MZZSH v Minister for Immigration

[2014] FCCA 1477

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZSH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1477

Catchwords:
MIGRATION – Application for judicial review – Refugee Review Tribunal not believing applicant’s claims – claim for protection visa only made after lengthy stay in Australia and expiry of student visa – Tribunal’s decision clearly open to it on the evidence – application dismissed. 

Legislation:

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

Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: MZZSH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1463 of 2013

Judgment of: Judge Burchardt

Hearing date: 13 June 2014

Date of Last Submission: 13 June 2014

Delivered at: Melbourne

Delivered on: 15 July 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed 30 August 2013 be dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,450.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1463 of 2013

MZZSH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review filed 30 August 2013.  The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 8 August 2013 by which the Tribunal affirmed the decision of the delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

2. The grounds of application are:

   “1.    I applied for the protection visa to department of immigration which was refused. 

   2.    Then I apply to RRT for review of that decision. 

   3.    I think RRT Tribunal and department of immigration did not look my situation.”

3. The affidavit filed by the applicant deposes that the applicant came to Australian on a student visa and subsequently applied for a protection visa and to the Tribunal. It asserts:

   “I am not happy with these decision”

   The affidavit then annexes the Tribunal’s decision. 

4. On 6 November 2013, Registrar Caporale made interlocutory orders which inter alia provided for the applicant to file, should he wish, any Amended Application, written submissions and Supplementary Court Book.  The applicant has done none of these things.  This means that the Court has only the application and affidavit already referred to together with the Court Book (“CB”) and the First Respondent’s Contentions of Fact and Law to go on. 

5. The applicant’s Application for a Protection (Class XA) visa is set out at pages 7-34 of the CB.  At CB24 he asserts a desire for protection:

   “For safety of my life.”

   At CB27 the applicant asserted:

   “Thousands of people are killed in name of honour killing, and authorities cannot stope (sic) them.”

   His claims are really articulated at CB35-37 in his “Statement of Claim”.

6. Put shortly, he asserts a relationship with a woman of whom his family did not approve, and the likelihood that if he returned to India, her family would kill the applicant to save their pride. 

7. The decision of the delegate of the First Respondent who considered the matter is at CB42-49.  The delegate noted that the applicant had claimed on his Form 866C that he separated from his wife in Melbourne on 3 February 2010, that he arrived in Australian on 21 October 2008 on a student visa, that his wife had arrived in Australia as dependent on 18 April 2010 and that the applicant’s further application for a Class VC Subclass 485 Skilled Graduate visa on 24 May 2010 which was refused on 16 December 2011.  The applicant’s then bridging visa expired on 13 January 2012, and the Protection visa application was filed on 17 September 2012 (CB42-43).  The delegate characterised the claim in very much the terms I have already set out and made findings of fact as to credibility at CB46.  The delegate observed:

   “His claims are vague and unsubstantiated. 

   While I accept that the applicant married (name of applicant’s wife) and is now separated, there is absolutely no evidence to support his claim which relies entirely upon his written statement. 

   There is so little detail provided in this application that relates to the applicant, that I consider the applicant’s fear to be not well-founded. 

   Further to providing minimal details in his written application, the applicant was invited to contact the department to further discuss his claims at interview, yet he did not do so.  This supports my view that he does not have a genuine fear of harm.”

8. The delegate went on to note that no explanation had been given as to why the applicant had to return to his particular hometown in Punjab given that India is a very large country with a very substantial population.  The inference is that the applicant could have relocated. 

9. The delegate also noted that the applicant had not filed his application for a Protection visa until such time as all his other visas had expired, and, considering all these matters together, declined to accept the applicant’s claim.  The applicant, as he of course was entitled to, filed an application for review which does not take the matter further.  I note that the applicant sought an adjournment of the hearing scheduled for

   
   

   2 July 2013 and scheduled a further hearing on 24 July 2013 (CB65).  The applicant did not submit any further materials to the Tribunal before the hearing. 

10. I note that the Tribunal conducted the hearing without the benefit of an interpreter at the applicant’s request (CB74), although he appeared in this Court with the assistance of an interpreter.  The applicant has not asserted, and there is nothing in the materials to suggest, that the absence of an interpreter before the Tribunal led to any difficulties such as in some way to undermine the quality of the hearing. 

11. The Tribunal having set out the relevant law in relation to the Refugee criterion and the Complementary protection criterion, commenced a consideration of claims and evidence (CB76).  The Tribunal set out the applicant’s Statement of Claim to which I have already referred in full at CB76-77.  The Tribunal noted the applicant’s oral evidence at paragraphs 23 and following (CB78-80).  The applicant’s oral evidence was consistent with his Statement, in my view, and provided a greater degree of detail. 

12. The Tribunal traversed with the applicant the possibility that he might relocate (paragraph 30, CB79), and the applicant stated:

    “that he could be found anywhere in India, that entry records would show the applicant arriving and he would be found wherever he went.  He also had no money to establish himself.”

