Mzamc v Minister for Immigration and Border Protection
[2015] FCA 662
•1 July 2015
FEDERAL COURT OF AUSTRALIA
MZAMC v Minister for Immigration and Border Protection [2015] FCA 662
Citation: MZAMC v Minister for Immigration and Border Protection [2015] FCA 662 Appeal from: MZAMC v Minister for Immigration and Border Protection [2015] FCCA 946 Parties: MZAMC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 182 of 2015 Judge: BROMBERG J Date of judgment: 1 July 2015 Catchwords: MIGRATION — application for Protection (Class XA) visa — whether FCC erred in failing to discern jurisdictional error in RRT’s decision — whether Tribunal failed to properly consider claims of ill health made in connection with s 36(2)(a) and s 36(2)(aa) Migration Act criteria — whether procedural unfairness consisting of actual bias on the part of the Tribunal or FCC or of failure to consider material advanced in support of claims — appeal dismissed. Legislation: Federal Court Rules 2011 (Cth) Div 4.2
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 189, 474Cases cited: MZAMC v Minister for Immigration and Border Protection [2015] FCCA 946
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507Date of hearing: 1 July 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr B Petrie of Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 182 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZAMC
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
1 JULY 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 182 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZAMC
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE:
1 JULY 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The appellant is a citizen of Brazil who first arrived in Australia on 12 June 2010 on a student visa. On 29 April 2014, the appellant became an unlawful non-citizen and was detained on 14 May 2014 pursuant to s 189 of the Migration Act 1958 (Cth) (Migration Act). On 2 July 2014, the appellant applied for a Protection (Class XA) visa (visa). The appellant’s application for the visa was rejected by a delegate of the first respondent (Minister). On 4 August 2014 the appellant applied to the second respondent (Tribunal) for a review of the delegate’s decision. By a written decision of 15 September 2014 (Tribunal’s decision), the Tribunal affirmed the decision of the delegate not to grant the visa. The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The subject of this appeal is the primary judge’s dismissal of that application on 20 March 2015. The primary judge’s judgment is published as MZAMC v Minister for Immigration and Border Protection [2015] FCCA 946.
The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).
Tribunal’s decision
Before the Tribunal, the appellant made claims relating to three broad subject matters. The first related to his health, the second to his employment prospects in Brazil and the third to alleged unrest and violence in Brazil. As to the appellant’s health issues, the Tribunal did not accept the appellant’s claim that he would be unable to access or would be denied appropriate medical intervention and treatment in Brazil, including preventative strategies to manage his stress and high blood sugar to protect against the onset of diabetes. The Tribunal relied upon country information that health concern around diabetes is one of the paramount concerns in health care in present day Brazil and observed that health measures, including free and low-cost medicines were part of the Brazilian government’s strategy to combat diabetes. The Tribunal concluded that the appellant would not be stopped from accessing such medications, should he require it. The Tribunal did not accept that the appellant’s removal from Australia would cause him to be afflicted with diabetes. Nor did the Tribunal accept that the appellant would be denied the assistance of his family on his return to Brazil. Lastly, in relation to the appellant’s alleged health issues, in the absence of the appellant providing any medical evidence the Tribunal did not accept that the appellant suffered from depression.
The Tribunal considered the health issues raised by the appellant in relation to both the protection obligations specified by s 36(2)(a) of the Migration Act and also the complementary protection obligations specified by s 36(2)(aa) of the Migration Act. In relation to the protection obligations, the Tribunal found that the appellant did not face a real chance of serious harm arising from his health concerns and that he did not have a
well-founded fear of persecution for that reason, either now or in the reasonably foreseeable future. In relation to the complementary protection obligations, the Tribunal found that the appellant did not face a real risk of significant harm in relation to the health concerns which he had raised.
The Tribunal next dealt with the appellant’s concerns about his employment prospects should he be returned to Brazil. In its reasons, the Tribunal set out country information dealing with economic forecasts for Brazil. The Tribunal observed that the appellant is an educated man, with a degree in music and in teaching, a business certificate obtained in Australia and relevant employment experience. It observed that the economy in Brazil is growing and unemployment levels are less than those found in Australia. Though the appellant will need to manage his health, the Tribunal did not accept that his health would make him unfit for employment. The Tribunal found that the appellant’s claim of concern regarding his employment prospects in Brazil did not raise a Convention reason. It appears that, on that basis, the Tribunal rejected that the appellant satisfied the protection obligation criteria set out in s 36(2)(a). The Tribunal also considered whether the appellant’s prospects of employment were a basis for satisfying the complementary protection obligation in s 36(2)(aa) and determined that it did not consider that the appellant faced a real risk of significant harm.
