MZAKX v Minister for Immigration

[2018] FCCA 765

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAKX  v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 765

Catchwords:
MIGRATION – Protection visa – applicant failed to appear on the hearing as listed – applicant duly served – proceeding dismissed after hearing on the merits.

Legislation:

Convention Relating to the Status of Refugees 1951
Migration Act 1958, ss.36(2)(a), 36(2A), 46 (2A)

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

Craig v State of South Australia (1995) 184 CLR 163

Kirk v Industrial Commission of New South Wales (2010) 239 CLR 531

MZAFZ v Minister for Immigration and Border Protection and Anor [2016] FCA 1081
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration v CZQ15 [2017] FCAFC 194 at [69], [74], [76], [85]
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344

Applicant: MZAKX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1909 of 2014

Judgment of: His Honour Judge Wilson

Hearing date: 22 March 2018

Date of Last Submission: 22 March 2018

Delivered at: Melbourne

Delivered on: 22 March 2018

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: No appearance

Counsel for the Respondents: Mr G. Hill

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed

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

   
   

   $7, 328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1909 of 2014

MZAKX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. By application filed in this court on 18 September 2014, the applicant applied for judicial review of a decision of the Refugee Review Tribunal now the Administrative Appeals Tribunal made 27 August 2014 pursuant to which the Tribunal decided to affirm the decision of the minister’s delegate not to grant the applicant the protection visa that he sought. In his application to this court the applicant relied on five grounds. It is desirable to set them out verbatim –

   “(1)  The applicant’s claims have been misinterpreted by the Department of Immigration and Border Protection (the Department);

   (2)    The applicant was not aware that he was invited to attend an interview with the case officer from the department. No further attempts were made by the department to follow up with the applicant whose application for a protection (Class XA) visa was rejected.

   (3)    In their protection (Class XA) visa decision record dated

   
   

   17 March 2014, the case officer of the department made a number of errors in identifying the facts and history of the applicant’s claims for protection.

   (4)    The Refugee Review Tribunal (“RRT”), based on these misinterpretations by the department, has wrongfully affirmed the decision of the department to refuse to grant the applicant a protection visa.

   (5)    The department did not adequately communicate its decision to the applicant.

   (6)    The applicant has been denied natural justice and was not given another opportunity to present his case to the department.[1]

   [1] ‘Applicant Application’ filed 18 September 2004 at ‘grounds of application’ 

2. This case has been on foot for an unusually long time. That is partly to be explained by the large number of interlocutory applications or orders made by me and a registrar of this court to get this hearing on today. When this case was listed for hearing today and of which there is sufficient evidence to be satisfied that the applicant was notified well in advance of the hearing today, the applicant was told that the case was to be heard at 10.15 am today. The case was duly listed at 10.15 am today. The applicant did not indicate that he or she intended to appear. The case was called in court and out of court at 10.46 am to which there was no response to the call.

3. Mr Hill of counsel, instructed by Mr Cunningham, urged me to conclude that the applicant had been validly served with notice and all requisite papers for the hearing today. I am persuaded that the applicant has had adequate notice of the hearing today and that the applicant has not appeared for reasons unconnected in any way with due notice of the hearing. I can only assume that the applicant has chosen not to appear for his or her own reasons. It transpired that prior to today’s hearing the applicant’s representative withdrew. That may explain why there was no appearance on behalf of the applicant.

4. At Mr Hill’s urgings, I considered this case on the merits. These reasons will record my consideration of the case on the merits. I have been enormously assisted by detailed submissions prepared in two tranches; first on 2 March 2016 by Mr Cunningham and second by submissions in a more truncated and slightly pithier form by Mr Hill in February of this year. As a result of those very helpful submissions it is easier to state the relevant facts upon which these reasons proceed.

