MZZUC v Minister for Immigration and Border Protection
[2014] FCA 1347
•9 December 2014
FEDERAL COURT OF AUSTRALIA
MZZUC v Minister for Immigration and Border Protection [2014] FCA 1347
Citation: MZZUC v Minister for Immigration and Border Protection [2014] FCA 1347 Appeal from: MZZUC & Anor v Minister for Immigration & Anor [2014] FCCA 1942 Parties: MZZUC and MZZUD v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 504 of 2014 Judge:
Date of judgment:
NORTH J
27 November 2014
Legislation:
Migration Act 1958 (Cth) ss 36(2)(a), (aa), (b),(c) Date of hearing: 27 November 2014 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 19 Counsel for the Appellants: The Appellant appeared in person. Solicitor for the First Respondent: Mr W Sharpe of Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 504 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZUC
First AppellantMZZUD
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
27 NOVEMBER 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants 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 504 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZUC
First AppellantMZZUD
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE:
27 NOVEMBER 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an appeal from a judgment of the Federal Circuit Court, delivered on 15 August 2014. The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 25 September 2013. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellants Protection visas.
The appellants are citizens of India. The first appellant appeared at the appeal on behalf of his wife, the second appellant.
THE DECISION OF THE TRIBUNAL
The claims made in support of the application before the Tribunal were that the first appellant conducted a business in the State of Gujarat in India, supplying stationery and office supplies.
The first appellant said that the business had been going well until some allegations were made about illegal activities conducted at a warehouse of the business. As a result of the allegations, the police raided the warehouse. The first appellant claimed that he was arrested, but released on bail. As a result of the police raid, business declined. The creditors who had lent money to the first appellant to establish the business asked for their money back and threatened him over the phone and then in person. The first appellant reported the threats to the police, who did nothing. Those pursuing the first appellant found him and assaulted him to such an extent that he was required to be hospitalised. Against that background, the first appellant claimed to fear that his life would be in danger were he to return to India.
The Tribunal rejected the appellants’ claims on the basis that it did not accept that the first appellant was a credible witness. The Tribunal pointed to a number of serious inconsistencies in his evidence.
The Tribunal referred to a photocopy of an earlier passport of the first appellant than the one attached to his application for the protection visa. The first appellant had submitted his old passport in support of his Australian visitor visa application, the visa on which he entered Australia. That passport contradicted evidence given by the first appellant in two respects. Firstly, it contradicted his assertion that he had been in India in the early part of 2012 when important elements of his claim concerning his business were said to have occurred. The old passport demonstrated that he was in the United Kindgom studying at that time. The Tribunal regarded the first appellant’s explanation of this inconsistency as unpersuasive. The more recent passport provided in support of the protection visa indicated that he was born in Unava in Gujarat, whereas the old passport provided in support of the visitor visa application contradicted this information by asserting that he was born in Mumbai. Furthermore, the evidence of his trip to the United Kingdom contradicted his oral evidence at the hearing before the Tribunal that he had never been out of India.
Another important factor relied upon by the Tribunal in finding that the first appellant was not a credible witness was that he had submitted documents in support of his visitor visa application which were intended to show that he was the proprietor of a company dealing in steel products. Those documents, so the Tribunal found, were fraudulent and were inconsistent with the claims made by the first appellant that he ran a stationery business.
The Tribunal expressed its conclusions concerning these questions of the first appellant’s credibility as follows:
43.The Tribunal found the applicant to lack credibility in the evidence he has provided to the Department and the Tribunal. The evidence as provided by the applicant is completely lacking in consistency, and the applicant has admitted he left out information regarding his overseas travel. Most significant is the evidence, provided from his old passport, supported by his fingerprints provided at the time of applying for a visa to visit the UK, and admitted by the applicant at the hearing, that the applicant was overseas from March 2011 to July 2012, directly at the time when he said he was establishing his company and having the difficulties that are the basis for his fear of returning to India. 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.
