MZARK v Minister for Immigration
[2015] FCCA 3149
•4 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARK v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3149 |
| Catchwords: MIGRATION – Review of a decision by the Refugee Review Tribunal – application Protection (Class XA) visa – failure to raise arguable case – r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – application dismissed. |
| Legislation: Constitution, s.75(v) Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), s.476(1) 1951 Convention Relating to the Status of Refugees |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407 |
| Applicant: | MZARK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 215 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 4 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 4 November 2015 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Lucas |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the costs of the First Respondent fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 215 of 2015
| MZARK |
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 for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) dated 5 January 2015. By that decision, the Tribunal affirmed a decision of a Delegate of the Minister for Immigration and Border Protection (“the First Respondent”) to refuse to grant the Applicant a Protection (Class XA) visa.
The Application filed by the Applicant on the 5th day of February 2015 does not seek a writ of mandamus or injunction. The order sought by the Applicant is that the decision of the Tribunal or Minister be quashed. As the First Respondent correctly submits, the Application itself does not properly invoke the jurisdiction of the Court by reference to s.476(1) of the Migration Act 1958 (Cth) (“the Act”) and s.75(v) of the Constitution.
The Application contains some 17 grounds of review. Those grounds contain no particulars. The grounds are as follows:-
“1. I am seeking further review at Federal circuit court under the s.476 of the Migration Act 1958
2. My claims fall in to protection obligations because of as a necessary and foreseeable consequence of my removal from Australia to a receiving country, there is a real risk that I will be killed.
3. I am satisfying the criterion of Article 1A(2) of the Refugees Convention definition of refugee
4. I do have well-founded fear back in India, as I am victim and threatened from assailants in my country which is explained in Refugee Review tribunal submission
5. Refugee Review Tribunal has made lost the Hearing rights and make the decision affirming not to grant the Protection visa.
6. Even Article 33(1) of the Refugees Convention, Australia has an obligation not to expel me as my freedom in (sic) endanger by other majority religion.
7. Human Rights are so tangled that I won’t get any justice back in India if I go back to.
8. Even my family members or other peer groups also weak in India as they could not help me.
9. So my situation will connect to criterion by S.36 of migration regulations 1994 “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or owing to such fear, is unwilling to return to it”.
10. My family suffered with same problems in India following how I am suffering, I will be killed when I return to India.
11. According to regulations and I do have a well-founded fear of persecution in the reasonably foreseeable future for reasons of my backward caste.
12. Here, I would like to request the Federal circuit court to look in to this matter of claims
13. If Federal Circuit court has not got power in it, I request the honourable judge to take this matter in to Honourable minister attention.
14. I can bring the evidence that I am a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore I would satisfy the criterion set out in s.36(2)(a
15. I am agreeing and came to know that absolutely my application has been made with genuine claims
16. I have felt this is unfair that Refugee Review Tribunal has made a decision without allowing me
17. I hope Federal circuit court has got Jurisdiction in this matter.”
The grounds of review are repeated in a supporting Affidavit which accompanies the Application. Annexed to that Affidavit is a copy of the decision of the Delegate dated 3 April 2014 and a copy of the decision of the Tribunal dated 5 January 2015. Page 4 of the Tribunal decision is missing in the copy annexed to the Affidavit of the Applicant affirmed 5 February 2015. Counsel for the First Respondent provided the Court with a clean copy of the whole of the Tribunal decision prior to the matter proceeding.
On 13 May 2015, Registrar Allaway made procedural Orders requiring the Applicant to file and serve written submissions by 2 October 2015. The Applicant has not filed any submissions in the proceedings.
The First Respondent seeks orders (as set out in the Response dated 12 February 2015) that the Application be dismissed and the Applicant pay the First Respondent’s costs of this proceeding on the grounds that the decision under review is not affected by jurisdictional error. The First Respondent relies upon contentions of fact and law dated 23 October 2015.
The Application before me this day is a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the rules”). The Court concludes that the Application for judicial review fails to raise an arguable case for the claimed relief and the proceedings should be dismissed pursuant to r.44.12 of the rules with costs for the reasons which follow.
Background
The Applicant is a citizen of India who arrived in Australia on 26 September 2007 as a dependent on his ex-wife’s Student visa. He was granted a further Student visa as a dependent on 12 November 2007 which was valid until 30 July 2008.
On 30 July 2008, the Applicant was granted a Student visa as a primary visa applicant. That visa was valid until 7 October 2009. After that time, the Applicant remained in Australia without a valid visa.
On 14 December 2013, the Applicant was taken into immigration detention.
On 30 December 2013, the Applicant applied for the Protection visa and on 7 January 2014, he was released from immigration detention on a Bridging visa.
On 3 April 2014, the Delegate refused to grant the Applicant the Protection visa. On 5 May 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision.
