MZZXA v Minister for Immigration

[2014] FCCA 2232

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2232

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – Application for a Protection (Class XA) visa – adverse credibility findings made against Applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425(1), 424AA

Migration Regulations 1994 (Cth), Sch 2, cl.485.224

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Selvadurai v Minister for Immigration and Ethnic Affairs& Anor (1994) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: MZZXA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2167 of 2013

Judgment of: Judge Hartnett

Hearing date: 25 September 2014

Delivered at: Melbourne

Delivered on: 25 September 2014

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Ms Randall-Smith

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The Application filed 9 December 2013 is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2167 of 2013

MZZXA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. These proceedings are an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 18 November 2013, which affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a Protection (Class XA) visa (‘protection visa’).

2. The Applicant filed his Application on 9 December 2013.  The grounds of application as set out are as follows:-

   “1. Tribunal took irrelevant facts into consideration and decided not to grant visa”

   No further particulars are provided of the ground asserted, but in the Affidavit filed 9 December 2013 and sworn by the Applicant, the Applicant made two further claims, as set out in paragraphs 1 and 2 of that Affidavit, which were as follows:-

   “1.  Tribunal has refused with giving an opportunity in my application.

   2.  There was no principal (sic) of natural justice followed.”

3. The Applicant was given an opportunity to particularise the grounds claimed by him to establish that jurisdictional error attended the Tribunal’s decision, by Orders made by Registrar Allaway on 19 February 2014, wherein the Applicant was to, by 21 August 2014, file and serve an amended application, if any, and written submissions, amongst other things. The Applicant has elected to do neither. 

4. The First Respondent seeks the application be dismissed and that the Applicant pay the First Respondent’s costs of the proceedings.  The First Respondent relies upon the evidence as contained in the Court Book filed 3 July 2014, which evidence is before the Court, and the First Respondent’s Contentions of Fact and Law filed 10 September 2014.  For the reasons which follow, the Court has determined this day that the application must be dismissed and that costs will follow the event.

History

1. The Applicant is a citizen of Nepal and is of Hindu religion. He arrived in Australia on 26 April 2009, on a Nepalese passport, as the holder of a Dependent Student (Temporary) (Class TU) Subclass 572 visa, which ceased to be in effect on 15 June 2011. On 14 June 2011, the Applicant lodged an application for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa (‘skilled graduate visa’). On 15 September 2012, the Applicant’s skilled graduate visa application was refused by a delegate of the First Respondent as the Applicant had failed to meet cl.485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate’s decision noted that the records of the Department of Immigration and Citizenship (as it then was) (‘the Department’) indicated that there was evidence before the Department to suggest that the Applicant had provided false or misleading information in relation to the skilled graduate visa application. The Applicant had been given an opportunity to comment on this adverse information. Before the Tribunal he claimed to be unaware of this earlier application for a visa.

2. On 29 August 2012, the Applicant lodged his application for a protection visa. On 13 November 2012, the delegate refused to grant the Applicant a protection visa. 

3. On 27 November 2012, the Applicant applied to the Tribunal for review of the delegate’s decision to refuse to grant him the protection visa. 

4. By letter dated 21 June 2013, the Applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing on 9 August 2013.  The Applicant appeared before the Tribunal on that day. 

5. On 18 November 2013, the Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.

The Tribunal hearing

1. I note that the Applicant claims that the Tribunal’s decision contains irrelevant considerations, which are not further particularised by him, and which nowhere on the face of the Decision Record dated 18 November 2013 (‘Decision Record’) are apparent. Further, that despite the Applicant’s claim that natural justice was not afforded to him in the hearing of the matter, it is apparent that the Tribunal conducted the hearing as it should have. The Tribunal fulfilled its obligations under s.425(1) of the Migration Act 1958 (Cth) (‘the Act’), in allowing the Applicant to give evidence and present argument before the Tribunal in relation to issues arising on the review.[1]

   [1] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 [33].

2. The Tribunal further invited the Applicant to comment on the discrepancies in his account, and pursuant to s.424AA of the Act, regarding the dates that the Applicant was involved with the Communist Party of Nepal (Unified Marxist–Leninist) (‘CPN-UML’), thus affording him an opportunity to deal with information that might form a basis, or part of a basis, for an adverse determination. This was despite the discrepancies in the Applicant’s account, being inconsistencies which the Applicant gave on his own evidence.

Applicant’s claims

1. In his protection visa application, the Applicant claimed to have been oppressed by the Communist Party of Nepal (Maoists) (‘CPN-M’), and that he and his family had been forced to flee their home in Kathmandu, fearing for their lives.  The Applicant claimed he and his family had been directly threatened by members of the CPN-M, and that he became homeless, jobless, and was deprived of his rights.  He subsequently fled to Australia.  He also claimed to fear harm from the Youth Communist League (‘YCL’), a group allegedly involved in violence and human rights abuses. 

