MZZAR v Minister for Immigration and Border Protection

[2013] FCA 1439

FEDERAL COURT OF AUSTRALIA

MZZAR v Minister for Immigration and Border Protection [2013] FCA 1439

Citation:	MZZAR v Minister for Immigration and Border Protection [2013] FCA 1439
Appeal from:	Application for extension of time for leave to appeal: MZZAR v Minister for Immigration & Anor [2013] FCCA 322
Parties:	MZZAR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 730 of 2013
Judge:	NORTH J
Date of judgment:	26 November 2013
Date of hearing:	26 November 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	40
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Mr M Smith
Solicitor for the Respondents:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 730 of 2013

BETWEEN:

MZZAR
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	26 NOVEMBER 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to Minister for Immigration and Border Protection.

2.The application for an extension of time in which to seek leave to appeal from the orders of the Federal Circuit Court made on 2 May 2013 and 28 June 2013 is refused.

3.The applicant to pay the first respondent’s costs of the applications.

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 730 of 2013

BETWEEN:

MZZAR
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	26 NOVEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who applied for a Protection (Class XA) visa on 16 September 2010.  A delegate of the first respondent, the Minister for Immigration and Border Protection, refused the application and the applicant then applied to the Refugee Review Tribunal for a review of that decision.  The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection visa.

2. In order to understand the issues before the Court, it is necessary to set out a chronology of the events which followed the Tribunal’s decision, and which gave rise to the applications before the Court.

   THE APPLICATION BEFORE THE COURT

3. On 17 September 2012, the applicant applied to the Federal Circuit Court for a review of the decision of the Tribunal.  On 2 May 2013, the Federal Circuit Court dismissed the application for review on the merits, in the absence of the applicant who did not appear at the hearing. 

4. On 16 May 2013, the applicant applied to the Federal Circuit Court for orders setting aside the decision of 2 May 2013 and reinstating his application for review.  On 28 June 2013, the Federal Circuit Court refused the application.

5. On 17 July 2013, the applicant filed a draft notice of appeal in this Court against the orders made on 2 May 2013.  It appears that the applicant received some advice at the time of filing the draft notice of appeal, which caused him then, on 19 July 2013, to apply for an extension of time to challenge the orders of the Federal Circuit Court made on 28 June 2013. 

6. On 7 August 2013, the first respondent filed a notice of objection to competency on the assumption that the applicant was seeking to appeal from the orders of both 2 May 2013 and 28 June 2013. The first respondent contended in the notice that both judgments were interlocutory, that the applicant, therefore, required leave to appeal from each of them, and that such leave had not been sought.

7. An application for leave to appeal must be filed within 14 days of the making of the orders. Any application for leave to appeal in this case is now out of time. Therefore, in order to challenge the decision of the Tribunal, the applicant also requires extensions of time to seek leave to appeal from both judgments.  

8. The applicant has not, in form, sought the relief necessary to challenge the rejection of his application for review by the Federal Circuit Court. However, it is appropriate, given that the applicant is self-represented, to treat his applications before the Court as applications for, first, an extension of time within which to seek leave to appeal from the orders made on 28 June 2013, and if that were to be successful, then second for an extension of time within which to seek leave to appeal from the judgment of 2 May 2013.

9. The issues which arise in both cases are the same. It is necessary for the applicant to explain the reason for the delay and to satisfy the Court that he has a reasonable prospect of success on the appeal in the event that the time was extended and leave were granted. 

10. Each of these matters has been considered at different times by the Federal Circuit Court.  When the Federal Circuit Court dismissed the application on 2 May 2013, in the absence of the applicant, the Court examined the merits of his case and determined that the application for review could not succeed.  When the Federal Circuit Court refused to reinstate the application on 28 June 2013, it determined that the reason provided by the applicant for his non-appearance was not satisfactory, but, in any event, that the applicant had no real prospects of success on the appeal.

11. In the circumstances it is unnecessary for me to examine either the explanation for the delay in bringing the applications for leave to appeal, or the excuse provided by the applicant for not appearing on 2 May 2013.  What is determinative in this case is the consideration of the prospects of success on any appeal for which the extensions of time might otherwise be granted.  The starting point for this consideration is the claims made by the applicant. 

