CZBV v Minister for Immigration
[2014] FCCA 500
•14 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZBV v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 500 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Zimbabwe due to a family dispute – Tribunal finding no nexus to the Refugees Convention and only a speculative risk of significant harm – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 425, 426A, 427 |
| Azzi v Minister for Immigration (2002) 120 FCR 48 Minister for Immigration v SZJSS (2010) 243 CLR 164; [2010] HCA 48 Minister for Immigration v SZNVW(2010) 183 FCR 575 Prasad v Minister for Immigration (1985) 6 FCR 155; [1985] FCA 47 SZNMJ v Minister for Immigration (2009) 112 ALD 284; [2009] FCA 1345 |
| Applicant: | CZBV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 40 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Cumming Clayton Utz |
ORDERS
The name of the first respondent is amended to “Minister for Immigration and Border Protection”.
The application filed on 22 July 2013 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
CAG 40 of 2013
| CZBV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 26 June 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Zimbabwe and had made claims based upon an asserted family dispute over money and property. The following statement of background facts relating to the applicant’s claims, and the decisions of the Minister’s delegate and the Tribunal on them is derived from the Minister’s outline of written submissions filed on 5 March 2014.
The applicant arrived in Australia on 16 February 2009 on a class TU subclass 572 student visa. He obtained a further student visa on 4 February 2010 which was to remain in effect until 30 September 2013[1].
[1] Court Book (CB) 158
On 18 September 2012, the applicant applied for a protection visa[2]. In that application he claimed that:
a)the applicant’s father was a respected school headmaster who had four wives and six children;
b)the applicant's father passed away in March 1999. The applicant’s father was living with only one wife, the applicant’s mother, at the time of his death and the applicant’s mother was the only wife who had a marriage certificate;
c)the applicant’s father had a $200,000 life insurance policy. Under its terms, it could only be paid out to a wife with a marriage certificate which, by the time it was paid out, meant it was only paid to the applicant, his mother and his brother by the same mother;
d)the applicant’s mother used the money to buy a luxury home and to start building a second home, which sparked a big family feud. The applicant’s half-brothers called the applicant’s mother a “whore” and threatened to kill her and the applicant’s brother;
e)the applicant’s mother changed the ownership of the two properties into the applicant's name in 2009;
f)in around May 2009, the applicant’s family home was burned whilst his mother and brother were inside;
g)the fire was reported to police, who took the details but had insufficient proof to charge the half-brothers. The half-brothers are likely to retaliate for the reporting of the incident to police; and
h)if the applicant returns to Zimbabwe, his half-brothers will chase him down and murder him (or hire hit-men to do so) in order to get the death certificate and sell his two properties.
[2] CB 1-48
On 5 October 2012, the applicant provided copies of his birth certificate and those of his brother, also born to the applicant’s mother, a half-brother and half-sister born to another wife, and a half-brother born to another wife, as well as the applicant’s parents’ marriage certificate and birth certificates, his father’s death certificate, his father’s life insurance policy naming his mother as the beneficiary, and evidence of the properties (although no evidence as to ownership of the properties being transferred to the applicant)[3].
[3] CB 103-137
Decision of the delegate
The applicant was interviewed by a delegate of the Minister on 29 October 2012[4]. The applicant told the delegate that he feared harm for a number of reasons, including the perception that a woman should not own property after the death of her partner. He said his father’s brother was to take control of the property and he fears his uncle will influence his half-brothers to do something[5].
[4] CB 161
[5] CB 161-162
On 23 November 2012, the delegate decided to refuse the applicant's application for a protection visa[6]. In his reasons, the delegate found that he was not satisfied that the applicant met the prescribed criteria for the grant of a protection (class XA) visa. The delegate found that the applicant's claimed fears had no nexus with a Convention ground of membership of a particular social group[7]. The delegate accepted that being killed for his immediate family’s inheritance would amount to arbitrary deprivation of life for the purposes of s.36(2A) of the Migration Act 1958 (Cth) (Migration Act)[8] but did not accept that there was a real risk of significant harm[9]. The delegate did not accept that the properties had been transferred to the applicant and did not accept that any family dispute would spiral into violence now when it had not done so earlier (the father having died in 1999 and the property having vested in the mother in 2005).