2. When interviewed by the delegate, the Applicant claimed that he had been abducted by the CPN-M in 2003 and that he had escaped to Kathmandu.  When in Kathmandu, the CPN-M had also kidnapped and threatened the Applicant’s father as they believed the Applicant had left the CPN-M and had been helping the Communists. 

3. The Applicant further claimed to have been a member of the CPN-UML for about five to six years, having first become politically active in 2009, and that he was president of the party for about four years while at school. 

Tribunal’s findings

1. When looking to the credibility of the Applicant, the Tribunal noted that the benefit of the doubt should be given to asylum seekers who are generally credible, but who are, for instance, unable to otherwise substantiate all of their claims.  The Tribunal noted however, that it was not required to accept uncritically any or all of the allegations made by an applicant.  In addition, the Tribunal was not required to have rebutting evidence available to it before it could find that a particular factual assertion by an applicant had not been made out.[2]

   [2] See Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, 451 (Beaumont J); Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347, 348 (Heerey J); Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

2. The Tribunal said in paragraph 22 of its Decision Record the following:-

   “As discussed below, there were a number of inconsistencies in the applicant’s claims and he failed to mention significant claims in his protection visa application which reflected adversely on his credibility.”

3. The Tribunal made a number of adverse credibility findings based on significant discrepancies in the Applicant’s claims at various stages of the protection visa application process.  The Tribunal set out in paragraph 23 of its Decision Record the following:-

   “In his protection visa application the applicant stated that he had lived in India between October 2006 and July 2007. When interviewed by the delegate he confirmed that he had lived in India for 9 months. The applicant’s evidence to the tribunal was that he had only lived in India for two to three weeks. He was invited to comment on the discrepancies in his account, pursuant to s424AA of the Act. He said that as it was written in his application (the dates he was in India) that was why he said in the interview that he had lived there for 9 months but he had actually only been in India for two to three weeks. He did not know that it was written incorrectly in his protection visa application as he could not read English…”

   As submitted by counsel for the First Respondent this response appears internally inconsistent as, on one hand, the Applicant is stating that he provided the incorrect information at interview because he wanted to be consistent with what was in his protection visa application, yet he is also stating he could not read what was in his protection visa application.  Further, he did not explain why his protection visa application had the wrong information.  The Tribunal found that the Applicant’s initial account was the correct account and that he wanted to minimise the time he spent in India, as the delegate found that he had a right to enter and reside there, and was prepared to change his account to achieve this. 

4. As to the Applicant’s dealings with the CPN-M and involvement in politics, the Tribunal found at paragraph 36 of its Decision Record as follows:-

   “Due to the inconsistencies in his account at different stages and his failure to mention important claims in his protection visa application the tribunal does not accept that the applicant was kidnapped by the Maoists or that his father was detained.  These are very significant events to omit from his protection visa application and confuse whether his father was taken by the government or by Maoists.  Also due to his failure to mention his political activities in his protection visa application and the inconsistencies in his account as to when he was involved in the CPN-UML, the tribunal does not accept that the applicant was involved in politics and a member or supporter of the CPN-UML. The tribunal’s view is reinforced by the fact that he could not describe his political activities to the tribunal.  As the applicant indicated to the tribunal that his family was living on and working their own land the tribunal does not accept that their land was confiscated and they (sic) it was demanded that they pay a large sum to have it returned.  The tribunal does not accept that they are now landless and the applicant will be homeless and have nowhere to live if he returned to Nepal.  The tribunal does not accept that the applicant and/or his family had to flee to Kathmandu or be killed.  The tribunal does not accept that before the applicant left Nepal he was homeless, jobless and deprived of all his rights.”

   The Tribunal further did not accept that the CPN-M had issued a threat to kill order on the Applicant.

5. The Tribunal had regard to country information in relation to the CPN-M.  Based on this information, the Tribunal accepted that the CPN-M were active in the Applicant’s village prior to 2006 but did not accept that they had specifically targeted the Applicant or his family.  As it had been 10 years since the Applicant was in his village and as the CPN-M were now a legitimate political force, the Tribunal determined that there was no real chance that the Applicant would be seriously harmed by the CPN-M or YCL in the reasonably foreseeable future, and that any fear of persecution the Applicant had on that basis was not well-founded.  For the same reasons, the Tribunal concluded there was no substantial ground for believing that, as a necessary or foreseeable consequence of being removed from Australia to Nepal, there was a real risk that the Applicant would suffer significant harm at the hands of the CPN-M or YCL.

Consideration

1. The Applicant’s application is entirely without merit.  The Tribunal made findings of fact open to it on the evidence before it.  The Tribunal made adverse credibility findings in respect of the Applicant.  None of his claims were accepted by the Tribunal due to the discrepancies in his own claims and evidence given at each stage of the protection visa application process.  It is not for this Court to make findings of fact in respect of the Applicant’s claims, nor is it for this Court to disturb the credibility findings made by the Tribunal.  A credibility finding is a finding of fact which is a function of the primary decision-maker par excellence.[3]

   [3] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 67 (McHugh J).

2. The application shall be dismissed and costs follow the event.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 2 October 2014