MZZJR v Minister for Immigration and Border Protection
[2014] FCA 118
•11 February 2014
FEDERAL COURT OF AUSTRALIA
MZZJR v Minister for Immigration and Border Protection [2014] FCA 118
Citation: MZZJR v Minister for Immigration and Border Protection [2014] FCA 118 Appeal from: MZZJR v Minister for Immigration & Anor [2013] FCCA 1643 Parties: MZZJR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 1152 of 2013 Judge: NORTH J Date of judgment: 11 February 2014 Date of hearing: 11 February 2014 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 29 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Mr N Rogers from Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1152 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZJR
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
11 FEBRUARY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of the appeal
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 1152 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZJR
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE:
11 FEBRUARY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an appeal from a judgment of the Federal Circuit Court delivered on 14 October 2013. The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 14 March 2013. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a Protection (Class XA) Subclass 866 visa.
THE APPELLANT’S CLAIMS
The appellant claimed that he feared persecution as a result of his political opinion. He is a national of India, born in 1986, who comes from Tamil Nadu. In the statement in support of his visa application, he said that in 2006 he and his family supported the All India Anna Dravida Munnetra Kazhagam party (the AIADMK). He said that there was an election in Tamil Nadu at the time and that he received threats from supporters of the rival Dravida Munnetra Kazhagam party (the DMK). In particular, his neighbours supported the DMK. They, at one point, prevented him from accessing his house by placing a load of bricks across the entrance. In his statement, the appellant said that he complained to the police but received no response. The DMK won that election and the appellant said that through corruption in the area, his neighbours ended up taking over his house.
As a consequence of these events, he and his family changed their allegiance from the AIADMK to the Congress party, which was affiliated with the DMK. The appellant said he became very active in the party. In response, the supporters of the AIADMK began to threaten him. They regarded him as a traitor for changing sides.
In June 2009, the appellant came to Australia on a student visa. In February 2010, he returned to visit his family. The DMK was in power at that time.
THE DECISION OF THE TRIBUNAL
The appellant attended a hearing before the Tribunal. Although the Tribunal did not place any emphasis on the fact, the evidence which the appellant gave before the Tribunal added to the picture set out in the statement by a very significant event. The appellant claimed before the Tribunal, but not in his statement, that when he visited India in 2010, he went out shopping in the course of providing for his family and was beaten up in the process by people whom he said were supporters of the AIADMK.
The appellant produced a medical certificate said to support the fact that he suffered injuries from that beating. This event proved significant to the Tribunal.
The Tribunal set out the claims which the appellant made and then its findings and reasons. At the forefront of its reasoning was an assessment of the credibility of the appellant. This largely turned upon the submission of the medical certificate by the appellant.
The appellant’s evidence was that he arrived in India on 22 February 2010 and that his brother’s wedding, which was the reason for his trip, occurred on 28 February 2010. The evidence he gave to the Tribunal was that the beating occurred after the wedding. However, the medical certificate was dated 20 February 2010, a date before the appellant arrived in India.
As a result of the obvious disconnection between the evidence given by the appellant and the terms of the medical certificate, the Tribunal determined that the appellant was not a credible witness. The Tribunal said at [18]
I have considered the applicant’s explanations for the medical certificate being dated before he arrived in India; essentially that this was an error in the certificate, and I do not accept this. The certificate has the date 20 February 2010 recorded on it three times, some two days before the applicant arrived in India. I find that this is a fabricated document, designed to enhance the applicant’s claims. Secondly, the applicant’s story about when he was assaulted, occasioning the visit to the Doctor changed during the course of the hearing, with him first claiming this happened after his brother’s wedding on 28 February 2010. When the discrepancy with the date on the certificate was put to him, the applicant changed his story and said that it had happened before the wedding. I find this indicative of the applicant’s willingness to alter key parts of his claims when confronted with evidence.
A further reason why the Tribunal found that the appellant was not a credible witness was that, although he arrived in Australia originally in June 2009, he only applied for a protection visa in June 2012, three years later. This caused the Tribunal to say at [19]:
I put to the applicant at the hearing that this delay may lead me to consider that he was not in fear at the time of his arrival in Australia, the time that his student visa ceased, and that he did not face harm on return, as I would expect someone who was afraid to seek protection earlier than the approximately three years that the applicant was in Australia before seeking protection.
Having made these findings as to the appellant’s credibility, the Tribunal went on to consider some of the substantive claims. It first considered the claim that the appellant’s house was seized by his neighbours and demolished in 2006. The Tribunal accepted that the house was destroyed, but did not accept that this was for political reasons. In particular, the Tribunal said that as the appellant said that nothing had happened to his family since his departure in 2009, it was not persuaded that the neighbours were pursuing the appellant or his family for political reasons.
