MZZAR v Minister for Immigration

[2013] FCCA 322

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZAR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 322

Catchwords:
MIGRATION – Application of s.424A of the Migration Act 1958 – exclusion of country evidence from operation of s.424A by virtue of s.424A(3)(a) – did Tribunal act on basis of ‘no evidence’ – application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.422B(1), 424A

Cases cited:
AZABV v Minister for Immigration & Anor [2012] FMCA 1115
AZABV v Minister for Immigration & Anor [2013] FCA 173

Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231

Applicant: MZZAR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1152 of 2012

Judgment of: Judge Whelan

Hearing date: 2 May 2013

Date of Last Submission: 2 May 2013

Delivered at: Melbourne

Delivered on: 2 May 2013

REPRESENTATION

Counsel for the Applicant: No appearance

Counsel for the Respondents: Ms Costello

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed on 17 September 2012 is dismissed.

2. The Applicant pay the costs of the First Respondent in the amount of $6,640.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1152 of 2012

MZZAR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

1. This is an application for judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”), made on 16 August 2012, to affirm a decision of a delegate of the Minister not to grant the Applicant a protection visa.

2. The application does not specify the orders sought, other than an order for costs against the Respondents, and any such further order, or orders, as the Court deems fit.

3. The Applicant is an Indian citizen who arrived in Australia on 17 August 2010, travelling on an Indian passport. 

4. The Applicant applied for a protection visa on 16 September 2010. The First Respondent’s delegate refused to grant the visa on 14 September 2011, and the Applicant applied to the Tribunal for a review of that decision on 21 September 2011.

5. The Applicant claimed to fear persecution from Indian authorities due to his involvement in the Students Islamic Movement of India (“SIMI”), which is an organisation banned as a terrorist organisation in India. The Applicant claimed he would be arrested as a terrorist if he returned to India. 

6. In the written protection application he also claimed that he would be targeted for persecution as a Muslim by the Hindi population, although he did not press that claim at the hearing before the Tribunal.

7. The Applicant made various claims in support of his application for a protection visa, including that he had become a member of SIMI, and then secretary of a particular district where he was involved in recruiting young people, and being responsible for propaganda work. 

8. He also stated that he went overseas for SIMI, to countries such as Saudi Arabia, Singapore, Malaysia, France and Thailand, travelling on false passports, and collecting money for the movement. 

9. He claimed he was arrested in 1991, and remained in custody for a long time, and that he had been jailed at least 20 to 25 times. 

10. He stated that he had smuggled a mobile phone into jail in a bar of soap for a prisoner, and that this had been discovered by the authorities. While the authorities did not have his real name, they knew what he looked like, and he therefore remained in hiding until he came to Australia in August 2010.

11. He also claimed that the police had raided his house in July 2010 while he was not home, and taken all his documents.

The Tribunal’s decision

1. Having considered the Applicant’s claim, the Tribunal was not satisfied that he had suffered the harm claimed, that he had suffered harm in the past, or that he would suffer harm in the future because of his religion, his political opinion, or any imputed political opinion variously described as an Islamic terrorist or a Muslim terrorist.

2. The Tribunal accepted that:

   ·He had entered Australia on a valid Indian passport in his own name;

   ·He was a national of India born in the state of Tamil Nadu;

   ·He was a Muslim; and

   ·He had worked as a cook in India. 

3. Beyond those matters, however, the Tribunal did not believe any of the claims made by the Applicant, nor that he genuinely held a fear of any harm should he be returned to India.

4. The Tribunal found that the Applicant was not a credible witness, and referred to the Applicant’s inability to recall important dates and details of his claim, inconsistencies in his evidence, and the implausibility of important parts of that claim.

The grounds for review

1. The grounds for review, as set out in the application, state:

   (a)The volumes of information sighted [sic] by the Tribunal in affirming the decision were never put to the applicant, and thereby the Tribunal has not afforded natural justice and/or procedural fairness to the applicant, and therefore it fell into jurisdictional error; and

   (b)The Tribunal finding that the applicant was not an SIMI member is not supported by the evidence.[1]

   [1] Application filed 17 September 2012.