Next, the Tribunal considered the appellant’s claim that there was unrest, violence and crime in Brazil and that he feared that he would be affected by that. The Tribunal noted that there had been protests in the lead up to the 2014 World Cup. The Tribunal questioned whether the generalised violence that the appellant stated existed in Brazil actually existed. But having received the appellant’s evidence that he had never been involved or caught up in a protest; he was a peaceful person; he had no involvement in any political activity; and that he had never been a victim of crime, the Tribunal concluded that the appellant’s claim was not made out. The appellant had not been affected by any of the issues that he said were of concern to him and the Tribunal observed that protest action in the lead up to the World Cup had dissipated. The Tribunal did not accept that there was a level of generalised violence in Brazil or that there was violence that would have an effect on the appellant. The Tribunal concluded that the appellant did not face either a real chance of serious harm or a real risk of significant harm by reason of any unrest, violence or crime in Brazil.
The Tribunal concluded that the appellant did not have a well-founded fear of harm for a Convention reason, now or in the reasonably foreseeable future and that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that the appellant will be subjected to significant harm. The Tribunal was therefore satisfied that the appellant did not meet the criterion set out in s 36(2)(a) or the criterion set out in s 36(2)(aa).
The judgment of the primary judge
The judgment of the primary judge began by setting out the relevant background. The primary judge noted that the application for judicial review failed to specify any grounds of review. By reference to a letter that had been provided by the appellant and his oral submissions, the primary judge identified what she perceived to be the basis for the appellant’s challenge of the Tribunal’s decision.
Her Honour noted that the appellant believed that he had been the subject of prejudice because he came from South America. To the extent that the appellant raised an allegation of bias, the primary judge rejected it on the basis that there was nothing to substantiate such a claim.
The primary judge also addressed the appellant’s claim that the Tribunal had overlooked “certain things”, in that the Tribunal had not dealt properly with the appellant’s complementary protection claims. It was claimed by the appellant that the Tribunal had overlooked his health concerns in considering complementary protection. The primary judge reviewed the Tribunal’s decision and concluded that the Tribunal had looked very closely at the claims that the appellant had made about his health. The primary judge was not persuaded that the Tribunal had failed to consider the appellant’s health claims. Her Honour noted that simply because the Tribunal did not accept the appellant’s claims did not mean that the Tribunal had not considered those claims.
The primary judge then dealt with the appellant’s allegation that the Tribunal was negligent in that it had not carefully considered his claim. The primary judge rejected that challenge on the basis that the Tribunal had considered the appellant’s claims as required by law.
The primary judge then rejected the appellant’s claim that the Tribunal had been disrespectful towards him. Her Honour observed that there was nothing in the material before her to suggest that the Tribunal had been disrespectful. Her Honour observed that the decision of the Tribunal appeared to be careful and considered.
The appellant also took issue with the Tribunal’s finding that the appellant could live with his sister and mother in Brazil. The primary judge noted that that was a question of fact and that the Tribunal’s finding in that regard was open to it. The primary judge also rejected the appellant’s challenge to the Tribunal’s finding that he could get treatment for his ill health in Brazil. The primary judge observed that the Tribunal had considered material before it including country information which indicated that health services for people with diabetes in Brazil was adequate. Her Honour concluded that it was open to the Tribunal to reach that conclusion.
The primary judge concluded that no jurisdictional error had been identified by the appellant in the Tribunal’s decision. The primary judge was of the view that the Tribunal had correctly understood all of the claims that were put to it and had considered them. The primary judge dismissed the appellant’s application.
The appeal
The appellant appeared and made oral submissions. In broad terms, those submissions expressed the unfairness which the appellant perceives himself to have been a victim of. No contention additional to those raised before the primary judge was agitated. I did not consider this appeal to be an appropriate proceeding for referral for legal assistance under Division 4.2 of the Federal Court Rules 2011 (Cth) and declined the appellant’s oral application for such assistance. The appellant complained that he was not well, but no application for an adjournment was made. Whilst I accept the appellant’s claim that he was suffering from a high blood sugar level, I do not consider that the submissions that were made were detrimentally affected by the appellant’s ill health.
The appellant’s Notice of Appeal in this Court raised two grounds of appeal as follows:
1.Violation(s) of my rights under the Convention on the Rights of Persons with Disabilities
2.Unfairness of procedure(s). The biased and lack of consideration in regard to supporting evidence and documentation of the compassionate and compelling circumstances that are a major constituent to my case.
