MZZCB v Minister for Immigration and Citizenship - [2013] FCA 878 - FCA 2013 case summary — Zoe

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MZZCB v Minister for Immigration and Citizenship

[2013] FCA 878

Federal Court of Australia|2013-08-30|Before: Streeton J

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Court

Federal Court of Australia

Decision date

2013-08-30

Before

Streeton J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

INTRODUCTION 1 By notice of appeal dated 5 June 2013 the appellant appeals from the decision of a Federal Circuit Court Judge given on 17 May 2013. Judge Turner dismissed the appellant's application for judicial review of a decision of the first respondent, the Refugee Review Tribunal ("the Tribunal"), given on 28 September 2012, which affirmed a decision of the second respondent to refuse the grant of a Protection (Class XA) visa to the appellant. 2 The first respondent relied on written submissions dated 5 August 2013. 3 The appellant filed no written submissions. At the hearing of the appeal, he was not legally represented and appeared with the assistance of an interpreter. 4 The appellant is a citizen of India who arrived in Australia on 8 June 2009 as the holder of a Subclass 572 Student visa that was valid until 25 June 2010. The appellant left Australia on 28 May 2010 and returned on 18 June 2010. 5 On 28 June 2010, the appellant applied to the Department of Immigration and Citizenship for a further student visa which was on 15 December 2010, as he had provided no evidence of his capacity to fund his study in Australia. The appellant's Bridging C visa expired on 21 January 2011. 6 On 30 January 2012, the appellant applied for and was granted a Bridging E visa. 7 By an application received on 9 February 2012, the appellant applied to the Department of Immigration and Citizenship for a protection visa. 8 On 23 March 2012, a delegate of the first respondent refused the appellant's application. 9 On 19 April 2012, the appellant applied to the Tribunal for review of the delegate's decision. On 28 September 2012, the Tribunal affirmed the first respondent's decision by its delegate. 10 On 29 October 2012, the appellant applied to the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) for judicial review of the Tribunal's decision. The appellant filed an amended application for review on 12 March 2013 and a further amended application for review on 8 April 2013. On 17 May 2013, Judge Turner dismissed the application.

