MZAPC v Minister for Immigration
[2016] FCCA 1414
•17 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAPC v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1414 |
| Catchwords: MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (class XA) visa – application filed out of time – extension of time sought pursuant to s.477 of the Migration Act 1958 (Cth) – leave granted – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424(3)(a), 425, 474, 477 1951 Convention Relating to the Status of Refugees |
| Cases cited: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 NABE & Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) 219 ALR 27 |
| Applicant: | MZAPC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2497 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 17 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 May 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Ms Bosnjak |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
Pursuant to s.477 of the Migration Act 1958 (Cth) there is leave to the Applicant to file his application out of time, the Court being satisfied it is necessary in the interests of the administration of justice to make such order.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2497 of 2014
| MZAPC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application seeking an extension of time in which to seek judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 4 November 2014. The Tribunal affirmed a decision of the First Respondent by his delegate not to grant the Applicant a Protection (Class XA) visa (‘the visa’).
The application was filed only one day outside the statutory timeframe as set out in s.477 of the Migration Act 1958 (Cth) (‘the Act’). The Minister, in those circumstances, consented to the extension of time sought. The Court is satisfied that it is in the interests of the administration of justice to make such an order extending the time within which the Applicant can file his application.
The grounds of the application are as follows:-
“The RRT decision is invalid reasons. It should be review in Federal Circuit Court for tribunal results. As this is something to do with my life so it should be taken seriously and decision should be made in my favour. I don’t want to waste the Federal Court’s time. So I am gonna be specific about my reasons. The only thing is that I am claiming everything as it happened with me. Now I can’t get into sumones head and make them say yes. I only can follow the procedure. This is what I felt from last two years that Australian Law and Court system cannot be relied as it can destroy any honest and the individual’s life, which is happening with me. There are some exceptional reasons sometime in life which got cannot be proven by law but as we all human as humanily if we look at it then it would definitely be in my favour. Please I request the court to please help me at least giving the right decision. My whole life is deteriorated. I was always a jolly person but now I have acute depression which I have documents for that. I can’t go back neither I am seeing nothing. I am nearly 29 this is crucial time for me to boost my career rather than wasting time in this matter. Human being made the law not law is made for humans. That whatever laws says is right not even considering individual background. That what makes me think about the system of the Court. So plz I request the judge to make a fair decision as my whole life could be better or destroyed just from that 2 lines decisions.”
As can be seen from the above, the grounds of application are not particularised and the Applicant has not filed and served any amended application, nor submissions. Registrar Burns ordered on 18 March 2015, and by consent, that the applicant file and serve, 42 days prior to the final hearing, an amended application, if any, and written submissions. The Applicant failed to comply with that order. The Applicant said at the commencement of the hearing this day that he had attempted to send to the Court by facsimile some documents. Those documents are not on the Court file and nor have they been served upon the First Respondent. Any documents at this point in the proceedings are not filed and served within time. The Applicant claimed that such documents went to his current medical condition. Such documents, if any materialise, are not relevant to this proceeding. Such documents were not before the Tribunal on the hearing of the Applicant’s application, and the Tribunal specifically addressed the Applicant’s claim that he suffered from ‘mental depression’ as set out in paragraphs 30 to 36 inclusive, of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’).
The application itself raises no arguable grounds of judicial review. The purported grounds suggest that the Applicant seeks merits review of the Tribunal’s decision rather than asserting any jurisdictional error in the Tribunal’s decision. As submitted by Counsel for the First Respondent, it is trite law that, in order to succeed on a judicial review application in the face of s.474 of the Act, jurisdictional error must be identified. The Court’s jurisdiction does not extend to the merits of the decision.[1]
[1] Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 476.
The Applicant’s oral submissions this day did nothing to assist in any clarification of the Applicant’s grounds. Essentially, the Applicant submitted that it is going to be very hard to survive in India; that he will have to support himself; deal with his medical condition; and have no family support. These matters do not go to a judicial review application. The Applicant failed to address issues of jurisdictional error in the Tribunal decision.
