MZADY v Minister for Immigration

[2015] FCCA 1490

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1490

Catchwords:
MIGRATION – Judicial review – claimed harm not for a convention reason – claimed that unable to work because of harsh weather in Canada – whether significant harm – whether face harm as African immigrant or Muslim in Canada – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.15.03

Migration Act 1958 (Cth), ss.36, 65, 91R

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: MZADY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 887 of 2014

Judgment of: Judge F. Turner

Hearing date: 13 May 2015

Date of Last Submission: 13 May 2015

Delivered at: Melbourne

Delivered on: 13 May 2015

REPRESENTATION

The Applicant appeared In Person

Solicitors for the Respondents: Ms Lucas of Australian Government Solicitor

ORDERS

1. The application filed 13 May 2014 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $2,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 887 of 2014

MZADY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 30 April 2014. That decision affirmed the decision of the delegate to the Minister not to grant the applicant a Protection (Class XA) visa. The applicant is a citizen of Canada. At Court Book (“CB”) p.65 there is a reference to the applicant being a National of Canada, but in other places in the CB it is found the applicant is a citizen of Canada.

2. The applicant claims that there are no job opportunities in Canada (CB p.19). There is a statement in para.44 on that page “not having job oppurtunities is a harm to myself as I need job freedom…”. He states that “no one would harm me” if he returns to Canada (CB p.20 [46]). The delegate found “that the applicant did not raise any claims related to the [Refugee] Convention nor did his claims indicate that he fears significant harm” (CB p.63 [9]).

3. The applicant works as a self-employed carpenter in Australia. He appeared before the Tribunal on 29 April 2014 to give evidence and present arguments. Today, the applicant submits that the Tribunal did not hear him, but after being questioned by the Court, it appears he means that the Tribunal did not accept his claims. In his hearing before the Tribunal, the applicant stated “that he faced harm [in Canada] because he is Muslim, Black and has an accent” (CB p.63 [15]). The applicant was asked by the Tribunal if he is claiming persecution. He said he did “not want to use big words like persecution. He stated that he was talking about harassment” (CB p.63 [16]). 

4. The Tribunal explained to the applicant that to be a refugee “one must face persecution which involves serious harm”, and that included “significant economic hardship, denial or capacity to earn a livelihood of any kind and denial of access to basic services…” (CB p.64 [17]). “Serious harm” is defined in s.91R of the Migration Act 1958 (the “Act”).

5. The Tribunal told the applicant the country information “does not indicate that Africans or Muslims face serious or significant harm… in Canada” (CB p.65 [28]). “Significant harm” is defined in s.36(2A) of the Act.

6. The issue before the Tribunal was whether the applicant faced a real chance of serious harm as defined in s.91R or a risk of significant harm as defined in s.36(2A) if he returns to Canada (CB p.65 [30]).

7. The applicant claimed harassment and discrimination as a result of being “an African migrant and a Muslim in Canada” (CB p.66 [33]) and “his inability to work due to harsh weather conditions” in Canada in winter. The Tribunal found that the “applicant’s claims of widespread discrimination and harassment are exaggerated” (CB p.66 [34]).

8. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 the Full Court stated at [11]:

   “By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”

9. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

   “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

10. The Court finds that the Tribunal was entitled to make a finding of fact that the applicant’s claims are exaggerated. Such finding is not amenable to judicial review. The court refers again to the decision in NAHI (supra).

11. The Tribunal accepted that the applicant had been questioned by the police, and questioned by the Canadian immigration officials about his travels abroad (CB p.66 [35]). The Tribunal did not accept that the incidents referred to constitute serious harm within s.91R(2) or significant harm within section 36(2A) (Ibid). That is also a finding of fact that is not amenable to judicial review: NAHI (supra).

12. The Tribunal found “the country information… does not indicate that religious or ethnic minorities face discrimination or harassment that would constitute either serious harm or significant harm from either the Canadian authorities or from society at large” (CB p.66 [36]). Those findings of fact are not amenable to judicial review: NAHI (supra).

13. The Tribunal did not accept that any problems the applicant faced in obtaining work were as a result of his religion or race (CB p.67 [38]). As referred to, the Tribunal is entitled to accept or reject evidence proffered as it finds appropriate in the circumstances: see Lee (supra).

14. The applicant gave evidence to the Tribunal that he had been “able to be employed as a carpenter in Canada and that he was able to rent a house” and that also he lived with friends. The Tribunal made a finding of fact in para.38 of the decision that the evidence did “not indicate that the applicant was denied the capacity to earn a livelihood or suffered significant economic hardship that threatened his capacity to subsist” (CB p.67 [38]). Those findings of fact are not amenable to judicial review. Threatening a person’s capacity to subsist is one of the instances of serious harm within section 91R(2)(f) of the Act. That subsection provides:

    denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

15. The Tribunal made a finding of fact “that the applicant has not faced any serious or significant harm in the past as a result of his race, religion, as a migrant or for any other Convention ground” (CB p.67 [39]). Those findings of fact are not amenable to judicial review. The Tribunal did “not accept that there is a real chance that the applicant will face serious harm on the basis of religion, race or any other Convention ground if he returned to Canada in the future” (Ibid). That finding of fact is not amenable to judicial review: see NAHI (supra). 

