MZWBO v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 468

FEDERAL COURT OF AUSTRALIA

MZWBO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 468

MIGRATION — appeal — adverse credibility finding — no error

Migration Act 1958 (Cth)

Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 art 1A(2)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 cited
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 cited

MZWBO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V155 of 2005

MERKEL J
22 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V155 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZWBO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	22 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT the appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V155 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MZWBO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MERKEL J
DATE:	22 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant is an Indian national who arrived in Australia on a visitor’s visa on 13 December 2001. On 9 January 2002 he applied for a protection visa on the basis that he is a refugee as defined by art 1A(2) of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (“the Convention”).  The appellant claims to be a refugee because he has a well-founded fear of persecution for a Convention reason if he were to return to India.

2. A delegate of the respondent Minister refused the appellant’s protection visa application, and that refusal was affirmed by the Refugee Review Tribunal (“the RRT”). The appellant then commenced proceedings in the Federal Magistrates Court (“the FMC”) under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of the decision of the RRT. Hartnett FM dismissed that application for review: see MZWOB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 268. The appellant now appeals to the Court against the judgment and orders of the FMC.

3. The claims of the appellant before the RRT was conveniently summarised by the FMC at [7] in the following terms:

   “(ii)The applicant was secretary of a Muslim welfare group in Muthupet which helped poor people and converted some very poor people to Islam.

   (iii)The applicant joined Nadu Muslim Munnetra Kazhagam in 1996.  It was a political group but also engaged in welfare activities.  The leader of the group, Palini Baba, had been of adverse interest to authorities.  The group was not involved in or suspected of involvement in criminal activities.

   (iv)The Rashtriya Swayamsevak Sangh (RSS) destroyed the applicant's home because of his involvement in converting people to Islam.

   (v)RRS supporters had attacked the applicant and destroyed his coconut estate and paddy field in 1996.  They beat him but did not cause physical injuries.  He had known all four assailants and had known the name of one of them.  Three of his friends witnessed the assault and one was injured when he tried to help him.  They complained to police who detained one of the assailants for two days but did not charge him.  He did not lodge a complaint with more senior police because they could also have been bribed.

   (vi)The applicant's complaint to police led to further attacks.  He was attacked by four RSS supporters when he and two friends were travelling slowly to Najapatnum.  They did not lodge a complaint with police because the police had not done anything about the earlier assault.  Neither he nor his friends could identify the assailants on this occasion.

   (vii)The RSS mistreated him by an attack on his shop in Tanjavur in or about September 1998.  He lost his business but was able to rebuild it.  He agreed that he had been continuously engaged in business between January 1994 and November 2001.

   (viii)The RSS now wanted to kill the applicant because they had attacked him on three occasions.

   (ix)The applicant did not travel to Australia until December 2001 because he went into hiding after his shop was attacked, and his brother looked after his shop.  He would go home at night and not go out.

   (x)When it was put to him the RSS could easily have found the applicant at home, he said that his brother would tell him when the RSS had meetings or were otherwise engaged and he would return home.  He had been at home for a total of about one month.”

4. The RRT indicated in the course of the hearing at which the appellant gave evidence that it was concerned that his evidence was inconsistent in significant respects.  The appellant’s response was that he had memory problems due to marriage difficulties. When asked why he had claimed in his protection visa application that the police suspected him of being a terrorist, he responded that he could not remember what he had said before.  When asked why he had not mentioned this before, the appellant replied it was because he was confused.  When the RRT put to him that it was having difficulty accepting his claims, the appellant responded that the police and the RSS were one and the same and that he was afraid to return to India.

5. After reviewing the material before it, the RRT concluded that the appellant was not a credible witness. It ultimately determined that his evidence at the hearing was “inconsistent and inherently unconvincing in significant respects”. The RRT illustrated several instances of conflicting evidence which it found difficult to reconcile:

   “In his protection visa application, the applicant referred to his membership of the Tamil Nadu Muslim Munnetra Kazhagam and claimed that the police had sought to arrest and prosecute him because they suspected he was involved with Al-Ummah and the Kashmiri Separatist Organisation, both terrorist organisations.  He did not refer to this claim at the hearing.  When reminded of this claim at the end of the hearing he responded unconvincingly that he had memory problems.  He then appeared to be making up evidence when he added that the police had suspected him of involvement with terrorists as a result of information given to them by RSS supporters.

