MZAMC v Minister for Immigration

[2015] FCCA 946

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAMC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 946

Catchwords:
MIGRATION – Refugee Review Tribunal – application for complementary protection – whether tribunal misunderstood claims – whether tribunal considered all claims.

Legislation:
Migration Act 1958, ss.36(2)(a), 36(2)(aa)
Migration Regulations 1994 , cl.866.221 of sch.2

Applicant: MZAMC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 2063 of 2014

Judgment of: Judge Riley

Hearing date: 20 March 2015

Date of last submission: 20 March 2015

Delivered at: Melbourne

Delivered on: 20 March 2015

REPRESENTATION

Counsel for the Applicant: The Applicant appeared in person

Solicitors for the Applicant: The Applicant was not represented

Advocate for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The application filed on 10 October 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 2063 of 2014

MZAMC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised by transcript)

1. This is an application for a review of a decision of the Refugee Review Tribunal.  The applicant appeared in court without the benefit of a legal representative. 

2. The applicant is a citizen of Brazil.  He applied for a protection visa on 2 July 2014. A delegate of the first respondent refused that application on 28 July 2014.  The applicant then applied to the Refugee Review Tribunal for review of that decision. The tribunal made a decision on 15 September 2014 affirming the delegate’s decision. 

3. The applicant said that he was born in Sao Paulo in Brazil on 16 June 1979.  He said that he left Brazil in 2010 to study in Australia and spend time with his extended family here.  He said his aunt is an Australian citizen. 

4. The applicant initially studied English in Australia for six months.  Subsequently, he suffered an injury at work. He went to New Zealand to apply offshore for a student visa.  He said that, at that stage, he intended to leave Australia at the end of his student visa.  However, in February 2013, he discovered that his aunt was unwell.  She was diagnosed with breast cancer.  The applicant then applied in May 2013 for a carer visa to care for his aunt. 

5. On 19 December 2013, the carer visa was refused.  The applicant said he was not aware of the refusal because at that time he was in hospital himself as he had diabetes.  The applicant said he received an email from the Department of Immigration but was unable to open it. He said that, on 22 or 23 December 2013, he went to the immigration office in Melbourne to find out what was in the email.  However, the officers would not tell him.

6. The applicant eventually received an email from the Australian Embassy in Brazil in March 2014 saying that his visa had expired.  At this point the applicant was in Hobart.  The applicant said that he went to the Department of Immigration in Hobart.  Immigration officers in Hobart asked him what he was doing in Hobart if he was supposed to be looking after his aunt.  He felt insulted by this question, and said he was under a lot of pressure and stress and his own health was not good.  He said that he had gone to Hobart to have a short break to escape the pressure he had been under. 

7. There were further dealings with the Immigration Department. The applicant was given a bridging visa.  He told the Department he could not return to Brazil as his blood sugar levels were high.  He said that it would be dangerous to send him on an aeroplane. 

8. The applicant said he had no money to return to Brazil and could not ask his family in Brazil for money.  The applicant provided to the Department a letter from a doctor in Hobart saying that he needed six months for his treatment to stabilise.  The applicant said at this point he was feeling depressed and very mistreated.  In May 2014, he was placed in immigration detention, an experience which he said he found horrific and humiliating. 

9. The applicant said that he cannot return to Brazil because he is sick.  He said that he is being treated unfairly by the immigration authorities.  He said his family cannot look after him in Brazil.  He said there are no jobs in Brazil and he will not be able to find work.  He said it is dangerous there and he wants to look after his family in Australia.  He said his aunt needs him.  He said he has lived in Australia for four years and is now connected to Australia.  He said he is prone to depression.  He said his father died of diabetes, and he cannot stay in immigration detention with his condition. He said he wants to look after his aunt. He also said that he is applying for a protection visa as he wishes to remain in Australia. 

10. The applicant indicated in his application that he had completed a degree in music and a diploma in business.  He worked for an insurance company from 2007 until 2009 in Sao Paulo, Brazil before coming to Australia. His mother and sister live in Sao Paulo. 

11. The delegate considered that the applicant had not raised any claims under the Refugees Convention.  The delegate considered that the health system in Brazil was adequate for the applicant’s illness.  The delegate considered that the applicant was educated and had an employment history in Brazil. The delegate considered that the applicant did not engage Australia’s complementary protection obligations in relation to his economic or health issues.  The delegate considered whether protests in Brazil would impact on the applicant. The delegate considered that they would not affect him personally. 

12. The tribunal conducted a hearing at which the applicant gave evidence.  The tribunal put various matters to the applicant about the situation in Brazil including matters relating to the economy and health care. 

13. The tribunal considered that there was adequate health care in relation to diabetes in Brazil.  The tribunal cited various items of country information indicating that Brazil had a program for dealing with diabetes that was free and accessible to all.  The tribunal concluded that the applicant would be able to access adequate health care in Brazil. 

14. The tribunal considered the applicant’s family in Brazil.  The tribunal found that the applicant would not be denied the assistance of his family if he were to return to Brazil.  The tribunal noted that the applicant had previously lived with his mother and his sister and concluded that the applicant would receive appropriate assistance from family members in Brazil. 

15. The tribunal noted the applicant’s claim that he had depression.  The tribunal noted that there was no medical evidence to that effect, and did not accept that the applicant had been diagnosed with clinical depression or required treatment for depression.  The tribunal did not consider that the applicant faced a real risk of significant harm for reasons of his health. 