[6] CB 144-168
[7] CB 163
[8] CB 165
[9] CB 166
Decision of the Tribunal
On 5 December 2012, the applicant sought review of the delegate's decision by the Tribunal[10]. The applicant provided a letter in support of his application[11] in which he submitted that stripping widows of property is a systemic problem in Zimbabwe and claimed that, as the beneficiary of his mother's two properties, he is in very real danger, as demonstrated by the arson of the home with his mother and brother inside. He claimed that his mother has been on the run with his younger brother but was tipped off in relation to an intended attempt on her life and fled illegally to South Africa.
[10] CB 172-201
[11] CB 196-199
On 8 January 2013, the applicant wrote to the Tribunal and requested priority processing as he said his mental state was deteriorating into severe depression and mental instability[12].
[12] CB 224-226
On 10 April 2013, the Tribunal invited the applicant to attend at a hearing to be held on 13 May 2013[13]. On 7 May 2013, the applicant completed a Response to Hearing Invitation[14]. The applicant did not respond to the question regarding any issue that may affect his ability to take part in the hearing. The applicant did not appear at the hearing of 13 May 2013 at 9.00am[15]. The applicant telephoned the Tribunal the same day at 9.55am to say he had slept in[16]. The Tribunal did not exercise its discretion under s.426A of the Migration Act to make a decision without hearing from the applicant but instead rescheduled the hearing to 31 May 2013[17].
[13] CB 237-243
[14] CB 245-246
[15] CB 249
[16] CB 253
[17] CB 254
The Tribunal held a hearing in Sydney on 31 May 2013 and received evidence from the applicant via video-link from Canberra[18]. The applicant appeared.
[18] CB 262-263
On 26 June 2013, the Tribunal affirmed the decision to refuse to grant the applicant a protection visa[19]. The Tribunal found that the applicant had the capacity to participate effectively in the hearing as the applicant told the Tribunal he had not been to the doctor since 4 January 2013, was not taking any mediation and had no difficulty answering questions[20]. The Tribunal did not accept that the applicant's half-brothers or uncles are trying to kill him or his mother or his brother[21]. The Tribunal found no Refugees Convention nexus with the applicant’s claims[22]. The Tribunal further found that the applicant's claims were speculative and far-fetched and did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Zimbabwe, there is a real risk he will suffer significant harm[23].
[19] CB 267-281
[20] CB 270 [4]
[21] CB 274 [23]
[22] CB 274-275 [24]
[23] CB 275 [26]
These proceedings began with a show cause application filed on 22 July 2013 on which the applicant continues to rely. There are five grounds in that application:
1. Applicant did not effectively participate in the hearing
2. Claims not assessed based on the actions of applicant
3. Applicant satisfies section 36 of the Act and part 866 of the schedule 2(aa) for a grant of protection visa
4. Failing to investigate a finding that is critical
5. Failing to take into account relevant considerations
The application was supported by a short affidavit filed on the same day, to which was annexed a statement of the applicant’s written submissions. I received the affidavit as evidence and the submissions as submissions.
I also have before me as evidence the court book filed on 16 August 2013.
In his oral submissions, the applicant emphasised the fourth ground of review, asserting a failure by the Tribunal to either afford a fair opportunity to address determinative issues on the review or to obtain for itself further information. The applicant acknowledged that there were what he described as “grey areas” in his claims. He acknowledged that he did not have documentary evidence of the fire at his mother’s property or the report to the police of that fire, or of any investigation carried out by the police. Neither, for that matter, did he have statements by his mother or brother which might have corroborated his claims. I acknowledge that, if the applicant had had such material available, either before the delegate or before the Tribunal, he might have been able to present a stronger case.