On 16 December 2014, the Applicant attended a hearing before the Tribunal to give evidence and present arguments. He was assisted at the hearing by his migration agent and an interpreter in the Punjabi and English languages.
On 5 January 2014, the Tribunal affirmed the Delegate’s decision.
The Applicant’s protection claims centred around his relationship with his ex-wife. He claimed his ex-wife’s family had not approved of his marriage because he and his wife were from different castes. Because of this, he and his ex-wife fled to Australia. However, ultimately, they had marital problems which culminated in the Applicant’s ex-wife taking out an Intervention Order against him in 2008. The Applicant believes that his ex-wife told her family that he had pressured her to marry him. He claimed that his ex-wife’s brother had threatened to make him disappear if he returned to the Punjab, and that her family would seek revenge against him to “restore their honour”.
Tribunal Decision
The Tribunal found much of the Applicant’s evidence to be “vague and speculative” particularly in relation to Monica (his ex-wife) and her family. Otherwise, the Tribunal’s findings were accurately summarised in the contentions of the First Respondent. They are:-
“12. The Tribunal accepted that the applicant had married his ex-wife in January 2007. It also accepted that his ex-wife’s family did not approve of his relationship, attend their wedding or visit them after the wedding. However, the Tribunal found that the applicant had exaggerated the extent of her family’s disapproval and enmity towards him and that his evidence was ‘vague’ and ‘confused’ in a number of respects.
13. The Tribunal did not accept the applicant’s evidence in a number of key respects including that his ex-wife’s family were staunchly observant Sikhs or that the enmity toward the applicant was so great that they would take any adverse action against the applicant or his ex-wife or harm them in any way. It also did not accept that the applicant’s ex-wife fled her family home in secret some weeks before departing India, or that her family did not have the opportunity to harm him and his ex-wife before they left India. Similarly, the Tribunal rejected the applicant’s claim that his family had received threatening phone calls from his ex-wife’s family as a ‘recent invention’.
14. In the circumstances, the Tribunal found that there was no real chance that the applicant would be seriously harmed or be the subject of an honour killing on the basis of an inter-caste or interreligious relationship/marriage.
15. While the Tribunal accepted that the applicant’s ex-wife’s family may have threatened him, it found that the main thrust of those threats was that the applicant leave his ex-wife alone as her family supported the end of the relationship. Noting that the applicant conceded that he had not had contact with his ex-wife or her family for 6 years, the Tribunal did not accept there was a real chance that her family would carry out their threats.
16. The Tribunal was prepared to accept that the applicant and his ex‑wife were divorced. However, it did not accept that his ex‑wife’s family would seriously harm the applicant because they blamed him for the marriage breakdown or because she was remarried. The Tribunal found that the ex-wife’s family wished to ensure that her current husband did not find out that she had been married previously.
17. The considerable delay in the applicant lodging his visa application also added to the Tribunal’s concern as to whether the applicant had a genuine fear of harm.”
Consideration
Each and every of the grounds of application in the judicial review Application go nowhere toward establishing that jurisdictional error attends the decision of the Tribunal. The grounds of review either re-state the procedural background; seek impermissible merits review of the Tribunal’s decision; refer to the Applicant’s request that this Court consider his claims; and otherwise refer to the Applicant’s ‘hope’ that the Court has jurisdiction.
The Tribunal considered the Applicant’s claims individually and cumulatively including the effect of the inter-caste, interreligious marriage, together with being blamed for the break-up of the marriage and subsequent divorce and remarriage. The Tribunal found there was no real chance that the Applicant’s ex-wife’s family would seriously harm the Applicant or cause him to be seriously harmed in the reasonably foreseeable future, and that his fear of persecution on this basis was not well founded. The Tribunal found the Applicant was not a refugee within the meaning of the Refugees Convention.[1] The Tribunal considered complementary protection and found no real chance that the Applicant would be seriously harmed for any of the reasons claimed. The Tribunal was satisfied there were no substantial grounds for believing as a necessary and foreseeable consequence of being removed from Australia to India, there was a real risk that the Applicant would suffer significant harm due to his relationship with his wife, the marriage, the separation and divorce and his wife’s subsequent remarriage, either individually or cumulatively.
[1] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.
The Tribunal rejected the Applicant’s claims in the main because of its adverse credibility findings. Such findings were open to the Tribunal on the material before it and are not the subject of review by this Court. The Tribunal’s credibility findings are findings of fact par excellence.[2]
[2] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407 at [67].
The Tribunal afforded to the Applicant procedural fairness, putting its various concerns to the Applicant during the course of the hearing and affording the Applicant an opportunity to respond to those concerns. The Applicant was clearly on notice that his credibility was a determinative issue in the proceeding. The decision is neither illogical nor unreasonable. There is no jurisdictional error attending it.
The Application is without merit. It is no more than an impermissible attempt at merits review.[3] There is no arguable case for the relief claimed.
[3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [ 272].
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 26 November 2015
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