MZAHA v Minister for Immigration

[2015] FCCA 739

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 739

Catchwords:
MIGRATION – Application for review of a decision of the Refugee Review Tribunal – Refugee Review Tribunal in one paragraph refers to the Applicant’s country of origin as Sri Lanka rather than India – apparent that reference is a typographical error – Applicant’s claim assessed by reference to India – no jurisdictional error on part of the Refugee Review Tribunal – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), s.460(2)(a)

SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81

Applicant: MZAHA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1283 of 2014

Judgment of: Judge Whelan

Hearing date: 17 March 2015

Date of Last Submission: 17 March 2015

Delivered at: Melbourne

Delivered on: 17 March 2015

REPRESENTATION

Counsel for the Applicant: Applicant appeared in person

Counsel for the First Respondent: Mr Hibbard

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Application filed 27 June 2014 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1283 of 2014

MZAHA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application[1] for judicial review of a decision by the

   
   

   Refugee Review Tribunal (“the Tribunal”) dated 23 May 2014.[2] In that decision, the Tribunal affirmed a decision of the Minister by his delegate not to grant the Applicant a Protection (Class XA) visa.[3] 

   [1] Application filed 27 June 2014.

   [2] Court Book filed 26 September 2014, at pp.236-246.

   [3] Ibid at pp.74-84.

Background

1. The Applicant is an Indian citizen. He arrived in Australia in 2008 as the holder of a student visa. The Applicant travelled to India between 13 January 2010 and 15 February 2010. On 9 June 2010, the Applicant submitted an application for a further student visa. That application was refused on 9 July 2010. On 9 October 2012, the Migration Review Tribunal affirmed the refusal of that visa application.[4]

   [4] First Respondent’s Written Submissions filed 20 February 2015, p.2 at para.2.2.

2. On 19 April 2013, the Applicant applied for a protection visa.

   
   

   That application was later deemed invalid, and he applied for the

   
   

   visa which is the subject of the decision in this case on 11 July 2013.[5] On 31 December 2013, the delegate of the Minister refused to grant the visa and, on 28 January 2014, the Applicant applied to the Tribunal for a review of that decision.[6]

   [5] Court Book filed 26 September 2014, at pp.1-26.

   [6] Ibid, at pp.87-106.

3. The Tribunal invited the Applicant to attend a hearing which he did on 12 May 2014. On 2 May 2014, he also provided the Tribunal with written submissions together with evidence in support of his application.[7] At the hearing, the Applicant provided further information to the Tribunal[8] and, on 23 May 2014, the Tribunal affirmed the delegate’s decision. On 27 June 2014, the Applicant then lodged this application.

   [7] Ibid, at pp.166-185.

   [8] Ibid, at pp.191-233.

The Tribunal’s decision

1. In its decision, the Tribunal:

   ·Set out the Applicant’s claims;

   ·Referred to the evidence regarding the Applicant’s psychological state and found that the psychological report provided by the Applicant did not “alleviate or overcome the credibility findings … which derive from the applicant’s overall evidence to the Department and Tribunal”;

   ·Considered the Applicant’s claims regarding his haircut and its consequences;

   ·Found that it had “profound doubts about the authenticity and plausibility of each piece of material evidence presented by the applicant …”;

   ·Rejected the evidence provided by the Applicant in relation to his claims that his family and local Sikh community wished to disown or disinherit him; and

   ·Did not accept that the Applicant faced any real chance of serious harm if he were to return to his local area in India.[9]

   [9] First Respondent’s Written Submissions filed 20 February 2015, pp.3-4 at para.2.10(a)-(c).

2. The Tribunal therefore concluded there was not a real chance of the Applicant being harmed by reasons of his religion, haircut, lifestyle choice or time overseas if he returned to India, and also found that Australia did not owe him any complementary protection obligations.[10]

   [10] Ibid, at para.2.10(d)-(e).

