MZZUC v Minister for Immigration

[2014] FCCA 1942

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZUC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1942

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – applications for Protection (Class XA) visas – adverse credibility findings against Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424AA, 424A(2A), 425

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

First Applicant: MZZUC

Second Applicant: MZZUD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1692 of 2013

Judgment of: Judge Hartnett

Hearing date: 15 August 2014

Delivered at: Melbourne

Delivered on: 15 August 2014

REPRESENTATION

First Applicant: In Person

Second Applicant: No appearance

Counsel for the respondents: Mr Priest

Solicitors for the respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed 10 October 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 1692 of 2013

MZZUC

First Applicant

MZZUD

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced when the applicants filed an Application on 10 October 2013 seeking judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made 25 September 2013 (‘the Decision’), affirming the decision of a delegate of the First Respondent (‘the delegate’) dated 2 July 2013 to not grant the applicants’ Protection (Class XA) visas.

2. The grounds of application, as stated in the Application filed 10 October 2013, are as follows:-

   “1.   My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.

   2.     The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

   3.     The applicants satisfied the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

   4.      The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India.  Therefore, the Tribunal decision dated 25th Sep 2013 was effected by actual bias constituting judicial error.”

3. The First Respondent filed a Response on 23 October 2013 seeking dismissal of the applicants’ claim on the basis that the application did not establish any jurisdictional error in the decision of the Tribunal.

4. On 4 December 2013, Registrar Allaway made various orders by consent including that the applicants file and serve any amended application, including any additional grounds of review with complete particulars of each ground; and any affidavits together with written submissions and a list of authorities. The applicants did not amend their application nor have they filed any written submissions.

5. The First Respondent relies on an Outline of Submissions filed by it on 6 August 2014, together with the evidence as contained in the Court Book filed 15 January 2014 which is before the Court. 

6. The Court determines that no jurisdictional error attends the decision of the Tribunal.  The applicants challenge to that decision therefore fails.

History

1. On 15 November 2012, the First Applicant (‘the Applicant’) wrote to the Australian Embassy in Mumbai India seeking a tourist visa to visit Australia.  His purpose for travel as stated, was tourism “to see the beautiful sights especially the beaches and the city’s likes (sic) Sydney, Brisbane and Melbourne.”

2. The Applicant sought visas for himself and his wife and said, in that correspondence of 15 November 2012 “… All expenses for the round trip are born (sic) by me; I assure you that we will be leaving Your Country before our authorized period of stay.”

3. In the Applicant’s application for a tourist visa the Applicant stated that he wished to stay in Australia for up to three months and that he was self-employed in India, being the proprietor of the business known as Shree Sai Steels Corporation.  He claimed his date of birth to be 29 December 1985; its place, Mumbai in India; and his passport to be issued in India on 27 September 2012.  He was married and his wife, it was proposed, would accompany him. 

4. On 7 December 2012, the applicants, both citizens of India, arrived in Australia on granted Tourist (Class TR) Subclass 676 visas (‘tourist visas’).  On 6 March 2013, the Applicant applied for a Protection (Class XA) visa.  The Second Applicant, the Applicant’s wife, applied for a Protection (Class XA) visa as a member of the Applicant’s family unit and made no independent claim for protection.

5. By an undated Statement of Claim, provided with his Protection (Class XA) visa application, the Applicant claimed to fear harm arising from his stationary supply business in Ghandhingar. He claimed (as accurately set out in paragraph 5 of the First Respondent’s Outline of Submissions filed 6 August 2014) that:-

   a)some of his regular customers were from political parties and government offices;

   b)he took loans of 5,000,000 rupees from politically connected customers to fund a business expansion to supply office furniture;

   c)he was informed by police that his business was selling illegal liquor and drugs.  He went to the warehouse to investigate but his employees reassured him that there was no illegal activity;

   d)his warehouse premises were raided, his business closed and charges were laid against him because rogue employees had been selling alcohol and drugs;

   e)without income from the business, he defaulted on his loans, and following threats from lenders, moved to Maharashtra; and

   f)he claimed that after two months the lenders found him and beat him.  Following a stay in hospital he fled India and came to Australia.