Some background

1. The applicant is a 34 year old citizen of India. He arrived in Australia in June 2009 on a student visa. On 16 August 2011 the visa was cancelled as the applicant was no longer in a spousal relationship with the main visa holder. On 25 January 2012 the applicant applied for the visa in issue in this case. On the same day the department acknowledged lodgment of a valid visa application. However, on 27 February 2012 the department wrote to the applicant notifying him that the application was invalid because he had not provided personal identifiers as required by section 46(2A) of the Migration Act.

2. On 14 October 2013 the applicant lodged a new visa application. In that application the applicant made claims for protection different to those contained in his first application. On 17 March 2014 the delegate declined to grant the applicant the visa. On 11 March 2014 the applicant applied to the Tribunal for review of the delegate’s decision. On 11 July 2014 the Tribunal invited the applicant to attend a hearing. On 16 July 2014 the Tribunal issued a summons to the department to produce documents. On 22 July 2014 the department provided to the Tribunal a copy of the applicant’s former wife’s visa application with a s 438 non-disclosure notice. On 20 August 2014 the applicant attended a hearing with his representative. On 20 August 2014 following the hearing the applicant’s agent provided to the Tribunal a statutory declaration by the applicant addressing issues raised by the Tribunal about the alleged assault by the gang mentioned in Jalandhar. On 27 August 2014 the Tribunal affirmed the delegate’s decision.

3. The claims advanced in the applicant’s visa application were short and were reproduced in the court book on pages 61 and 63. It is desirable to express them verbatim –

   I was born and raised up in village Nasrala District Hoshiarpur in Punjab, India.

   My father was murdered by a gang of people who live in our village, over a land dispute. My father was a witness to a crime they committed hence they murdered my father as he did not withdrew his statement in relation to that matter.

   Since my father’s murder these people kept on terrorising me and my family. They kept on harassing me especially as I was always vocal and would relent to their actions. Twelve years after my father’s murder in 2007 I was seriously assaulted by the same gang of people, as a result of the assault I had a broken jaw and was in the hospital from almost one month. I did not report the matter to police as the accused threatened me of serious consequences if I would go to the police. I then decided to leave my village and started a new life in the city called Jalandhar, Punjab, but these people found me there and assaulted me again. In 2009 I married [applicant’s wife] and decided to move to Australia.[2]

   [2] CB 61.

4. In answer to question 47 on his visa application, the applicant wrote the following –

   “This will happen to me as the killers of my father have harassed, terrorised and assaulted me for a number of years. They came after me when I chose to leave my village and start a new life in Jalandhar. I am sure they will harm me if they find out that I am back in India.”[3]

   [3] CB 63.

5. As mentioned above, the delegate rejected the claim to protection. The applicant took the matter to the Tribunal where those claims were agitated before the Tribunal. The Tribunal’s treatment of the claims was recorded variously especially in paragraphs 40, 50, 54, 61, 63, 65 and 66. The Tribunal was not satisfied that the applicant had made out his claims for protection either under s 36(2A) or under s 36(2)(a) of the Migration Act with the consequence that the Tribunal affirmed the delegate’s decision not to grant the applicant the protection visa that he sought.

6. Relevantly paraphrased, the Tribunal’s decision contained a collection of key components. They can be distilled as follows –

   a)the Tribunal accepted that the applicant’s claims that his father was murdered and that the applicant had been assaulted by his father’s killers in 2007, as the Tribunal recorded in paragraphs 70 and 74 of its reasons;

   b)the Tribunal concluded that the applicant did not satisfy the Refugees Convention[4] criteria in s 36(2)(aa) because the harm feared was not for a Convention reason and Indian authorities could not deliberately deny the applicant protection for a Convention reason, as recorded in paragraphs 81 and 82 of the Tribunal reasons;

   c)the Tribunal concluded that the applicant did not satisfy the complementary protection criteria in s 36(2)(aa)[5] either.

   [4] Convention relating to the Status of Refugees, signed 28 July 1951, (entered into force on 22 April 1954).

   [5] Ibid.

