MZAIV v Minister for Immigration

[2015] FCCA 2782

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2782

Catchwords:
MIGRATION – Judicial review – jurisdictional errors established – denial of procedural fairness.

Legislation:

Migration Act 1958 (Cth), ss.36(4), 477(1)

SZTFI v Minister for Immigration and Border Protection [2015] FCA 322
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
SZSWB v Minister for Immigration and Border Protection [2015] FCCA 765
FTZK v Minister for Immigration and Citizenship (2014) 310 ALR
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152

Applicant: MZAIV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1499 of 2014

Judgment of: Judge Harland

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Melbourne

Delivered on: 13 October 2015

REPRESENTATION

Counsel for the Applicant: Mr Forsaith

Solicitor for the Applicant: Astral Legal

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. A writ in the nature of certiorari be issued to quash the decision of the Second Respondent made on 21 March 2014.

2. A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.

3. That the First Respondent pay the applicant’s costs fixed in the sum of $6,825.

4. The name of the second respondent be amended to Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1499 of 2014

MZAIV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for judicial review on 24 July 2014. The applicant filed the application three months outside of the timeframe of 35 days set out in s.477(1) of the Migration Act 1958 (Cth). The applicant was granted the extension of time by consent on 8 May 2015.

2. The applicant filed an amended application on 30 April 2015 setting out the grounds as follows:

   1.   The Tribunal, in finding that s 36(2B)(a) of the Act applied to the applicant, erred by:

   (a)Imposing a requirement as to how the applicant must behave in order to avoid significant harm, which infringed (alternatively, which the Tribunal did not consider against) the principle in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; and/or

   (b)   Failing to consider or make a finding about how the applicant would in fact behave if he was removed to India or, alternatively, the reasons for this.

   2. The Tribunal, in finding that s 36(2B)(a) of the Act applied to the applicant, erred in assessing the reasonableness of relocation without reference to the attendant requirement that the applicant behave in such a way as to avoid significant harm.

   3.    The Tribunal, in determining that s 36(3) of the Act applied to the applicant, erred by failing to consider the reasonableness, in all the circumstances of relocation to Nepal.

   4. The Tribunal, in determining that s 36(4) of the Act was not enlivened, erred by:

   (a) imposing a requirement as to how the applicant must behave in order to avoid significant harm, which infringed (alternatively, which the Tribunal did not consider against) the principle in S395: and/or

   (b) failing to consider or make a finding about how the applicant would in fact behave if he was removed to Nepal or, alternatively, the reason(s) for this.

   5. The Tribunal, in determining that s 36(4) of the Act was not enlivened, erred by:

   (a) basing its decision solely on country information;

   (b) ignoring evidence (about the actions and motivations of the Punjabi police) which the Tribunal was obliged, in light of the relevance of the evidence and the circumstances of the case, to consider;

   (c) failing to have regard to the applicant’s individual circumstances; and/or

   (d) failing to give proper, genuine and realistic consideration to the applicant’s claim that the Punjabi police could harm him in Nepal.

   6. The Tribunal, in determining that s 36(4) of the Act was not enlivened, erred by basing its decision on material (namely, the county information referred to at [69] and [70] of the Decision Record) that, absent another factual finding (that there were Indians residing in Nepal having fled conflicts originating in India), was not probative.

   7. The Tribunal, breached s 425 of the Act by not inviting the Applicant to a hearing in relation to the issue (which was dispositive) of whether any Indian citizens living in Nepal have been targeted or harmed as a result of conflicts originating in India; alternatively, by acting unreasonably in relation to the hearing in respect of, and subsequent determination of, this issue, or the broader issue of whether s 36(4) applied to the applicant.

3. The applicant did not press grounds 3 and 4(a) at the hearing.

4. The applicant is an Indian citizen. The Delegate refused the applicant’s visa application on 28 September 2012. The applicant applied to review that decision. The applicant appeared before the Tribunal and gave evidence in support of his claims on 20 March 2013 and 11 March 2014. The Tribunal decision notes that he did not have the assistance of the migration agent and did not need an interpreter.

5. The applicant arrived in Australia on 27 June 2008 as a holder of a student visa. That visa expired on 30 October 2011. The applicant lodged an application for a protection visa on 31 July 2012. The applicant returned to India for a period of 32 days and last entered Australia on 21 February 2009.

6. The applicant says on 6 September 1988 his father and maternal uncle were abducted and remain missing. He and his mother went to the police station in July 2006 to enquire about them and were badly treated by the police. The police raided their home two days later. Two days after that the applicant was kidnapped by police and threatened and tortured. The veins on his feet were cut and he was hospitalised for three days and took six months to recover.

7. The Delegate did not find the applicant’s claims to be credible, particularly given that he waited for four years to apply for the protection visa after he arrived in Australia and returned to India after arriving in Australia in early 2009. The applicant provided various documents in support of his claim to the Tribunal.