Then the Tribunal considered the evidence of the appellant’s political involvement, and made an assessment of the role performed by the appellant in the Congress party. After considering the evidence, the Tribunal concluded at [22]:
I do not accept that his changing allegiance, as such a low level supporter, would have any ramifications for the applicant and I do not accept that the applicant has been threatened or beaten by DMK or AIADMK people or anyone else for changing his support or for any other reason.
Then the Tribunal considered the country information about violence between DMK and AIADMK supporters. The Tribunal said at [23], after referring to the reports which it had:
I put to the applicant that my reading of the country information was that whilst AIADMK supporters and DMK supporters would clash during confrontations, there was just no evidence that they would target a person who had changed allegiance to the Congress, nor that they would target the applicant and his family for systematic and discriminatory harm.
The Tribunal then considered the evidence about what had happened to the appellant’s family since he left in 2009. It said at [23]:
I also asked the applicant what had happened to his family since his departure in 2009, and he said nothing had happened to them, but that unknown people came and knocked on the door asking for him. I do not accept that unknown people have come asking for him, on the basis of my credibility findings and as the country information does not indicate that low-level supporters are targeted for harm. I find the fact that nothing has happened to his family significant. For the same reasons I do not accept that the applicant or his family received death threats from DMK, AIADMK supporters or anyone else. I find on the basis of the above, my credibility findings and the country information that the applicant will not face any harm on return for his low-level involvement with the AIADMK and Congress, nor because he has changed his allegiance. The applicant’s profile is only, at most, as a low-level supporter of Congress. I find on the basis of the country information, which indicates that this violence is sporadic, short lived, and results in few casualties, my credibility findings and my rejection that any harm has befallen the applicant for reasons of his political opinion or any other Convention reason that if the applicant were to return to India, and continue to be a low-level supporter of Congress, that there is only a remote chance that he would be harmed in clashes between the DMK and AIADMK.
The appellant gave the Tribunal a bundle of untranslated documents in Tamil. The Tribunal dealt with these documents at [24] as follows:
I have considered the untranslated documents provided by the applicant at hearing. The applicant provided a number of newspapers in Tamil, without any clear indication of which articles were relevant to his claims. I asked him what these showed and he said that they showed clashes between the DMK and AIADMK. I asked him why he had not gotten them translated and he said he knew how to get things translated in India but didn’t know who to go to here. On the basis that I accept that there are clashes between the DMK and AIADMK, but not targeting such as the applicant was describing, I indicated to him that I would not get the newspapers translated because I considered they would concur with the country information that I had access to. relevantly, when I put this country information to the applicant, he did not contradict my conclusions that the country information indicated that there were clashes between DMK and AIADMK supporters during rallies and other events but no targeting of individual supporters by stating that the news clippings indicated otherwise. I have therefore decided not to have these documents translated, and give them no weight.
Then at the conclusion of its reasons, the Tribunal dealt with the question of complementary protection in [27] as follows:
Having found that the applicant does not satisfy s.36(2)(a), I have considered the applicant’s claims against the provisions of s.36(2)(aa) [of the Migration Act 1958 (Cth)]. I find, on the basis of the applicant’s passport, which he provided to me at the hearing, that India is the applicant’s country of nationality and therefore his receiving country. I have found that the applicant is not a credible witness. I have found that I do not accept in large part his claims to what has happened to him in the past, and his claim of harm in the past. I have found that I do not accept his claims for why he fears harm in the future. I have considered the demolition of his house and acquisition of land in the context of s.36(2)(aa). The applicant gave evidence that his father is doing well and that the family have moved to another house. I therefore do not find that the demolition and land acquisition constitutes continuing significant harm. I do not accept that the applicant was assaulted on return to India in 2010, nor that he has been threatened or harmed for his political opinion or at all. I asked the applicant if he had any other trouble or feared trouble for any other reason on return to India, and he said apart from his claims in relation to politics he had had no other trouble. I have considered what will happen if he returns and acts as a low-level member of Congress. I consider on the basis of the country information above that there is not a real risk that he would be significantly harmed in clashes between DMK and AIADMK supporters. On this basis, I find that there is no real risk that the applicant will be harmed on return to India for any of the reasons he has claimed or for any other reason. Therefore, I am not satisfied, on the evidence before me, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
THE JUDGMENT OF THE FEDERAL CIRCUIT COURT
On 19 April 2013, the appellant applied to the Federal Circuit Court for a review of the Tribunal’s decision. There was only one ground of review as follows:
1. RRT told me that the medical certificate provided was fraud. I want to say that all the document (sic) I provided was true to my knowledge. I didn’t had (sic) any intention to provide fraud documents. RRT also ask (sic) me the English version of all the documents. Unfortunately I couldn’t organise it within the time frame. If I could get more time I can organise all the documents in English version.
