MZZZC v Minister for Immigration

[2014] FCCA 1988

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZZC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1988

Catchwords:
MIGRATION – Refugee Review Tribunal – inconsistencies in applicant’s evidence – whether claims were considered – whether there was prejudgment.

Applicant: MZZZC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 47 of 2014

Judgment of: Judge Riley

Hearing date: 6 August 2014

Date of last submission: 6 August 2014

Delivered at: Melbourne

Delivered on: 6 August 2014

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Counsel for the First Respondent: Liam Brown

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The application filed on 13 January 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,646.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 47 of 2014

MZZZC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal affirmed a decision of a delegate of the first respondent refusing the applicant a protection visa.

2. The applicant is a citizen of India.  He arrived in Australia on

   
   

   25 November 2012 on a Temporary Work (Entertainment) visa that was valid until 4 December 2012.  On that date the applicant was granted a tourist visa valid until 4 January 2013.  The applicant applied for a further tourist visa on 2 January 2013.  That application was refused on 26 February 2013. 

3. The applicant lodged an application for a protection visa on

   
   

   20 March 2013.  That application was deemed on 23 April 2013 to be invalid because the applicant failed to provide his personal identifiers.  On 28 May 2013 the applicant lodged the current application for a protection visa. 

4. The applicant claimed that he feared harm from local goons and politicians who owned a transport company.  He said he had witnessed a motor vehicle accident involving a truck in which two people were killed.  The applicant complained about the truck driver’s driving. 

   
   

   The applicant claimed that he had been threatened to alter his evidence or withdraw the case.  The applicant said that he had been tortured, his property had been damaged and he was threatened with death by supporters of the owners of the trucking company.

5. The Department of Immigration wrote a letter to the applicant dated

   
   

   5 June 2013 requesting additional information and inviting the applicant to make an appointment for an interview.  The applicant did not do so.  The delegate, by a letter dated 2 September 2013, refused the application.  The delegate considered that the applicant’s immigration history did not support his claim to have a genuine fear of being harmed or killed.  The delegate did not accept the applicant’s claims as credible or genuine.

6. On 30 September 2013, the applicant applied to the Tribunal for review.  The applicant gave evidence by video link at a Tribunal hearing on 26 November 2013.  In his oral evidence, the applicant confirmed that he was aware of the contents of his initial claim.

7. Contrary to his initial claims, the applicant told the Tribunal that he had been one of the drivers in the traffic accident, rather than merely a witness.  Contrary to his initial claims, the applicant told the Tribunal that one person had died in the accident, whereas in his initial claims he had said two people had died.  Contrary to his initial claims, the applicant told the Tribunal that only one man, the owner of the truck, Gubal Singh, had made death threats towards him. In his initial claims, he said that he was threatened by local goons and politicians who owned the transport company. 

8. The Tribunal considered that there were serious inconsistencies between the applicant’s initial claims and the claims made orally to the Tribunal.  The Tribunal accepted that the applicant had been involved in a car accident.  However, the Tribunal did not accept that the applicant had suffered the violence and threats alleged by him. 

   
   

   The Tribunal’s reasons for that were largely based on the various inconsistencies between the initial claims and the oral claims made to the Tribunal.  The Tribunal concluded that the applicant did not face a real risk of serious or significant harm. 

9. The application to this court filed on 13 January 2014 contains three grounds.  The first ground is as follows:

   The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he [was] asked to relocate in India.

   
   

   The Tribunal (sic) failure to satisfy this statutory obligations (sic) was a serious jurisdictional error caused by the Tribunal.

10. The applicant did not provide any particulars of that ground.  He told the court that during a video conference the Tribunal member had said that the applicant could relocate.  However, the Tribunal’s decision record does not disclose any suggestion that the applicant ought to, or could reasonably, relocate within India.  The decision record indicates that the Tribunal considered that the applicant was not at real risk of serious or significant harm.  As such, there was no occasion for the Tribunal to consider the question of relocation.

11. If the applicant meant that the Tribunal failed to consider whether he would suffer serious harm if he relocated from Australia back to India, then it is clear from the decision record that the Tribunal did consider that issue.  The Tribunal looked in detail at the applicant’s claims and rejected them on the basis of patent inconsistencies in his evidence.  The Tribunal’s consideration of these matters was open to it on the evidence.  There is no substance to ground one.

12. Ground two is as follows:

    The Tribunal failed to consider an integer of the applicant’s claims, in failing to consider whether or not the applicant was at risk of significant harm from [the] transport company owner and not able to access effective protection whilst the Tribunal formed the view that the applicant was a credible witness.

13. The Tribunal did not form the view that the applicant was a credible witness.  The Tribunal rejected the majority of the applicant’s claims.  The Tribunal noted numerous inconsistencies in the applicant’s evidence.  The Tribunal did not fail to consider an integer of the applicant’s claims, being the claim that the applicant was at risk of significant harm from the transport company owner.  The Tribunal expressly considered that claim and made findings about it that were open on the evidence.  There is no substance to ground two.

14. Ground three is as follows:

    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived [at] in accordance with the provisions of the Migration Act 1958. 

15. The applicant has not provided any particulars of this ground. 

    
    

    The decision of the Tribunal does appear to be in accordance with the provisions of the Migration Act 1958.  The Tribunal was entitled to reject the applicant’s claims on the basis of internal inconsistencies.  There is no substance to ground three.

16. The applicant told the court today that he had just told the Tribunal that he feared for his life, and the Tribunal refused to accept that.  This appears to be an application for merits review.  The court is not permitted to revisit the merits of the case.

17. The applicant also told the court today that he was asked during the Tribunal hearing what proof he had.  He said that he told the Tribunal that he could get dockets from India.  He said that the Tribunal said, “How can you prove that they are not false documents?”

18. The applicant did not provide a transcript of the Tribunal hearing.  However, the Tribunal’s reasons for decision state, at paragraph 45:

    The applicant stated that he has an FIR and can provide other documents. The Tribunal put to him country information regarding general document fraud and would have to take this into consideration. He noted that the documents are also computerised in India.

19. It does not appear that the applicant asked for an adjournment to provide further evidence. In any event, it was for the applicant to provide such evidence as he wished to the Tribunal.  There seems to be no basis for a complaint about this matter at this stage.

20. The applicant also told the court today that during the Tribunal hearing, the Tribunal said that the claim did not satisfy the Refugees Convention.  This potentially amounts to a claim of prejudgment.  However, in the absence of any transcript of the Tribunal hearing, it seems more likely that the Tribunal was simply trying to alert the applicant to the deficiencies in his claim.  It is not possible to conclude merely on the basis of the applicant’s submission that there was a jurisdictional error committed by the Tribunal in relation to this issue.

21. As the applicant has not identified any jurisdictional error in the Tribunal’s decision, the application must be dismissed.

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

Associate: 

Date: 4 September 2014