    THE APPLICANT’S CLAIMS

12. The applicant is a Tamil who follows the Muslim religion and who was born in Tamil Nadu in the town of Muthupet.  In his visa application he complained about the discrimination and violence against Muslims in his community.  He claimed that there were violent clashes, including the burning of shops and businesses, and attacks on Muslim farms.  He claimed that the police were not prepared to restrain Hindu fundamentalists who were responsible for this persecution.  He said that he had been arrested in 1993 at the age of 18, in the context of this communal violence, and that he was targeted for arrest in the following years. 

13. The applicant said that he joined the Students Islamic Movement of India (SIMI) in response to the injustices against Muslims.  He said that he had become an office holder responsible for recruiting young people to the organisation.  He said that he travelled internationally to collect funds for SIMI.  He said he travelled on false passports to Saudi Arabia, United Arab Emirates, Singapore, Malaysia, France and Thailand.  He was arrested again in 1998, and said that he had been jailed on 20 to 25 occasions since 1998.

14. The applicant said that since the 9/11 attacks in the United States, there had been a crackdown in India on SIMI and as a result, he feared for his life.  He further described an incident which occurred in 2008, in which he claimed to have smuggled a mobile phone, concealed in a bar of soap, into a prison for a prisoner with whom he was acquainted. Although he used a false name to register his visit, he said that the prison authorities have security footage of his actions. 

15. He then said that he went into hiding and left for Australia in August 2010.  He said that just before he left, his house was raided by the police while he was out and they had taken documents.  He feared persecution at the hands of the Indian authorities because of his involvement with SIMI, and because the authorities have arrested other SIMI members throughout India.  He also said that he feared a resurgence of violence between Hindus and Muslims and expected that he would be a target.

    THE DECISION OF THE TRIBUNAL

16. The picture the applicant presented at the hearing before the Tribunal was rather different to his account set out in his visa application. His emphasis at the hearing was on his involvement with SIMI, rather than on the alleged communal violence by Hindus against Muslims.  He explained that he had a brother in Australia who had been here for over 10 years.  He said that he came to Australia in 2009 and was sponsored by his brother.  The applicant then returned to India to continue to work as a cook. The Tribunal asked why he returned to Australia in 2010, and he said that he was a member of SIMI, that SIMI was a Muslim organisation, that Muslims are a minority in India, and they are denied employment opportunities.

17. The applicant explained that he had been a member of SIMI since 1998 and had become the District President in the old Tanjoure District in 2006.  When asked to explain how his membership of SIMI was relevant, he recounted a raid by the police on 15 July 2010, during which the police found membership documents, false passports and a large amount of money at his house.  He was asked by the Tribunal why he had the money found in his house and he said that it was to help the poor.

18. He also said that he travelled overseas using false documents to raise money for SIMI. He was asked by the Tribunal when he travelled and said that he could not recall the exact dates, but gave a number of years and places.  He said he travelled to Kuwait every three months and then said he only travelled once in 2006.

19. The applicant gave evidence to the Tribunal about how the trips were organised. He would be told by SIMI to go to a country and bring money back. He was told to go to a hotel, wait for two days, and someone would ring him and give him instructions. He would then leave the room key at the reception desk and someone would bring a package to his room and leave it on his bed. He did not open the packages, but said they contained money as that is what he was told.  Afterwards, someone would ring him and tell him it was safe to travel back to India and he never had any trouble at the airport.  He said to the Tribunal he was not paid for the work he did, but could take money that he had in his possession

20. The applicant said that he went into hiding after the raid in July 2010.  When asked why he decided to come to Australia, he said that he had to leave India because he feared for his life as there were false allegations made against him. He said that the police suspected him of being a terrorist because they found his SIMI membership papers and other material when they raided his house.  The applicant was asked directly by the Tribunal whether his fear at home in India was because he was a Muslim or because he was a member of SIMI.  He replied that his problems related to being a member of SIMI.

21. The Tribunal then asked the applicant for details about his imprisonment on 20 to 25 occasions. He said that he was first imprisoned in 1993.  He said he was never convicted of any criminal offences, but he would be taken into custody for a few days without questioning, although at one stage he remained in custody for 60 days.  The Tribunal put to him that it was concerned that his explanation of his times in prison lacked detail. The Tribunal asked him to give further detail of his evidence. The applicant explained, in further detail, the incident of conveying a mobile phone to a man in jail, whom he named as Ali Abdullah.  The Tribunal asked him how he knew that the police had discovered the phone and were after him.  The Tribunal recorded his evidence at [65] as follows:

    The applicant said there was another man in gaol who he later met at a bus stop and this person told him what had happened and that the police were after him.  The Tribunal asked the applicant if he knew the name of the other person who was in gaol and told him all details.  The applicant said he did not know the person’s name.