THE APPELLANT'S CLAIMS 11 The appellant, an Indian citizen of Hindu religion and Telugu ethnicity, claims to have lived in Hyerberabad (the capital of Andhra Pradesh, India) from the age of three until he moved to Australia. 12 Before the Tribunal, the appellant confirmed that he had completed his visa application without any assistance and that its contents were true and correct. He provided the Tribunal with a written statement and further written submissions in response to issues raised by the delegate of the first respondent. The appellant, who appeared with a Telugu/English interpreter, also gave oral evidence before the Tribunal in English. 13 In his visa application and before the Tribunal, the appellant claimed that: (a) In 2005 he joined the Telugu Desam Party ("TDP") which was concerned with the high illiteracy and poverty rates in India and the "major problem" of "the Telangana separation" movement. The appellant explained in his application for a protection visa that Telanga is one of 23 districts in Andra Pradesk, which, prior to India's independence in 1947, was part of the Nizam's region. He claimed that "[t]he Telangana people feared the Andhraites" and that the Telangana movement seeks the establishment of a separate, independent, Telangana state. (b) The appellant was actively involved with the TDP's youth organisation, which involved attending meetings and rallies, canvassing on behalf of members of parliament and collecting funds. (c) After three years with the TDP, the appellant was elected President of the Youth Committee. The appellant stated that he was involved with the then elected president of the Telugu Nadu Students Federation ("TNSF"), which he claimed was a part of the TDP at the student level. He claimed that, as president, he looked after the students' needs but was not involved in politics. 14 The appellant claimed that he was attacked in 2008. He provided the following details in his visa application and before the Tribunal: (a) In 2008, he was attacked by "a group of Telangana members" while riding his bike with his cousin. He was beaten with iron rods and branches, told to leave Telangana land and made to sing their regional song. When he refused, he was beaten unconscious. He suffered major injuries to his jaw that required a steel plate to be inserted and broke five teeth. Bystanders did not help him because they did not want to appear anti-Telangana. (b) In oral submissions, the appellant claimed that he had been returning home from a TNSF meeting at the Chaitanya Bharathi Institute of Technology on his motor bike when he was hit by a car heading in the opposite direction. He fell to the ground, a group of people hit him with sticks and rods, and one person hit his jaw. He claimed his attackers were members of the Telangana Rashtra Samithi ("TRS") because they made him sing the TRS anthem. The appellant claimed that his attackers would have recognised him because he was wearing his TNFS official "dress". (c) In oral submissions, the appellant claimed that no one would give him medical attention. When the Tribunal asked him why the Yashoda Hospital Medical records did not mention that his jaw was broken when he was hit by sticks and rods, he said that hospitals in India do not get involved in criminal allegations. (d) The appellant claimed that his parents reported the matter to the police who responded that it was a political dispute and did not write a report. (e) After the attack, the appellant was unable to live a stable and peaceful life. He had to move house frequently, disguise his appearance by growing a beard and was unable to apply for permanent jobs. 15 The appellant informed the Tribunal that in June 2009, his parents assisted him in arranging his departure to Australia. He stated in oral submissions that he arrived in Australia on a student visa and was enrolled in a diploma in printing and graphic art at the National Academy of Further Education and Training. When the course was closed down he tried to enrol in a comparable course with the assistance of the Australian Council for Private Education and Training. 16 The appellant claimed that he returned to India in May 2010 to see whether the political situation had stabilised in Andhra Pradesh. 17 He claimed that, upon his return, he was attacked. He provided the following details in his visa application and before the Tribunal: (a) On the first day of his return he was attacked and kidnapped by "a group of unknown men" who took him to an "unknown location". He was beaten and interrogated about his return. Boiling water was poured on his face, one of his nails was pulled out and chilli and salt was applied. (b) In oral submissions, the appellant stated that on his first day in India a person knocked on his door claiming to be from the TDP. He was then grabbed and pushed into a van. People shouted at him demanding to know his plans and why he had returned to India. He was tied up, blindfolded and driven for around 25 minutes. He was then tied to a chair and beaten for two days. His toenail was pulled off with a pair of pliers and chilli was rubbed in the wound. Hot and cold water was poured on his face. (c) When questioned by the Tribunal, the appellant claimed that he recognised one of the attackers from the incident in July 2008. He thought there were about four to five people involved in the attack. (d) The appellant claimed that he was released after two or three days. The police refused to accept his complaint. (e) The appellant received medical treatment at hospital and returned to his home. When questioned by the Tribunal, he explained that he received treatment from a local doctor who was then threatened by the appellant's attackers. (f) Over the next few days, the power to the appellant's house was cut off and stones were thrown at it. The police refused to take his further complaints and he was unable to rely on government forces for protection. 18 The appellant claimed that after he returned from India in June 2010 he reapplied for his student visa. His application was refused because the Department of Immigration and Citizenship did not accept his financial documents. 19 The appellant claimed that the situation in Hyderabad had worsened since the attacks. He referred to riots in March 2010. The appellant claimed that a large number of conflicts occurred between Muslims and Hindus and that the Muslim parties sought to establish and rule an independent Telangana state. The appellant claimed that there is widespread corruption in the police force. 20 The appellant claimed that he continued to receive telephone threats stating that "Telangana will be achieved by them and the Andhra people will have to serve the Telanaga people or leave all their properties" including "lots of abusive language used and them reminding me about the way they treated me when I returned to India". He claimed that Telangana people accused him and his family of being Andhraites and told them to return to Andhras. Andhra people also rejected him and told him to return to Telanaga because he left Andhra a long time ago and did not speak the Andhra language. 21 In support of his claims, the appellant submitted to the Tribunal photographs of his injuries and a damaged motorbike, media reports from the internet regarding political instability in Andhra Pradesh and the Islamic Telangana and a copy of medical evidence from the Yshaoda Hospital documenting treatment he received due to a motor bike accident in India near Mehdpatnam on 19 July 2008. The medical report relevantly stated: SUMMARY OF HOSPITAL COURSE: [The appellant] presented with history of alleged to have met with RTA [Road Traffic Accident] … while going on two wheeler and hit by another vehicle (opposite vehicle collision), sustained facial injuries, abrasions on foot, laceration and loss of consciousness for few minutes. … 22 In response to questions from the Tribunal, the appellant said he took photographs of himself in hospital for "fun" because he no longer had a beard and looked different and took photographs of his damaged motorbike for an insurance claim. 23 In his further written submissions, the appellant stated: (a) He delayed lodging his protection visa application because he intended to apply for a new student visa but found it difficult to get into another college when his college closed in 2010. In oral submissions, he asserted that he had not realised that he could apply for a protection visa. (b) He was not invited to attend an interview with the first respondent's delegate and he denied receiving an invitation letter from the Department of Immigration and Citizenship. (c) He would not be able to relocate because he had no employment history in India. He could not read or write in Hindu or Telugu and it would be unsafe for him anywhere in India.