13. The Tribunal also traversed with the applicant its doubt that he was presently in a relationship in Australia given that both in his application and his Statement he had declared he had separated from his wife and put it to the applicant that he would return as a single man and would be accepted by his family.  The applicant maintained that this would make no difference and he would still face harm (paragraph 32, CB79).  The Tribunal put doubts about the nature of the applicant’s relationship with his wife given its brevity and put various inconsistencies in relation to the relationship as described by the applicant in his Statement.  The applicant said a friend had completed the Statement for him and that he had read it three times and submitted it (paragraph 33, CB80). 

14. The Tribunal dealt with credibility issues at CB80-82.  Tribunal found the applicant’s evidence to be inconsistent as to his claims and noted a significant discrepancy in the evidence between the Statement originally provided and the evidence given at the hearing (see paragraphs 39-41, CB80-81).  The Tribunal found at paragraphs 45 and following:

    “45.  The Tribunal finds that the applicant’s evidence about the relationship was not credible.  The applicant was vague and inconsistent regarding the evidence of the relationship with (wife).  The applicant describes a relationship whereby he and his wife puts all concerns of family difficulty aside, even in an instance where the applicant was aware of the issues that this could supposedly cause, through what he claimed happened to his sister.  The applicant left to study in Australia but returned to marry his wife, and bring her back, because she was crying over the phone on a daily basis.  Yet within six months in Australia the applicant had separated from his wife and she had left to reside in a different state, with plans to divorce the applicant.  This was not supportive of the claims that the applicant was in a significant love relationship.  The Tribunal does not accept the applicant’s claims that financial difficulties had led to the separation, that it was cheaper for the two of them to live apart.  In the statement, it is put that the applicant’s wife sought the divorce to bring peace between the families.  This claim was affected by the evidence at the hearing that the applicant’s action had brought about dishonour, and thus any divorce or separation would not stop persecution.

    46.  The Tribunal considers that the applicant and his wife have entered into a marriage of convenience to bring the applicant’s wife to Australia.  When this was put to the applicant his response was that that he had a physical relationship with his wife.  This does not refute the proposition as put to the applicant on this point.  The Tribunal considers that the marriage was organised to assist the applicant’s wife to come to Australia.

    47.  The Tribunal does not accept the claims of the applicant that he is at risk of harm from the family of his wife.  The Tribunal does not accept that the relationship was disapproved of by her family and that the applicant or his now separated wife are at any risk of harm on return to India arising out of the relationship.  The Tribunal does not accept that the applicant will face any criminal proceedings, such as kidnapping charges arising out of the relationship, brought by her family, given the nature of the relationship.

    48.  The Tribunal also does not accept that the applicant has any fear of harm from his own family due to the relationship with his wife.  The Tribunal does not accept that any part of the applicant’s own family will seek to harm the applicant, or that he will be cut off from his family because of the relationship.”

15. Given these findings, it is scarcely surprising that the Tribunal found that the applicant did not meet the definition of a Refugee as defined in the Convention, nor was he at risk of significant harm as defined in s.36(2)(aa) of the Migration Act 1958 (“the Act”). 

16. I note that the Tribunal did not make any finding about the possibility of the applicant’s relocation. 

17. The written Contentions of Fact and Law of the first respondent set out the applicant’s visa history which I have already referred to in dealing with the decision of the delegate.  The written submission notes the credibility concerns the Tribunal formulated and noted that the applicant gave evidence at the hearing that his sister, who lives in Italy, married a Sikh man in 2006 and this caused problems for the family.  As the written submissions assert at paragraph 18:

    “… This contradicted the Applicant’s evidence that the family name would be destroyed because of his inter-caste relationship as such a relationship already existed in the family.”

18. The written submissions point to the Tribunal’s conclusions, the grounds of review (which are clearly extremely general in their terms), and submitted that the decision was not affected by jurisdictional error. 

19. As the written submissions point out, a credibility finding is a finding of fact which is a function of the primary decision maker par excellence, Re Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.

20. In my view, while of course minds might differ as to whether the Tribunal came to the correct decision, the fact is that the decision on its face shows that the applicant’s claims were directly put to the Tribunal and considered by the Tribunal.  In the circumstances the applicant propounded both in his Statement and in his, at times, inconsistent evidence given to the Tribunal, the fact that the Tribunal did not believe the applicant does not show any want of logicality or reasoning.  There is no jurisdictional error shown in the Tribunal’s decision.  The Tribunal member, clearly, properly understood the task to be undertaken and did not fall into jurisdictional error in so doing. 

21. At the hearing before the Court, the applicant referred to his visa history and, although not entirely easy to follow, I understood him to complain that his then migration agent had both filed a fake application in the context of a work visa application and had failed to tell him that he had become an unlawful over stayer in Australia.  He also referred to the fact that he did not have a lawyer at that time. 

22. The question of misconduct by the applicant’s former migration agent does not appear anywhere in the materials filed in the CB and is not otherwise raised in the matters before the Court.  In my view, the submission of counsel for the First Respondent that this skilled visa history was not relevant to the Protection application was correct. 

23. It follows that the application cannot succeed and will be dismissed with costs. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:15 July 2014