MZADZ v Minister for Immigration

[2015] FCCA 1589

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADZ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1589

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – ground of application and oral submissions of applicant not articulating any asserted jurisdictional error – no jurisdictional error apparent in Tribunal’s decision – application constituting impermissible merits review – application dismissed. 

Legislation:  
Migration Act 1958, ss.36(2)(aa), 424AA

Applicant: MZADZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 900 of 2014

Judgment of: Judge Burchardt

Hearing date: 20 April 2015

Date of Last Submission: 20 April 2015

Delivered at: Melbourne

Delivered on: 18 June 2015

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Symons

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application is dismissed. 

2. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 900 of 2014

MZADZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 April 2014.  The Tribunal affirmed a decision of the first respondent not to grant the applicant a Protection (Class XA) visa.  The grounds of application expressed in the application are, simply, “Failure to acknowledge that the Applicant was a Genuine candidate as a Refugee under subsection 36(2) of the Migration Act 1958 (“the Act”).”

2. The affidavit in support filed contemporaneously with the application on 30 May 2014, to all effects and purposes, simply exhibits a substantial tranche of information in support of the application together with a copy of the Tribunal’s decision, of which there appear to be two copies. 

3. For the reasons that follow, I think that the applicant’s grounds of application and his arguments advanced in support of it are matters of merits review, which this Court is not entitled to entertain.  It follows that the application will be dismissed.

4. The first respondent has filed submissions which traverse, in terms that seem to me to be unobjectionable, the history of the matter, and I have had regard to those submissions, but it is appropriate for these purposes to commence with the decision of the Tribunal itself.  The Tribunal set out the application for review and the relevant law at Court Book (“CB”) 151-153.  No criticism has been advanced in respect of the Tribunal’s analysis of the law, and, in my view, what is set out is entirely consistent with the legislation.

5. The Tribunal then went on to consider, at CB 153-155, the claims advanced by the applicant.  It is clear that the applicant arrived in Australia on 4 January 2009 as a student.  His family remained residing in Punjab.  The Tribunal set out the essential claims made by the applicant and the history of his interview by a departmental delegate on 23 December 2013, following which (paragraph 21, CB 154), the applicant forwarded material on 28 January 2014 to the delegate. 

   
   

   The applicant’s claims are summarised in paragraph 21, and, in my view, this summary is consistent with what the applicant had, indeed, raised. 

6. The Tribunal noted at paragraph 22:

   “The applicant was refused a protection visa because the delegate had significant doubts about his credibility as a result of inconsistencies, the applicant’s immigration history, dealings with the department, possibly submission of fraudulent financial documents and delay in his application.”

7. The Tribunal then went on, at CB 155-164, to record the Tribunal proceedings.  It noted the provision of a certain amount of material, some of which is annexed to the applicant’s affidavit in this proceeding, including an affidavit from his friend, Vinod Kumar (paragraph 24, CB 155).

8. The applicant appeared before the Tribunal on 8 April 2014, and the Tribunal was assisted by an interpreter in the Punjabi and English languages.  The applicant was represented, in relation to his application for review, by a registered migration agent.  The Tribunal recorded the history of the applicant’s time in Australia, including a substantial period of time as a student.  It emerged that the applicant’s visa as a student had been cancelled because he had not paid fees and also because he had not attended classes for a mechanics course (paragraph 34, CB 156).

9. The Tribunal traversed the applicant’s history in India and, in particular, the difficulties that the applicant said he had had as a result of his work at the Jain High School in Banga (the applicant asserted that he had been beaten up (paragraph 55, CB 158)) and traversed with the applicant, in some detail, the history of his experiences in India.  At paragraph 81 and thereafter, the Tribunal recorded various difficulties that it had put to the applicant about his credibility.  The Tribunal specifically advised the applicant that it found some of his evidence difficult to accept, vague and inconsistent, including the fact that country information suggested that one of the central tenets of the Jain religion was non-violence and that the country information generally did not support the applicant’s claims that the police denied protection to people in conflict with Jains or that the Jains received special treatment from the police (paragraph 81, CB 161).

10. The Tribunal also put to the applicant that there was a high level of document fraud in India and that this had to be borne in mind when deciding how much weight to give the documents the applicant provided, to which the applicant responded that the Tribunal could verify his documents (paragraph 83, CB 161). The Tribunal then advised the applicant that it was going to formally put adverse information to him pursuant to s.424AA of the Migration Act 1958 (“the Act”).  It is sufficient for present purposes to note that the matters thus put to the applicant are at CB 162-163 and, in my view, constitute a fair process whereby the applicant was put on notice of the matters with which the Tribunal was concerned.  The Tribunal noted the applicant’s responses given at the hearing (paragraphs 94-96 CB 163). 

11. The Tribunal recorded the representative’s submissions at CB 163-164, and I note that at paragraph 101, CB 164, the applicant provided a copy of a letter dated 12 March 2014 from the Department of Immigration regarding recent unauthorised data breach for people in detention.  When asked how this related to his fears of returning to India, the applicant stated that he had no idea. 

12. It should be noted that the Tribunal’s decision at CB 164-168 in relation to the Convention protection claim commences with an unexceptionable iteration of the test as to significant harm and note the difficulties of proof faced by applicants for refugee status.

