MZZLT v Minister for Immigration

[2013] FCCA 2162

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLT v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2162

Catchwords:
MIGRATION – Refugee Review Tribunal relied in part on information supplied by the Applicant with respect to a different visa application – whether Refugee Review Tribunal relied on an irrelevant consideration – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424(1)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: MZZLT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 781 of 2013

Judgment of: Judge Whelan

Hearing date: 9 December 2013

Date of Last Submission: 9 December 2013

Delivered at: Melbourne

Delivered on: 9 December 2013

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

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

2. The Application filed 31 May 2013 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 781 of 2013

MZZLT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 of the

   
   

   Refugee Review Tribunal (“the Tribunal”) of 1 May 2013.

   
   

   The Tribunal affirmed a decision of the delegate of the

   
   

   First Respondent not to grant the Applicant a protection (Class XA) visa. The Applicant now seeks the following orders:

   ·That the decision of the Tribunal be quashed;

   ·A writ of mandamus directed to the Tribunal requiring them to determine the Applicant’s application according to law; and

   ·“An insjunction (sic) Restraining the Minister from Removing the Applications (sic) from Australia until this application has been finalized or until further order”.[1]

   [1] Application filed by MZZLT on 31 May 2013, at p.3.

Background

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

   
   

   5 March 2010 on a student visa. On 15 August 2011, he applied to the Department of Immigration and Citizenship (“the Department”) for a protection visa. At the time, the Applicant claimed that he was a Muslim of the Shia faith who faced persecution from Sunni Muslims and the Pakistani Government. The Applicant stated that, on

   
   

   14 May 2007, twenty to thirty extremists invaded his family’s home and proceeded to attack him and his family. The Applicant claimed that, on 18 February 2009, he and his father were stopped in their car by extremists who dragged them out of the car, beat the Applicant unconscious, and, as a result, he was hospitalised for a period of one week.

2. On 19 September 2011, the Applicant provided the Department with a written submission in which he made additional claims to those contained in his original statement.[2] He was interviewed by a delegate of the First Respondent on 21 September 2011, and, on

   
   

   27 September 2011, provided the Department with an uncertified copy of a medical certificate which indicated the Applicant was hospitalised between 14 May 2007 and 20 May 2007.[3] The Applicant also provided police reports dated 14 May 2007, 18 February 2009 and

   
   

   8 August 2009.[4]

   [2] Court Book filed 3 October 2013, at pp.102-105.

   [3] Ibid, at p.118.

   [4] Outline of First Respondent’s Submissions filed 2 December 2013, p.3 at para.11(b).

3. By a decision dated 10 October 2011, the delegate refused to grant the Applicant a visa. On 3 November 2011, the Applicant applied to the Tribunal for a review of the delegate’s decision. He attended a hearing before the Tribunal on 16 February 2012, and submitted various documents and a written submission by his agent in support of his claims.[5] On 23 March 2012, the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa. On

   
   

   16 November 2012, the Court made orders quashing the decision of the Tribunal of 23 March 2012 and remitting the matter to the Tribunal for determination.

   [5] Court Book filed 3 October 2013, at pp.187-191.

4. On 18 April 2013, the Applicant appeared before the Tribunal to give evidence and present his arguments. By a decision dated 1 May 2013, the Tribunal affirmed the decision of the delegate not to grant the visa.

The Tribunal’s decision

1. In coming to its decision, the Tribunal noted a number of matters, including:

   ·Numerous inconsistencies in the Applicant’s oral evidence and with the documentation he had provided in support of his claim, which caused the Tribunal to have significant concerns about the Applicant’s credibility; and

   ·The long delay in lodging the visa application, which also caused the Tribunal concern about the seriousness of the Applicant’s claim to fear harm.

2. The Tribunal found that, if the Applicant was really in fear of his life as he claimed, he would have attempted to leave Karachi earlier than March 2010, given that he claimed to have suffered serious assaults in May 2007, February 2009 and August 2009.

