejected many of the Applicant’s claims in particular including:-

   a)the Tribunal found an Indian medical certificate produced by the Applicant to corroborate his claims to have been beaten on his return to India in 2010, was dated two days before the Applicant had arrived back in India and was a fabricated document;

   b)found that the Applicant had changed his account of his claim to have been beaten when confronted with the evidence;

   c)did not accept the Applicant’s explanation for the three year delay between his first arrival in Australia and his protection visa application.  It found that the delay was due to the Applicant’s lack of genuine fear of return to India;

   d)accepted that the Applicant’s former house had been demolished in 2006, but did not accept that this was because of a disagreement with his neighbour over politics or that his former neighbour would continue to pursue the family;

   e)did not accept that the Applicant and his father were anything more than supporters of the AIADMK party and did not accept that they were involved in any activism for the party;

   f)found that the Applicant was at most a low level supporter of the Congress party.  It did not accept that the Applicant had been threatened or harmed for reason of this support;

   g)did not accept that there was a real chance of the Applicant being harmed on return to India.  In making this finding the Tribunal had regard to country information about the extent of violence between rival political supporters in Tamil Nadu.  It concluded that the Applicant does not have a well-founded fear of persecution;

   h)found that the Applicant did not face a real risk of significant harm for the purposes of s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’);

3. As to the evidence provided by the Applicant in documentary form at the hearing the Tribunal said at paragraph 25 of its Decision Record:-

   “The applicant provided evidence of his family’s ownership of the house that was demolished, including bank documents, title deeds, gas and electricity details which he took me through at the hearing.  I noted to the applicant that I was prepared to accept the base claims underlying these documents, that his family home was demolished, but did not accept other claims of the applicant.  I noted to him that for this reason I did not consider it useful or relevant to have these documents translated, and I have not done so. I have also found above that the medical certificate the applicant provided was fraudulent, and I noted to him that if I found this, I may place little weight on the other documents he had provided.”

4. The Tribunal specifically considered the Applicant’s claims once it found that the Applicant did not satisfy s.36(2)(a) of the Act against the provisions in s.36(2)(aa) of the Act. The Tribunal found that India was the Applicant’s receiving country. The Tribunal noted that it found that the Applicant was not a credible witness and that it found it did not accept in large part his claims to what has happened to him in the past and his claim of harm in the past. The Tribunal said relevantly, and in part, at paragraph 27 of its Decision Record:-

   “… I have found that I do not accept his claims for why he fears harm in the future.  I have considered the demolition of his house and acquisition of land in the context of s.36(2)(aa).  The applicant gave evidence that his father is doing well and that the family have moved to another house.  I, therefore do not find that the demolition and land acquisition constitutes continuing significant harm.  I do not accept that the applicant was assaulted on return to India in 2010, nor that he has been threatened or harmed for his political opinion or at all.  I asked the applicant if he had any other trouble or feared trouble for any other reason on return to India and he said apart from his claims in relation to politics he had no other trouble.  I have considered what will happen if he returns and acts as a low-level member of Congress.  I consider on the basis of the country information above that there is not a real risk that he would be significantly harmed in clashes between DMK and AIADMK supporters.  On this basis, I find that there is no real risk that the applicant will be harmed on return to India for any of the reasons he has claimed or for any other reason.  Therefore, I am not satisfied, on the evidence before me, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.”

5. The Applicant’s application to this Court for judicial review is one which really seeks merits review which is not possible for this Court.  The Applicant has filed a number of affidavits on 5 September 2013 which go to the housing dispute in respect of which the Tribunal made specific findings and, in particular, at paragraphs 21 and 25 of its Decision Record.  Annexed to one of the affidavits filed 5 September 2013 is an affidavit of the Applicant’s solicitor in India dated 30 August 2013. It post-dates the Tribunal’s decision. Annexed to another of the affidavits filed 5 September 2013 is a medical document which does not relate to the period of time during which the Applicant was in India for his brother’s wedding and is not the same document as that which the Tribunal member found to be a fraudulent document.

6. The Tribunal’s finding that the Indian medical certificate provided by the Applicant was fraudulent was a finding of fact for the Tribunal and it is not open to this Court to substitute its own finding.  There is no jurisdictional error in the Tribunal’s dealing with that issue.  It’s finding that the medical certificate was not genuine was clearly based on logical grounds and probative material.  The Tribunal found that the date given on the medical certificate was two days before the Applicant arrived in India.  The Tribunal put the discrepancy to the Applicant but did not accept his explanation for such discrepancy.  It cannot be said that the Applicant was unaware of the Tribunal’s concern about the genuineness of the medical certificate as it was specifically raised with the Applicant, and he was given the opportunity to give evidence and make submissions on that issue. 

7. The remaining ground of the Applicant’s Application filed 19 April 2013 relates to the Applicant requiring further time to provide documents in translation that were before the Tribunal in untranslated form.  The Tribunal considered the material put before it by the Applicant and no jurisdictional error is disclosed in the Tribunal’s treatment of the untranslated material.  As is referred to in paragraph 12 of these Reasons, the Tribunal in respect of the family’s ownership of the house which was demolished, accepted the base claims underlying the documents provided by the Applicant but did not accept the Applicant’s account of the reasons for the demolition.  The remaining untranslated documents provided by the Applicant were untranslated newspaper articles which the Tribunal queried the Applicant about and ascertained that the documents concurred with country information already before it and referred to by it.

1. In essence, the Tribunal did not accept the Applicant as a witness of credit.  Such a finding was open to it on the totality of the evidence before it.  These evidentiary based factual findings of the Tribunal are a matter for it and not this Court.  The Application filed 19 April 2013 has no merit and shall be dismissed with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  18 October 2013