   In his protection visa application, the applicant had also claimed that the police had arrested him, assaulted him and detained him for two days after communal riots between Hindus and Muslims at an unspecified time after 12 December 1991.  He did not refer to this at the hearing despite making several references to either his experience with the police, or his attitude towards them.

   In his protection visa application, the applicant claimed that RSS supporters attacked him on 13 April 1992 when he was driving to Nagapatnam; and that his property was destroyed on the following day by arsonists.  However, at the hearing he gave evidence that RSS supporters had destroyed that property in 1996 - and that it was also in 1996 that RSS supporters had attacked him when he was driving to Nagapatnam.

6. The RRT referred to the cautionary comment of Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [191]:

   “the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an application for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”

   but nonetheless concluded that

   “The applicant's evidence was inconsistent and inherently unconvincing in relation to an attack on him at his shop by the RSS in September 1998.  Initially, he said that he lost his business as a result of the attack but had been able to rebuild it.  However, he then said that he had been in hiding between September 1998 and December 2001.  When asked to provide details of his experience of being in hiding over that period, he responded as though he were making up evidence as he was going along.

   On the basis of the Tribunal's assessment of the applicant's credibility, it does not accept that the Indian authorities suspected he was associated with terrorists, or sought to persecute or prosecute him for that reason.  It does not accept that the police arrested, detained or mistreated him following communal riots between Muslims and Hindus.  It does not accept that RSS supporters assaulted him in 1992, 1996, or 1998; nor does it accept that he has been of adverse interest to the RSS for any reason.

   Further, the Tribunal does not accept that the applicant genuinely fears he will be persecuted by the RSS or BJP militants, or by the Indian authorities, for reasons of religion or political opinion.

   Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted by the RSS or BJP militants, or by the Indian authorities, for reasons of religion or political opinion.”

   The RRT therefore refused the appellant’s application for a protection visa.

7. The appellant was represented in the FMC by counsel.  His application for review of the RRT’s decision relied on the following grounds:

   “(i)The RRT misconstrued and misapplied section 36(2) and section 65 of the Act.

   (ii) There was a failure to comply with section 418 of the Act.

   (iii)The RRT failed to comply with sections 424, 424A, 424B and 424C of the Act.

   (iv) The RRT failed to comply with section 430 of the Act.

   (v)      The RRT denied the applicant procedural fairness.

   (vi)The RRT was biased.

   The appellant’s main contention was that the RRT fell into jurisdictional error when it rejected his claims in the absence of probative evidence to refute them, and that it failed to consider some of the substantive claims the applicant had made in his application and evidence.  However, the FMC concluded that the RRT had considered the material placed before it but ultimately rejected the appellant’s claims.

8. The FMC also considered an argument by the appellant that there was no country information to inform the decision of the RRT. However, it rejected that argument as the RRT had not found it necessary to rely upon country information.

9. The FMC determined that the decision of the RRT was founded on the adverse conclusions it drew as to the appellant’s credibility.  It noted that the RRT had raised with the appellant at the hearing that it was concerned about the content of his evidence and that it was having difficulty accepting his claims.  The FMC concluded that the conclusions at which the RRT arrived were open on the material before it and that the adverse credibility findings of the RRT were part of its function, rather than that of a court conducting judicial review.  The FMC concluded that the RRT’s reasons disclosed no error of a kind that would found judicial review, and dismissed the application with costs.

10. The applicant was not represented in his appeal to the Court.  He failed to file the written submissions as directed.  His complaint appeared to be that the RRT ought not to have made the adverse credibility findings against him.

11. The difficulty confronting the appellant is that the adverse credibility findings made by the RRT were critical to its ultimate finding that he did not have a well-founded fear of persecution for a Convention reason.  Those findings led the RRT to conclude that the applicant’s claims ought not to be accepted.  Such findings were referred to by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] as “the function of the primary decision-maker par excellence” and, while they are not invulnerable to review, they are difficult to overcome on an application for judicial review which must establish jurisdictional error. This is particularly so where, as has occurred in the present case, the RRT provides a rational basis for not accepting the appellant’s claims and relies upon matters that are logically probative of the issues it is determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559.

12. I have carefully considered the decision of the RRT and am unable to discern any jurisdictional error on its part.  The findings that it made were open to it on the basis of the

    material it had before it.  No error has been demonstrated to have been made by the FMC.  Accordingly, the appeal is to be dismissed with costs.

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

Associate:

Dated:             22 April 2005

For the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr B Wee
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 April 2005
Date of Judgment:	22 April 2005