FEDERAL COURT OF AUSTRALIA

MZADZ v Minister for Immigration and Border Protection [2016] FCA 9

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs fixed in the amount of $6439.

2.    The time by which any application might be made to the High Court of Australia for leave to appeal be extended to run from the date of publication of the reasons for judgment.

3.    The Administrative Appeals Tribunal replace the Refugee Review Tribunal as the second respondent.

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

REASONS FOR JUDGMENT

MANSFIELD J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) given on 18 June 2015: MZADZ v Minister for Immigration and Border Protection [2015] FCCA 1589.

2    The FCCA dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal, now the Administrative Appeals Tribunal) made on 11 April 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant to the appellant a Protection (class XA) visa (the visa) for which the appellant had applied under the Migration Act 1958 (Cth) (the Act).

3    After hearing submissions, and taking a little time to consider them, at the hearing on 25 November 2015 I ordered that the appeal be dismissed with costs. I indicated that I would provide reasons for that decision shortly. These are the reasons for that decision, together with consequential orders as to costs and extending the time by which any application might be made to the High Court of Australia for leave to appeal from the decision to run from the date of the publication of these reasons.

BACKGROUND

4    The appellant is a citizen of India, who first arrived in Australia on 4 January 2009 on a student visa. On 7 April 2010, the appellant attended what is now the Department for Immigration and Border Protection in response to a notice of non-compliance with a condition or conditions of his student visa. He was then issued with a notice of intention to cancel his student visa. The student visa was in fact cancelled on 15 September 2010.

5    The appellant subsequently applied to the Migration Review Tribunal (as it then was) for review of the decision to cancel his student visa. On 25 July 2011, that Tribunal affirmed the cancellation decision. The appellant unsuccessfully applied to the Federal Magistrates Court (as it was then known) for judicial review of that decision. On 29 February 2012, that application was dismissed on the basis that it was filed out of time. The appellant was then granted a bridging visa for a period of time but it elapsed and he then remained unlawfully in Australia until he was located on 19 November 2013. On that date, he was detained pursuant to s 189 of the Act in immigration detention.

6    Promptly after his detention, on 5 December 2013, the appellant applied to the Department for the visa. A delegate of the Minister refused to grant that visa by a decision made on 11 December 2014.

7    On 19 February 2014, the appellant applied to the Tribunal for merits review of the delegate’s decision. The Tribunal conducted a hearing on 8 April 2014, as well as receiving and considering submissions from the appellant and receiving and considering documents presented by him or on his behalf.

THE APPELLANT’S CLAIMS

8    In his application for a protection visa, the appellant explained that he feared physical harm if he were to return to India by reason of his membership in a social group, and by reason of mistreatment he had received as a member of that social group. In the course of describing the social group, he referred to it as membership of the “Jain Trust Group”, and alternatively (it appears) he claimed to fear harm on returning to India because he belonged to a very low caste family as well as his membership of the Jain Trust Group.

9    More specifically, the nature of his claims are set out in a submission from his migration agent which was to the following effect:

(1)    The appellant is an ex-employee of the Swami Roop Chand Jain Model High School, Garshankar Road, Banga, Punjab (the Jain HS). He was employed as an accountant there from November 2005 until he escaped to Australia on a student visa in early 2009.

(2)    The Jain HS is run by the Jain Religious Trust (the Jain Trust), the management is led by the powerful committee of the Jain religion. The Jain Trust has similar institutions throughout Punjab and is affiliated to the Jain Religion Board running education religious institutes throughout India.

(3)    In October 2008, a newly elected committee of the Jain HS instructed the applicant to make fraudulent account entries, which the applicant refused to do. He wanted to advise other members of the trust of this fraud but before he could do this, the trust committee falsely implicated him in a fraud scandal. The Jain Trust has used the applicant as a scapegoat.

(4)    The Jain Trust management provoked followers of the Jain religion against the applicant by spreading the word that the applicant has acted against the Jain religion and committed fraud with the institute’s accounts. In November 2008 the applicant was brutally attacked and tortured by followers of the Jain religion on instruction of the management.

(5)    After this, the applicant went to the police station to register a complaint against the Jain Trust management but the police did not lodge any complaints or conducted any investigation. The applicant then sought help from a local Municipal Councillor, Paramjit Singh, who advised him to leave the city.