[3]

THE TRIBUNAL'S DECISION 24 The Tribunal found that the appellant was "not a credible witness and has not been truthful in relation to his experiences in India, his reasons for leaving India and his fears about returning India". The Tribunal found that the appellant's evidence was "vague and lacking in detail". 25 The Tribunal accepted that the appellant is a supporter of the TNSF/TDP who may have attended meetings and rallies from time to time. The Tribunal did not accept, however, that the appellant was, as he claimed, a youth leader or president whose political profile would bring him to the attention of the TRS. The Tribunal noted that the appellant was only able to provide "the most general explanation of his involvement and activities" in relation to TNSF and/or TDP and had stated that he was not involved in politics as president. 26 The Tribunal accepted that the appellant was involved in a motorbike accident and suffered injuries. The Tribunal did not accept that the appellant was targeted by the TRS as claimed, as his answers to questions were "vague and non-specific and he frequently had to be prompted to provide a [sic] meaningful answers". Further, the Tribunal did not accept as credible "that the TRS members were able to identify him because he was wearing TNFS official clothing when he was travelling the opposite direction on a public road". The Tribunal noted that the medical reports only referred to the appellant being involved in a "road traffic accident" and did not refer to a beating. 27 The Tribunal found "implausible" the claim that the appellant's political profile was "so potent" as to prompt an attack on the first day of his return to India in May 2010. The Tribunal again described the appellant's answers as "vague and non-specific". 28 The Tribunal found the appellant's account of his torture "unconvincing". It also noted inconsistencies in the appellant's evidence about whether he could recognise his attackers and the details of his torture. 29 The Tribunal found that the appellant's delay in applying for a protection visa between his return from India in May 2010 and the lodgement of his application on 9 February 2012 was "relevant in assessing the seriousness with which the [appellant] viewed risk of persecution in India and the credibility of his claims". 30 The Tribunal did not accept that in the reasonably foreseeable future there was a real chance that the appellant would face treatment of a kind which could amount to persecution under the Refugees Convention (the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967). 31 The Tribunal then considered the complementary protection provisions under s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). It found that the appellant did not satisfy the complementary protection criteria for the grant of a protection visa.