13. The Tribunal found several aspects of the applicant’s evidence to be vague and undetailed (paragraphs 106-107, CB 165), where the Tribunal found:

    “106.    The Tribunal found several aspects of the applicant’s evidence to be vague and undetailed.  For example, the applicant was unable to provide a detailed explanation of what the exact fraud he was asked to be involved in consisted of. 

    
    

    The Tribunal also found several aspects of his evidence to be implausible, as will be outlined below.  His evidence also appeared at times inconsistent, both internally as well as with previous information the applicant has provided to both the Department and the Tribunal about his employment in India and his reasons for not returning to that country.  The Tribunal further has serious concerns about the applicant’s failure to raise any fears of returning to India during his previous dealings with the Department and Tribunal and his lengthy delay in lodging a protection visa. 

    107.    The applicant’s representative claimed that the applicant may not have had the assistance of an interpreter in previous interviews which may have led to inconsistent information. 

    
    

    The Tribunal does not accept this is a satisfactory explanation. 

    
    

    At the start of the Tribunal hearing, the applicant asserted that he preferred to speak in English and only use the interpreter when necessary, indicating that he was comfortable with speaking in English.  While the applicant did use the interpreter at various times throughout the hearing, he appeared to comprehend and respond to questions in English and the Tribunal does not accept that any language hindrances were the reason for inconsistent information provided by the applicant over the years.  The Tribunal further finds that the applicant would have been asked if he required the assistance of an interpreter in his dealings with the Department and with the Migration Review Tribunal.”

14. The Tribunal went on to set out, at paragraphs 109-118, a comprehensive recitation, analysis and, ultimately, rejection of the applicant’s central factual claims, including the claim that he was employed as an accountant in the SRC Jain Model High School.  As a result of the failure to accept that contention, the Tribunal necessarily did not accept that the applicant was ever asked by the president of the school to engage in fraud, or that he refused to do, or that he faced any difficulties as a result.  The Tribunal did not accept that the applicant was hospitalised or treated for any injuries or, indeed, that he had suffered any.  Accordingly, the Tribunal did not accept that there was a real chance that the applicant would face serious harm at the hands of the Jain Trust, the SRC Jain Model High School management or Jains in general if he returned to India now or in the reasonably foreseeable future (paragraph 119, CB 168).

15. The Tribunal considered the applicant’s documentation at paragraph 121, noting that some of the information contained in the affidavits appeared to contradict the applicant’s claims.  The Tribunal found:

    “On the basis of this, the above concerns and its overall concerns about the applicant’s credibility, the Tribunal has given the documents provided by the applicant little weight.  The applicant’s willingness to engage in some sort of certification or verification process with the Indian Consulate as suggested at the hearing does not allay the Tribunal’s concerns about the genuineness of the documents or their content.”

16. The Tribunal went on to consider the question of the departmental data breach that led to the publishing of details of approximately 10,000 individuals in immigration detention on the Department’s website.  

    
    

    At paragraph 122, CB 168 the Tribunal found:

    “The applicant stated that he had ‘no idea’ how this might affect his fears of returning to India.  On the basis of the evidence before it, the Tribunal does not accept that the inadvertent publishing of the applicant’s personal details would give rise to a real chance of serious harm upon return to India.”

17. The Tribunal went on to consider the applicant’s claims by reference to the complementary protection criterion in s.36(2)(aa) of the Act and concluded, for reasons similar to those derived in the Convention application, that the criterion was not engaged. It does no disservice to the helpful and able written submissions lodged by the first respondent to sum them up by saying that the submissions traverse the applicant’s claims and the Tribunal’s decision. The essential gravamen of the submission is that the lack of specificity in the application grounds and in the applicant’s material leaves little to consider, save the Court Book and the Tribunal’s decision. The submissions, essentially, assert that the applicant is engaged in merits review.

18. When the matter came before the Court, the applicant made a number of oral submissions.  These, however, in my view, entirely re‑traverse matters already dealt with at the Tribunal.  Essentially, the applicant took issue with a number of the Tribunal’s findings.  He also sought to reiterate matters already dealt with by the Tribunal.  I note that he asserted, inter alia, that Vinod Kumar is not a family member of his, but it needs to be borne in mind that this was an issue which the Tribunal had already determined.  I mention this matter purely by way of illustration.

19. While I have had careful regard to what the applicant had to say – and he was fluent and articulate – the fact is that, regrettably for him, his oral submissions entirely, in my view, consist, as the first respondent’s counsel submitted, of matters which are merits review.  That is not, unfortunately for the applicant, a function of the Court in this instance.  I further accept the submission of counsel for the first respondent that the Tribunal was aware of the data‑release matter, a matter to which the applicant referred more than once in his oral submissions. 

    
    

    The Tribunal’s finding in relation to the data‑release matter was clearly open on the materials, and particularly in face of the failure of the applicant to articulate any precise fear arising therefrom.

20. In all the circumstances, the applicant’s application does not give rise to any viable suggestion that the Tribunal fell into jurisdictional error.  Indeed, the applicant’s application and oral submissions do not, in terms, assert any particular jurisdictional error.  None is discernible from the Tribunal’s decision.  It follows that the application will be dismissed with costs. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  18 June 2015