Nevertheless, the First Respondent in submissions considered whether the Tribunal had made an error of law, whether it had properly considered all of the Applicant’s claims and afforded the Applicant procedural fairness and concluded, having considered these matters, that the application should be dismissed with costs.
Background
The Applicant is a citizen of India who first arrived in Australia as the holder of a student visa on 22 January 2006. Thereafter (a) an application for an onshore student visa was refused, (b) an attempted merits review to the Migration Review Tribunal was refused as the application was made outside the statutory timeframes, (c) an application for ministerial intervention was declined, and (d) finally, an application for judicial review of the Migration Review Tribunal’s decision was dismissed on 13 September 2013. On 31 October 2013, seven years and 10 months after arrival in Australia, the Applicant applied to the Department of Immigration and Citizenship (as it then was) (‘the Department’) for the protection visa.
After the Applicant did not provide his personal identifiers in response to the Department’s request, that application was found to be invalid on 13 December 2013.
On 21 January 2014, the Applicant made a further application to the Department for the visa. In his application, as set out in the First Respondent’s submissions, the Applicant claimed that:-
a)while he was an Indian citizen at birth, he became Stateless after his family disowned him after 2008;
b)his family disowned him because of the society he was in;
c)his uncle tried to, and threatened to, kill him in relation to a dispute between the Applicant’s father and uncle over land;
d)when travelling in the Punjab in 2004, he was kidnapped and his father was asked to sign over the land, however the Applicant was rescued after a settlement was given;
e)he has changed his religion by cutting his hair and acquiring the Aussie lifestyle and, as a result, his family disowned him;
f)his uncles will kill him for the land, or he will be abducted and killed if he goes back to India;
g)as he has been disowned, he will not get land or accommodation; and
h)if the authorities got involved, it would be more risk to his family. It is a family dispute and not disclosed to the authorities because of its risk.
While the Applicant provided personal identifiers in response to the Department’s request, he did not respond to the invitation to contact the Department to arrange an interview, nor provided any further documents.
By a decision dated 4 June 2014, the Minister, by his delegate, refused to grant the visa. On 27 June 2014, the Applicant applied to the Tribunal for review of the delegate’s decision. Attached with the application was a letter from the Applicant requesting that all correspondence be by email.
On 28 July 2014, a Tribunal officer contacted the Applicant by phone to ascertain his address. The Applicant provided a postal address. By letter sent to that postal address dated 18 August 2014, the Applicant was invited to attend a hearing at the Tribunal on 18 September 2014. On 15 September 2014, the Tribunal emailed the Applicant a “courtesy copy” of that letter by email.
On 18 September 2014, over two hours after the time of the hearing, the Applicant contacted the Tribunal by phone, explaining that he had only then accessed his email and exhibiting concern that he had missed the hearing.
By letter sent to the postal address provided by the Applicant, and dated 22 September 2014, the Tribunal notified the Applicant of its decision dated 19 September 2014 to affirm the delegate’s decision.
After telephone and email contact from the Applicant on 25 September 2014 the Tribunal set aside its decision dated 19 September 2014 and reopened the Applicant’s application for review.
By letter sent by email dated 29 September 2014, the Tribunal invited the Applicant to attend a hearing to give evidence and present arguments. The Applicant appeared before the Tribunal on 15 October 2014 to give such evidence and present arguments.
On 4 November 2014, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.
