MZAFZ v Minister for Immigration
[2016] FCCA 1319
•10 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAFZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1319 |
| Catchwords: MIGRATION – Application for judicial review – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.424AA |
| Applicant: | MZAFZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1168 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 10 March 2016 |
| Date of Last Submission: | 10 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 10 March 2016 |
REPRESENTATION
| The Applicant appeared In Person |
| Solicitors for the First Respondent: | Australian Governmnet Solicitor |
ORDERS
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $3416.00.
The name of the Second Respondent be amended to the Administrative Appeals Tribunal.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1168 of 2014
| MZAFZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore & Revised)
This is an application for judicial review by the applicant, who is a citizen of Pakistan. The applicant came to Australia in February 2013 on a tourist visa and in April 2013 she applied for a protection visa. Her application came before a delegate of the Minister in December 2013 who refused to grant the applicant a protection visa. The applicant then applied to the Tribunal for a review of the delegate’s decision and that application was made in January 2014. Some time elapsed before her hearing in front of the Tribunal, which occurred on 8 April 2014.
The Tribunal, being concerned about a number of false statements in the applicant’s tourist visa application, gave her notice under section 424AA of the Migration Act 1958 (“the Act”) and invited her to attend before them again on 7 May to answer questions about the Tribunal’s concerns. The Tribunal ultimately found that the applicant was not a credible witness and rejected the bulk of her evidence.
The applicant seeks judicial review on the ground, “I am not satisfied with the decision of RRT”.
The applicant did not articulate in her application any ground of legal error or procedural unfairness, nor did she even go so far as to articulate some basis upon which one could loosely say that she claimed not to have gotten a fair hearing before the Tribunal. The matter came before a Registrar of this Court in September 2014 and, despite the obvious defects in her application in not setting out any ground, the Registrar set the matter down for hearing before me and directed that she make written submissions 35 days before the hearing today about what the basis of her case was, effectively giving her another chance to set out the nature of her case.
She did not take up that opportunity but attended today to make oral submissions. As this is a refugee application – that is, a protection visa application – I, of course, permitted her to make fulsome oral submissions today and attempted to extract from her what she saw as the basis of the errors that she claimed that the Tribunal had made. In doing so, her main source of complaint was that at the second interview before the Tribunal she felt that she didn’t get a chance to set out the whole of her version of events again and to provide a better explanation for the various false documents that were submitted by her with her tourist visa application.
In the absence of a transcript showing that the Tribunal restricted her from putting forward information she had not already put forward in the first interview, it is difficult to see how she can show a case in this regard. Importantly, the Tribunal member did not approach the case simply on the basis that because she had lied in her tourist visa application and provided fraudulent false documents in that application, that that necessarily showed that she was not entitled to a protection visa.
The Tribunal member explained this in some detail in paragraph [31] of the decision, saying:
31. The applicant applied to come to Australia on a tourist visa. On this application, which is signed by her, she said that she had a husband. Attached to the application was a marriage registration certificate where it is stated that she had a husband. This information is inconsistent with her claims that she was not married and had a boyfriend and was targeted because of it and detracts from her overall credibility. I put this information to the applicant for comment under s.424AA of the Act and she said that she was in a bad way psychologically at the time and that her life was in danger. She said when she went to the visa consultant she did not know she was going to Australia. She said she had seen one of the documents related to the marriage. She denied being married and stated that the Tribunal could make enquiries in Pakistan to see if she was married. I am conscious that asylum seekers may provide false information to be able to leave their country if they have a genuine fear of harm but in all the circumstances, I find that this inconsistency and willingness to provide false information to the Australian government, taken in concert with other concerns about her credibility, is another reason that detracts from her credibility. Given the very substantial concerns I have about her credibility that I have referred to in this decision and given that such information would not outweigh my overall concerns with her credibility, I have decided not to initiate enquiries in Pakistan as to her marital status.
It is apparent that the Tribunal member acknowledged her claims that she was suffering some degree of psychological trauma at the time and that she had utilised a consultant to assist her in preparing the tourist visa application and, most importantly, the clear acknowledgment that some asylum seekers may provide false information to be able to leave their country if they have a genuine fear of harm in the circumstances in which they find themselves.
In this regard, it does not seem to me that the Tribunal member has erred by allowing themselves to be overwhelmed by a false visa application but, rather, turned to look at the context of the case overall. The context of the case overall does not fall in the applicant’s favour. The Tribunal member was also concerned that she had failed to make some claims in her protection visa application and evidence before the delegate, which she later articulated to the Tribunal. This is discussed at paragraph [29] of the decision:
29. At the Tribunal hearing the applicant claimed for the first time that her mother found her talking to her boyfriend on a mobile on the top of their house and that her mother then pushed her head against a wall and that her father hit her with an electric cable which caused burn marks on her body and that her mother stabbed a cigarette on her thigh. She confirmed that she had not told the delegate at interview about this incident. Asked why given it was such a serious incident, she said that she was new in Australia and intended to file a RRT application. She stated that a man she met in Australia had told her to tell her story “bit by bit”. She said that she had not had personal support and that she did not want to recall the incidents and that she was told that she should not to mention it because she did not have proof. She also said that there was not much time during the interviews. She also said that she felt easy saying these things in front of me. I do not consider these to be credible explanations. The applicant made a number of claims to the delegate and her visa application without any supporting evidence. She was interviewed extensively by the delegate about her claims over two interviews. She also did not refer to these very serious incidents in her protection visa application despite indicating on the form that she spoke, read and wrote English. The applicant is an educated woman with post-secondary qualifications in nursing and was articulate at hearing. I find it implausible and not credible in all the circumstances that she would fail to mention in her visa application and in her interviews with the delegate such a highly significant incident in which she claims she was physically assaulted in brutal ways if these incidents had actually occurred.