16. In relation to the economic situation in Brazil, the tribunal cited country information to the effect that Brazil had a lower rate of unemployment than Australia.  The tribunal noted that the applicant is an educated person with degrees in music and teaching, and has relevant employment experience.  The tribunal did not accept that he was unfit for employment in Brazil. 

17. The tribunal considered the applicant’s claim that he had spent four years in Australia and that he was out of touch with circumstances in Brazil.  The tribunal considered that the applicant had spent the previous 31 years in Brazil without encountering any difficulties there.  The tribunal did not consider that the applicant’s issues in relation to employment fell within the Refugee’s Convention, and did not accept that they represented a risk of significant harm in relation to the complementary protection provisions. 

18. The tribunal also considered the question of violence in Brazil.  The tribunal noted that there had been protests in the lead up to the 2014 soccer World Cup which was held in Brazil.  The tribunal said that it had raised the question of whether there was generalised violence in Brazil with the applicant and whether it had affected the applicant in any way.  The applicant said to the Tribunal that he had never been involved in a protest, he had never been involved in political activity  and he had never been the victim of crime.  However, he did say that he knew some people who had been victims of crime.

19. Based on the applicant’s history and the absence of any evidence from the applicant about generalised crime in Brazil, the tribunal concluded that there was no generalised violence in Brazil.  The tribunal did not accept that the applicant faced a real chance of either serious or significant harm for reasons of generalised violence in Brazil. 

20. The tribunal concluded that the applicant did not face a real chance of serious harm for a Convention reason and did not face a real risk of significant harm.  The tribunal concluded that the applicant is not a person to whom Australia has protection obligations under either

    
    

    ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (“the Act”).  In the circumstances the tribunal affirmed the decision not to grant the applicant a protection visa.

21. The applicant filed his application without the benefit of legal assistance.  It does not specify a ground of review.  Under the section in the application form dealing with grounds the applicant simply wrote:

    Section 36 of the Migration Act 1958 (Migration Act) and clause 866.221 of Schedule 2 to the Migration Regulations 1994 (Migration Regulations).

22. The applicant did not file any written submissions.  He filed an affidavit with his application. It said:

    I … ask the Court to ‘issue a writ of mandamus’ requiring the First and Second Respondents to hear and determine My Protection (Class XA) Visa Application according to Law.

23. There was no elaboration of the “grounds.”  The applicant filed a more recent affidavit on 27 February 2015 in which he said that he is sending relevant documents to the court.  Those documents are not presented in the form of exhibits to the affidavit.  They were simply included in a loose form with the affidavit itself.  Many of them are documents that were not before the tribunal and cannot be considered by the court.

24. The applicant included amongst those documents a letter from him addressed, “To whom it may concern.”  He said that there were misconceptions, misunderstandings and disregard of his complementary protection claims.  He said that he did not have proper medical attention while in detention. He said that he believed that he had been prejudiced because he comes from South America.

25. The question about the actions of the Immigration Department while the applicant has been in detention are not presently before the court.  All this court can do is consider the tribunal’s processes and decision. 

26. There is nothing before the court that indicates that there was prejudice against the applicant because he comes from South America.  To this extent that the applicant raises an allegation of bias, I reject it.  There is nothing in the materials to substantiate such a claim.

27. The applicant in his letter and also before the court today said that the tribunal overlooked certain things.  The applicant did not challenge the tribunal’s findings relating to the Refugees Convention, but did say that the tribunal did not deal properly with his complementary protection claims. 

28. The applicant said that the tribunal overlooked his health concerns in considering complementary protection.  However, it is clear from the tribunal’s decision that it looked very closely at the claims that the applicant had made about his health. The tribunal cited country information about the health services available for people with diabetes in Brazil, and concluded that the applicant did not face a real risk of significant harm for reasons connected with his health.  The tribunal is under no obligation to accept an applicant’s claims.  Simply because the tribunal did not accept the applicant’s claims does not mean that the tribunal did not consider those claims in the necessary way.  I am not persuaded that the tribunal failed to consider the applicant’s health claims. 

29. The applicant also told the court today that the tribunal was negligent in that it had not carefully considered his claims.  Again, the requirement on the tribunal is to consider the claims that are put and in this case it seems to me that the tribunal did that as required by law.

30. The applicant also said a number of times that the tribunal had been disrespectful towards him.  He said this was manifested by the tribunal implying or somehow suggesting that his health was not as he had claimed. However, there is nothing in the material before the court to suggest that the tribunal took that view.  The decision of the tribunal appears to be careful and considered.  It refers to material about health care in Brazil and it accepts that the applicant does, in fact, have health issues.

31. The applicant took issue with the tribunal’s finding that the applicant could live with his sister and mother in Brazil.  He said that they live in a small flat and there would be no room for him.  That is a question of fact.  It seems to me that the tribunal’s findings in this regard were open to it on the material that was before it. Even if the tribunal had made an error of fact in this regard, the court would have no power to intervene.

32. The applicant said that he had explained to the tribunal that he could not get treatment in Brazil and he needed to recover here in Australia.  The tribunal evidently considered that there was material before it in the form of country information which indicated that the health services for people with diabetes in Brazil were adequate.  It was open to the tribunal to reach that conclusion. 

33. The applicant reiterated to the court that he needed a chance to recover here. However, the court cannot take into account the applicant’s claims in that regard.  All the court can do is look at the material that was before the tribunal and ascertain whether the tribunal’s conclusions were open to it on that material and whether there had been jurisdictional error of any type.  No jurisdictional error has been identified. It seems to me that the tribunal’s findings were open to it on the material before it.  The tribunal correctly understood all of the claims that were put to it and considered them.

34. The application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 16 April 2015