The Federal Circuit Court rejected this ground at [16] and [17] as follows:
16.The Tribunal’s finding that the Indian medical certificate provided by the Applicant was fraudulent was a finding of fact for the Tribunal and it is not open to this Court to substitute its own finding. There is no jurisdictional error in the Tribunal’s dealing with that issue. It’s [sic] finding that the medical certificate was not genuine was clearly based on logical grounds and probative material. The Tribunal found that the date given on the medical certificate was two days before the Applicant arrived in India. The Tribunal put the discrepancy to the Applicant but did not accept his explanation for such discrepancy. It cannot be said that the Applicant was unaware of the Tribunal’s concern about the genuineness of the medical certificate as it was specifically raised with the Applicant, and he was given the opportunity to give evidence and make submissions on that issue.
17.The remaining ground of the Applicant’s Application filed 19 April 2013 relates to the Applicant requiring further time to provide documents in translation that were before the Tribunal in untranslated form. The Tribunal considered the material put before it by the Applicant and no jurisdictional error is disclosed in the Tribunal’s treatment of the untranslated material… the Tribunal in respect of the family’s ownership of the house which was demolished, accepted the base claims underlying the documents provided by the Applicant but did not accept the Applicant’s account of the reasons for the demolition. The remaining untranslated documents provided by the Applicant were untranslated newspaper articles which the Tribunal queried the Applicant about and ascertained that the documents concurred with country information already before it and referred to by it.
THE APPEAL
On 8 November 2013, the appellant filed a notice of appeal in this Court. Four grounds were stated as follows:
1.The Tribunal has denied the appellant natural justice in that the Tribunal has denied him an opportunity to provide English version [sic] of all the documents pertaining to his case.
2.The Tribunal’s finding that there is no real risk that he would be significantly harmed in clashes between DMK and AIADMK supporters was not supported by any evidence.
3.The Tribunal erred by failed [sic] to consider Complementary Protection Obligation mandated by law and there by [sic] fell in to jurisdictional error.
4.The Tribunal has approached the applicant’s claim with a mindset not open for persuasion.
The grounds outlined in the appellant’s notice of appeal were not raised before the Federal Circuit Court. The appellant requires leave to raise such grounds where they were not raised before the Federal Circuit Court. Leave should be refused because the grounds cannot be substantiated, as set out below.
The appellant appeared without legal representation but with the assistance of a Tamil interpreter, although for almost all of the proceeding, he was able to understand and communicate in English.
At the hearing the appellant addressed the Court orally in support of his appeal, after it had been explained to him the limits of the Court’s jurisdiction on an appeal in a judicial review application. His primary complaint is contained in the first proposed ground of appeal, which was not raised before the Federal Circuit Court. He contended that the Tribunal, by not having the newspaper articles and the documents relating to the demolition of the family home translated, denied him natural justice.
There is no basis to this complaint because the Tribunal asked the appellant what the newspaper articles showed concerning the clashes between the political rivals. The Tribunal recorded the exchange at [24], namely, “I asked him what these showed and he said they showed clashes between the DMK and AIADMK.” Then the Tribunal said: “On the basis that I accept there are clashes between the DMK and AIADMK, but not targeting such as the applicant was describing, I indicated to him that I would not get the newspapers translated because I considered they would concur with the country information that I had access to.” Then the Tribunal indicated that the country information had not been contradicted by the appellant.
Consequently, the failure of the Tribunal to have the documents translated was not a denial of natural justice. The Tribunal accepted that the newspaper articles supported part of the appellant’s claim. Similarly, the Tribunal did not need to have the documents concerning the demolition of the appellant’s family home translated because it accepted that the home was demolished. It was not contended by the appellant that the documents established that the reason for the demolition was political.
Similarly, none of the remaining grounds were raised before the Federal Circuit Court. I will deal briefly with each of them, but in each case, would refuse leave to raise them on appeal, because they are bound to fail.
The contention that there was no evidence to support the conclusion that the appellant would not be harmed in clashes between DMK and AIADMK supporters cannot be accepted. The Tribunal found, on evidence which was before it, that the appellant was no more than a low-level supporter with no political profile. The country information relied upon by the Tribunal did not indicate that a person of this type would be exposed to such a risk. Consequently, there was a factual basis for the Tribunal to determine that, as an ordinary political supporter of the DMK, the appellant would not be in danger of harm of a significant type.
The third proposed ground of appeal suggests that the Tribunal failed to consider the complementary protection obligation. The appellant was not able to expand on this ground of appeal and it is obviously unsustainable, because [27] of the Tribunal’s decision deals with complementary protection.
As to the fourth proposed ground, which asserts that the Tribunal approached the case with a mindset not open for persuasion, the appellant neither raised this before the Federal Circuit Court, nor provided any evidence before this Court, to substantiate the claim.
As none of the proposed grounds of appeal can be sustained and no other arguments were put by the appellant orally, leave to raise these grounds of appeal should be refused. The consequence is that the appeal itself should be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 20 February 2014
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