7. The Tribunal accepted that there was “a real risk” that the applicant would suffer significant harm if he were to return to Nasrala but the Tribunal considered that the applicant did not face a real risk of significant harm in Jalandhar, another city in the Punjab, or in another part of India and the Tribunal additionally considered that it would be reasonable for the applicant to relocate to Jalandhar, to another city in the Punjab or to another part of India. The Tribunal dismissed the applicant’s application for a protection visa.

8. In this court the grounds urged by the applicant have already been set out. Mr Hill and Mr Cunningham correctly brought to my attention that the mainstay of the applicant’s claims related to the consideration given to this case by the minister’s delegate rather than to the considerations given by the Tribunal. It is so well known as to be trite that judicial review applications of the sort with which I am concerned in this case focus upon the activities of the Tribunal rather than the activities of the department. It is accepted that the Tribunal undertook a merits review involving a second set of eyes looking at the applicant’s claims afresh. The Tribunal did that and reached the conclusions that have been addressed above.

9. Before me it was important for the applicant to demonstrate the existence of jurisdictional error within conceptions conventionally outlined in such well-known cases as Craig v State of South Australia[6] and the Minister for Immigration and Multicultural Affairs v Yusuf.[7] Ordinarily that includes considerations around whether the Tribunal identified the wrong issue, whether the Tribunal asked itself the wrong question, whether the Tribunal took into account irrelevant considerations, whether the Tribunal failed to take into account relevant considerations or whether the Tribunal misconstrued facts that were before it. In Kirk v Industrial Commission of New South Wales[8] the High Court held that the categories identified in Craig,[9] Yusuf [10] and other such authorities do not provide a rigid taxonomy of the considerations that constitute jurisdictional error.

   [6] Craig v State of South Australia (1995) 184 CLR 163

   [7] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

   [8] Kirk v Industrial Commission of New South Wales (2010) 239 CLR 531

   [9] Craig v State of South Australia (1995) 184 CLR 163

   [10] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

10. The question before me was whether any of the grounds raised by the applicant raised issues that remotely approximated jurisdictional error committed by the Tribunal. In my opinion none did. That is for two simple reasons. The first was that the applicant invited a consideration of the activities of the delegate not the Tribunal. In and of itself, that would take this case out of the category of cases that fall for proper determination on a judicial review application before this court. Lest authority be required for that, authority exists as provided in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs[11] at paragraph 32.

    [11] Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344

11. There is a second reason that this application failed that is much more pertinent. The grounds agitated in 1, 2, 3, 5 and 6 in large measure invited me to undertake a merits review not judicial review. In cases such as Attorney-General (NSW) v Quin,[12] Minister for Immigration and Ethnic Affairs v Guo Wei Rong[13] and others, to say nothing of Minister for Immigration and Ethnic Affairs v Wu Shan Liang[14] it has been firmly stamped by the High Court that there is no function in the judicial review process to engage in a review of the merits of the case. Let me apply those principles to each ground.

    [12] Attorney-General (NSW) v Quin (1990) 170 CLR 1

    [13] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

    [14] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

12. In ground 1 the applicant asserted that the applicant’s claims had been misinterpreted by the department. Squarely, that invoked a re-agitation of whatever was before the delegate. Aside from the fact that the delegate is not the relevant person in a consideration of a judicial review application, the claim invited a reconsideration of the applicant’s claims. By another word, that was an invitation for me to engage in a merits review. I am forbidden from doing that and I decline to do so.

13. In ground 2 the applicant contended that he was not aware that he was invited to attend an interview with a case officer. His grievance is that he was not asked to speak with the case officer. Whether or not that was the case the delegate proceeded to determine his case on the merits as did the Tribunal. Whatever may have been the back story prior to the delegate’s attention to this case and then later the Tribunal’s attention to the case had been long overtaken by events. There is no substance in ground 2.

14. Ground 3 invited me to trawl over the activities of the case officer. For reasons already given that is not the proper function of judicial review. Ground 3 had no merit.

