MZZQR v Minister for Immigration

[2014] FCCA 2776

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2776

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – Applicant’s third adjournment request refused – adverse credibility findings against Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(a)(a)

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: MZZQR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1299 of 2013

Judgment of: Judge Hartnett

Hearing date: 30 October 2014

Delivered at: Melbourne

Delivered on: 30 October 2014

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Ms Grinsberg

Solicitors for the respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed 16 August 2013 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1299 of 2013

MZZQR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. By his Application dated and filed 16 August 2013, the Applicant sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 12 July 2013 (‘the Decision Record’).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister of Immigration and Citizenship (as it then was) (‘the delegate’) not to grant a Protection (Class XA) visa to the Applicant.

2. The Applicant this day seeks an adjournment of the Application, first filed by him on 16 August 2013, being a period now, of 14 months ago. 

3. This matter has been listed for hearing on previous occasions, the first being 3 April 2014; the second being 26 September 2014. It is further listed this day.  The earlier hearing dates have been vacated at the request of the Applicant. On each of those occasions, the First Respondent did not oppose the Applicant’s request for an adjournment of the proceedings.

4. The Applicant attends at Court this day as a litigant in person.  He seeks a further adjournment of his proceedings on the basis that he is “not ready” and that he is “not well”.  He arrived on an aeroplane last night from Pakistan where he has been spending his recent time.  There is no medical evidence before the Court in respect of any condition that the Applicant may suffer from, nor any that would preclude him from prosecuting his application this day.  Indeed the Applicant sent correspondence to the Court on 25 September 2014 requesting an adjournment of the hearing this day.  In that correspondence there was no reference at all to the state of his health. 

5. The Applicant was advised that the First Respondent opposed this third application for adjournment of the proceedings, and the Court advised both parties accordingly that the matter would remain listed.

6. The Applicant persists in his adjournment application. There is no material before the Court to support an adjournment of the proceedings this day.  The only material before the Court is that as contained in the email correspondence of the Applicant to the Court of 25 September 2014, and the Applicant’s oral submission this day that he needs more time and feels unwell. The email correspondence of 25 September 2014 is as follows:-

   “Dear sir/Madam

   I am … [MZZQR] my dater (sic) of birth 12 February 1984. I want to request you about my extend hairing (sic).

   Dear sir you already know my mother very sick and during the treatment of heart in dubai I told you my mother have operation in the middle of September but at the moment in my country have to much flood and in dubai the weather is hot too in that condition 

   My family connect the doctor and told them we can't come in dubai and please can you give us short time more bcz (sic) some reason of money too (sic) and after every thing the doctor gave us the date of operation after 15 of October 2014 and my hairing date is 30 of October 2014 and I want to request to extend my hairing  and I am will be available after November thank.”

7. Given the insufficient evidence put before the Court by the Applicant in support of an adjournment, the Court will not again accede to that application.

8. In respect of the Applicant’s claim that he needs more time in relation to his application, the Court notes his Application was filed on 16 August 2013.  The grounds as stated in that Application are non-existent. There are no proper grounds.  The Application merely states:-

   “I AM not setsified (sic) by the decion (sic) of RRT that’s why i am appealing against the decion (sic) taken by RRT.”

9. This, of course, is not a ground of judicial review.  There is no particularisation, obviously, in the absence of grounds, and the application on its face is meaningless.  The Applicant was given an opportunity this day in oral submissions made to the Court, to indicate to the Court what the grounds of his application were.  His response to that was simply that he is not satisfied with the decision of the Tribunal and that he wants residency.

10. It is not for this Court to particularise or construe grounds for the Applicant.  The matter could have been rectified by him as provided for in the Orders made by Registrar Caporale on 16 October 2013 wherein order 2 provided:-

    “2. On or before 23 January 2014, the applicant file and serve:

    a. any amended application including any additional grounds of review with complete particulars of each ground; and

    b. any affidavits.”

11. The Applicant has not amended his application.  The Applicant was also to file and serve written submissions in order 5 of those Orders before the final hearing this day.  No submissions have been filed by the Applicant.  The Applicant does have before him the First Respondent’s Submissions filed 21 October 2014.  He has read those Submissions and he is assisted in the hearing this day by an interpreter. 

12. The Applicant was also advised by the solicitors for the First Respondent in correspondence of 23 August 2013 as to a list of legal service providers and their contact numbers who might have been able to offer him assistance in the preparation of his case before the Court.  Those legal service providers were Victoria Legal Aid, the Law Institute of Victoria, the Victorian Bar Association and the Refugee and Immigration Legal Centre.  The Applicant has had ample time to seek out legal advice since the filing of his Application over a year ago. He was directed to lawyers who might assist him in correspondence sent by the First Respondent some matter of days following the filing of his Application.

History

1. The Applicant was born in Pakistan and is a citizen of Pakistan.  His religion is Islam.  He arrived in Australia on 23 May 2011 on a passport issued in Pakistan as the holder of a Business (Short Stay) (Subclass 456) visa valid until 23 August 2011.  The Applicant lodged an Application for a Protection (Class XA) visa on 22 August 2011 claiming that he feared persecution for reasons of his membership of a particular social group stemming from his profile as the son of a wealthy family/business owner.