Ground 1
As to ground 1, the appellant has provided no particulars as to why he contends that his rights were violated. This ground was not expressly raised before the Federal Circuit Court and the appellant would need leave to raise it now. I would not grant leave. In the absence of any particularisation and in the absence of the appellant identifying how any asserted violation of his rights has manifested as jurisdictional error by the Tribunal, I could not be satisfied that the appellant has any prospect of success on this ground sufficient for leave to be granted.
If by ground 1, the appellant intended to raise the challenge to the Tribunal’s decision which was made before the primary judge namely, that the Tribunal had overlooked his health concerns in considering the complementary protection criteria, I would reject the ground. The Tribunal considered the health concerns raised by the appellant. There were cogent reasons for the Tribunal concluding that the appellant would not face a real risk of significant harm by reason of the ailments or disabilities that the Tribunal accepted the appellant had. There is no jurisdictional error identified by the appellant nor is any jurisdictional error apparent. The primary judge was correct to reject the appellant’s assertion that the Tribunal had failed to properly consider his health claims.
Ground 2
The second ground raised by the appellant claims a lack of procedural fairness. Although not clear, the procedural unfairness alleged seems to be first, that the Tribunal’s decision is infected by actual bias and second, that as a matter of procedural fairness the Tribunal failed to have regard to “evidence and documentation of the compassionate and compelling circumstances that are major constituent to my case”.
Actual bias exists where the decision-maker has prejudged the case against a party or acted with such partisanship or hostility as to show that the decision-maker had a mind that was made up against that party and was not open to persuasion in favour of that party: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 519-520, 531‑532 (Gleeson CJ and Gummow J).
The primary judge dealt with the appellant’s claim of bias that he said was based on his coming from South America. The primary judge rejected the claim as there was nothing in the material to substantiate it. The primary judge was correct. There is nothing before me which in any way suggests that the Tribunal had prejudged the appellant’s case, or that it had made up its mind against him and was not open to persuasion. In a letter sent to the Court by the appellant, the appellant also claimed that the primary judge was biased because in combination with the Minister’s lawyers, the primary judge decided to transfer the appellant’s case to Perth knowing that he was against it. The appellant asserted that the bias was “expressed in phone calls, emails, letters and so on”. The assertions made were not supported by any evidence. Insofar as that challenge is raised by ground 2, it is rejected.
Insofar as ground 2 raises allegation that evidence and documentation upon which the appellant relied was not considered by the Tribunal, I reject that challenge. The appellant has not identified what it is that the Tribunal failed to consider. The Tribunal’s reasons reveal that the appellant’s claims were relatively narrow and confined. Those claims were recounted and considered in detail by the Tribunal and they were rejected. The primary judge concluded that the Tribunal had considered the appellant’s claims as it was required to do. There is no error in the primary judge’s conclusion and I reject this aspect of ground 2 of the appellant’s grounds of appeal.
In an email forwarded to the Court, which I am prepared to treat as forming part of the submissions made by the appellant, the appellant said this:
I was expecting from Immigration, Tribunal, Court, Understanding not Punishment. Compassion not Shame. Fairness not Indifference. I asked the RRT Member if he had thought for a moment, if it is fair when you help your family, dedicated your time and good will, and when you need their help, they cannot do anything for you, because a “piece of paper”? I had no answer and for the Sake of Evilness nothing made any difference. That is the Major “Error of Law” or “Jurisdictional Error” we can identify.
It seems to me that this contention really encapsulates well the complaint which the appellant makes about the process in which he has been involved. The appellant obviously regards it as unfair that he should be removed from Australia in circumstances where, as the facts before the Tribunal revealed, he had provided help to his family in Australia and now needs their help in circumstances where he is of ill health. It is obvious that so far as there may be unfairness of that kind, it is not an error of law and nor is it jurisdictional error. What the submission indicates, and what in broad terms is indicated by both the decision of the Tribunal and the judgment of the primary judge, is that the appellant misunderstands the basis upon which he could be granted a protection visa. In its decision at [4]-[17], the Tribunal has carefully and clearly explained the criteria for the grant of a protection visa and what it is that an applicant for a protection visa must establish. The appellant would be much assisted in obtaining a better understanding of the process about which he complains by reading or re‑reading those paragraphs. It may well be that on so doing, the appellant will appreciate that it was his failure to establish that he met the criteria required for the grant of a protection visa which resulted in the rejection of his application, rather than any unfairness or a lack of understanding or compassion by either the Tribunal or by the primary judge.
For those reasons, the appeal should be dismissed. An order should also be made requiring the appellant to pay the Minister’s costs of the appeal.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 1 July 2015
0