Mzakt v Minister for Immigration
[2015] FCCA 3225
•4 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAKT v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3225 |
| Catchwords: MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424A(1), 424AA, 424AA(3), 425, 425A |
| Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | MZAKT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1874 of 2014 |
| Judgment of: | Judge Hartnett |
Hearing date: Orders made: | 23 September 2015 23 September 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 4 December 2015 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS MADE ON 23 SEPTEMBER 2015
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application filed on 15 September 2014 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1874 of 2014
| MZAKT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review of a decision made by the Refugee Review Tribunal (as it then was) (“the Tribunal”) on 19 August 2014 wherein the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a Protection (class XA) visa (“the visa”).
The grounds of application are as follows:-
“1. The Applicant seeks judicial review of a decision of the Migration Review Tribunal (The Tribunal) which a decision was made on 20 August 2014 (sic) where the Tribunal affirmed a decision of a delegate to refuse to grant the applicant a Protection visa.
2. The Tribunal constructively failed to exercise its jurisdiction.
PARTICULARS
(i) The applicant provided information and documents to the Tribunal to corroborate his claims.
(ii) The tribunal failed to document that information
(iii) The tribunal gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents
(iv) It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.
3. The applicant satisfies the key elements for an employer nomination visa and the Tribunal has not considered this aspect and therefore made factual and legal errors.”
The Applicant filed an affidavit affirmed by him on 16 September 2014 in the proceedings. That affidavit annexed the decision record of the Tribunal dated 19 August 2014.
The First Respondent seeks dismissal of the application together with an order for costs. The First Respondent asserts there is no jurisdictional error attending the decision of the Tribunal.
The matter proceeded before Registrar Allaway on 3 December 2014. On that day the Court made procedural orders including provision for the Applicant to file and serve any written submissions prior to the hearing. No written submissions were filed or relied upon by the Applicant. The First Respondent filed and served an outline of submissions dated 9 September 2015 which is relied upon by the First Respondent. There is also before the Court the evidence as contained in the court book filed 15 December 2014.
Background
The Applicant is a citizen of Iraq who arrived in Australia on 12 May 2012 as an irregular maritime arrival from Indonesia. He applied for a Protection (Class XA) visa on 19 August 2012.
The Applicant’s claims are set out in his Statutory Declaration of 14 August 2012, which was annexed to his application for the visa and was summarised by the Tribunal in paragraph 19 of its decision record as follows:-
“a. The applicant is a 28 year old Shia Arab born in Al Jahra, Kuwait. He is married with three children. All of his family are in Iraq.
b. His family was deported from Kuwait in 1991. They were stateless at the time and were sent to Iraq. There was a war between the two countries and the time and the applicant’s legs were injured in a bomb blast.
c. His father was able to make arrangements for the family to obtain Iraqi citizenship because the father had been born in Iraq.
d. Life was difficult for him in Iraq. Due to his disability, he was always targeted and discriminated against. He was not able to get a proper education. He was also put down because he was born in Kuwait. People know that he is from Kuwait because of his Kuwaiti accent. People would not trust them and would always look at them with suspicion.
e. After the fall of Saddam Hussein, life became difficult because of the war between the Al Mahdi militia and fundamentalist Sunni groups.
f. In 2006, he was imprisoned for five days after a road incident involving the Director of Police Affairs in Nasiriyah who pulled him over the side of the road and fired two bullets at his car. The police came and took the applicant away to jail. The judge ruled that there was no evidence the Director had discharged his gun and accused the applicant of lying. The applicant’s father was able to bribe the Director to get the applicant released.
g. The applicant was often overlooked for employment due to his disability and Kuwaiti origin so he started his own business buying items and selling them at a profit.
h. On 30 April 2011 he sold his car to a man named Ali. They agreed upon Ali paying the purchase money by 30 January2012. The car was transferred to Ali’s name and he took possession of it on 30 April 2011.