This is another reason that a rational decision-maker may find that a person’s version of events is not reliable and not to be believed: that is, changing their version of events as time passes or giving inconsistent versions of events.
When taken as a whole, it seems to me that it was well within the reasonable exercise of discretion to conclude that they were not prepared to accept the evidence that the applicant was giving with respect to the potential harm that she may suffer in Pakistan.
The applicant also raised the question of whether or not the Tribunal member had placed inappropriate weight upon information from a person known to her and who had “dobbed her in” to the Department. The Tribunal member clearly dealt with this issue at paragraph [53], saying:
53. The Department received information from a third party that the applicant’s claims were false and that she was regularly attending a mosque in Fawkner. As mentioned to the applicant at the hearing, I do not know what the motivation of this person was and I have placed no weight on this information in making my decision.
This paragraph makes clear that the Tribunal member has not placed any weight upon this dob in information. anything that should affect a visa.
It would not have been appropriate for the Tribunal member to look at that information and not mention it in the decision because one would then not have known what weight, if any, the Tribunal member placed upon that. The reasons make clear that the Tribunal member placed no weight on that information.
The applicant raises that there is one aspect of her evidence that the Tribunal member did accept, and that is that in 2003 she says that a doctor had brought her into a room at the hospital and locked the door and attempted to sexually harass her but she cried out and made a noise and it seems that the behaviour ceased.
She said she lodged a written complaint with the medical director but the hospital did not pursue this and deal with it. Certainly, this is behaviour that is reprehensible and would not be tolerated by the courts or administration of a hospital in Australia. However, on a refugee visa application the test is not whether the behaviour or events are such as to require sanction in Australia but rather whether they give rise to a well-founded fear of persecution that results in a real risk of serious harm or, under the complementary protection visa’s provisions, significant harm as defined in that section, such as cruel or inhuman treatment or punishment, degrading treatment or punishment and torture.
The Tribunal member concluded that this conduct, which occurred in 2003 and does not appear to have been repeated, was not of a level of seriousness that would come within the definition of serious harm or significant harm within the protection visa provisions. It seems to me that that finding was open to the Tribunal member, as they set it out at paragraph [46]:
46. At the hearing, the applicant stated there was an incident when she was training to be a nurse in about 2003, when a doctor brought her into a room and locked the door and attempted to sexually harass her but she cried out and made a noise. She stated that she lodged a written complaint to the medical director but this was not dealt with. She continued to undertake the training but this was inside a labour ward where there were only female staff. After the training she went and worked at another hospital. I accept that this incident occurred and her complaint was not dealt with by the hospital as it is consistent with the country information concerning harassment of nurses in Pakistan. I have taken into account the country information that harassment of nurses is a major issue in Pakistani hospitals and that in many cases no action is taken against the harasser. However, the applicant continued with her training without further incident and then worked for a substantial number of years in several hospitals (until 2012) which would have involved contact with male doctors and staff without experiencing this type of conduct again. I accept that when she returns to Pakistan she will again work in such hospitals but in her individual circumstances and considering the country information, I find that the chance she will subject to treatment amounting to serious harm or significant harm to be remote.
I make clear that this is not to say that anyone would ever condone such behaviour, nor that the behaviour was anything but wrongful. However, the test for a protection visa is at a significantly higher level of harm than is indicated by the behaviour described in paragraph [46] of the reasons.
The final matter that the applicant articulated orally was that she believed she should have been given a better opportunity to present her arguments and evidence. It is difficult to see what error the Tribunal has made in this regard. The applicant had a hearing before the delegate. The delegate found against her. She was well aware that she had to satisfy the Tribunal.
The applicant made application to the Tribunal and there was a significant period before her hearing in front of the Tribunal to allow her to prepare her material and put her case. The aspects of her case that the Tribunal were particularly concerned with were the subject of a section 424AA letter and they gave her a further opportunity to specifically address those questions or concerns that they had.
On the material before me I am not persuaded that the applicant has an arguable case.
The complaints amount, effectively, to a complaint that the Tribunal member did not believe her in circumstances where she had made an earlier false visa application and had not given consistent versions of events when pursuing her protection visa claim and in circumstances where she had two hearings before the Tribunal to enable her to properly put her case and answer the Tribunal’s concerns.
In the circumstances, I therefore find that it is appropriate that the application be dismissed.
[Further argument ensued]
The applicant has been unsuccessful and costs ordinarily follow the event. The scale fee is $3,416. In this matter the respondent has had to prepare court books and written submissions. In these circumstances, work of the nature contemplated by the rule has been carried out and the cost fixed in the rule seems to me to be appropriate.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 31 May 2016
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