MZAEZ v Minister for Immigration and Border Protection

[2015] FCA 873

FEDERAL COURT OF AUSTRALIA

MZAEZ v Minister for immigration and Border Protection [2015] FCA 873

Citation:	MZAEZ v Minister for Immigration and Border Protection [2015] FCA 873
Appeal from:	MZAEZ v Minister for Immigration [2015] FCCA 712
Parties:	MZAEZ and MZAFA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 123 of 2015
Judge:	DAVIES J
Date of judgment:	13 August 2015
Catchwords:	MIGRATION – Protection (Class XA) Visa – appeal from decision of Federal Circuit Court – no error of law – appeal dismissed
Legislation:	Migration Act 1958 (Cth) s 65
Date of hearing:	13 August 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	12
Counsel for the First Appellant:	The First Appellant appeared in person
Counsel for the Second Appellant:	The Second Appellant did not appear
Counsel for the First Respondent:	Ms E Latif
Solicitor for the First Respondent:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent entered a submitting appearance, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 123 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZAEZ
First Appellant

MZAFA
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	13 AUGUST 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The name of the second respondent be amended to the Administrative Appeals Tribunal.

2.The appeal be dismissed.

3.The first 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.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 123 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZAEZ
First Appellant

MZAFA
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE:	13 AUGUST 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. The appellants have appealed the decision of the Federal Circuit Court (“the FCC”) dismissing their application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of delegate of the first respondent to refuse the appellants’ Protection (Class XA) Visas pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”).

   BACKGROUND AND CLAIMS

2. The appellants are citizens of India who arrived in Australia on visitor visas. The first appellant claimed to fear persecution by reason of his actual or imputed political opinion. He claimed that during the Gujarati state elections in 2012, he joined and undertook promotional activities for the Indian National Congress Party, as a result of which he received threats and was subject to physical violence from members of the competing Bharatiya Janata Party. The second appellant is his wife who applied for the visa as a member of his family unit and made no independent claims for protection.

3. The Tribunal found that the first appellant was not a credible witness by reason of his vague and inconsistent claims. Further, the Tribunal found the first appellant’s evidence in relation to the harm he claims to have faced in India to be implausible.

   FCC DECISION

4. The appellants sought judicial review of the Tribunal’s decision on four grounds as follows:

   (1)My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.

   (2)The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

   (3)The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

   (4)The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 05 May 2014 was effected by actual bias constituting judicial error.

5. As to Ground 1, the FCC stated at [10]:

   The first applicant has not identified any information that he says the Tribunal should have, but did not, provide to him in writing. There does not appear from the decision to have been any information that the Tribunal relied upon which it should have given to the applicants. The Tribunal’s decision was based on its view of the credibility of the first applicant and the implausibility of his claims. The assessment of credit and plausibility is not information within the meaning of s 424A of the Migration Act 1958 (“the Act”). I am not persuaded that, in this case, there was any information which the Tribunal should have, but which it did not provide to the applicants. For completeness, I note that the delegate also rejected the applicants’ claims for credibility reasons.

6. As to Ground 2, the FCC stated at [12]:

   Again, the first applicant has not provided any particulars of this ground. The decision of the Tribunal appears to have properly set out the legislative background and the correct legal principles. The applicants’ claims appear to have been properly set out and understood. The decision that those claims were implausible and not credible was open to the Tribunal. It does not seem to me that it could properly be said that the Tribunal’s decision was not reasonable in the legal sense or that the decision was not arrived at in accordance with the requirements of the Act.

7. As to Ground 3, the FCC stated at [14] and [15]:

   The Tribunal in this case has considered the four key elements of the Refugees Convention. The Tribunal was satisfied that the applicants were outside their country of nationality. The Tribunal was not satisfied that the first applicant feared persecution. The Tribunal considered that the first applicant’s claims in that regard were not credible or plausible. The Tribunal accepted that the first applicant’s claims amounted to a claim of persecution on the grounds of political opinion. However, the Tribunal did not accept that those claims were credible or plausible. The Tribunal did not accept that the persecution that the first applicant claimed to fear was well-founded. That was because the claims were considered by the Tribunal not to be credible or plausible.

   I am not persuaded that the Tribunal failed to consider the four key aspects of the Refugees Convention definition. Moreover, I am not persuaded that the Tribunal failed to consider all of the applicant’s claims. The Tribunal set out those claims in detail. The Tribunal questioned the applicant about relevant matters during the hearing before it, and the Tribunal set out its analysis of the matter under the heading “Findings and reasoning”.

8. As to Ground 4, the FCC stated at [17] and [18] as follows:

   It is well established that, as a general rule, the Tribunal has no obligation to investigate an applicant’s claims. It is for an applicant to make out his or her claims. It is only where there has been a failure to make an obvious inquiry about a critical fact, the existence of which is readily ascertained, that there might be a jurisdictional error constituted by a failure to inquire. The applicants have not pointed to any such fact or information. I have been unable to identify any.

   The allegation of actual bias appears to be dependent upon the alleged failure to investigate. As there was no impugnable failure to investigate, there could have been no consequent actual bias.

9. The FCC, accordingly, dismissed the application for judicial review.

   THE APPEAL

10. The appeal from the decision of the FCC raises two grounds as follows:

    1.The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

    2.The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

11. Neither ground of appeal has any merit. The FCC was correct to hold, for the reasons given, that no jurisdictional error was shown in the decision of the Tribunal. As the FCC stated, the Tribunal’s decision turned on credit. The Tribunal did not consider that the first appellant’s claims were credible or plausible and in consequence, the Tribunal did not accept that the first appellant had a well-founded fear of persecution for a Convention reason if he returns to India or that he met the criterion for complementary protection. The adverse credit finding was open to the Tribunal to make on the evidence and material before it. No legal error has been shown the Tribunal’s approach.

    CONCLUSION

12. Accordingly, the appeal should be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated:       13 August 2015