3. The Tribunal also noted inconsistencies in the evidence provided by the Applicant about his residence and employment between 2007 and 2009. In particular, the Tribunal found that the Applicant was living in a different residence to the one he claimed he was living in at the time of the alleged attacks on 14 May 2007. The Tribunal, therefore, did not accept that the Applicant and his family were attacked as he claimed. The Tribunal did not accept that the police report provided by the Applicant with respect to that incident was genuine. The Tribunal also did not accept that the Applicant had received threatening letters in respect of the alleged incident on 14 May 2007.

4. Having regard to the inconsistencies in the Applicant’s evidence about the claimed incident on 18 February 2009, and its general concerns about the Applicant’s credibility, the Tribunal did not accept that the Applicant was assaulted or abducted on 18 February 2009.

   
   

   The Tribunal further did not accept that the Applicant was assaulted on 8 August 2009 on the basis that, had this incident occurred, he would have raised it prior to 27 September 2011. Having regard to the Applicant’s situation, with respect to his fear of persecution due to his religion, the Tribunal found that the Applicant did not face a real chance of persecution for reasons of his Shia religion. For similar reasons, the Tribunal found that the Applicant did not meet the complementary protections criteria.

Grounds of review

1. The Applicant’s ground for review is:

   The tribunal took into account an irrelevant consideration that I was not Residing at (flat no C-30 Nazish Heaven gulsham Iqbal) which is my home where i (sic) had Three attacks.[6]

   [6] Application filed by MZZLT on 31 May 2013, at p.3.

2. The Applicant did not provide written submissions in relation to the application, and in oral submissions today, affirmed that the Tribunal was incorrect in finding that he did not live at the address given.

The First Respondent’s submissions

1. The First Respondent submits that the Tribunal made no error of law, and accordingly, the application should be dismissed. The Applicant alleges that the Tribunal impermissibly took into account independent information in rejecting his claim that he and his family were assaulted on 14 May 2007. That information suggested that the Applicant’s father did not purchase the flat at which the Applicant claimed the assault took place until a date after the claimed assault.

2. The First Respondent referred the court to a decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (“Yusuf”). The High Court in Yusuf examined the issue of whether considerations advanced by the parties can have some importance in deciding what is, or is not, a relevant consideration.

   
   

   The High Court, in a joint judgment, said the following with respect to the relevance of those matters to a decision:

   … the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.[7]

   [7] (2001) 206 CLR 323 at para.74.

3. The First Respondent submits that, in conducting a review, the Tribunal may have regard to any information that it considers relevant.[8]

   
   

   There can be no objection in principle, therefore, to the Tribunal relying on independent information of the sort identified by the Tribunal in this matter.[9]

   [8] Migration Act 1958, s.424(1).

   [9] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at para.11.

Conclusions

1. The Applicant in this case challenges the decision of the Tribunal on the basis that, in reaching its decision that the Applicant was not a person to whom Australia had protection obligations under the Convention or under the complementary protection criteria,

   
   

   the Tribunal took into account an irrelevant consideration. 

2. The specific consideration identified by the Applicant was the reliance by the Tribunal on information provided in support of the Applicant’s application for a student visa, which included a sale deed in relation to the purchase of a flat in Karachi on 10 May 2008. This was one of several factors considered by the Tribunal in concluding that the Applicant’s claim that his family was attacked in May 2007 in that flat was not credible.

3. It is difficult to see how material supplied by the Applicant himself, albeit with respect to an application for a different visa, would not be relevant in assessing the credibility of the Applicant’s claims to have suffered persecution while living in Karachi. The information was put to the Applicant by the Tribunal and he was given an opportunity to respond to it. Determining issues of fact are matters for the Tribunal. Provided those findings are not based on no evidence, or are not so unreasonable that a Tribunal properly exercising its statutory obligations could not reasonably have arrived at such a conclusion, they are not matters for this Court.

4. The Court is not involved in assessing the merits of the Applicant’s claim. Provided the Tribunal acts within its jurisdiction, its conclusions ought not to be set aside.

5. I am not satisfied that the Tribunal made a jurisdictional error and for those reasons, the application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  13 December 2013