The obvious difficulty the applicant faced in relation to his refugee claims was the lack of any Convention nexus. The difficulty faced in relation to his complementary protection claims was that, first, the only evidence of past harm was the fire, and the cause of the fire (if it occurred at all) was uncertain, and any link to the applicant’s half‑brothers was circumstantial based upon hearsay.
Although the applicant asserted that he came to the Tribunal in the belief, from the delegate’s decision, that his factual claims were not in dispute, it is apparent from the delegate’s decision[24] that the delegate had serious doubt that any animosity within his family over either the inheritance of his father’s estate or the life insurance policy posed a risk to the applicant’s life. The applicant must have been aware at the time of the Tribunal hearing that that would be an issue in the review.
[24] in particular, at CB 193
I accept that, in order to meet its obligations under s.425 of the Migration Act, the Tribunal was under an obligation to ensure that the applicant was aware of the essential issues upon which the review would turn. It appears to me, however, that the Tribunal met that obligation. The only evidence of what occurred at the Tribunal hearing is that set out in the Tribunal’s statement of its reasons. It is tolerably clear from that that the applicant was made aware by the Tribunal both of its doubts about the credibility of his claims and the speculative nature of his fear, even if his claims of past events had been accurate.
The applicant is concerned that he did not have a sufficient opportunity to put before the Tribunal further evidence to support his claims, such as photographs of the burnt property or statements from family members, or the police report or other information. There are several answers to that concern. The first is that the applicant had the opportunity, from the time he lodged his protection visa application, to provide documentary support for his claims. He devoted considerable effort to documenting the family connections and his father’s death. It seems to me that it would have taken little effort to provide some documentary support for the claims about the fire and the animosity of his half-brothers.
Further, the applicant should have been on notice from the delegate’s decision that it would be desirable to further support those claims. In addition, the applicant did not make any specific request during the Tribunal hearing for the opportunity to present more material. He simply says that he was told by the Tribunal that it would make its decision in the near future based on the information the Tribunal had. It would, in my view, be unfair to attribute to the Tribunal from those words, if said, a refusal to take into account anything that the applicant might have submitted after the hearing and before the Tribunal decision – a period of some four weeks.
Rather, if those words were said, it is more likely that they were simply an explanation by the Tribunal that it did not consider itself under any obligation to conduct further inquiries itself. That view is sound in law. In other respects, I agree with and adopt the Minister’s submissions addressing the grounds of review and the applicant’s written submissions.
The applicant claims that:
I asked the member to allow me to give more evidence to the issues that he was going to raise… According to the line drawn by the member it was clear, that the opportunity was simply barred and disadvantaged the assessment of my case. Without submitting evidence to the critical issues raised, there was no way it was going to be fair from the beginning. Furthermore, the member should have known that I had medical issues (depression) and as soon as he said that to me abruptly, I became emotionally unstable, I started to answer the questions leaving out some information sometimes … I do not believe in any way that I participated in the hearing effectively… Therefore I conclude that the hearing was conducted in an old fashioned manner (do as you are told manner) that obstructed the applicant to actively participate in the hearing.
The applicant was invited to present evidence and arguments as required by s.425 of the Migration Act at the hearing on 31 May 2013, and he did so. The fact that the applicant may have been ill at ease or did not present his case in the best possible light does not amount to jurisdictional error, nor constitute a breach of s.425 of the Migration Act[25].
[25] SZROQ v Minister for Immigration [2013] FCA 833 citing NAMJ v Minister for Immigration (2003) 76 ALD 56; [2003] FCA 983 at [51]–[52] per Branson J
The applicant also claims “the member should have known that I had medical issues (depression) and as soon as he said that to me abruptly, I became emotionally unstable, I started to answer the questions leaving out some information sometimes”. In his application for a protection visa, the applicant said that he had been in constant depression in 2008 because of fear of what could happen to him and his mother[26]. This was noted by the Tribunal at [9][27]. The applicant attached a letter from a drug and alcohol counselling service to his application for a protection visa[28]. The letter indicated that he had consulted them on 12 September 2012 displaying symptoms of stress and anxiety because he feared for the safety of his mother in Zimbabwe.