i. On 30 January 2012, the applicant had not received his money. He later learnt that Ali had sold the car to another person. The applicant’s father and uncle went to Ali’s father and uncle, who were from a different tribe, to discuss the matter. Afterwards, Ali told the applicant he would pay the money shortly.
j. Ali then rang the applicant again and told him there had been no transaction and that if the applicant wanted to live, he had to give Ali the original receipt (a promissory note). Ali threatened to kill the applicant and his son otherwise. The applicant advised Ali that he could issue legal proceedings.
k. Ali began ringing the applicant and threatening him on a regular basis. He is a member of the Islamic Dawah Party and has family in parliament. His tribe, the Al Husayanat, are very powerful. The applicant’s tribe is very weak in Iraq.
l. The applicant took his family to another area and fled. Recently his wife told him that Ali had threatened the applicant’s father regarding the applicant’s whereabouts and wanted the promissory note.
m. The applicant fears Ali and his tribe, the Al Husayanat because the applicant sold him a car and has a promissory note that Ali will pay. He fears harm from the Islamic Dawah Party who will target him because of Ali. He fears the authorities because they targeted him in the past. He also fears fundamentalist groups such as Al Mahdi and Sunni militias. He also fears being targeted by militias because he is seen as rich due to his business.
n. He fears the authorities who are corrupt and composed of militias. The Al Husayanat tribe has members in high positions including in parliament.”
On 14 March 2014 the Tribunal received submissions providing further information regarding the Applicant’s claims and submitting that the Applicant faces persecution on the basis of:-
a)his Shia religion;
b)his race and nationality;
c)his membership of the particular social group “returnees from a western country”, “Iraqi individual born in Kuwait”, “wealthy businessman”, and “individual with disabilities”; and
d)his imputed political opinion.
Documents provided by the Applicant to the Tribunal included also a letter from the Applicant’s doctor, an untranslated arrest warrant, and a statement from the Applicant’s tribe.
The Applicant appeared before the Tribunal on 14 March 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Applicant was represented in relation to the review by his registered migration agent.
Following the Tribunal hearing and on 23 April 2014, the Tribunal received further submissions from the Applicant’s representative (there having been earlier written submissions provided by the Applicant’s representative on 7 March 2014) with these later submissions providing country information regarding the Applicant’s claims and translations of an arrest warrant and clan declaration.
By letter, dated 20 August 2014, the Tribunal notified the Applicant of its decision to affirm the decision under review and not grant the Applicant the visa.
The Tribunal’s decision
The Tribunal said in paragraph 105 of its statement of reasons and decision (“the decision record”) that:-
“While some aspects of the applicant’s evidence such as his life and circumstances in Iraq appeared credible, the Tribunal found other aspects of the applicant’s claims regarding his dispute with a man named Ali to be implausible and lacking in credibility…”
The Tribunal’s findings are accurately set out in the First Respondent’s outline of submissions, paragraphs 12 to 20 inclusive. They are set out herein:-
“12. The Tribunal found:
12.1 that the applicant’s business arrangement with Ali appeared implausible;
12.2 there were inconsistencies in the information provided by the applicant.
12.3 that the applicant’s claim that Ali was at risk of a 20 year jail term was implausible;
12.4 that the applicant’s clams that Ali demanded that he pay an unspecified sum of money and that he had no problems obtaining payment from any customer other than Ali were implausible;
12.5 Ali was not using his Al Dawa Party connections to threaten the applicant; the Tribunal found that country information did not support the proposition that members of Al Dawa Party used resources to resolve disputes. Further, the Tribunal also concluded that if Ali was using his political contacts, then the applicant’s version of events would appear implausible; and
12.6 the documents provided by the applicant, including an arrest warrant and a letter from his clan disowning him, were not genuine.