(6)    The Jain HS management has painted the applicant’s image as a traitor of the Jain religion. The Jain Trust management and followers of the Jain religion are trying to locate the applicant. The Jain Trust management has spread the news about the applicant to other institutes in India to locate him. His photos were circulated to all Jain religious institutes across India. He fears harm from followers of the Jain religion.

10    On 11 April 2014, the Tribunal affirmed the delegate’s decision. In short, it found that the appellant was not a credible witness because his evidence was vague, inconsistent and implausible. Consequently, it did not accept that the appellant worked as an accountant for the Jain Trust, or his consequential claims that he was asked to engage in fraudulent activity in the course of that employment or that he was beaten and injured for declining to do so. It followed, as the Tribunal found, that it did not accept that the appellant faced a real chance of serious harm at the hands of the Jain Trust, the SRC Jain Model High School Management or Jains in general if he were to return to India at that time or in the reasonably foreseeable future. It also did not accept that the appellant faced a real chance of serious harm if he returned to India due to being from a low caste or poor family.

11    In the course of doing so, the Tribunal gave little weight to documents produced by the appellant, apparently in support of his claims, for reasons which it explained. It did not accept that the inadvertent publication by the Department of the appellant’s personal details gave rise to a real chance of serious harm to him if he were to return to India (a claim he first expressed in the course of the hearing before the Tribunal on 8 April 2014) and more generally did not accept that he had a well-founded fear of persecution for a Convention reason if he were to return to India. Specifically it did not accept, in the light of all his evidence and claims, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being returned to India, he would suffer a real risk of significant harm.

APPLICATION TO THE FEDERAL CIRCUIT COURT OF AUSTRALIA

12    The appellant applied to the Federal Circuit Court of Australia for review of that decision, as noted above, solely on the ground that there was a “[f]ailure to acknowledge that appellant is a genuine candidate as a refugee” under s 36(2) of the Act. To an extent, that contention was developed in oral submissions.

13    The FCCA noted that, by reason of s 474 of the Act, the appellant was required to satisfy the FCCA that the Tribunal’s decision was affected by jurisdictional error in order to enliven the Court’s discretion to grant the relief sought: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

14    The FCCA observed at [18]-[19]:

When the matter came before the Court, the applicant made a number of oral submissions. These, however, in my view, entirely re-traverse matters already dealt with at the Tribunal. Essentially, the applicant took issue with a number of the Tribunal’s findings. He also sought to reiterate matters already dealt with by the Tribunal.

…

While I have had careful regard to what the applicant had to say – and he was fluent and articulate – the fact is that, regrettably for him, his oral submissions entirely, in my view, consist, as the first respondent’s counsel submitted, of matters which are merits review. That is not, unfortunately for the applicant, a function of the Court in this instance. I further accept the submission of counsel for the first respondent that the Tribunal was aware of the data-release matter, a matter to which the applicant referred more than once in his oral submissions. The Tribunal’s finding in relation to the data-release matter was clearly open on the materials, and particularly in the face of the failure of the applicant to articulate any precise fear arising therefrom.

15    Then, in relation to the ground of review set out in the application to the FCCA, and the submissions made by the appellant orally, the FCCA concluded at [20]:

In all the circumstances, the applicant’s application does not give rise to any viable suggestion that the Tribunal fell into jurisdictional error. Indeed, the applicant’s application and oral submissions do not, in terms, assert any particular jurisdictional error. None is discernible from the Tribunal’s decision. It follows that the application will be dismissed with costs.

16    The Notice of Appeal raises 12 grounds of appeal. They are not particularised and they are only general in character. In the course of submissions on the appeal, the appellant was invited to explain or expand upon them.

17    The grounds of appeal are:

(1)    There are some jurisdictional errors in R.R.T decision.

(2)    The R.R.T member did not assess my complementary Protection Properly.

(3)    The R.R.T deprived me of natural Justice.

(4)    Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstable for the rest of my life.

(5)    The R.R.T member made an error of law since the Decision the R.R.T member made regarding my case is wrong.

(6)    The R.R.T member made an error of law for not considering my relevant document which are important in my case.

(7)    The situation had I had to go back home would be very critical and life threatening to myself; also I will be tortured for the rest of my life.

(8)    The R.R.T member made an error of law by not considering evidence which are significant and critical to the decision under review.

(9)    As a result of data breach by immigration my life will be at risk and danger if I was to be sent home.

(10)    Failure to consider relevant information and paying regards to irrelevant information.

(11)    Unreasonableness and Unfairness of Procedures, as failure in accept original documents and Unwillingness and disregard to further investigate its veracity.