2. The Applicant provided no written submissions, and he failed to appear today at the hearing.

The submissions

1. The Court was assisted by the written submissions provided by the First Respondent. The First Respondent states that there is no substance in the first ground identified by the Applicant. The Tribunal had no obligation to put country information to the Applicant, because country information fell within the exception in s.424A(3)(a) of the Migration Act 1958 (“the Act”), as it was evidence which was not specifically about the Applicant, or another person, and was just about a class of persons of which the applicant, or another person, was a member.

2. In relation to the second ground of review, the First Respondent states again that this ground has no merit. To succeed on a ‘no evidence’ ground, the Applicant must show there was no evidence at all upon which the finding of a jurisdictional fact could have been based. The First Respondent refers to AZABV v Minister for Immigration & Anor, both the decision at first instance, in the Federal Magistrates Court,[2] and as affirmed on appeal by the Federal Court.[3]

   [2] AZABV v Minister for Immigration & Anor [2012] FMCA 1115 at [20].

   [3] AZABV v Minister for Immigration & Anor [2013] FCA 173.

3. The First Respondent submits that, in the present case, the Tribunal’s finding that the Applicant did not satisfy the criteria for a protection visa was clearly open on the evidence. The Tribunal’s rejection of the Applicant’s membership of SIMI took into account the claims and evidence in the Applicant’s protection visa application, and given orally at the Tribunal hearing, as well as country information cited in the decision, and provided by the Applicant.

4. As set out in paragraphs (71) to (79) of the decision, the Tribunal gave the Applicant the opportunity to respond to adverse information about his visa, his travel history, and his use of false passports. 

5. The Tribunal also asked the Applicant about shortcomings in the evidence, and put various matters to him.

6. The Tribunal found the Applicant’s claims about his involvement in SIMI were vague, and lacking in detail, and that they were fanciful and lacking in credulity. 

7. Finding as to credit, as the First Respondent submits, are matters for the Tribunal, as is the weight to be given to such evidence.

Conclusions

1. The requirements of natural justice, in the context of an exercise of jurisdiction by the Refugee Review Tribunal are specified in Division 4 of Part 7 of the Act. Section 422B(1) of the Act states:

   This division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, in relation to the matters it deals with.

2. Section 424A (1)(a) of the Act requires the Tribunal to:

   give the applicant clear particulars of any information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. 

3. Subsection (3) of that section of the Act provides that certain information is excluded from that obligation.

4. Subsection 424A(3)(a) of the Act specifically excludes information:

   that is not about the applicant, and is just about a class of persons of which the applicant, or other person, is a member.

5. The Applicant does not specify what information he says ought to have been put to him. I have taken his reference to the “volumes of information cited by the Tribunal”[4] to be a reference to the country information referred to by the Tribunal at paragraphs (80) to (83) of the decision, and the material footnoted, by reference, in those paragraphs. 

   [4] Application filed 17 September 2012.

6. Country information is not specifically about the Applicant, or another person, but is information about a class of persons, in this case, members of SIMI, and Muslims in Tamil Nadu. It is, therefore, not information about which clear particulars need to be provided to the Applicant. Therefore, the Applicant fails on the first ground.

7. The second ground raised by the Applicant would require the Court to find that the Tribunal had made a finding which was critical to its decision, and that there was no evidence to support that finding.

8. I refer to paragraphs (19) and (20) of the decision of the court in SFGB v the Minister for Immigration and Multicultural and Indigenous Affairs.[5] In that case the Court said:

   If the Tribunal makes a finding, and that finding is a critical step in its ultimate conclusion, and there is no evidence to support that finding, then it may well constitute a jurisdictional error.[6]

   [5] Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231.

   [6] Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19].

9. The Court went on to say, however:

   On the other hand, if there is sufficient evidence, or other information before the Tribunal on which it could reach the conclusion it did, then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a jurisdictional fact, there is no error or law, let alone a jurisdictional error, if a Tribunal were to make a wrong finding of fact. It is a matter for the Tribunal to determine the merit of the claim.[7]

   [7] Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [20].

10. At paragraphs (93) to (103) of the decision, the Tribunal sets out the basis upon which it concluded that the Applicant was not a member of SIMI. Those matters concerned the credibility of the Applicant’s own evidence, as well as evidence which contradicted his claims. 

11. It cannot be said that there was no evidence upon which it can make those findings. How the Tribunal dealt with that evidence was a matter for the Tribunal. It is not a matter for this Court to determine the merit of the Applicant’s claims.

12. For these reasons the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  21 May 2013