…
45.The applicant has shown that he is prepared to use fraudulent documents to assist him to come to Australia. He has used an agent to assist in the preparation of the visitor visa application with false information, and the applicant’s signature is on the documentation of the false company the applicant is supposedly the proprietor of. This shows he was aware of the false information being used. The Tribunal put it adversely to the applicant, and the applicant sought to deflect blame. The Tribunal does not accept that the applicant did not know of the false information. The Tribunal noted country information that fraudulent documents are prevalent in India when the applicant stated he could seek documents regarding his lease of the warehouse. The applicant’s actions in lodging false documents in relation to his visitor visa application was put to him as a reason to doubt his credibility generally.
The Tribunal then concluded:
46.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 this significant discrepancy in the evidence that this information caused.
47.The Tribunal considers that the applicant’s claims that he has been harmed because of his business to be without foundation. The Tribunal finds that the applicant has not conducted any business. The Tribunal finds that the applicant has not had any problems with any investors in any business. The Tribunal finds that the applicant has not had any problems with any authorities arising from any business.
48.Based on its credibility findings regarding the applicant’s evidence, the Tribunal finds that the applicant does not have a real chance of serious harm arising out of any business dealings in India. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason, now or in the reasonably foreseeable future.
It was on the basis of this finding of the first appellant’s credibility that the Tribunal rejected the appellants’ claim to a protection visa under s 36(2)(a), (b) or (c) of the Migration Act 1958 (Cth) and also for complementary protection under s 36(2)(aa).
THE JUDGMENT OF THE FEDERAL CIRCUIT COURT
The appellants then applied to the Federal Circuit Court for review of the Tribunal decision. The grounds were 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 [sic] 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 [sic] in accordance with the requirements of the Migration Act.
3. The applicants satisfy 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 [sic] by actual bias constituting judicial error.
The Federal Circuit Court rejected each of the grounds as follows:
35.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 applicant’s 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.
36.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.
THE APPEAL
On 1 September 2014, the appellants filed a notice of appeal in this Court. Two grounds were relied upon as follows:
1.The Hon Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec. 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2.The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.
These two grounds were not raised before the Federal Circuit Court. Consequently, leave is required for the appellants to argue the new grounds on appeal.
The first appellant appeared at the hearing of the appeal in this Court and was assisted by an interpreter in the Gujarati language. The first appellant said that he appeared on behalf of his wife, the second appellant. He said that the grounds of appeal were written by him with the help of a friend, but he was unable to explain what the grounds were intended to convey. When asked by the Court to explain the grounds on which the appellants sought to appeal, the first appellant said that because the Federal Circuit Court rejected the appellants’ application, he hoped that the Federal Court could find a mistake in the reasoning. The first appellant said that he did not know about the law which is applicable, but he hoped that the case would be reopened so that the result could be different.
Clearly, the basis upon which the first appellant explained the reason for the appeal does not give rise to any ground known to the law. It is not the role of the Court to find a case for the appellants. Even if the Court were to take upon itself such a role, there is nothing in the reasoning of the Tribunal or the Federal Circuit Court that suggests jurisdictional error.
The basis for the Tribunal decision was a clear and confident rejection of the appellants’ claims based upon gross inconsistencies in the evidence upon which they relied. In particular, the evidence from the first appellant’s own passport establishing that he was not in India at the time when important elements of the claim arose, taken with his inability to explain that inconsistency satisfactorily, was fatal to his case and, consequently, to the claim made by his wife. Beyond that, there was a firm basis on which to reject the first appellant as a credible witness, given that the Tribunal found that he had been prepared to rely on fraudulent documents in support of his visitor visa application.
Consequently, even if one were to permit the appellants to rely on the grounds of appeal articulated in the notice of appeal, they would not succeed in establishing that the Tribunal acted in a manifestly unreasonable way by rejecting their claims. Neither would they establish the second ground of appeal, namely, that the Federal Circuit Court failed to consider the errors which they had alleged were contained in the decision of the Tribunal.
Consequently, the application to argue the new grounds and the appeal itself must be rejected.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 9 December 2014
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