16. The Tribunal is entitled to accept or reject evidence as it thinks appropriate: see Lee (supra). The Tribunal did not accept that any restriction on work due to weather conditions constitutes significant harm (CB p.67 [40]). That finding is also not amenable to judicial review: see NAHI (supra).

17. The Tribunal was not satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugee Convention, and that he does not meet the criteria in s.36(2A) of the Act, nor in s.36(2)(aa) of the Act (CB p.67 [42] and [43]. Once the Minister is not satisfied that the criteria for a visa has been satisfied, s.65 of the Act requires that the Minister refuse to grant a visa. That is what has happened here.

18. The applicant’s grounds for a judicial review are set out in his application filed on 13 May 2014 as follows:

    (1)The tribunal commited jurisdictional error in it construction and application of subclause by wrongly holding the tribunal was to disregard any matter raised by the applicant during the hearing and written submission indicated that the applicant face serious harassment in Canada and should be provide with opportunity to exercise his right in Australia. The tribunal failed to considered s.36(2)(a) and s.36(2)(aa) as the applicant meet the criteria to be granted protection in Australia as a refugee.

    (2)The applicant seek the court to quashed the Refugee Review Tribunal and the Department of Immigration and Citizenship decision because the Tribunal made a jurisdictional error as the matter raised with the tribunal both written submission and oral evidence therefore the tribunal decision should be quashed by the court as matter of fact the grounds covered more importants points on the matter raised with the tribunal was not carefully considered by the tribunal.

    The applicant fear of returning to his country Canada as he fear of harassment from the authority of country and will not protect him from harassment if he return and the applicant have no close family members and relative to protect him if he returns to Canada

    There was no evidence to justify the tribunal decision to affirmed the department decision if not jurisdictional error and improperly exercised power because the decision unreasonable, no reasonably person could have exercised such power

19. The applicant seeks to support those grounds in paragraphs 1 to 3 of his Affidavit filed on 13 May 2014 as follow:

    (1)Order that the tribunal decision made on 30 April 2014 be set aside and the matter should be remitted to the Refugee Review Tribunal for determination through Department of Immigration and Border Protection, that I meet the criteria for a protection visa as set out in s.36 of the Act and Schedule 2 of the Migration Regulation 1994 (the Regulations) and I am a person whom Australia has protection obligation under the ‘refugee’ criterion because of fear of harassment from the authority of my country and have provided such claims and reasons on my application to the department and the tribunal the court should over rule the department decision and the tribunal decision because of my protection claims is real and the authority of my country will not protect me from harassment.

    (2)The first and second respondent failed to considered and accept the applicant fear of harassment and compelling situation as the applicany demonstrated to the tribunal and the department through written submissions and oral evidence presented to the tribunal as at the time of hearing.

    (3)The tribunal decision should be quash by the court because the tribunal made jurisdictional error on the applicant matter. I have enclosed the Tribunal decision records with application as the information on the decision is baseless and lack substance the tribunal member made improperly considered claims as provided both written submission and oral. The court should remit the matter to the tribunal for consideration because the applicant will not gain freedom if he return to Canada

20. In that Affidavit, the applicant asserts that he meets the criteria for protection. However, the Tribunal has found that he does not. The Court cannot review the merits of that finding. 

21. The applicant complained that the Tribunal failed to accept the applicant's view of harassment. As referred to earlier, it is for the Tribunal to decide what evidence it accepts or rejects: Lee (supra).  Paragraph 3 of the affidavit seeks a review of the merits. That is not available on judicial review. 

22. By order of Registrar Allaway on 6 August 2014, the applicant was ordered to file and serve written submissions by 8 April 2015. The applicant has not done that. 

23. The Court invited the applicant today to put oral submissions to it in support of his application, specifically to establish that the Tribunal erred in law. Nothing of substance was put to the Court. The applicant stated that he has been in Australia two years, he had problems in Canada, he has been living here with friends and he wants to be allowed to stay here. 

24. He sought an extension or delay of this hearing so that he could obtain legal advice. However, the Court found that as Registrar Allaway set the matter down for hearing on 6 August 2014, the applicant has had more than sufficient time to obtain legal advice and dismissed his application for an adjournment.

25. The first respondent filed and served written Contentions of Fact and Law on 29 April 2014. The Court has considered those contentions. The Court obtained the consent of Ms Lucas on behalf of the first respondent for the Court to make a decision pursuant to r.15.03 of the Federal Circuit Court Rules 2001 without hearing oral submissions. 

26. The first respondent submits correctly that ground one of the application alleges that the Tribunal failed to assess the claims in accordance with ss.36(2A) and 36(2)(aa) of the Act. The Court finds no error of law has been established in the way the Tribunal assessed the claims under those subsections. The fact that they were assessed under those subsections is set out in paras.42 to 44 of the decision. Ground one is dismissed.

27. The first respondent submits correctly that ground two claims that the applicant fears that he will be harassed if he returns to Canada, and he has no close family members and relatives to protect him. Ground two claimed that the applicant's claims were not considered by the Tribunal. The Tribunal did not accept that there is a real chance that the applicant will face serious harm for a Convention reason if he returns to Canada (CB p.67 [39]).

28. Having not accepted that claim, the Tribunal was not required to consider whether the applicant had family members to protect him from such harm, because that harm is non-existent as found by the Tribunal. An error of law has not been established by the applicant.  Ground two is dismissed.

29. The application for judicial review in its entirety is dismissed. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 2 June 2015