8. The Tribunal identified four matters as being an issue at paragraph 29 of its decision and then considered those matters. After the first hearing, a further issue was raised, which lead to a further hearing, and that is whether or not the applicant will be entitled to enter and live in Nepal.

9. The applicant claims he is at risk of harm if he returns to India not because of his Sikh religion, but because he and his family have asked authorities for answers about the disappearance of his father and maternal uncle. He believes their disappearance was motivated by religious reasons. As a result of making those enquiries, he and his family have been targeted by Punjab police. The Tribunal found that if there was a Convention reason at all, it would have been more in the nature of a political dispute rather than religious. The Tribunal went on to express real doubts that he was of interest to local police because if he was he would not have been issued with a passport and would have been unable to travel in and out of India freely as he has done.

10. The Tribunal noted that country information indicates that police corruption is a serious problem in India. It found that the motivation for harm was a personal one, being corrupt police not wanting the applicant’s attempt to challenge them to come to anyone’s attention. On that basis, the Tribunal found that the applicant did not fear significant harm for a convention reason.

11. The applicant conceded that he had not experienced difficulties prior to 2006 and had not experienced further difficulties after 2006. The Tribunal noted various problems with the documents the applicant had supplied including a document which claimed that the applicant had joined a political party two years before he was born. The Tribunal accepted that his father and uncle disappeared after being taken into custody in 1988 and accepted that the applicant was detained and seriously physically assaulted in 2006 but does not accept that he is at further risk of mistreatment from the police and found that the police treated him that way in 2006 to punish him for pursuing the issues with his missing family members and to deter him from making further enquiries about it.

12. The grounds can be grouped together into two categories of complaints. The first concerns the Tribunal’s findings about the applicant’s ability to relocate within India.

13. The second category deals with the Tribunal’s treatment of the applicant’s right to live in Nepal.

Relocation within India

1. Both counsel made detailed written and oral submissions and took the Court to several authorities. The Court has considered these. It is not necessary to refer to all the arguments and authorities. The applicant relied on a decision of Justice Perry in SZTFI v Minister for Immigration and Border Protection [2015] FCA 322. He discusses the High Court decision of S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 and identifies three propositions from that decision being:

   1)The Tribunal will fall into error if it fails to assess what an applicant will do as opposed to what an applicant should do in order to avoid persecution;

   2)If the Tribunal finds that person will act in a particular way to reduce the risk of persecution the Tribunal must consider whether that person will act in that way and whether that is influenced by the threat of harm;

   3)The Tribunal also falls into error if it finds that a person will act in a particular manner to reduce the risk of persecution and does not go on to consider that whether or not the person nevertheless had a well-founded fear of persecution because there is still a risk of that person being persecuted.

2. The Tribunal accepted the applicant’s claim that the police continued to harass his mother and ask about him. It was satisfied that he would be at real risk of suffering significant harm if he returned to his ancestral village.

3. At paragraph 59 of its decision, the Tribunal stated that it did not accept that the local police would be interested in the applicant “as long as he didn’t seek to stir up trouble locally.” Even though the applicant says the police came to his house again asking after him after 2006, he had no further problems before he left for Australia 18 months later.

4. The Tribunal found that the applicant could relocate within India and Melbourne and although he would have to start again, given his youth, education and English language skills it would be reasonably practical for him to locate outside Punjab.

5. The applicant is critical of the Tribunal’s comments suggesting that the applicant desist from asking questions about what happened to his father and uncle. This falls into the first category of error identified by Justice Perry identified in the decision above.

6. The applicant points to several portions of the transcript of the hearing to support his complaints. I have read the whole of the transcript. The first comment in the transcript which the applicant complains about appears at the bottom of page 7 and the top of page 8 where the Tribunal member says “it’s not clear to me that you could not reasonably be expected to relocate and avoid this particular harm by doing that.” The Tribunal member said this in the course of explaining the matters he had to consider. It was the introductory part of the hearing. In my view this sentence is a neutral one simply identifying the issue about whether or not the threat to the applicant was a localised one.

7. The second comment by the Tribunal member appears on page 13 of the transcript where he says: “Now, maybe that’s not fair, but what’s – why is it – why can’t you just go back and keep your mouth shut and stop pushing the issue? Because that’s clearly what’s gonna upset them, if you or your family keep pushing them for resolution.” On page 14 the Tribunal member again says that it is not clear to him as to why the applicant would be at risk if he stopped pushing the issue. Then later on that page he again asks why the police can’t be taken at their word that they will not do anything to him if he stops complaining. There is another reference on page 16 which was not pointed out. Again, the Tribunal member says it appears to be only the local police harassing the applicant because he kept raising the issue of the father’s disappearance and goes on to say the sensible thing would be to shut his mouth even though that is not fair.