[4]

THE FEDERAL CIRCUIT COURT'S DECISION 32 A further amended application filed on 8 April 2013 set out the following grounds of review: (1) The decision was made in breach of essential pre-condition to the exercise of the power conferred by sections 414 and 414 of the Migration Act 1958 (Cth) (as amended) ("the Act") because the Tribunal filed to determine whether the Applicant had a well-founded fear of persecution as required by s.36(2) and 91R(1) of the Act and sub-clause 866.211 of part 866 of Schedule 2 to the Migration Regulations 1994 ("the Regulations"). Particulars a) The Tribunal imposed an impermissible burden of proof on the Applicant by discounting the medical evidence he produced in relation to him being physically harmed by his political opponents who forced him to fall off his motorbike and have his injuries treated in hospital. b) The Tribunal's failure to put to the Applicant at the hearing that it that did not accept his medical evidence meant that the Applicant was denied an opportunity to fully present his claims as required under 425 of the Migration Act. c) In the absence of medical qualifications of its own, the Tribunal was not in a position to legally discount the medical evidence produced by the Applicant. (2) The decision was made in breach of an essential pre-condition to the exercise of the power conferred by sections 414 and 415 of the Migration Act 1958 (Cth) (as amended) ("the Act") because the Tribunal failed to properly determine whether there was a real risk that the Applicant would suffer significant harm as required by 36(2A) and (2B) of the Act. Particulars The Tribunal erroneously assumed that such a risk did not exist if it found that Australia did not have protection obligations towards the Applicant and subsequently failed to properly exercise its own jurisdiction. (3) The Tribunal failed to determine whether it was reasonably practicable for the Applicant to avoid serious or significant harm by relocation elsewhere in India. Particulars The Tribunal failed to take into account the inability of the police and other State authorities to provide protection against politically motivated violence or legal redress in relation thereto due to widespread corruption and ineptitude. 33 Judge Turner dismissed the application with costs. 34 Judge Turner found that the first ground of appeal was not made out. His Honour found that as the appellant provided the medical reports to the Tribunal, they were excluded from the application of s 424A of the Act pursuant to s 424A(3)(b). In any event, he found that the Tribunal put its concerns about the medical reports to the appellant. His Honour held that the Tribunal was entitled to accept or reject the appellant's evidence and did not require medical qualifications in order to reject the medical reports. Further, his Honour observed that new material to which the appellant referred was not admissible and gave reasons for that conclusion. 35 Judge Turner dismissed the second ground of appeal. His Honour held that as the Tribunal considered the application of s 36(2A) of the Act and found that the appellant did not fall within its scope, it was not required to consider the application of s 36(2B) of the Act. The Tribunal had determined that the appellant would not be at real risk of persecution and the issue of relocation did not arise for determination. 36 Judge Turner dismissed the third ground of appeal. His Honour noted that the Tribunal found that the appellant would not be at risk upon return to India and the Tribunal was therefore not required to decide the issues of relocation or state protection.

[5]

THE APPEAL 37 The appellant appeals to the Federal Court on 5 June 2013 on grounds substantially identical to those relied upon in the Federal Circuit Court. 38 The notice of appeal states the following grounds: 1. The decision of the Tribunal was made in breach of essential pre condition to the exercise of the power conferred by sections 414 &415 of the Migration Act, because the tribunal failed to determine whether the applicant had a well founded fear of persecution as required by s36(2) & 91R(1) of the Act and sub clause 866.211 of part 866 of Schedule 2 to the Migration Regulations 1994 PARTICULARS a. The tribunal imposed an impermissible burden of proof on the Applicant by discounting the medical evidence he produced in relation to him being physically harmed by his political opponents who forced him to fall off his motorbike and have his injuries treated in hospital b. The tribunal's failure to put to the applicant at the hearing that it did not accept his medical evidence meant that the applicant was denied an opportunity to fully present his claims as required under 425 of the Migration Act. c. In the absence of medical qualifications of its own, the tribunal was not in a position to legally discount the medical evidence produced by the applicant. 2. The decision of the Tribunal was made in breach of essential pre condition to the exercise of the power conferred by sections 414 &415 of the Migration Act, because the tribunal failed to determine whether there was a real risk that the applicant would suffer significant harm as required by s36(2A) & 2B of the Act. Particulars The tribunal erroneously assumed that such a risk did not exist if it found that Australia did not have protection obligations towards the applicant and subsequently failed to properly exercise its own jurisdiction. 3. The tribunal failed to determine whether it was reasonably practicable for the applicant to avoid serious or significant harm be relocation in India. Particulars The tribunal failed to take into account the inability of the police and other State authorities to provide protection against politically motivated violence or legal redress in relation thereto due to widespread corruption and ineptitude 39 At the hearing of the appeal, the appellant did not provide written submissions and made oral submissions only in relation to the first ground of appeal. The appellant raised a number of new complaints which as the appellant is self represented, I shall treat as an application to raise new grounds of appeal for which leave must be obtained. 40 In written submissions, the first respondent contended that the appellant had simply reproduced his further amended application for review before the Federal Circuit Court without identifying any errors of law in Judge Turner's reasons for dismissing it. 41 The first respondent submitted that leave to raise the new grounds of appeal should be refused because they have no reasonable prospect of success.

