MZALA v Minister for Immigration

[2015] FCCA 2734

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZALA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2734

Catchwords:
MIGRATION – Judicial review of refusal of protection visa – considerations of s.424A(1) of the Migration Act 1958 – procedural fairness/natural justice – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: MZALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1931 of 2014

Judgment of: Judge McGuire

Hearing date: 5 October 2015

Date of Last Submission: 5 October 2015

Delivered at: Melbourne

Delivered on: 29 October 2015

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Counsel for the Respondents: Mr Young

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application filed 23 September 2014 is hereby dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the quantum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1931 of 2014

MZALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) made 28 August 2014 affirming a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (“the visa”). 

2. The applicant is from India and from the district of Hoshiapur in the Punjab.  He arrived in Australia on 31 July 2009 as a dependant of his wife who held a student visa.  On 20 December 2013 the applicant lodged his own application for a protection visa. 

3. The applicant’s wife and son returned to India in December 2013.

4. A hearing before the Tribunal was held on 8 August 2014.  The applicant attended the hearing pursuant to an earlier invitation and with the assistance of an interpreter. On 28 August 2014 the Tribunal affirmed the delegate’s decision refusing the grant of the visa. 

The Application to this Court.

1. The applicant sets out three grounds of complaint in his application dated 23 September 2014 and as follows:

   (1)That the tribunal’s decision was in breach of section 424A(1) of the Migration Act 1958 (Cth).

   Particulars:

   (a)There was certain adverse information used by the Tribunal to affirm the decision Under review. 

   (b)The Tribunal did not disclose the information in accordance with S424A(1).

(2)That the tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error

(3)That the tribunal made denial of natural justice.  Because it failed to provide further opportunity before the tribunal.

1. The applicant appears in this Court unrepresented but with the assistance of an interpreter.

2. The applicant had not filed written submissions pursuant to the orders and directions of the Registrar made 17 December 2014.  As such, the applicant was invited to make oral submissions to the Court in support of his application.  The role of this Court is as a forum for judicial review, and not a further forum for the applicant to argue the merits of his visa application, was explained to the applicant.  The only submission of substance made by the applicant in his oral submissions was “I was not happy with the decision and want someone to tell.”

The Tribunal’s decision.

1. The Tribunal considered at [16] of the reasons the applicant’s claim that he was beaten up two or three times by his wife’s brother and other boys, and that he had also received telephone threats from the wife’s brother and father after marrying his wife in secret, she being from a higher caste.  The Tribunal’s reasons report at [17] that the applicant claimed to have received medical treatment but from natural healers and that he had no medical records, and that he had also complained to the police but they had refused to act on his complaints.  Similarly at [18] the Tribunal noted the applicant and his wife coming to Australia in May 2009 after a beating.

2. In some detail at [20-21] the Tribunal sets out its concerns as to the applicant’s credibility.  The Tribunal expressed concerns as to the applicant’s delay in raising his claims of fear, despite ongoing contact with the Department.  The Tribunal referred to the applicant’s vague and inconsistent evidence in respect to past harm and noted that the wife’s son and wife had returned to India in December 2013.  Further, the Tribunal referred to country information indicating that the Sikh religion did not recognise a caste system, but rather, that all people would be treated equally.  Significantly, the Tribunal’s reasons at [20] report the applicant being able to make response or comment in respect of the various issues of credibility raised with him at the hearing.

3. The Tribunal did not accept that the applicant had a genuine, subjective fear of harm in India or that such a fear, if it existed, was well‑founded.  The Tribunal did not accept that the applicant faced a real chance of serious harm should he return to his home region on the basis of his marriage, caste hierarchy, or any conventional reason. 