22. The Tribunal asked the applicant some questions about how he was able to travel in and out of India if he was worried that the police were looking for him.  Earlier, the applicant had explained that he had had a friend who was a customs officer who would help him go in and out of India, but that the customs officer was arrested in 2008.  The applicant said that he found out about this by reading it in the newspaper. In answer to the Tribunal’s questions about travel in and out of India, the applicant changed his evidence and said the customs officer was arrested in 2010.

23. The Tribunal had information from a departmental file which indicated that the applicant had entered Australia in 1999 using a different name. Pursuant to s 424AA of the Migration Act 1958 (Cth) (the Act), the Tribunal put this information to him and explained that it could be a basis for the Tribunal to find that he had not been truthful in his claims, and that the Tribunal may find that he was not a witness of credit. The Tribunal also said to the applicant that he could have further time before responding to that information, however, the applicant chose to respond at the hearing. He said that he had never entered Australia before 2009 and the department must have him confused with someone else. He said that SIMI must have used his identification documents and created false passports for other members to travel to Australia.

24. In its decision, the Tribunal referred to country information indicating that SIMI had been banned by the Indian government after 11 September 2001, but that SIMI had continued its operations despite the ban.  The Tribunal referred to country information concerning Muslims in Tamil Nadu. It acknowledged that there had been localised outbreaks of communal violence in the past, which affected the security of Muslims. However, the Tribunal indicated that there were no reports of the political freedom of the Muslim population being restricted in any significant way and that the police in Tamil Nadu were working to contain the operations of militant Islamic groups like SIMI.

25. In its findings and reasons the Tribunal determined that the applicant was not a credible witness and had not been truthful in relation to his experiences in India, his reasons for leaving India, and his fears about returning to India.  The Tribunal said at [94]:

    In reaching this view, the Tribunal has had regard to the applicant’s inability to recall important dates and details of his claim, inconsistencies within the applicant’s evidence and the implausibility of important parts of the applicant’s claim.

26. The Tribunal then gave details of the reasons for this conclusion.  First, it said that it accepted the Department’s record that the applicant attempted to travel to Australia in July 1999, that he successfully entered Australia in September 1999 under the false name of Abdul Azeez Mohammed Ismael, and that he departed from Australia in April 2004, after coming to the attention of the Department.  It rejected the applicant’s explanation that another member of SIMI used his personal details to travel to Australia.  The Tribunal said that the false names and dates of birth referred to were derivatives of the applicant’s current name and date of birth.

27. The Tribunal then said it did not accept that the applicant was or is a member of SIMI.  It found the applicant’s evidence vague and lacking in detail.  The Tribunal observed that the applicant could not provide any documents substantiating his membership, despite the fact that he claimed to be an active member since 1998 and was District President for 10 years.  Given that long association, the Tribunal would have expected the applicant to demonstrate an intimate and detailed knowledge of the day-to-day functions of the organisation.  The Tribunal also said that the evidence about the overseas travel to raise funds was general, vague, and lacked detail.  The Tribunal then gave some examples of the absence of detail.

28. Next, the Tribunal turned to the question of the 20 to 25 occasions of imprisonment and, again, found the applicant’s explanation of these lacking in detail.  The applicant was not able to recall the date of his imprisonment for 60 days.  The Tribunal rejected his evidence that he had been imprisoned on 20 to 25 occasions due to his Muslim beliefs, or because he was a member of SIMI.  The Tribunal rejected the applicant’s evidence that he had agreed to assist Ali Abdullah by smuggling a mobile phone into prison.  Particularly, the Tribunal did not accept his evidence that he became aware the authorities were looking for him when he met a former prison inmate at a bus stop.  The Tribunal said that his evidence was fanciful and lacking in credibility.

29. The Tribunal found that the applicant’s alleged fear of the authorities was inconsistent with his decision to return to India. It noted that the applicant was able to depart India in November 2009, using his real identity.  The conclusion was stated at [103] as follows:

    Having considered the applicant’s written claims and oral evidence, the Tribunal does not accept the applicant was a member of SIMI or has been persecuted because of his Muslim religious beliefs.  It follows that the Tribunal does not accept the applicant was targeted or harmed by any other person because of his religious beliefs, membership of SIMI or imputed political opinion variously described as an Islamic terrorist or Muslim terrorist.  Having regard to the country information details in paragraphs 80 to 83 above, the Tribunal does not accept the applicant will face a real chance of persecution in the reasonably foreseeable future for these reasons or any other reasons.