[6]

Not given a fair opportunity to be heard because Tribunal hearing by video conference 42 The appellant alleged that he was deprived of a fair opportunity to present his case to the Tribunal because the hearing took place by video conference, to which he had objected without success as the Tribunal declined to relist the hearing. 43 The appellant stated that he had experienced difficulty in expressing himself in the video conference due to frequent visual and audio lags and the need to repeat himself. Further, it was difficult to rely upon or converse with the interpreter who also appeared by video conference. The appellant stated that it was difficult for him to understand the Tribunal which led to his inaccurate responses to some questions. The appellant did not, however, identify any particular instance of inaccuracy. He denied that his answers were vague and non-specific. He claimed that in response to some questions he had used particular words that had been misinterpreted by the Tribunal. 44 The appellant explained that the above point was omitted from the notice of appeal because he had no legal representation. He alleged that although he had informed the Federal Circuit Court of the complaint, Judge Turner failed to consider it in his reasons. 45 In my opinion, leave to raise the above ground of appeal should be refused, as it has no reasonable prospects of success. Contrary to the appellant's submission, Judge Turner addressed his complaint about the video conference. His Honour stated: 39. At the hearing before the Court in 24 April 2013 the applicant represented himself with the aid of Telegu interpreter and Ms Randall-Smith represented the first respondent. The applicant alleged that he was not given a proper opportunity to put his submissions to the Tribunal. The Court finds that the applicant appeared before the Tribunal with the assistance of a Telegu interpreter (CB p.197.3). 40. The applicant stated to the Court that when he sought clarification from the Tribunal about what was being asked, the Tribunal rephrased the questions for him. The applicant stated that after he had finished putting his submissions, his migration agent put submissions for him. 41. The Court does not accept that the applicant was not [sic] denied a proper opportunity to put his submissions to the Tribunal. 46 In my opinion, his Honour did not err in finding that the appellant was afforded a fair opportunity to put his case. 47 Section 429A of the Act provides: 429A Oral evidence by telephone etc. For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by: (a) telephone; or (b) closed-circuit television; or (c) any other means of communication. 48 Section 429A is an enabling provision giving the Tribunal a discretion to allow an appearance and the giving of evidence by various means, including video link. There is nothing to suggest that in this case the discretion miscarried. 49 In the present case, the appellant was represented at the hearing before the Tribunal by a registered migration agent. Although he had the assistance of an interpreter, the appellant nevertheless chose to give evidence in English. He was afforded an opportunity to present evidence and argument and participated in the hearing. He also provided the Tribunal with a written statement and supplementary written submissions prior to the hearing.

