MZZBG v Minister for Immigration

[2013] FCCA 2342

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBG v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2342

Catchwords:
MIGRATION – Review of Refugee Review Tribunal’s determination- protection visa – no jurisdictional error – application for review dismissed.

Legislation:
Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: MZZBG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1251 of 2012

Judgment of: Judge O’Dwyer

Hearing date: 20 December 2013

Date of Last Submission: 20 December 2013

Delivered at: Melbourne

Delivered on: 20 December 2013

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the First Respondent is amended to read “Minister for Immigration and Border Protection”.

2. The application filed on 8 October 2012 is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5400.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1251 of 2012

MZZBG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. This matter comes before me today on an application for review filed by the Applicant on 8 October 2012 to review the determination of the Refugee Review Tribunal dated 13 September 2012. 

   
   

   That determination affirmed an earlier decision by the

   
   

   First Respondent’s (“the Minister”) delegate not to grant the Applicant a Protection (Class XA) visa. 

Background

1. The Applicant is a citizen of India who arrived in Australia on

   
   

   5 August 2009 with his wife who had been issued a student visa.  However, the Applicant and his wife subsequently divorced, after which the Applicant filed for a protection visa.

2. The basis for the protection visa was claimed by the Applicant to arise out of events that happened whilst he was in India and difficulties he had with his business partner, and a business associate.  He claimed that he was assaulted twice, but the police were not prepared to take action, as they are corrupt.  His business partner, however, was also raided by the police and the police found at the partner’s house a cache of weapons.

3. The business associate telephoned the Applicant and accused him of informing the police of the business partner’s illegal activities and threatened to kill him.  He also claimed to have received threatening calls from unknown people and was challenged and confronted by his business partner for going to the police.  He claimed that the people he feared had associations with a terrorist group.  He said he was attacked by unknown assailants and hospitalised for nine to ten days, after which he then fled to Australia with his then wife.  He also claimed that, after his arrival in Australia, his then wife’s family was also threatened.

4. Having lodged his application for a protection visa, he was invited to arrange an interview with the Minister’s delegate to further prosecute his application, but he did not do so.  He was also invited to provide comment about whether and how he might qualify for protection under the complementary protection criteria that now applies under the Migration Act 1958 (Cth) (“Act”); but, again, he did not respond to that correspondence. The delegate accordingly made a decision to refuse to grant the visa on the basis that there was no evidence in the Applicant’s written statement in support of his application that claim the attack, even if it did occur, was in any way related to the dealings with his business partner and associate.

5. The delegate also took an adverse view of the failure of the Applicant to attend for interviews or provide information as requested. 

   
   

   The delegate also drew an adverse inference concerning the Applicant due to the lengthy period of time from the time he entered Australia to the time he made his application for a protection visa.  The delegate interpreted all of that as indicative of a last bid attempt to remain in Australia subsequent to the divorce from his wife.

Tribunal Hearing

1. After that determination, the Applicant sought a merits review to the Refugee Review Tribunal where he gave evidence and responded to questions put to him by the Tribunal.  The nature of questions and responses, and the nature generally of the evidence provided by the Applicant, is set out in some detail in the written decision of the Tribunal dated 13 September 2012.  One very significant finding by the Tribunal was, in effect, that the Applicant was not a credible witness.  The basis for this finding was articulated by the Tribunal who highlighted inconsistencies between evidence given at the hearing and earlier evidence written in a statement in support of the application.

2. The Tribunal made, after setting out the evidence and the conflicts in the evidence, various determinative findings; one being that the Applicant was indeed involved in a business partnership which manufactured cloth and that, some time prior to his leaving India, he was the victim of an assault.  However, the Tribunal went on to find, based upon the different evidence in his written claims and his oral evidence at the hearing, that he was not a credible witness and concluded that the Applicant’s claims of past persecution or risk of severe  harm should be rejected.

3. There were other ancillary findings by the Tribunal; such as there was no police raid, as claimed by the Applicant and it followed therefore that the Applicant was not assaulted because he went to the police as retribution for doing so.  The Tribunal found that the assault was not connected to the Applicant’s business partnership or his dealings with the business associate having found that the business associate did not belong to a terrorist group nor was part of a local mafia.

4. Having made those findings, the Tribunal found that, amongst other findings, there were no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to India there would be a real risk that the Applicant would suffer significant harm. That particular finding is relevant to complementary protection under section 36(2)(aa) of the Act.

5. In respect of the Applicant’s claim that should he return to India, he will be at risk of persecution or serious harm, the Tribunal found that claim was substantiated, based upon the critical finding of the Tribunal that the claim lacked credibility, as did the Applicant.

6. I am satisfied, on my reading of the Tribunal’s decision, that the critical finding made by the Tribunal was open to it based upon the evidence and that when such a findings of credit is made, it is a finding par excellence for the Tribunal.

Grounds for Review

1. In his application for review, the Applicant purported to set out three grounds.  The first being, simply:

   “I applied for the protection visa.”

2. The second ground read:

   “Then I applied to RRT for review of that decision on 16 March 2012.”

3. And the final ground read:

   “I think RRT and Department of Immigration did not look my situation.”

   which I think is meant to read “at my situation.”

4. On 5 December 2012, the Applicant concedes he attended a directions hearing where he was given an opportunity to file an amended application by 20 February 2013, but he did not do so.

5. It is the obligation of the Court, in situations where a party is unrepresented, has no legal skills and suffers the further imposition of a lack of familiarity with the Court’s language, both in legal terms and English, that the Court itself, to critically examine the Tribunal’s determination with a view to finding, any jurisdictional error the Tribunal may have made; which I did and I have not found a jurisdictional error.

Conclusion

1. In light of all of the matters I have outlined, it follows then that there is no jurisdictional error, or indeed any error on the part of the Tribunal.

2. The application filed on 8 October 2012 should be dismissed with costs.

3. I further order that the name of the First Respondent be amended to read the “Minister for Immigration and Border Protection” and that the Applicant pay the First Respondent’s costs, fixed in the sum of $5400.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge O’Dwyer

Associate: 

Date:  31 January 2014