(12)    Failure to acknowledge that the Applicant was a genuine candidate as a Refugee under Subsection 36(2) of the Migration Act 1958, at Federal Circuit Court.

18    Ground (12) is the only ground of review which was raised in the application before the primary court.

19    The Minister contends that the appellant requires leave to raise the remaining grounds now. Relevant to the Court’s discretion in granting leave is whether the grounds have merit and a consideration of the explanation for not raising them before the primary court: see eg VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. Save to say that he suffers no real prejudice by the grounds being raised now, the Minister made no further submission on this point. The Court has considered each of those grounds. As there is no merit in any of them, so the appeal has been dismissed, it was not necessary to address in particular whether those matters required leave to be raised or formally to refuse leave to raise them.

20    The Minister’s submission is, broadly, that:

(a)    grounds (4), (5), (7), (9) and (12) must be dismissed on the basis that they seek impermissible merits review of the Tribunal’s decision; and

(b)    the remaining grounds that allege that the Tribunal’s decision contains jurisdictional error must be dismissed on the basis that they identify no jurisdictional error in the Tribunal’s decision.

CONSIDERATION

21    At the commencement of the hearing, the appellant first complained that he could make no submissions because he had not been granted legal assistance by the Northern Territory Legal Aid Commission in relation to his appeal. He did not seek an adjournment of the hearing. He did not assert that there was any prospect of him receiving legal assistance. At the hearing he was assisted by an interpreter (as was the case in the FCCA and before the Tribunal). I note also that the FCCA at [18]-[19] records that the appellant there made a number of oral submissions which were fluent and articulate. In the course of this hearing the appellant on occasions interrupted the interpreter to answer directly in English matters which were being discussed.

22    I could see no basis upon which it was inappropriate in the circumstances to proceed with the hearing.

23    I propose to deal with the grounds of appeal in blocks, simply because there is apparently a significant overlap in respect of them.

24    Grounds (1), (2), (5), (6), (8), (10) and (11) might be seen as variously attacking the decision of the Tribunal for failure to comply either with the procedural requirements or as failing to properly apply the law in relation to its decision. Incorporated into such a failure to apply the law would be the failure to take into account material to the decision of the Tribunal which was presented to it by the appellant, or the taking into account of material irrelevant to the decision.

25    None of those matters was properly explained in the course of submissions. I have carefully considered both the reasons for decision of the FCCA, and the reasons for decision of the Tribunal.

26    In my view, there is nothing to indicate that the Tribunal misunderstood or misapplied the law. There is nothing to indicate that the Tribunal did not accord to the appellant the procedural precautions or entitlements to which the Act entitled him. There is nothing to indicate that the Tribunal, in particular, precluded the appellant from presenting such material as he chose to present to the Tribunal (including through his migration agent), or that the Tribunal then failed to have regard to it. Nor is there anything to indicate that the Tribunal impermissibly had regard to information to which it was otherwise entitled to have regard without giving the appellant the opportunity as required by the Act to comment upon it.

27    The Tribunal understood and considered each of the appellant’s claims as to why he might be persecuted if he were to return to India, namely:

(1)    whether he would be harmed as a result of his refusal to engage in fraud whilst employed at the Jain HS or its management;

(2)    whether he might be persecuted by reason of being a person of low caste and coming from a poor family; and

(3)    whether he might be persecuted by reason of a letter from the Department concerning a data breach that involved the release of information relating to the appellant.

28    Each of those claims was considered by the Tribunal and rejected. In respect of the first two claims, the Tribunal rejected the factual assertions upon which the claims were based. The appellant at one point said that the Tribunal had erred because it had treated the Jain HS and the Jain Trust as different and separate entities. It did not do so. It treated the claim as a composite one, as presented to the Tribunal by the appellant.

29    The appellant also submitted that the Tribunal had weighed against his reliability the timing of the events in which he was said he was put under pressure by the management of the Jain HS/Jain Trust compared to the date when he first applied for a student visa. Upon analysis, having regard to the records, there was no misunderstanding and the consideration of the Tribunal on that topic, as demonstrated at [117] of its reasons, was supported by the documentary evidence.

30    The appellant also complained that the Tribunal, in its interview with him, had inappropriately focused on why there had been such a considerable delay between him first coming to Australia on a student visa, and the time when he first applied for a protection visa. It was entirely appropriate for the Tribunal to explore with him why that delay had occurred, and having regard to the description of the interview in the Tribunal’s reasons, in my view, it did not have regard to that delay in any inappropriate way when forming a view as to his reliability.