8. It is clear that these comments fall in the category of error in the first proposition summarised by Justice Perry referred to above. The Tribunal member clearly fell into error by continuously telling the applicant that if he did not raise the issue he would not be at any risk. That is not the consideration the Tribunal is required to make. The Tribunal member did not turn his mind to what the applicant would do in the future and the resulting risk of persecution to the applicant. It is clear from page 18 of the transcript the what the applicant was saying was that he was at risk of persecution because now he is the adult son of his father and is getting to a similar age to when his father disappeared. Again, although it was not pointed out, at the bottom of page 19 of the transcript, the Tribunal member again refers to the applicant not pushing the issue of his father’s disappearance.

9. On page 21 of the transcript, the applicant said that it was not a local problem because when he was kidnapped he was not in Punjab but was near Delhi.

10. On page 23 of the transcript, the applicant talks about wanting justice for his father. The Tribunal member told the applicant that that was a mistake. The Tribunal asks at page 24 why members of his family kept pushing the issues and creating more problems for the applicant.  The transcript only underscores the error that is apparent from the decision itself. It is exactly the error the High Court identified in is S395.

11. The case of S395 was decided before the complimentary protection criteria provisions were introduced. Counsel for the applicant identified the fact that there is some uncertainty as to whether the principles referred to in S395 apply in the complementary protection context as well as the Convention context. There was no Federal Court authority on point. In SZSWB v Minister for Immigration and Border Protection [2015] FCCA 765 Judge Driver discusses this issue and said that there was no logical reason as to why the same principle should not apply to Convention supporting the complimentary protection and which apply to the refugee Conventions. I agree.

12. Counsel for the Minster submits that the applicant did not claim that he was still pursuing his father’s disappearance. That submission cannot succeed when one considers that the claim does not need to be made expressly and indeed the Tribunal member was so focussed on this issue that it can be inferred that that Tribunal member considered it to be part of the applicant’s claim.

Nepal

1. The Tribunal conducted a further hearing on 11 March 2014 to enable the applicant to give any updated information and more so to put to him the issue of his right to enter and live in Nepal pursuant to the 1952 Treaty of Peace and Friendship between India and Nepal. The Tribunal referred to country information indicating that Indian citizens can move easily between India and Nepal. The applicant was not able to indicate any risk to him if he was in Nepal but stated that he does not know anyone there and then said it would not be hard for someone to travel from India to Nepal to find him.

2. The applicant submits that the Tribunal committed a jurisdictional error when it found s.36(4) of the Migration Act1958 did not apply. The applicant says that the error arises because the Tribunal relied on the county information which did not indicate Indian asylum seekers taking up residence in Nepal have not faced harm there in the absence of making a finding that there have been Indians who have taken up residence in Nepal to avoid persecution. He submits that this is analogous to the error that the Administrative Appeals Tribunal made in FTZK v Minister for Immigration and Citizenship (2014) 310 ALR. There is considerable force in this submission.

3. The finding in paragraph 70 of the Tribunal’s decision cannot stand without a finding that there are Indian asylum seekers who have relocated to Nepal. Without this finding, the finding that there is no evidence that Indian asylum seekers have being targeted as a result of conflicts in India cannot stand. Without the first finding, the second finding is without foundation. The absence of that evidence could be because no one in Nepal falls into that category. This is an omission of a material fact. I do not accept the Minister’s submissions that there was probative material or a logical basis for the factual finding by the Tribunal. There is an essential link missing.

4. The applicant’s final complaint concerns the conduct of the second hearing. The applicant’s counsel extracts a quote from the High Court decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 which I include here:

   “Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa.  The statutory language arising in relation to the decision under review is more particular.  The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise[1] all the powers and discretions conferred by the Act on the original decision‑maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision‑maker will have given reasons.

   The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.  But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review".  That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision.  And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant”

   [1]     s 415.

5. The second hearing took place months after the first. The hearing invitation appearing at Court Book 105 and 106 is a generic invitation which gives no indication as to the reason for the second hearing. In circumstances where the Tribunal member conducted a second hearing because of a new issue identified by the Tribunal member, not the applicant, the Tribunal did not accord the applicant procedural fairness because it failed to give the applicant advance notice of what the new issue was. This situation is quite different to the usual circumstances where the generic notice is sufficient. I accept the Minister’s submission that the applicant did not ask for an adjournment and has not indicated what further evidence he would have put before the Tribunal but that does not cure the denial of procedural fairness. The applicant was taken completely by surprise by this new issue and had no opportunity to consider it in advance. He did not have the benefit of a migration agent at the hearing. Having found the Tribunal denied the applicant procedural fairness, it is not necessary to consider the other arguments pursued under this ground.

1. Ground 7 succeeds. As the applicant has been successful in both separate categories of claim, the matter will be remitted for rehearing. I will order the first respondent to pay the applicant’s costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 13 October 2015