Grounds of review

1. The ground of review set out in the application deal with the fact that, at page 9, paragraph 34 of the decision of the Tribunal,[11] the Tribunal refers to the Applicant as being from Sri Lanka. The Applicant says that:

   ·He is from India;

   ·He “should have been assessed under the criterion of an Indian citizen”; and

   ·The Tribunal had therefore made a jurisdictional error.[12] 

   [11] Court Book filed 26 September 2014, at p.244.

   [12] Application filed 27 June 2014, at p.4.

2. The Applicant repeated this in his oral submissions today and stated further that, given the seriousness of the consequences of a decision by the Tribunal, the Tribunal’s error should not be dismissed as merely a typographical one.

The First Respondent’s submissions

1. The First Respondent submits that the ground of review as set out in the application is confined to the Applicant’s submission with respect to the reference at page 9 of the Tribunal’s decision to the Applicant’s fear of persecution in Sri Lanka. The First Respondent submits that the reference to Sri Lanka, rather than India, was merely a typographical error and that, on reading the Tribunal’s decision, it is consistent with the Applicant’s claims being assessed by reference to India. The Tribunal gave consideration to the Applicant returning to India and the nature of the Sikh community in India and there is nothing in the Tribunal’s reasons that suggest that it considered the Applicant’s claims in relation to Sri Lanka other than the typographical error.[13]

   [13] First Respondent’s Written Submissions filed 20 February 2015, pp.6-7 at para.4.2.

2. The First Respondent submits that the Tribunal is obliged to complete the statutory task in a manner that is “fair, just, economical, informal and quick as practicable”[14] and that, in that context, it is unsurprising that minor typographical errors are occasionally made.[15] The

   
   

   First Respondent referred the Court to similar errors as the one in this case occurring in a number of cases before this Court and, in each of those cases, the Court found that the errors were merely typographical and did not go to jurisdiction.[16]

   [14] Migration Act 1958 (Cth), s.460(2)(a).

   [15] First Respondent’s Written Submissions filed 20 February 2015, p.7 at para.4.3.

   [16] Ibid.

3. From a review of those authorities, in finding that an error of this sort was not jurisdictional, the First Respondent refers to three matters:

   ·First, the Tribunal consistently referred to the correct country throughout the reasons as its reference to the applicant’s claims and there being nothing to suggest that the relevant material was overlooked;

   ·Second, the reference is in an introduction or conclusion or another template-type section of the reasons; and

   ·Third, the reference is merely to the applicant’s country of origin, could have been substituted with a generic description and did not relate to any specific claims.[17]

   [17] Ibid, pp.7-8, at para.4.3(a)-(c).

4. The First Respondent submits that each of those descriptions apply in the current case.

5. The First Respondent took the Court to two decisions, SZRBA
   v Minister for Immigration and Border Protection [2014] FCAFC 81 (“SZRBA”) and SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 (“SZIFI”), and to the reasons why the First Respondent submits that those decisions can be distinguished.

6. In SZRBA, the Full Court was concerned with a decision of an Independent Merits Reviewer (“IMR”). In his decision, the IMR had dealt with the appellant’s submissions “by cutting and pasting his own decisions on earlier, but similar claims”.[18] In doing so, the IMR had overlooked a substantial submission made by the appellant. This,

   
   

   the Full Court found, caused a denial of procedural fairness.

   
   

   By contrast, in this matter the First Respondent submits that the Tribunal did not overlook any submissions or evidence provided by the Applicant.[19]

   [18] [2014] FCAFC 81, p.6 at para.21.

   [19] First Respondent’s Written Submissions filed 20 February 2015, p.8 at para.4.6.

7. In SZIFI, the appellant’s country of origin was Pakistan. The Tribunal had commenced its reasons by finding that the appellant was a national of Indonesia, which was incorrect, and concluded that the appellant would not face a real chance of persecution should he “return to the PRC…”.[20] In SZIFI, Greenwood J concluded that these errors, taken together, suggested that the Tribunal “may have had in mind facts, circumstances and considerations referable to other cases”[21] which were “neither merely typographical errors nor errors of fact at the margin of the Tribunal’s review”.[22] This caused the Tribunal to ask the wrong question and accordingly led to jurisdictional error.[23] 

   [20] [2007] FCA 63, p.5 at para.15.

