FEDERAL COURT OF AUSTRALIA

MZAGS v Minister for Immigration and Border Protection [2016] FCA 551

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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.

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal against a judgment of the Federal Circuit Court given on 13 November 2015. The Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal, then known as the Refugee Review Tribunal, affirmed a decision of the first respondent’s delegate not to grant the appellant a Protection (Class XA) visa (“protection visa”).

2    The appellant is a citizen of India. He arrived in Australia on 17 October 2008 as the holder of a student visa. He has remained in Australia since then. He applied for a protection visa in May 2013 after he was refused another student visa.

3    The appellant’s claim for protection is based on his asserted fear of harm at the hands of a group of men who had arranged for him to migrate to Spain in 2005. The Tribunal described his claims as follows:

8.     The applicant said that he left India (to come to Australia) because he feared an agent. He said that “they” tried to find him to kill him and that they could find him and kill him if he returned to India. He indicated that “they” referred to agents and “their people”. He said he thought that would happen because they belonged to a “strong person” and they were very rich and powerful. The applicant said that he belonged to a poor family. He said that all the police were corrupt and he did not have too much money for his own protection. He also belonged to a small village where he did not know many people.

…

21.     When the Tribunal questioned the applicant about his travel to Spain, the claim emerged that Spain was not his initial destination. He said that the agents referred to in his father’s statement deceived him and his father and that, instead of arriving in Spain, he found himself in Bamako, in Mali, with a number of other young men, including some from Pakistan and Bangladesh. The men were moved around to other places. The applicant went to Algeria and finally travelled by foot to Morocco. He finally arrived in a refugee camp in Ceuta where he stayed for six months. He explained that that was what he meant by saying that he went to Spain. He said that a number of Indians and other people were sent back to their countries of origin by the Spanish government. The applicant did not work or study during his time in Africa and Spain. Some local people in Africa tried to rob and kill the young men. In Morocco 40 or 50 of the men were put in a small boat bound for Spain. The skipper was incompetent and the boat nearly sank. Police saved most of them but some of them drowned.

22.     The applicant said that he had no idea where the agents were now. In India he saw them together. His father and he saw them in Delhi and also in Mumbai. Once they came together to get money. He and his father gave them money because they said they would send the applicant to Spain to study. At the time he gave them about $A30,000. They took about half when he was in India then the agents asked for the other half when he was in Spain.

4    The Tribunal rejected the appellant’s claim for protection for several reasons. Firstly, while the Tribunal was prepared to accept that he may have travelled to Spain as he alleged, the parts of his evidence concerning harm and threats of harm by the agents were not credible. A significant factor in the Tribunal’s assessment of credibility was his delay in applying for a protection visa. Secondly, even if the appellant’s claims about harm and threats of harm were true, such harm would not be on a Convention ground. Thirdly, even if the appellant’s evidence was accepted, the agents had not approached the appellant or his family since 2007; therefore, the appellant does not currently have a well-founded fear of persecution.

5    The appellant’s grounds before the Federal Circuit Court were as follows:

1.    Not satisfied with Tribunal decision

2.    Refugee Review Tribunal gave the same result without any legal ground or under legal law.

3.    I’m not sure that RRT reviewed my case properly.

I had given my documents which were truly which were supporting my visa.

1)    Delay wasn’t the factor of refusing application because I have been Australia never been to Indian this duration and never travelled any other country.

2)    Tribunal wasn’t agree with address where was hiding in India before I came to Australia that was Chandigarh where I was studying for Australia which I have already said in past hearing.

3)    Tribunal didn’t accept the agents who harmed my me according me it is truly that they harmed me and tried to kill me if they can sent me to the danger areas where it’s hard to stay it mean they can kill me as well. I am not agree with Tribunal decision at all.

(Errors in the original.)

6    The Federal Circuit Court rejected the first and third grounds on the basis that they did not allege jurisdictional error, but were merely expressions of dissatisfaction with the Tribunal’s decision. As to the second ground, the appellant gave no explanation as to why the Tribunal did not have any legal grounds for making the decision, or why it had not made the decision according to law. The fourth ground alleged that the appellant gave the Tribunal documents which supported his claims. However, the appellant did not go on to allege that the Tribunal had failed to have regard to any documents he gave to the Tribunal.

7    In the fifth ground, the appellant complained about the adverse inference that the Tribunal drew from his delay in applying for a protection visa. The Federal Circuit Court held that it was open to the Tribunal to take such delay into account in assessing the appellant’s credibility.

8    The appellant’s sixth ground disputed the Tribunal’s findings on credibility based on inconsistency in the appellant’s evidence about his address in India. The appellant’s seventh ground was a complaint that the Tribunal did not accept that agents had harmed him and that he was still in danger. The primary judge held that the Tribunal’s findings of fact were open to it.

9    In this Court, the appellant’s notice of appeal contains the following grounds and seeks the following orders:

Grounds of appeal

1.    Not satisfied with Tribunal’s decision

2.    I belive I had justified and deserving claim in my case

Orders sought

1.    To review my case in depth.

2.    The evidences produced should be considered in relation to development of incidents

3.    Delay in filing protection is no reason to dismiss claim. This should be reviewd as I have revealed all details honestly.

(Errors in the original.)

10    The appellant is self-represented. He has not provided any written submissions, but has made oral submissions with the assistance of an interpreter. The appellant submits that delay was a major factor in the Tribunal’s decision, but that the Tribunal should not have taken into account such delay because it was open to him to apply for a protection visa at any time. The appellant also submits that the Tribunal failed to make adequate enquiries about where he lived in India and Spain and that it should have made enquiries about his allegations that agents in India had tried to kill him.

11    The substance of the appellant’s grounds of appeal in his notice of appeal is that he believes the Tribunal should have made a different decision. He expresses this in various ways: that he is not satisfied with the Tribunal’s decision; that he believes he has a justified and deserving claim; that the Tribunal did not consider his claim properly; that the Tribunal should not have taken into account his delay in applying for a protection visa; and that his evidence was honest. However, it is the role of the Tribunal to decide upon the merits of an application for a protection visa: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291-292. It is also for the Tribunal to decide upon the credibility of any witnesses giving evidence before it: see Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]. The task of the Federal Circuit Court was confined to deciding whether the appellant had demonstrated jurisdictional error in the Tribunal’s decision: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], [95].

12    The role of this Court is to decide whether the judgment of the Federal Circuit Court is affected by appellable error: see SLMB v Minister for Immigration [2004] FCAFC 129 at [11]. The appellant’s application to the Federal Circuit Court was based on a challenge to the merits of the Tribunal’s decision, including its findings on credibility. His case could not succeed before the Federal Circuit Court on such a basis. There was no error in the judgment of the Federal Circuit Court in rejecting the appellant’s application.

13    Before this Court, the appellant raised a new ground, namely, that the Tribunal should have made further enquiries about the allegations that he made. Even if he had raised such a ground before the Federal Circuit Court, it could not have succeeded. There is no general obligation upon the Tribunal to conduct any particular enquiries: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25].

14    For these reasons the appeal must be dismissed, with costs.

Associate:

Dated:    2 June 2016