13. On the basis of these concerns the Tribunal did not accept that the applicant bought and resold a car to Ali and that Ali was not able or refused to pay the money back to the applicant. The Tribunal did not accept that the applicant contacted Ali or his tribe to negotiate repayment; or that the applicant and / or his family were ever threatened by Ali, Ali’s associates, or the Al Dawa Party. The Tribunal did not accept that an arrest warrant was ever issued against the applicant or that the police came looking for him.
14. The Tribunal did not accept that the applicant had been imputed with an anti-Al Dawa Party political opinion on the basis of the dispute, or that his clan had disowned him. The Tribunal did not accept that there was a real chance or real risk that he would suffer significant harm from Ali, Ali’s clan or the Al Dawa Party due to the dispute, an imputed anti-Al Dawa political opinion or because of the applicant’s clan connections.
15. The Tribunal accepted that the social group “wealthy businessman” exists in Iraq; however, it doubted that the applicant belonged to such a group given the evidence before it. The Tribunal did not accept that the applicant had a real risk of significant or serious harm for this reason.
Applicant’s status as a Kuwaiti-born Bidoon
16. The Tribunal accepted that the applicant is a Bidoon born in Kuwait who was deported with his family to Iraq in 1991. However, based on its appraisal of country information, the Tribunal did not accept that there is any real chance or real risk that the applicant would face serious or significant harm as a result of being a Bidoon, from Kuwait or due to any imputed political opinion arising from his background.
Applicant’s disability
17. The Tribunal accepted that “individuals with physical disabilities” may constitute a particular social group in Iraq.
18. While the Tribunal accepted that the applicant is permanently disabled and that physically disabled people in Iraq may face discrimination, it noted that the applicant had been able to lead a normal life in Iraq despite his lack of mobility and that the applicant was able to earn a livelihood by driving a customised taxi and later through his business. The Tribunal did not accept that the applicant faced a real chance of serious harm or a real risk of significant harm for reasons of his membership of the social group of “individuals with physical disabilities”.
Shia Religion
19. The applicant’s written claims and submissions indicated that he feared harm from fundamentalists or Sunni militias because of his Shia religion. At the hearing, the applicant stated that he did not fear harm due to his religion. Accordingly, the Tribunal did not accept that the applicant faces a real chance of serious harm or a real risk of significant harm due to his religion.
Fear of harm as a returnee from a Western country
20. The applicant claimed he would face harm upon return to Iraq due to having fled the country and seeking asylum in Australia. The Tribunal found that there were some risks for returnees if they are returning to areas in which they are minority or where they have no tribal or political ties. However, this was not the case with the applicant, who is part of the Shia majority in Basra, has tribal links to his home area and who has lived in Nasiriyah for the vast majority of his life.”
Consideration
The Tribunal delivered careful and considered reasons as contained in its decision record. It is evident that throughout the Tribunal hearing, inconsistencies in the Applicant’s evidence were put to the Applicant by the Tribunal together with matters which the Tribunal thought implausible including reference to information which the Tribunal derived from country information. The Tribunal carefully considered the claims made by the Applicant as contained in his written submissions, his oral submissions and his evidence, including various documentary evidence supplied by the Applicant to the Tribunal. The Tribunal assessed the translated arrest warrant and clan declaration, but had doubts about the authenticity of those documents. The Tribunal said as to the various documents provided by the Applicant in support of his claims as follows:-
“118. The applicant has provided various documents in support of his claims, including copies of business receipts and what he claims is the undated cheque given to him by Ali. These documents are in Arabic and have not been translated into English. Accordingly, the Tribunal is also unable to give them much weight.
119. The applicant has provided translations of other documents namely an arrest warrant he claims was issued to him and a declaration from his clan that they have disowned him. The Tribunal has significant concerns about the genuineness of these documents. The applicant provided what appears to be an original version of the arrest warrant with a stamp and writing in ink. However, the document itself is a photocopy and the ink on part of the header of the document is faded. A portion of the header is in English and reads verbatim ‘Republic of Iraq Ministry of justice Executive office’. The Tribunal has significant doubt that an original Iraqi court document would be issued on a photocopied form and would have English writing on it.
