MZADS v Minister for Immigration

[2015] FCCA 1424

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1424

Catchwords:
MIGRATION – VISA – Protection (Class XA)Visa – Refugee Review Tribunal – Show Cause hearing – merits review – no arguable case – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; 58 ALD 609; 74 ALJR 405
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: MZADS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 833 of 2014

Judgment of: Judge Scarlett

Hearing date: 21 May 2015

Date of Last Submission: 21 May 2015

Delivered at: Melbourne

Delivered on: 21 May 2015

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed on 15 May 2014 is dismissed.

2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $3416.00.

3. I allow three (3) months to pay.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 833 of 2014

MZADS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application known as a show cause application. Rule 44.12 of the Federal Circuit Court Rules 2001 provides that:

   At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed, adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   Subrule (2) provides that:

   To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

2. The substantive application was filed on 5 May 2014.  It is an Application in which the Applicant seeks a writ of mandamus directed to the Refugee Review Tribunal requiring the Tribunal to determine the applicant’s application according to law.  The Application does not seek an order that the decision of the Tribunal be quashed, but it would appear to me to follow that if the Applicant is seeking a writ of mandamus directed to the Tribunal then an order quashing the Tribunal decision must be an essential precondition.

Background

1. The Applicant has applied for a Protection (Class XA) visa.  He is a citizen of India.  He arrived in Australia on 12 August 2009 as the holder of a subclass 573 student visa.  He was granted a further visa of that type in November 2010, which was valid until 15 March 2012.  He then applied for a subclass 485 skilled graduate visa, which was refused, and the Migration Review Tribunal affirmed the refusal decision on 14 June 2013. 

2. On 24 July 2013 the applicant lodged an application for a Protection (class XA) visa in which he claimed that he was seeking protection under one of the grounds contained in the Refugees Convention.  Essentially, he claimed on two bases:  first, that he and his father feared persecution by local political leaders called mukhiyas, mainly on account of the applicant’s father’s work for a non-government organisation in India; second, because the applicant had borrowed money before coming to Australia and had not made any repayments and was not in a position to do so.  The Applicant claimed that he feared he would be killed on account of the bad debt.

3. The Applicant attended an interview with a delegate of the Minister and as a result of the interview the delegate refused his application for a visa on 19 December 2013.  The delegate found that the Applicant’s claims were neither genuine nor credible.  The Applicant then sought review of the delegate’s decision with the Refugee Review Tribunal.  On 1 April 2014 he attended a hearing of the Tribunal at which he presented arguments about his claim. 

The Refugee Review Tribunal Decision

1. On 7 April 2014 the Refugee Review Tribunal affirmed the decision not to grant the Applicant a Protection (class XA) visa. In its decision the Tribunal set out the relevant law and referred to the provisions of paragraph 36(2)(a) of the Migration Act 1958 (Cth), which provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol.

2. The Tribunal correctly set out four key elements of the Convention definition.  First, an applicant must be outside his or her country.  Secondly, an applicant must fear persecution.  Third, the persecution which the applicant fears must be for one or more of the reasons set out in the Convention definition:  race, religion, nationality, membership of a particular social group or political opinion.  And fourth, an applicant’s fear of persecution for a Convention reason must be a well-founded fear.  Further, the applicant must be unable or unwilling, because of his fear, to avail himself of the protection of his country of nationality or, if stateless – which he is not – unable or unwilling to return to his country of former habitual residence. 

3. The Tribunal also considered the complementary protection criterion, which is that if a person is not found to meet the refugee criterion in paragraph 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she would suffer significant harm.

4. The Tribunal considered the application for a protection visa, a copy of the Applicant’s passport and the transcript of the interview with the Minister’s delegate dated 17 December 2013.  Essentially, the Tribunal noted that the applicant father ran a non-government organisation which helped lepers and that he had been asked by local mukhiyas to influence colonies of lepers to vote for them, and as all the lepers did not end up voting for the mukhiyas, they threatened the applicant’s father’s family.

5. It is part of the Applicant’s case that the mukhiyas have links with Naxalites and criminals, and the applicant fears that they may target him as a result.  In addition, he borrowed a sum of money before coming to Australia and has not made any repayment.  He does not have the money to do so and therefore he fears that he will be killed.  On one occasion in 2010, the moneylender contacted his father about his whereabouts.

6. The Tribunal was satisfied that the applicant was a national of India and found that India is a country of nationality for the purpose of the Convention.  The Tribunal went on to consider his claims for protection – first of all, his fear of mukhiyas, criminals and Naxalites.  The Tribunal did not find the applicant to be a credible witness in relation to his claims that his father had been targeted by mukhiyas, that is, his father, his family and the applicant himself have ever been of adverse interest to them.

7. The Tribunal set out a number of reasons, including a substantial lack of knowledge displayed by the applicant and inconsistent evidence about the mukhiyas and the election which he claims sparked threats to his father and himself.  Also, the applicant claimed that his father was still active in this particular non-government organisation, called the Indian Development Foundation, and his father’s photographs had appeared on the foundation’s website, which was inconsistent in the Tribunal’s view with his father having a fear of the mukhiyas.