[26] CB 11
[27] CB 271
[28] CB 48
On 8 January 2013, the applicant wrote to the Tribunal and stated that his mental state was deteriorating into severe depression and mental instability[29]. He provided a medical certificate to the effect that he was suffering from depression and unfit for work or study for the period 9 January 2013 - 6 February 2013. The certificate did not provide any indication as to what, if any, tests were conducted and on what basis the doctor made such findings, other than recording a history given by the applicant of sleep disturbance and low mood since August 2012 and “BG stress with family issues since his father's death in 1999”. The applicant also provided evidence of a prescription for antidepressants[30].
[29] CB 224
[30] CB 225-226
In the course of the Tribunal hearing, the applicant said that the doctor had explained to him that “my condition had the potential of deteriorating into mental instability and severe depression”[31]. The applicant said that he had not been back to the doctor since 4 January 2013 and that he was not taking any medication at the time of the Tribunal hearing[32].
[31] CB 270 [3]
[32] CB 270 [4]
The Tribunal referred to SZNMJ v Minister for Immigration[33] and considered that the letter from the drug and alcohol counselling service and the doctor's certificate were relevant in assessing whether the applicant had the capacity to participate in the Tribunal hearing[34]. The Tribunal noted that the applicant responded appropriately to the Member's questions and had no difficulty addressing the issues which were raised with him. The Tribunal concluded that he was able to participate effectively in the hearing on 31 May 2013[35].
[33] (2009) 112 ALD 284; [2009] FCA 1345 at [45]
[34] CB 270 [4]
[35] CB 270 [4]. I drew the same conclusion at the hearing before me
The Tribunal has the power to arrange a medical examination under s.427(1)(d) of the Migration Act, which provides that the Tribunal may:
require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
In contrast to the duty to consider calling evidence from witnesses indicated by the applicant[36], there is no duty to consider whether to arrange for a medical examination[37]. The Tribunal was under no duty to arrange an independent assessment, nor does the medical certificate contain sufficient detail of any mental impairment to suggest that the applicant suffered from a psychological condition that would disable him from giving evidence and presenting arguments at the hearing required by s.425 of the Migration Act[38].
[36] Section 426(3)
[37] Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1; SZOVP v Minister for Immigration (2012) 126 ALD 290; [2012] FCA 244; Minister for Immigration v SZNVW(2010) 183 FCR 575; [2010] FCAFC 41 (SZNVW)
[38] SZNVW at [22]; see also WZAOF v Minister for Immigration [2012] FMCA 668 (in which a detailed psychiatrist's report diagnosing the applicant with post-traumatic stress disorder did not give rise to a s.425 error)
Claims not assessed based on the action of the applicant
The applicant claims that the Tribunal did not use “information of my personal actions as the benchmark of my claims for fear of retribution” and that the Tribunal considered the burning of the mother's house to be the basis of the applicant's claim rather than considering his own actions in coming to Australia and spending his father's money rather than sharing it with his half-brothers, in refusing his half-brother's demands to share the property, and in arranging for the properties to be jointly owned by the applicant, his mother and brother.
I submit that this ground fails on a factual level. The Tribunal considered the applicant's claim that he was a joint owner of the properties[39], that the insurance payout enabled the applicant's mother to pay for his study in Australia[40] and that his half-brothers were unhappy about the disparity between his wealth and theirs[41].
[39] CB 272 [10] and [15]
[40] CB 273[19]
[41] CB 273 [20]
The Tribunal understood the factual claims being made and understood that the basis for the applicant's claim for protection was that he was personally in danger owing to his half-brother's resentment that his father's property had gone only to the applicant, his mother and brother. The Tribunal considered the applicant's claims before making findings, including as to credibility, that were open to it and were within jurisdiction.
Failure to take into account a relevant consideration
This alleged error appears to relate the alleged failure to take into account the applicant's own actions, being a matter dealt with above.
Applicant satisfies the criteria for grant of a protection visa
This ground does nothing more than invite merits review, which is impermissible[42].