120. The content of the document also gives rise to significant credibility concerns. The arrest warrant is dated 7 July 2013 and signed on 10 July 2013 but refers to a police letter dated 29 July 2013. That letter refers to the applicant as ‘the convicted person’ although the applicant has not claimed to ever have been convicted of any previous offence. Nor does the arrest warrant before the Tribunal refer to any alleged crime that the applicant has been accused of apart from ‘hiding to avoid the police’. On the basis of the above concerns, the Tribunal finds that the arrest warrant is not a genuine document and gives it little weight.
121. In light of the above concerns regarding the genuineness of the arrest warrant provided by the applicant and other concerns set out in this decision in relation to the applicant’s claims relating to Ali, the Tribunal also gives the purported declaration from the applicant’s clan little weight.”
Whilst the Applicant points to no specific factual finding of the Tribunal in the provision of particulars in his grounds of application, it is apparent the Tribunal’s findings of fact were made on the evidence before it and open to be made on such evidence. The Tribunal’s findings were rational, reasonable and open in light of the evidence and its other finding.[1] Especially its findings about the applicant’s credibility[2] which were open to the Tribunal in light of the evidence.
[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [572].
[2] Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121 at [13] per Spender, O’Loughlin and Gyles JJ.
As is said many times in judicial review application decisions, both the weight that the Tribunal gives to evidence and its assessment of the evidence is a matter for it as part of its fact finding function.[3]
[3] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] – [14] per Grey, Tamberlin and Lander JJ.
The Applicant disagrees with the findings of the Tribunal and the weight given to the evidence, but those are matters for the Tribunal and not indicative of judicial error attending the decision.
The Applicant’s claim that information and documents he gave to the Tribunal to corroborate his claims were given no weight on the basis of adverse credit findings by the Tribunal, and his further claim that it was an error for the Tribunal to assess his credit without first assessing the substance of the documents alleging corroborating his claims have no factual basis. The Tribunal carefully considered the documents put before it by the Applicant. Further, as submitted by Counsel for the First Respondent, it is not an error for the Tribunal to, first, deal with the Applicant’s credit before turning to documents provided by the Applicant “in circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed. the document has no more credit than the person proffering it.” [4]
[4] Minister for Immigration & Citizenship v SZNSP [2010] FCAFC 50 at [36] per North and Lander JJ, Katzmann J agreeing.
The Applicant did not claim to be entitled to an employer nomination visa and ground 3 of the application for judicial review is misconstrued.
In respect of the Tribunal’s natural justice obligations it is not clear how the Applicant asserts the Tribunal failed to comply with same. It is plain that the Tribunal did so. The issues relevant to the determination of the Applicant’s claim and material that was adverse to the Applicant was raised with him during the Tribunal’s hearing. The Tribunal complied with its obligations under ss.425 and 425A of the MigrationAct1958 (Cth) (“the Act”) in its invitation to appear to the Applicant. Further, it complied with its obligations under ss.424AA and 424A of the Act. In the course of reaching its decision the Tribunal relied solely on information given by the Applicant during the course of his visa application and in the Tribunal’s hearings, both orally and in writing, and on independent country information not specifically relating to the Applicant. Both of these types of information fall within the exception specified in s.424A(3) and therefore are not subject to the particular requirement of s.424A(1). Further, as submitted by Counsel for the First Respondent, “information” for the purpose of section 424A of the Act:-
“is concerned with knowledge of a fact or circumstance communicated to, or received by, the Tribunal”[5]
and does not include the Tribunal’s subjective appraisal or use of the evidence that is before it, nor conclusions that it draws from that evidence.
[5]MZAKT v Minister for Immigration (2005) FCA 1066 (North J).
The Tribunal complied with its natural justice hearing rule statutory obligations as set out in Division 4 of Part 7 of the Act. There is no jurisdictional error attending the decision of Tribunal and the application is dismissed with costs following the event.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 4 December 2015
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