    THE JUDGMENT OF THE FEDERAL CIRCUIT COURT

30. The applicant filed the application for review in the Federal Circuit Court on the following grounds:

    (a)The volumes of information sighted 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 in to jurisdictional error.

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

31. In the judgment delivered on 2 May 2013, the Federal Circuit Court rejected these grounds.  The Court determined that the information referred to by the applicant was not specified, but regarded the reference as a reference to the country information referred to by the Tribunal.  The Court then determined that this information was not specifically about the applicant, but about a class of persons, namely, members of SIMI and Muslims in Tamil Nadu.  It, therefore, fell within the exception in s 424A(3)(a) of the Act, which applies to 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.

32. The Federal Circuit Court also rejected the second ground of appeal, and explained that the evidence upon which the Tribunal relied was set out in [93] to [103] of the decision, being the reasoning referred to earlier in this judgment.  The Federal Circuit Court concluded, at [35] as follows:

    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.

    THE APPEAL

33. In the draft notice of appeal, filed on 17 July 2013, the grounds of appeal are stated as follows:

    1.The Learned Magistrate has not given any reason for the dismissal of my application in case a filed on 02 May 2013.

    2.The Learned Magistrate erred in his reason that the Tribunal has not acted on basis of “no evidence”.

1. These grounds are clearly unsupportable.  It is obvious from the reasons for judgment of the Federal Circuit Court, delivered on 2 May 2013, that her Honour gave clear reasons for the dismissal of the application in the Federal Circuit Court.  It is also clear that the Federal Circuit Court properly found that the Tribunal had evidence which supported its findings.  This seems to be the issue addressed by the second ground of appeal.

2. At the hearing of the applications before this Court, the applicant was asked to explain to the Court what errors he said were made by the Tribunal.  He relied on two errors. The first error was in the conclusion that the applicant had come to Australia in 1999.  The applicant said that this was wrong and that, in fact, that he first came to Australia in 2001.  He said that he was never asked about his identification in relation to the 1999 visit, either by the delegate or by the Tribunal.  As has been referred to earlier in these reasons, the Tribunal squarely put to the applicant the details of the previous visits and identities contained in the Department’s file.  The Tribunal assessed the explanation given by the applicant and rejected the explanation. 

3. From these circumstances it can be seen, firstly, that the allegation that the applicant had visited Australia in 1999, using a false identity or using another identity, was directly put to the applicant at the hearing. He was offered an opportunity for time to respond, which he declined.   Secondly, the Tribunal addressed the factual issue and determined it adversely to the applicant for reasons which it explained. 

4. The finding of facts which are in dispute is a function of the Tribunal.  Merely because the Tribunal came to a different conclusion from that advocated by the applicant does not establish jurisdictional error, even if, which cannot be said to be the case, there was factual error.

5. The second matter raised by the applicant was that the Tribunal erred in its conclusion that he was not a member of SIMI.  The applicant said that most of the evidence he gave was correct although it was a “very turbulent stage” for him.  By this I take him to be saying that he was nervous at the hearing before the Tribunal and he may not have explained everything in a manner that was entirely complete or to his satisfaction.  However, again, this is an issue of fact for the Tribunal which it assessed against the evidence which was before it.

6. The Court then explained to the applicant its role in an application such as this, emphasising that the Court needed to find jurisdictional error in order for him to succeed.  In response, the applicant explained that he simply wanted a chance to stay in Australia, that he would not, as a matter of choice, leave his home country where he has children and a family, that he is not able to work here, that he is in emotional turmoil, and that the basis for his application is simply that he needs safety, which his country cannot provide.  Whilst one can understand the sentiments here expressed, they do not bear on the task of the Court in this application.

7. As the grounds relied upon by the applicant to challenge both of the judgments of the Federal Circuit Court do not establish jurisdictional error, and none of the matters put orally by the applicant establish such error, any appeal from either of the orders of 2 May 2013 or 28 June 2013 of the Federal Circuit Court are bound to fail.  It is, therefore, futile to grant any extension of time within which the applicant may apply for leave to appeal and his applications must be dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        20 December 2013