4. At [23] the Tribunal’s reasons state:

   [23] The Tribunal has considered whether there are substantial grounds for believing that it’s a necessary and foreseeable consequence of the applicant’s being removed from Australia to India, there is a real risk that he will suffer significant harm.  For the reasons set out in paragraphs 20 and 21 above, the Tribunal has not accepted that there is a real chance that his wife’s brother, other family members, or any person paid by or otherwise associated with them, including the local Sikh community or council of village elders in Thowna, Punjab has sought to harm the applicant in the past or would seek to harm him if he returns to India, now or in the reasonably foreseeable future. In MIAC v SZQB, the Full Federal Court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well‑founded fear” in the Refugee Convention definition.  It follows that the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from his wife’s brother, other family members or any person paid by or otherwise associated with them, including the local Sikh community or council of village elders in Thowna, Punjab as a necessary and foreseeable consequence of the applicant’s being removed from Australia to India.  Therefore, the applicant does not satisfy the criterion set out in S36(2)(aa).

Applicant’s Application

Ground 1:

1. The applicant says that the Tribunal’s decision was in breach of s.424A(1) of the Migration Act 1958 (Cth) (“the Act”). He says that there was “certain adverse information” used by the Tribunal. He says that the Tribunal did not disclose the information to him, in accordance with s.424A(1).

2. The applicant does not particularise in his application, or in his oral submissions, what constituted the alleged adverse information relied on by the Tribunal. 

3. In any event, a proper reading of the Tribunal’s reasons does not disclose any such adverse information. Rather, the reasons show that the Tribunal relied on information provided by the applicant or independent country information of a general sense, rather than specific to the applicant. Such information is not captured by the exceptions in s.424A(3) and therefore not subject to the requirements of s.424A(1) of the Act.

4. Section 424 of the Act provides:

   (1)In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the tribunal gets such information, the tribunal must have regard to that information in making the decision on the review.

5. Section 424A of the Act provides:

   (1)Subject to subsections (2A) and (3), the tribunal must:

   (a)Give the applicant, in the way that the tribunal considers appropriate in the circumstances, clear particulars of any information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review;  and

   (b)Ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review;  and

   (c)Invite the applicant to comment on or respond to it.

   (2)The information and invitation must be given to the application:

   (a)Except where paragraph (b) applies – by one of the methods specified in section 441A;  or

   (b)If the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person. 

   (2A)  the Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)This section does not apply to information:

   (a) that is not specifically about the applicant or any person and is just about a class of persons of which the applicant or other person is a member;  or

   (b) that the applicant gave for the purpose of the information for review;  or

   (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c) that is non-disclosable information. 

6. The Tribunal’s reasons do not disclose any information within the meaning of s.424AA(1) of the Act that would not be excluded by s.424AA(3). No obligations, consequently, arose in the Tribunal pursuant to s.424AA(1) of the Act. Put simply, the Tribunal’s reasons disclosed no information other than that provided by the applicant himself or of a general nature, non-specific to the applicant. In any event, the reasons show (noting again that the applicant has not particularised the alleged adverse information) at [20] the Tribunal details the information considered and elicits comment or response from the applicant.

Ground 2:

1. The applicant claims a lack of procedural fairness by the Tribunal constituting jurisdictional error. Again, the applicant has not particularised the alleged breach of the Tribunal’s obligations.  The applicant attended at the hearing with notice.  The applicant had the assistance of an interpreter.  The Tribunal’s reasons, generally, and particularly at [20] detail the credibility issues confronting the Tribunal and the opportunity given the applicant for comment or response.  The respondent did not file written submissions particularising his ground of complaint. When given the opportunity at the hearing, the applicant offered no oral submissions in support of this ground. Consequently, I find no merit in ground 2 of the application. 

Ground 3:

1. The applicant here alleges the denial of natural justice “because it failed to provide further opportunity before the Tribunal”.  Again, the complaint is not particularised in either written or oral submissions. If the applicant is to be understood to believe that he was entitled to a further hearing, then no such entitlement exists.  The Tribunal’s reasons do not disclose any application for an adjournment per se or that the matter be adjourned part-heard. The hearing was conducted on 8 August 2014 and the decision not handed down until some 20 days later.  The applicant makes no assertion of seeking to put further evidence or argument before the Tribunal during that period.  Without further particularisation and given the above observations, there can be no merit in this ground.

Conclusion

1. I find no merit in each of the three grounds of the complaint made by the applicant.  Consequently, the application will be dismissed with an order for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  29 October 2015