FEDERAL COURT OF AUSTRALIA

MZZSH v Minister for Immigration and Border Protection [2014] FCA 1292

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the First Respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION

1    The appellant is a national of India. He appeals from a decision of the Federal Circuit Court on 15 July 2014 (MZZSH v Minister for Immigration & Anor [2014] FCCA 1477) dismissing his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the delegate”), to refuse to grant the appellant a Protection (Class XA) visa (“protection visa”).

2    The appellant arrived in Australia on 21 October 2008 as the holder of a Class TU Subclass 572 (Vocational Education and Training Sector) student visa. He travelled back to India in 2009 and married one Baljinder Kaur, and then returned to Australia on 18 April 2010 with Ms Kaur.

3    He applied for a Class VC Subclass 485 Skilled Graduate visa (“skilled visa”) on 24 May 2010, listing Ms Kaur as his dependant spouse, and was granted an associated bridging visa. He later stated that the marriage broke down within about six months of their arrival in Australia and they separated.

4    A delegate of the Minister refused the appellant’s skilled visa application on 16 December 2011, and on 13 January 2012 his bridging visa expired. The appellant and Ms Kaur therefore became unlawful noncitizens under the Migration Act 1958 (Cth) (“the Act”).

5    On 17 September 2012 the appellant applied for a protection visa claiming that he would be harmed upon his return to India as a result of Ms Kaur’s family’s opposition to their marriage. He claimed that Ms Kaur was from a different caste to him, that the marriage had taken place without the approval of their respective families, and that both families disapproved inter-caste relationships. He claimed to fear that he would be killed by Ms Kaur’s family if he returned to India.

THE DELEGATE’S DECISION

6    On 12 November 2012 the delegate refused to grant a protection visa under s 65 of the Act. This decision has been overtaken by the decision of the Tribunal, which was a de novo merits review, and it is unnecessary to deal with it in any detail. It suffices to note that the delegate refused the application because he considered the appellant failed to satisfy the criteria for a protection visa as provided for under s 36(2) of the Act, finding that:

(1)    the appellant’s claims were “vague and unsubstantiated”;

(2)    the appellant provided “minimal details” in his claim;

(3)    the appellant failed to respond to an invitation to contact the Department to discuss his claims at an interview; and

(4)    the appellant had only lodged the visa application seeking protection after he had exhausted his other visa options.

THE TRIBUNAL’S DECISION

7    On 10 December 2012 the appellant applied to the Tribunal for review of the delegate’s decision. The appellant was invited to appear before the Tribunal at a hearing and on 24 July 2013 he gave evidence and presented arguments to the Tribunal. However, on 8 August 2013 the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

8    In the Tribunal’s statement of decision and reasons, it first set out the legal framework relevant to the application which is uncontentious in the appeal. The Tribunal assessed the appellant’s claims and evidence, and expressed significant concerns regarding the appellant’s credibility based on a number of inconsistencies in his evidence including:

(1)    when he first met Ms Kaur;

(2)    when he told his father about his relationship with Ms Kaur; and

(3)    whether he had ever been threatened or harmed as a result of his relationship with Ms Kaur.

9    Because of the view it took of the appellant’s credibility the Tribunal was not satisfied that due to a disapproval of his relationship by either his family or Ms Kaur’s family the appellant had a well-founded fear of persecution which satisfied the definition of “refugee” under the Refugee Convention. The Tribunal found that the appellant had no substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to India, there was a real risk that he would suffer significant harm as defined under s 36(2A) of the Act.

10    The Tribunal decided that the appellant did not satisfy the criteria for a protection visa set out in s 36(2) and affirmed the decision of the delegate.

THE FEDERAL CIRCUIT COURT’S DECISION

11    On 30 August 2013 the appellant filed an application for judicial review of the Tribunal decision on the sole ground that the “RRT Tribunal and department of immigration did not look my situation [sic]”.

12    The appellant did not file written submissions in support of his application, but appeared at the hearing and made oral submissions. The learned primary judge noted that the essence of the appellant’s claim for a protection visa was that he had:

… a relationship with a woman of whom his family did not approve, and the likelihood that if he returned to India, her family would kill the applicant to save their pride.

13    His Honour summarised the Tribunal’s decision, reproducing the Tribunal’s credibility findings verbatim at [45]-[48] and concluded that:

Given these findings, it is scarcely surprising that the Tribunal found that the applicant did not meet the definition of a Refugee as defined in the Convention, nor was he at risk of significant harm as defined in s 36(2)(aa) of the [Act].

14    The primary judge noted that a credibility finding is a finding of fact which is a function of the primary decision-maker, citing Re Minister for Immigration and Multicultural Affairs, Ex Parte Durairajasingham (2000) 168 ALR 407 (“Ex Parte Durairajasingham”) at [67] per McHugh J. His Honour held at [20]:

…while of course minds might differ as to whether the Tribunal came to the correct decision, the fact is that the decision on its face shows that the applicant’s claims were directly put to the Tribunal and considered by the Tribunal. In the circumstances the applicant propounded both in his Statement and in his, at times, inconsistent evidence given to the Tribunal, the fact that the Tribunal did not believe the applicant does not show any want of logicality or reasoning. There is no jurisdictional error shown in the Tribunal’s decision. The Tribunal member, clearly, properly understood the task to be undertaken and did not fall into jurisdictional error in so doing.

15    On 15 July 2014 the Federal Circuit Court dismissed the application for review.

THE APPEAL TO THIS COURT

16    The appeal to this Court is based on a single ground, namely that the Federal Circuit Court failed to find that the Tribunal’s decision:

was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall [sic] under jurisdictional error”.

The ground is not particularised and the appellant did not file written submissions in support of it. When I requested that the appellant set out the basis of the alleged breach of s 424A he was unable to do so and he said only that a friend had drawn the Notice of Appeal.

17    The appellant sought an adjournment at the hearing claiming that he needed to instruct a lawyer and be given more time to prepare his case. However, he provided no explanation for his failure to seek an adjournment prior to the hearing date, nor any explanation why he had not sought legal advice earlier given the period since the Federal Circuit Court judgment. Section 424A of the Act has no apparent relevance to the appellant’s case and he did not put forward any cogent basis upon which one might reach a view that legal advice is likely to assist his claim. I refused the adjournment application.

CONSIDERATION

18    Section 424A of the Act requires the Tribunal to give the applicant clear particulars of any information that would be the reason, or part of the reason, for affirming the decision under review and requires the Tribunal to invite the applicant to comment on or respond to it.

19    There is no substance to this ground. The appellant did not point to any particular information that the Tribunal had considered but that was not disclosed to him. Nor does the decision reveal that the Tribunal considered any information that was not either provided by the appellant or provided to him prior to and during the hearing process.

20    Taking a view of the appeal broader than the only ground alleged, a review of the decision shows that the Tribunal found that the appellant’s claims were not credible and it made findings of fact that were open on the material before it. As the learned primary judge said, findings on credibility are the function of the primary decision-maker par excellence: Ex Parte Durairajasingham at [67].

CONCLUSION

21    I can discern no appealable error in the reasons of the learned primary judge or jurisdictional error in the Tribunal’s decision. The appeal is dismissed and the appellant must pay the first respondent’s costs.

Associate:

Dated:    27 November 2014