2. The Applicant claimed that if he went back to Pakistan there was a high risk of losing his life due to “enmity of a few people” toward his family and that he has been attacked a few times.  In his statement, the Applicant claimed that in 2001 his brother and brother-in-law were both shot in an incident that started a chain of enmity.  About one year later “the father of an opponent party” was murdered and his family members were accused of the murder.  His brother was “put behind bars” but ultimately acquitted.  The Applicant claimed that he had been abducted and detained on numerous occasions.  He claimed that on the last occasion he was detained, his family had to pay a ransom to secure his release.  He claimed that three months after this he went to Saudi Arabia.

3. On 27 October 2011, the delegate interviewed the Applicant.

4. On 7 November 2011, the delegate refused to grant the Applicant a Protection (Class XA) visa.  The delegate found the Applicant’s evidence vague and evasive.  He found that the Applicant lacked credibility and that his fear of persecution was not well-founded.  The Applicant submitted a copy of the delegate’s decision to the Tribunal.

5. On 2 December 2011, the Applicant applied to the Tribunal for a review of the delegate’s decision.  On 16 May 2013, the Tribunal conducted a hearing, having invited the Applicant to appear before it to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.  The Tribunal granted the Applicant’s migration agent until 20 May 2013 to provide further information.

6. The Applicant claimed, before the Tribunal, to fear persecution for reason of his membership of a particular social group stemming from his profile and his family’s profile as wealthy successful business owners.  He claimed to fear being harmed by people linked to those who were in competition or opposition to his family’s business and from members of particular gangs.  He also claimed his father died of a heart attack in 2011 after he received threatening phone calls, and that his family continue to be targeted and people continued to look for him.

7. On 15 July 2013, the Tribunal notified the Applicant of its decision made 12 July 2013 in which it affirmed the delegate’s decision to refuse to grant the Applicant a Protection (Class XA) visa.

8. In paragraph 8 of its Decision Record, the Tribunal set out the primary issue in the review to be whether the Applicant’s claims were credible, and whether there was a real chance that if he returns to Pakistan he will be persecuted for one or more of the five reasons set out in the Refugees Convention,[1] and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Pakistan there is a real risk that he will suffer significant harm.

   [1] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

9. The Tribunal was not satisfied the Applicant had been truthful about his experiences in Pakistan, a country, the Court notes, to which he travelled in the period immediately before the hearing this day and returned from, on the evening before.

10. The Tribunal did not find the Applicant to be a reliable or credible witness about key aspects of his claim.  On the face of the Decision Record and in the absence of any grounds of review postulated by the Applicant, the Court observes that:-

    a)the Applicant was afforded procedural fairness by the Tribunal;

    b)the Tribunal considered each of the claims made by the Applicant and on the evidence before it reached a conclusion open to it; and

    c)the Tribunal made various findings of fact which are a matter for the Tribunal.

    The Tribunal noted further that the Applicant gave inconsistent evidence about key aspects of his claims and was unable to offer credible explanations for the inconsistencies.  His evidence was vague and was referred to in paragraph 13 of the Decision Record as being “vague and lacking in detail”.

11. The Decision Record sets out the numerous matters which were put to the Applicant by the Tribunal as to the claims of the Applicant and the reliability of documents he submitted in support of his application, including a police report and documents relating to court proceedings.  The Tribunal made findings on the evidence before it that the inconsistencies in the Applicant’s claims were adverse to the authenticity and the reliability of the documents the Applicant submitted.  Given that, and the availability of fraudulent documents in Pakistan as described in paragraph 18 of the Decision Record, the Tribunal gave the documents submitted in evidence by the Applicant no weight.

12. The Decision Record sets out the numerous matters put to the Applicant at the hearing including the various inconsistencies in the Applicant’s evidence.

13. The Tribunal found that the Applicant’s claims, considered individually and together, led the Tribunal to find the Applicant had not been truthful about his experiences in Pakistan, the reasons he left, and the reasons he fears returning. The Tribunal concluded on the basis of the evidence considered by it that it was not satisfied that the Applicant either now or in the reasonably foreseeable future had a well-founded fear of serious or significant harm for reasons of his membership of a particular social group or any other reason if he returns to Pakistan. Further, the Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Pakistan there was a real risk that he would suffer significant harm as defined in s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). Having concluded that the Applicant did not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal considered the alternative criterion in s.36(2)(aa) of the Act and was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.

14. The stated ground of judicial review is nothing more than an expression of dissatisfaction by the Applicant with the conclusions reached by the Tribunal.  Insofar as the Applicant’s stated ground seeks a merits review of the Tribunal’s decision, it is not the role of this Court to review the merits of the Applicant’s claim.[2]  On the evidence, as it was presented to it by the Applicant, the Tribunal’s findings regarding the Applicant’s credibility were open to it.

    [2]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].

15. This application is entirely without merit, and shall be dismissed with costs following the event.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 26 November 2014