6. On 2 July 2013, the delegate refused to grant the applicants’ Protection (Class XA) visas.

7. On 17 July 2013, the applicants applied to the Tribunal for review of the delegate’s decision.

8. On 6 August 2013, the Tribunal invited the applicants to attend a hearing to give evidence and present arguments relating to the issues arising in their case, on 24 September 2013 at 12.30 pm in Mildura. An interpreter was made available for the hearing in their Gujarati language. This complied with s.425 of the Migration Act 1958 (Cth) (‘the Act’).

9. On 25 September 2013, the Tribunal affirmed the decision not to grant the applicants’ Protection (Class XA) visas. 

The Tribunal Decision

1. The Tribunal correctly canvassed and applied the relevant law applicable including the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’), criterion in s.36(2)(a) of the Act and the complementary protection criterion in s.36(2)(aa) of the Act.

2. The Tribunal noted that the issue in the case were claims that the Applicant would face harm due to business dealings in India.  The Tribunal had before it the undated Statement of Claim made by the Applicant as referred to in paragraph 11 above and included such statement in the Decision.

3. In paragraph 23 of the Decision, the Tribunal set out a serious matter for it in its consideration of the Applicant’s claims. That paragraph is as follows:-

   “The applicant's credibility was a significant issue in the hearing before the Tribunal. The claims of the applicant regarding his feared harm was contradicted by his own account of his business history, timeline and operation, and his response to adverse information that arose out of his visitor visa application to come to Australia. The result of this contradictory information was to affect the evidence of the applicant to the extent that he had no credibility in relation to his claims for protection.”

4. The Tribunal put to the Applicant the concerns that it had with the evidence given by him.  The Tribunal asked the Applicant about his study and about the commencement and ongoing operations of his business.

5. In responding to those questions, the Applicant gave evidence, which the Tribunal stated to him, it found questionable.  The Tribunal asked the Applicant further questions about the operations of his business, as set out in paragraphs 26 and 27 of the Decision, and noted to the Applicant that it did not believe that his business could develop in the manner that the Applicant had stated, and thereafter put to the Applicant other concerns it had with the evidence given by the Applicant.

6. The Tribunal put to the Applicant the inconsistency of the information provided by him prior to the hearing, and at the hearing, in respect of his problems with the police. The Tribunal stated that due to its significant credibility concerns with the Applicant’s story, it did not believe that the event, as stated by him, including his arrest, had actually occurred.

7. As set out in paragraphs 29 to 31 of the Decision, the Tribunal stated to the Applicant that it did not believe the information before it, as put by the Applicant. The Tribunal put adverse information to the Applicant, explained its relevance, and explained that the Applicant could respond at the time of hearing or ask to respond at a later date. The Tribunal explained to the Applicant that the information may cause the Tribunal to doubt the Applicant was a witness of truth and to determine the claims made by the Applicant were false. This would then be the reason or part of the reason for the Tribunal to affirm the decision of the delegate.

8. The Applicant chose to respond to the adverse information at the hearing. The Tribunal in its actions complied with s.424AA of the Act. The Tribunal was under no obligation to provide the information to the Applicant in writing, following the hearing.[1]

   [1] Migration Act 1958 (Cth), s.424A(2A).

9. The Tribunal put to the Applicant particulars of the following information submitted with his tourist visa application:-

   a)the documents indicating he was the proprietor of a company in Mumbai and had lived there for a number of years;

   b)the documents indicating he was born in Mumbai; and

   c)his passport indicating he had travelled out of India numerous times and that he had been in the United Kingdom on a student visa between 26 March 2011 and 10 July 2012.

10. Further, the Tribunal put to the Applicant for comment at the hearing the fingerprint match report provided by the identity resolution centre, stating that the Applicant had applied for a United Kingdom visa in February 2011 in Mumbai.

11. The Applicant had indicated in his application for a tourist visa, that he had not, in the preceding five years, visited or lived outside the country of his passport (namely India) for more than three consecutive months.

