MZAJQ v Minister for Immigration & Border Protection
[2015] FCCA 593
•6 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAJQ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 593 |
| Catchwords: MIGRATION – Application for review of a decision by the Refugee Review Tribunal – grounds do not establish any jurisdictional error on the part of the Refugee Review Tribunal – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth) |
| Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Spencer v The Commonwealth of Australia (2010) 241 CLR 118 SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 |
| Applicant: | MZAJQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1624 of 2014 |
| Judgment of: | Judge Whelan |
| Hearing date: | 6 March 2015 |
| Date of Last Submission: | 6 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appeared in person |
| Counsel for the First Respondent: | Ms Hillary |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the Application filed 8 August 2014 is dismissed.
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 1624 of 2014
| MZAJQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
Introduction
The application[1] before the Court is an application for judicial review of a decision[2] of the Refugee Review Tribunal (“the Tribunal”).
That decision was made on 8 July 2014 and it affirmed a decision by a delegate of the Minister not to grant the Applicant a Protection
(Class XA) visa.
[1] Application filed 8 August 2014.
[2] Court Book filed 6 October 2014, at pp.115-130.
Background
The Applicant is an Indian citizen and he applied for the protection visa on 20 August 2013.[3] That application was refused by a delegate of the Minister on 21 November 2013[4] and, on 23 December 2013,
the Applicant applied to the Tribunal for a review of that decision.[5]
[3] Ibid, at pp.1-45.
[4] Court Book filed 6 October 2014, at pp.54-66.
[5] Ibid, at pp.67-84.
The Applicant gave oral evidence before the Tribunal on 15 May 2014 and also provided a statement and supporting documents on
4 June 2014.[6] A further statement was provided on 26 June 2014.[7]
The Tribunal made its decision on 8 July 2014 and, on 8 August 2014, this application for judicial review was lodged.
[6] Ibid, at pp.96-106.
[7] Ibid, at pp.109-113.
The Applicant set out his claims in the material that was provided to the delegate of the Minister and in further material provided to the Tribunal.
On the basis of the material before it, the Tribunal accepted that there was a “real chance the applicant would experience serious harm as a result of the ongoing property dispute between his father and his father’s half-brothers”.[8] The Tribunal, however, “did not accept that the applicant’s uncle had political connections to the extent claimed by the applicant”.[9] The Tribunal found that the harm feared by the Applicant was localised to the Punjab.
[8] First Respondent’s outline of submissions filed 27 January 2015, p.3 at para.9.
[9] Ibid, p.4 at para.10.
The Tribunal found there was no real chance the Applicant would be seriously harmed if he moved elsewhere in India. The Tribunal referred to the Applicant’s personal circumstances, and found that relocation would be “reasonable, in the sense of practicable”.[10] For the same reasons, the Tribunal found that the Applicant was not a person covered by the complementary protection provisions.
[10] Ibid, at para.11.
The grounds of review
The grounds in the application are set out as follows:
1. I am not satisfy (sic) with MRT decision on my application.
2. Therefore, I want to appeal against the decision in federal court.
3. The tribunal refused my visa on the basis of lack of information. They did not considered (sic) my carrespondence (sic) views before reaching any decision and refused my visa on the behalf of information provided
4. I believe I do have more information and claims to prove my case and want to challenge my decision against the tribunal.[11]
[11] Application filed 8 August 2014, at p.3.
In oral submissions today, the Applicant challenged the Tribunal’s findings that he would be able to safely relocate within India. He also raised issues which post-dated the Tribunal’s decision. He further challenged the Tribunal’s finding with respect to the extent of his uncle’s connections and power.
The First Respondent’s submissions
In both written[12] and oral submissions, the First Respondent submits that grounds one and four of the Applicant’s grounds simply express disagreement with the decision of the Tribunal and the Court cannot engage in a review of the merits of the Applicant’s case.
[12] First Respondent’s outline of submissions filed 27 January 2015.
The second ground is “not a separate ground of review but a mere statement of the applicant’s intentions”[13] and, with respect to the third ground, the First Respondent submits that it was for the Applicant to present evidence and argument and that the Tribunal addressed all of the Applicant’s claims and the evidence and material before it and made findings in relation to those claims. The First Respondent submitted that the Tribunal had gone into detail with respect to the issue of relocation; it explained to the Applicant that it needed to consider whether he could reasonably relocate within India to avoid the harm he feared and considered the impact that relocation would have on the Applicant.
[13] Ibid, p.5 at para.16.
The First Respondent submits that the Tribunal’s reasons demonstrate that it considered the safety of relocation as well as the practicality of the Applicant relocating. There was therefore no error in how the Tribunal addressed that issue. With respect to matters arising after the Tribunal’s decision, the Court did not have the power to consider those matters as the Court was required to determine if the Tribunal had made an error and that was limited to the information before the Tribunal at the time it made its decision.
Conclusions
I take it, from the First Respondent’s submissions, that what is sought is that the Court, pursuant to r.44.12(1)(a) Federal Circuit Court Rules 2001 (Cth) (“the Rules”), dismiss the application on the basis that the application has failed to raise an arguable case for the relief claimed. The Applicant seeks an order that the decision of the Tribunal be quashed.[14]
[14] Application filed 8 August 2014, at p.3.
The power of the Court under r.44.12(1)(a) of the Rules is a form of summary dismissal.
As French CJ and Gummow J said in Spencer v The Commonwealth of Australia (2010) 241 CLR 118:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
More recently, in Batistatos v Roads and Traffıc Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in
Agar v Hyde which included the following:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way” (footnotes omitted).[15]
[15] (2010) 241 CLR 118, pp.131-132 at para.24.
In this matter, the Applicant’s grounds are framed in a narrative style. The first sentence simply expresses dissatisfaction with the Tribunal’s decision, and the second, the Applicant’s wish to appeal that decision. The third alleges that the Tribunal:
·Refused the visa on the basis of lack of information;
·Did not consider the Applicant’s views; and
·Refused the visa on behalf of the information provided.
The last ground suggests the Applicant is seeking leave to provide more information in support of his claims. An application for judicial review is confined to the material put before the Tribunal.[16]
Fresh evidence is not admissible unless it bears on some jurisdictional error; it is not open for an applicant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal.[17] The Court cannot, therefore,
admit more information in support of the Applicant’s claims.
[16] See SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145.
[17] See MZXHY v Minister for Immigration and Citizenship [2007] FCA 622, p.3 at para.8.
While the onus of proof is not a concept applicable in administrative decision-making, nevertheless, a decision-maker is not required to make the applicant’s case out for him or her.[18] It is up to the applicant to provide sufficient information to satisfy the Tribunal about his or her claims. In this case, the Tribunal substantially accepted the Applicant’s claims with respect to the risk he might face if he were to return to the Punjab. It concluded, however, that there was no real chance that the Applicant would be seriously harmed if he did not return to the Punjab, but instead moved elsewhere in India. On the material before the Tribunal, such a conclusion was open to it.
[18] See Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170.
The Applicant claims that the Tribunal failed to consider certain material. While a Tribunal may make a jurisdictional error by failing to deal with a claim, a failure to make a finding regarding a piece of evidence does not amount to jurisdictional error.[19] A Tribunal is not obliged to refer in its reasons to every item of evidence that was before it.[20]
[19] See VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104, p.6 at para.25.
[20] See Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at p.414.
I am not satisfied that the Tribunal made a jurisdictional error in this matter. I am, therefore, obliged to dismiss the application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 18 March 2015
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