In its the Decision Record The Tribunal summarised the Applicant’s claims as follows:
“19. …He was born in 1985 in Delhi, India. The applicant came to Australia in 2006 on a student visa because his family wanted him to be safe and get a good life. He has always had bad relations with his family and they have disowned him. Due to disputes between his father and uncle there have been threats to kill him as he is the oldest son. They threatened to kill him if the land went under his name. In 2004 he was kidnapped during a trip to the Punjab. His father was asked to sign papers putting the land under their name but after all the family members got involved, a settlement was reached and the applicant was rescued. He fears being abducted again and killed if he returns because the ownership of the land is disputed. Now that his family have disowned him he will not get the land yet his life will be at risk. If the authorities get involved, there is even more risk to his family. He also fears his family as he has changed his religion by cutting his hair and adopting the Australian lifestyle and this had upset his family and led to them disowning him.”
The Tribunal’s findings are accurately summarised by the First Respondent in the First Respondent’s submissions as follows:
“26.(a) while [the Tribunal] accepted that the applicant’s passport had expired, it did not accept that he had taken any steps to renounce his citizenship, and therefore found that India is the applicant’s country of nationality.
(b) despite concerns about the applicant’s credibility, [the Tribunal] was willing to accept the majority of the applicant’s claims regarding the land dispute. However, it did not accept that the applicant’s relatives had a continuing adverse interest in the applicant.
(c) [the Tribunal] accepted that the applicant’s family had disowned him because he had cut his hair, adopted an Australian lifestyle and started drinking alcohol, but did not accept that being disowned by his parents constituted either serious or significant harm for an adult 29-year-old man, noting that the applicant had not claimed his parents or anyone else had threatened to harm him due to the changes in his life.
(d) [the Tribunal] noted that the applicant claimed his mental depression would be worse if he went back to India but provided no supporting information in relation to his mental depression. Even assuming the applicant suffered a mental illness, the Tribunal was not satisfied that any shortfalls in the Indian health care system related to any ground under the Convention, nor were they referable to the content of “significant harm” as defined.
(e) while [the Tribunal] accepted that the applicant would be paid low wages in India comparative to Australia, it did not accept that the applicant would be unable to obtain work and support himself or that low living standards would amount to persecution or significant harm.
(f) the Tribunal concluded that the applicant did not face a real chance of persecution, nor a real risk of significant harm:
(i) from his relatives over the land dispute;
(ii) for any Convention or non-Convention reason arising from his changes to his lifestyle;
(iii) arising from his claimed mental illness;
(iv) as a result of the lower standard of living in India; or
(v) from any of his claims or for any other reason, considered cumulatively.
(g) [the Tribunal was] therefore not satisfied that the applicant was a person to whom Australia had protection obligations under section 36(2)(a) or (aa) of the Act.”
Consideration
The Tribunal clearly set out, considered and applied the relevant law with respect to both the Refugees Convention of 1951, as amended by the Refugees Protocol of 1967, and the complementary protection criteria. There is no error of law attending the Tribunal decision. The Tribunal considered each and every of the Applicant’s claims and made findings in respect to each of those claims. It made findings open to it on the evidence before it. The Tribunal was not otherwise obliged to consider unarticulated claims or claims which did not clearly arise from the material before it.[2]
[2] NABE & Minister for Immigration & Multicultural& Indigenous Affairs (No. 2) 219 ALR 27 at [48]- [49] and [55]-[63].
Division 4 of Part 7 of the Act is “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. The Tribunal satisfied its obligations to afford the Applicant a hearing by inviting him to a hearing under section 425 of the Act. The Tribunal expressly considered whether the Applicant was given a real and meaningful opportunity to present arguments and give evidence in light of the claim of the Applicant to be suffering ‘mental depression’. The Tribunal was satisfied that the Applicant had been given such opportunity. The Tribunal considered information put before it by the Applicant and independent country information. Those forms of information fall within the exception to s.424A of the Act as identified in s.424A(3)(a) and, as such, did not need to be put to the Applicant for comment. No breach of s.424A arose on the facts in this case.
The Applicant’s application for judicial review filed 10 December 2014 has no merit and it is dismissed with costs being awarded in favour of the First Respondent in the sum of $6,825.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 9 June 2016
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