8. Third, the Applicant arrived in Australia in August 2009 and claims that his father and his family, including himself, started receiving threats from the mukhiyas in 2010 which were of such seriousness that his father and family had to go into hiding and moved around to avoid being harmed.  The applicant, however, did not apply for a protection visa until July 2013, which is a very long period afterwards.  His explanation for this was that he had applied for a skilled graduate visa as he thought he would be able to get that more easily; however, the Tribunal was not satisfied as to his explanation for the delay.

9. Not only did the Tribunal express dissatisfaction with the credibility of the applicant’s claims in respect of the mukhiyas with their threats to his father and himself, but the Tribunal did not find the applicant’s claims in relation to the moneylender to be credible.  The Tribunal did not accept that he had borrowed money from a moneylender or that he was of any adverse interest to the moneylender as a result and the Tribunal set out its reasons for that factual finding.

10. Accordingly, the Tribunal found the Applicant did not face a real chance of persecution in the reasonably foreseeable future for any reason, whether Convention or otherwise, and it was not satisfied, therefore, that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant does not satisfy the criterion in paragraph 36(2)(a). The Tribunal then went on to consider the alternative criterion in paragraph 36(2)(aa) as to complementary protection but the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under that head.

11. The Tribunal affirmed the decision not to grant the applicant a Protection (class XA) visa.

The Application for Review 

1. On 5 May 2014, the Applicant filed his application for review, supported by an affidavit to which, as required by the Rules, he annexed a copy of the Tribunal decision.  In his application, the applicant set out four grounds:

   First, first of all, the parties of mukhiya.  The mukhiya is having his own party, and he gets some help from the big parties like chief minister and prime minister, but the Tribunal member did not get what I was saying and making excuses to not grant the protection visa. 

   2.  The second reason is the date of election.  Firstly, the date of election is not fixed like Christmas Day, so I will remember.  It’s a silly excuse the Tribunal member has excused for, and it’s so long ago.  That’s why I told maybe about this date. 

   3.  The third reason is delayed for applying the protection visa.  I was student till March 2012, and I already had the visa to stay here in Australia till that time, and later I applied for skilled migrant because I thought this is the easy way to stay here and escape and be safe from the mukhiya and criminals of my home country.  And later in July 2013, I applied protection visa.  It’s just like going to a place, and you have an option of cycling and driving, and I opt for driving. 

   4.  Publicly coming on photographs and websites of Indian Development Foundation of my father photos and his work, but my father comes in website after he finishes his work, and he goes to the different place from where the mukhiya lives.  That’s why my father is successful in escaping.

2. It is the Minister’s contention that the Tribunal decision is not affected by jurisdictional error and that the Applicant has not raised an arguable case to show that there was a jurisdictional error.  Indeed, it would appear that the grounds argued by the Applicant relate specifically to what is called merits review, which is a cavilling at the factual findings made by the Tribunal.  It is submitted on behalf of the Minister that the Tribunal’s findings about the applicant’s lack of knowledge about the mukhiyas’ relationship with political parties, his lack of awareness of when the 2011 elections were held and his father’s continuing public profile on behalf of the Indian Development Foundation were inconsistent with the applicant’s father and family being at risk from the mukhiyas.  These findings, it is submitted, were findings of fact open to the Tribunal on the material. 

3. As to the Tribunal finding that the Applicant’s delay of more than two years since 2011 elections in seeking a protection visa undermined the credibility of both his sets of claims, this was a rational consideration open on the materials, and the Minister refers to the decision of Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per the Honourable Heerey J at 349.

4. Further, it is submitted on behalf of the Minister that the applicant’s claims were rejected by the Tribunal on credibility grounds, and such credibility findings against the applicant were a function of the decision‑maker par excellence.  The Minister refers to the decision of the Honourable McHugh J in the High Court of Australia in Re Minister for Immigration and Multicultural Affairs;  ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407;74 58 ALD 609; 74 ALJR 405 per McHugh J at [67].

5. The Minister also submits that the Applicant was provided with an opportunity to give evidence and present arguments, and the Tribunal made findings that were based on the materials that were presented, and those findings were neither irrational nor unreasonable.  The submission is that the Applicant has not identified a jurisdictional error, and the Minister also contends that there was no jurisdictional error.

Conclusions

1. I have considered the application and the grounds set out in the application.  They do not allege any error of law constituting a jurisdictional error that would vitiate the Tribunal decision.  They are, indeed, claims relating to the Tribunal’s factual findings about the Applicant’s case.  The Applicant’s affidavit, which is relatively brief, complains that the Tribunal decision‑maker was just making excuses for not granting him a protection visa, referring again to the finding about the date of the 2011 election and the publicity concerning his father’s photograph on the website of the non‑government organisation that his father is a member of.  These are factual contentions, not contentions of law, and do not allege judicial review

2. The application does not, I reiterate, make any arguable case of a jurisdictional error on the part of the Tribunal.  In the absence of a claim of jurisdictional error, it cannot be said that the Applicant has an arguable case or that the Applicant has shown an arguable case in his application.  Consequently, it must be said that the Applicant has not raised an arguable case for the relief that he has claimed.  The appropriate order to be made is to dismiss the application, which I am obliged to do.

Costs

1. The Applicant has been wholly unsuccessful in his claim.  Costs follow the event.  It is appropriate to make an order for costs.  The amount sought, $3416.00, is the amount provided in these circumstances by the Court’s scale.  I will take into account the Applicant’s finances or the fact that he has no independent income but is provided for by his parents.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:  E Webb

Date:  28 May 2015