[8]

Erroneous findings by the Tribunal 56 The appellant alleged that the Tribunal: (a) relied upon incorrect country information; (b) erred in rejecting his evidence that TRS members were able to identify him because he was wearing TNFC official clothing; and (c) erred in relying on inconsistencies in his descriptions of the harm he suffered (his toenail being ripped and hot and/or cold water being poured on him) because the inconsistencies were due to his lawyer's editing of his original statement. 57 In general terms, the appellant submitted that he had raised the relevant complaints before the Federal Circuit Court. 58 In my opinion, leave to raise the above grounds should be refused as they have no reasonable prospects of success. 59 The Tribunal rejected the appellant's account of the claimed attack primarily on the basis of his vague and non-specific testimony and its inherent implausible aspects. To the extent to which the Tribunal's rejection of the appellant's account was fortified by the content of the medical reports, it was entitled to rely on the material before it. Judge Turner correctly held that further information or country information in relation to the appellant's medical evidence would be inadmissible, for the reasons his Honour stated. 60 Further, the Tribunal's rejection of the appellant's evidence that members of the opposing political party identified him by his clothing was a finding of fact, which is not capable of review by the Federal Circuit Court and or the Federal Court. 61 The Tribunal noted that it found the appellant's explanation for his claimed torture to be unconvincing and observed that he did not recall until questioned that an attacker had poured hot and cold water on his face. The Tribunal stated that it found the appellant's account unconvincing when compared to his written statement where he claimed to have been injured by boiling water. 62 The Tribunal's observation was made in the context of its preceding observation that it did not accept the appellant's evidence that he was abducted and tortured in May 2010, as it was implausible on a number of grounds and his answers were vague, non-specific and frequently elicited only by prompting. The Tribunal noted that the appellant's only explanation for the alleged abduction was that it must have been a "personal grudge". 63 As the first respondent submitted, to the extent that the Tribunal referred to inconsistency in the appellant's descriptions of the temperature of the water allegedly poured on him, it was not central to the Tribunal's failure to accept the appellant's claim that he had been abducted and tortured.

[9]

Ground 1 64 In my opinion, ground 1 of the notice of appeal is not established. There is no basis on which to conclude that the Tribunal erroneously imposed a burden of proof on the appellant in relation to the medical evidence he provided about his alleged beating by Telangana members and supporters. 65 As the Federal Circuit Judge observed, the medical records stated that the appellant's injuries were caused by another vehicle and made no mention of a broken jaw or an attack with sticks and rods. 66 The Tribunal was entitled, in that context, to reject the appellant's claim that he was targeted by Telangana members when injured in July 2008. The Tribunal rejected the appellant's account of the incident primarily due to its assessment of his vague, non-specific, non-spontaneous answers and unconvincing assertions. It noted, in that context, the absence of any reference in the medical report to the alleged beating and (although the appellant had stated that in India hospitals did not get involved in criminal investigations) observed that it would have expected the medical report accurately to detail the cause of the injuries. 67 At the hearing before the Federal Circuit Court, the appellant referred to information from the United States of America to the effect that hospitals in India will not provide treatment to persons injured by fighting or aggression, in order to explain the absence of any reference to the cause of his injuries in the report. 68 As the Federal Circuit Court Judge observed, such material was not before the Tribunal and was not admissible in an application for review. As stated in SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 (at [27]), in an appeal from the Tribunal to the Federal Magistrates' Court (Federal Circuit Court) or the Federal Court, fresh evidence is not admissible unless it bears upon some jurisdictional error. It is not admissible to invite the Court to disagree with a factual conclusion of the Tribunal. The Federal Circuit Judge correctly observed that in the present case, such new evidence would bear only on the Tribunal's conclusion about the medical reports, which was not decisive in its rejection of his account of the 2008 motorbike incident. 69 While the Tribunal did not specifically put its doubts to the appellant, as the Federal Circuit Judge observed, it was not obliged to do so. The appellant provided the medical evidence to the Tribunal and as such, it was excluded from s 424A of the Act by s 424A(3)(b). 70 There was no basis for the appellant's contention (which the Federal Circuit Judge correctly rejected) that the Tribunal was not entitled to reject medical evidence unless it was medically qualified.