12. As submitted by Counsel for the First Respondent, the Applicant was very clearly on notice that his credibility was a determinative issue on the review.  On many occasions the Tribunal discussed its concerns about his credibility with him and invited him to respond to identified inconsistencies in his claims.  It also allowed the Applicant an opportunity to respond to adverse information in its possession.  It put to him that the Mumbai company he claimed to be the proprietor of did not exist on the Internet.  In relation to its finding that the Applicant had submitted fraudulent documents in support of his tourist visa application, the Tribunal put to him that it believed the documents were “contrived” and invited him to respond.

13. In putting information to the Applicant about his passport, the Tribunal noted that the Applicant had provided a passport that stated he was born in Unava in Gujarat.  He had also provided two documents on the visitor visa application that contradicted that information with information that he was born in Mumbai.  He had said in his application, and confirmed at the hearing, that he had never been out of India, yet information from the passport that he had provided with the visitor visa application, indicated that he had been out of India on numerous occasions.

14. The Applicant’s passport indicated he had received a student visa for the United Kingdom in March 2011, not returning to India until 10 July 2012.  The Tribunal found that the Applicant had in fact travelled overseas and was overseas at a time when he was supposedly establishing his business, and when all the matters pertaining to what had happened with the business was said to have occurred.  The Tribunal noted it was the Applicant himself who had gone to get his United Kingdom student visa.

15. The Applicant confirmed he had applied for a student visa, had left India in March 2011 and returned to India in July 2012.  The Tribunal asked the Applicant why he had lied in the hearing.  The Tribunal concluded that:-

    “The applicant has been shown to have no credibility in his claims. His claims of being harmed because of incidents surrounding his business happened at a time when the applicant was not in the country. The applicant provided no reasonable explanation as to the significant discrepancy in the evidence that this information caused.”

16. The Tribunal found the Applicant to lack credibility in the evidence he provided, both to the Department of Immigration and Citizenship (as it then was) and to the Tribunal.  His evidence was completely lacking in consistency and the Applicant admitted that he left out information regarding his overseas travel. The Tribunal found the Applicant to give false information to it.

17. In paragraph 43 of the Decision, the Tribunal stated:-

    “…The applicant stated in both his application and initially in the hearing that he had never been overseas.  Put incontrovertible proof of his travel overseas, the applicant acknowledged that he had been overseas for over a year studying, at the exact time when the business was supposedly being established.  This information undermines all of the applicant’s claims of being harmed for his business dealings or having problems with the police.”

18. The Tribunal noted further that the Applicant’s evidence in relation to his business was contradictory and that the Applicant had shown he was prepared to use fraudulent documents to assist him to come to Australia.  Again, his actions in lodging false documents in relation to his visitor visa application was put to him as a reason to doubt his credibility generally.

19. The Tribunal found the Applicant had not conducted any business and had no problems with any investors in any business. Further, the Tribunal found the Applicant had not had any problems with any authorities arising from any business. Based on its credibility findings regarding the applicant’s evidence, the Tribunal found the Applicant did not have a real chance of serious harm arising out of any business dealings in India. Further, the Applicant did not have a well-founded fear of persecution for that reason now or in the reasonably foreseeable future. The Tribunal further found the Applicant did not have a real risk of significant harm pursuant to s.36(2)(aa) of the Act. The Tribunal considered the applicants’ claims individually and cumulatively. The Tribunal noted that the Second Applicant was represented by the Applicant in the hearing and made no claims of her own, other than what was put by the Applicant on their behalf. The Tribunal was not satisfied any of the applicants were persons in respect of whom Australia had protection obligations.

Conclusion

1. The Tribunal’s findings were clearly open to it on the evidence before it and for the reasons it gave. There was nothing illogical or unreasonable contained in such reasons.  The Tribunal made patently clear its findings and consequent rejection of all of the applicants’ claims.  In respect of the Applicant’s serious claim of bias, without particulars that ground also must fail.  No evidence at all was provided by the Applicant to support such a ground of application.  Essentially the Tribunal determined, as it was entitled to on the evidence before it, and without further investigation of the matter, that the Applicant was prepared to use fraudulent documents and tell lies to advance his case.

2. There is nothing to suggest that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith.  Indeed, there is much to the contrary.  This application is entirely without merit and will be dismissed. Costs follow the event.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  27 August 2014