   [21] Ibid, p.11 at para.33.

   [22] Ibid, p.16 at para.45.

   [23] First Respondent’s Written Submissions filed 20 February 2015, p.8 at para.4.7.

8. In the present case, by contrast, the First Respondent submits the erroneous country reference is confined to one paragraph.

   
   

   The Applicant’s claims were considered solely by reference to India, and there was nothing to suggest that the Tribunal “may have had in mind facts, circumstances and considerations referable to other cases”.[24] The First Respondent therefore submits that the case of SZIFI is also distinguishable.[25]

   [24] [2007] FCA 63, p.11 at para.33.

   [25] First Respondent’s Written Submissions filed 20 February 2015, p.8 at para.4.8.

9. The First Respondent went on further to say that the Tribunal complied with the rules of procedural fairness with respect to the application before it and properly considered the Applicant’s claims. The Tribunal addressed those claims and rejected them. The Tribunal’s decision was based on its assessment of the Applicant’s credit and the Tribunal was not required to accept critically any, or all, of the claims made by the Applicant and nor was it obliged to give a sub-set of reasons why it accepted or rejected individual pieces of evidence. Nonetheless, it gave detailed reasons for reaching its conclusions, and the First Respondent therefore submits that the Tribunal discharged its duty and no error arose.[26]

   [26] First Respondent’s Written Submissions filed 20 February 2015, p.11 at paras.4.14-4.18.

Conclusions

1. The Applicant has raised a single ground for judicial review, being that the Tribunal made a jurisdictional error in assessing his claims because it referred to him as being a citizen of Sri Lanka rather than a citizen of India at paragraph 34 of its decision.[27] The Tribunal, under the heading ‘Background and Claims’ clearly refers to the Applicant’s claims as relating to India and states, in paragraph 5 of its decision,[28] that he identified his place of birth and citizenship as Indian.

   [27] Court Book filed 26 September 2014, at p.244.

   [28] Ibid, at p.237.

2. At paragraph 8 of its decision,[29] the Tribunal identifies the core issue as being whether the Applicant is owed protection from harm in India.

   
   

   At paragraph 10 of its decision,[30] the Tribunal expressly states that it accepts the Applicant’s nationality as being as stated – that is Indian – and that it assessed his claims by reference to India. The decision goes on to refer to the evidence produced by the Applicant concerning his claims to have genuine fears for future harm in India at paragraph 23 of the decision[31] and to consider the Applicant’s risk of harm in

   
   

   Madhya Pradesh as a Sikh.

   [29] Ibid, at p.238.

   [30] Ibid.

   [31] Ibid at p.242.

3. The only mention of Sri Lanka occurs at paragraph 34[32] of the decision. The conclusions reached by the Tribunal at paragraph 36[33] of its decision clearly indicate that the assessment for the purposes of the complementary protections criteria were considered in a context of a return to India. I accept the submissions by the First Respondent that the reference to Sri Lanka in paragraph 34[34] of the decision is a typographical error. Contrary to the Applicant’s assertion, it is clear from the decision, read as a whole, that his claims were assessed by the Tribunal by reference to his country of origin being India and not

   
   

   Sri Lanka.

   [32] Ibid, at p.244.

   [33] Ibid, at p.245.

   [34] Court Book filed 26 September 2014, at p.244.

4. The First Respondent has identified relevant cases dealing with such errors. I accept that this case falls in the category of those where the error is inadvertent and does not disclose any error of jurisdiction on the part of the Tribunal, rather than one where the deliberations and/or decision of the Tribunal would give rise to a conclusion that the Tribunal failed to deal with the Applicant’s claims, overlooked any submissions or evidence he produced or “may have had in mind facts, circumstances and considerations referable to other cases”[35] than the one before the Tribunal. 

   [35] [2007] FCA 63, p.11 at para.33.

5. For these reasons, I am not satisfied that there is any error on the part of the Tribunal and the application must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 31 March 2015