15. In ground 4 the applicant raised the contention that the Tribunal (based on certain misinterpretations by the department) wrongly affirmed the decision of the department to refuse the grant of the protection visa. Strictly speaking it is not correct to say that the Tribunal proceeded on identical facts as the delegate did. The Tribunal separately considered, having applied independently its own consideration of the arguments advanced by the applicant, all the contentions that he raised as grounding his protection visa application contentions.

16. I do not agree that there was any misinterpretation of the facts. To the contrary the Tribunal correctly applied itself to all the claims then before it. It did not stray from those relevant considerations. It did not fail to take into account relevant considerations. It did not ask itself the wrong question nor did it identify a wrong issue. In my view the Tribunal discharged its functions in the manner intended by the legislation. I reject the assertion that there was any merit in ground 4.

17. Ground 5 invited a consideration of the adequacy of the department’s communications to the applicant.  There is no recognised legal basis of that amounting to jurisdictional error. Ground 5 failed.

18. Ground 6 invited me to assess whether the applicant had been denied natural justice because he was not given another opportunity to present his case to the department. For reasons already given the activities of the department do not fall for my consideration. In any event the claim under ground 6 was subsumed by the activities that were relevant in this case. The applicant’s case was considered by the delegate. The applicant’s case on merits review was considered by the Tribunal. The applicant was heard and his case considered. In my view he was given an abundance of opportunity to say whatever he wanted to say in this case. Based on that and the information given by him his case was considered. There is no substance in ground 6. 

19. There remains the matter of the s 438 certificate issue which the minister brought to my attention by reason of its standing as a model litigant in cases before this court. In essence the minister brought to my attention the possibility that the applicant may, had he been here, asserted that the totality of matters relevant to his claim were not addressed and in particular the document covered by the s 438 certificate should have but was not given to him. Sadly my recital of the submissions advanced by Mr Hill in this regard do not do justice to the very careful and conscientious submissions that Mr Hill brought to my attention.

20. Essentially, where an applicant who claims that he has not been accorded procedural fairness by reason of not being shown documents covered by a s 438 certificate, the law nowadays requires the applicant to demonstrate that the provision of the documents would have made a difference to the outcome of the case. There is an abundance of authority since the initial uncertainty occasioned by Beach J’s decision in MZAFZ v Minister for Immigration and Border Protection and Anor.[15] The point has now been resolved by an array of recent Full Court decisions, including Minister for Immigration v CZQ15[16] along with BEG15 v Minister for Immigration and Border Protection.[17] Both are decisions of the Full Court of the Federal Court of Australia handed down last year. The upshot of the position nowadays is that, if the documents would have made no practical difference to the outcome of the case then the failure to provide them is unlikely to have borne upon questions of procedural fairness and whether procedural fairness was denied in the circumstances.

    [15] MZAFZ v Minister for Immigration and Border Protection and Anor [2016] FCA 1081

    [16] Minister for Immigration v CZQ15 [2017] FCAFC 194 at [69], [74], [76], [85]

    [17] BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

21. Mr Hill brought to my attention the fact that Mr Cunningham in his affidavit had sworn to the significance of the document about which this particular issue was raised. It is fair to say that the document that might have been relevant to arguments concerning s 438 concerned issues in a very benign and unimportant category. The document to which the s 438 certificate was relevant related to the applicant’s student visa. It was in no way connected to anything remotely bearing upon or germane to the applicant’s protection visa. It related to events long gone.

22. It must not be forgotten that the applicant entered Australia under a form of student visa. After having been in the country for some time, he made assertions about protection obligations that he said Australia owed to him. Those were determined adversely to him by both the delegate and the Tribunal. There was, obviously, no merit in those protection claims. In my view based on the grounds agitated before me none of them could possibly have seen the light of day. The Tribunal behaved perfectly properly and in accordance with its statutory obligations under the Migration Act to consider those claims on the facts. It considered them properly and reached the correct conclusion. Far from there being any error of law there was no jurisdictional error. The outcome of the Tribunal was proper in the circumstances. There was no merit in the s 438 argument. In those circumstances I dismiss this application for judicial review and order the applicant to pay the minister’s costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date: 4 April 2018