[42] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 ; Minister for Immigration v SZJSS (2010) 243 CLR 164; [2010] HCA 48
Failure to investigate a finding that is critical
This ground alleges that:
a)the Tribunal should have requested further evidence from the applicant; and
b)the Tribunal should have obtained an expert opinion or psychological report addressing the half-brothers’ anger and the possible consequences.
Failure to request further evidence
The applicant alleges in his written submissions that the Tribunal “simply relied on the unavailable evidence to assess the case. Instead it was supposed to use the available evidence cumulatively make its decisions.” The applicant also contends that:
While the Applicant had stated at the beginning of the hearing that he would welcome any request for giving evidence, the member failed to request that evidence. Instead he made decisions that sorely depended on the fact that the Applicant was defenceless (i.e. no evidence provided prior to hearing)… I would have expected the RRT member to rely on the available evidence as well as requesting evidence in the grey areas to assess the case on a fair basis. The credibility conclusion in paragraphs 41, 42 and 43 will not be relevant if the Applicant is not given the opportunity to provide evidence of the grey areas.
As an example, the applicant claims that he could have obtained the police dockets showing that he reported the case to the police in Zimbabwe.
The Tribunal noted at [16][43] that it was striking that the applicant had not produced any evidence in relation to the fire (in contrast to the extensive documentation provided as to his father's property and as to his family arrangements). The Tribunal put to him that he had not produced any evidence in support of his contention that his family home burnt down or that this was an attempt on the lives of his mother and younger brother. The applicant did not suggest that he could obtain any evidence as to the fire. In fact, the applicant's response was that he had provided as much evidence as he could[44].
[43] CB 273
[44] CB 273 [16]
Further, the lack of evidence as to the fire or complaints to the police was not the basis of the Tribunal's rejection of the applicant's evidence. Rather, the Tribunal had regard to the evidence before it, including the applicant's oral evidence and the Tribunal's assessment of his credibility, and found his account of the half-brothers’ murderous intentions implausible. The Tribunal was “entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”[45]. In particular, findings as to credibility “are a matter par excellence for the Tribunal”[46].
[45] Lee v Minister for Immigration [2005] FCA 464 at [27]
[46] SZOXD & Ors v Minister for Immigration & Anor [2012] FMCA 404; Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1
I accept that it is not part of a decision-maker's duty to make the applicant's case for him or her[47]. The function of the Tribunal is to deal with the case that the applicant advances[48].
[47] Prasad v Minister for Immigration (1985) 6 FCR 155; [1985] FCA 47
[48] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; [2003] HCA 26 per Kirby J at 337; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]–[60]
Failure to obtain an expert report as to the half-brothers' anger
The applicant claims that the Tribunal failed to investigate a critical fact, being:
In the member's own words he made the finding that, “He accepted that my half brothers were unhappy that they did not receive anything from the father's estate, however the member simply failed to evaluate the consequences of that anger or the consequences of that anger that has been building over the years in my half brother's mind. If an evaluation or assessment of the anger and possible consequences was done surely (from an expert opinion) it would be clear that their actions done in 2012 would be something possible and retribution would be on the possibilities as well as a cold murder waiting to happen.”
The authorities show that cases where the courts have been prepared to find that further inquiries should be made are rare[49].
[49] Minister for Immigration v SZRTF [2013] FCA 1377; Prasad; Minister for Immigration v Amani [1999] FCA 1040; W41/01A; Azzi v Minister for Immigration (2002) 120 FCR 48; [2002] FCA 24
In SZIAI v Minister for Immigration[50], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated at [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction … It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. [emphasis added]
[50] (2009) 83 ALJR 1123; [2009] HCA 39
An exploration of the level of anger experienced by the applicant's half-brothers and uncle was neither an obvious inquiry nor a fact that could be easily ascertained.
The applicant has failed to demonstrate that the Tribunal fell into jurisdictional error in the review of the delegate’s decision.
The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant was concerned to know what arrangements would apply to the payment of those costs, and I informed him that it would be a matter he could take up with the Minister’s Department or lawyers.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2014
24
3