31    In the notice of appeal, the appellant asserts also that he should be granted the visa on the basis of the requirement of Complementary Protection in s 36(2)(aa) of the Act. The Tribunal specifically considered that proposition and rejected it: at [124] of its reasons. There is no error demonstrated in its conclusion on that topic, and clearly having regard to that part of the reasons, no error in failing to consider that alternative.

32    In relation to the issue of failing to comply with s 424A(1) of the Act by not being invited to comment on particulars of information to be considered by the Tribunal, it is apparent from the Tribunal’s reasons that it drew to his attention, and invited his comment upon, a number of what it perceived to be inconsistencies or improbabilities in information he had previously provided during Departmental interviews, in his application for a student visa, in the hearing before the Tribunal seeking to review the decision to cancel his student visa, or otherwise in the records of the Department relating to the student visa application. It invited him to comment on matters of concern to it including the delay, the failure to mention his concerns (as expressed for the purposes of the visa application) during either his application for a student visa or in the processes leading to the cancellation or review of the cancellation of his student visa, the vagueness of his claims, the information available to the Tribunal about the character of the Jain religion and related institutions, and about the extent of documentary fraud in India relevant to the weight it might give to certain documents produced by the appellant to the Tribunal. The entitlement to comment upon those materials, having regard to the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, in my view was satisfied.

33    The appellant in the course of submissions identified three documents which, he said, were not properly considered, or not considered at all, by the Tribunal. As the Tribunal’s reasons indicate, it did receive each of those documents and it did describe their contents. They are also variously discussed when it is recording its findings of fact in relation to them. To the extent to which they might otherwise be seen to support the appellant’s claims, or to support findings which he urged upon the Tribunal, the Tribunal has explained in appropriate terms why it did not give them the weight which might have been given to them. It also explains in its reasons why documents concerning more generally the state of affairs in India and the nature of the Jain religion influenced its decision. It did not take into account irrelevant material, nor take into account material which it was necessary to seek specific comment on from the appellant.

34    It is appropriate to note in particular the appellant’s contention that some of his documentary evidence was given very little weight. That includes some affidavits made by his family and friends which were supportive of his assertions. The Tribunal, on the other hand, as it recorded, had information about the high level of document fraud and corruption in India and the more general character of the Jain religion. It had other concerns about the appellant’s credibility which it discussed. In those circumstances, it cannot be said that the Tribunal erred by not conducting further enquiry into the accuracy of the evidence advanced by the appellant through those affidavits: cf Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [26]. Nor can it be said that the Tribunal erred in a reviewable way by deciding not to accept the appellant’s claims in relation to those matters.

35    Although it was not the specific focus of the appellant’s oral submissions, I note that his complaint about the publishing of details of some 10,000 individuals in immigration detention on the Departmental website, so as to give rise to a possible sur place claim, was addressed by the Tribunal. As the Tribunal noted, the appellant said to the Tribunal that he had “no idea” how that might affect his fears of returning to India, so that the Tribunal did not accept that the inadvertent publishing of his details would give rise to a real chance of serious harm upon his return to India. That conclusion, on that evidence, was available to the Tribunal.

36    In my view, the remaining grounds of appeal, including ground (12), the same as the matter specifically raised before the FCCA, simply reflect the appellants desire to have the merits of his claim re-visited. They are attempts to re-visit findings made by the Tribunal which, as I have found above, were not made in a way which demonstrates procedural or substantive legal error. It is not the role of the FCCA, nor on appeal of this Court, to re-hear on the merits the matters of fact determined by the Tribunal.

37    Accordingly, I do not consider that the FCCA fell into error at all. There is no specific assertion of error on its part in the grounds of appeal, so the appellant’s contention in essence is that the FCCA fell into error by not accepting the contentions he presented to the FCCA about error in the Tribunal’s decision. I do not think the FCCA misunderstood his contentions. Nor did it improperly conclude that they had no merit.

38    It is for those reasons that I dismissed the appeal.

39    Given the abolition of the Refugee Review Tribunal, I will make an order that the second respondent be replaced with the Administrative Appeals Tribunal.

40    In accordance with the normal practice, the Minister is entitled to costs of the appeal. I fix those costs at $6,439, according to cl 15 of Sch 3 to the Federal Court Rules 2011 (Cth).

Associate:

Dated:    15 January 2016