MZYMG v Minister for Immigration
[2011] FMCA 704
•5 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYMG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 704 |
| MIGRATION – Fear of harm related to private financial dispute – not Convention-related – whether could relocate – independent basis for decision – judicial review – application dismissed. |
| Migration Act 1958 (Cth), ss.91S, 424A, 424AA, 474 Migration Regulations 1994, reg.1.12 |
| Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 |
| First Applicant : | MZYMG |
| Second Applicant: | MZYMH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 627 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing date: | 5 September 2011 |
| Date of Last Submission: | 5 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 5 September 2011 |
REPRESENTATION
| The First Applicant appeared In Person with the assistance of a Gujarati interpreter |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application for judicial review filed on 5 May 2011 is dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 627 of 2011
| MZYMG |
First Applicant
| MZYMH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore & Revised)
This is an application for judicial review of a decision of the Refugee Review Tribunal (the “RRT”) which affirmed the decision of the delegate of the Minister not to grant the applicant’s Protection (Class XA) visas.
The grounds of the application are as follows:
(1)My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.
(2)The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
(3)The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
(4)The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 7 April 2011 was effected by actual bias constituting judicial error.
The applicants in this matter are husband and wife. They are citizens of India. They arrived in Australia on Subclass 676 visas on 18 February 2010. They applied initially for protection visas as dependent members of their son’s family unit; those visas were refused because the applicants were married and as such did not meet the definition of “member of the family unit” in reg.1.12 of the Migration Regulations 1994 (the “Regulations”).
The applicants then lodged applications for Protection (Class XA) visas with the Department on 24 August 2010 (Court Book “CB” 13 and 27). Only the husband (the “applicant”) made a claim for refugee status; the wife applied for a protection visa as a dependent member of the applicant’s family unit. Their claims arose from the same circumstances as claimed by their son in MZYMI & Ors v Minister for Immigration & Anor (MLG 628 of 2011).
The applicant claimed that his brother-in-law demanded money from him and alleges that he “tortured” the applicant to force him to pay; For instance in 1998 when his brother-in-law visited India from London, instead of staying with the applicant, he stayed with the applicant’s brother. Also it is alleged that on 16 December 2008, his brother-in-law bribed the police to arrest him. It is stated that on
14 January 2009, both the applicant’s sons were scared of the applicant’s brother-in-law during the festival of Uttrayan. Various other incidents are set out in the applicant’s statement at CB 33-36).The delegate refused the application for protection visas, as effective state protection was available (CB 61.6), and the delegate also found the applicants could relocate within India (CB 62.2).
The applicants then lodged an application with the RRT to review the decision of the delegate.
The applicants were invited to attend the hearing at 10am on
20 January 2011 to give evidence and present arguments (CB 71).
The time of the hearing was rescheduled to 12pm on 20 January 2011 and a new invitation to attend was sent out to the applicant (CB 78).At the hearing, the RRT, pursuant to s.424AA of the Migration Act1958 (the “Act”), put orally to the applicant particulars of “information” that the RRT considered would be the reason, or a part of the reason, for affirming the decision of the delegate (CB 99 [71]).
The RRT explained to the applicant how the information it had was relevant to the review (CB 99 [72]), as required by s.424AA(b)(i) of the Act.
The applicant accepted the RRTs invitation to comment on, or respond to, the information, and sought additional time to “comment on or respond” to the information. The applicant requested that he be able to respond in writing (Ibid) and he was given until 3 February 2011 to do so (Ibid).
The applicant responded by letter dated 3 February 2011 (CB 99 [74]). The contents of the letter were considered by the RRT (CB 99-100).
The applicants stated at the hearing that they did not fear harm in India because of their race, religion, nationality or political beliefs (CB 101 [78]). The RRT then proceeded to find that the applicant did not face a risk of harm on those grounds (CB 102 [86]).
The RRT considered whether the applicant could claim to fear harm because of membership of a particular social group being “the close or immediate family of their son, as his parents” (CB 101 [79]).
The RRT accepted that the applicant’s son had been involved in a serious and ongoing financial and property dispute (CB 101 [81]).
The RRT accepted that the son had faced threats and harassment from the police and criminals which constituted “serious harm” (CB 102 [82-84]).The RRT found that the only Convention – related reason for the applicants to fear harm was their membership of the particular social group as discussed by the Court above (CB 102 [86]).
The RRT then considered the terms of s.91S of the Act which is as follows:
Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a)disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b)disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
The RRT found that although the applicants and their son had faced intimidation and persecution (CB 102 [87]), the essential reason was a financial and property dispute and not a Convention – related reason. Pursuant to s.91S of the Act the RRT then disregarded the fear of persecution held by the applicants, arising from their membership of the particular social group as discussed (CB 102 [88]).
The RRT found that the risk of harm is not from a Convention-related reason (CB 103 [89]).
An error of law has not been shown in the finding of the Tribunal.
The RRT then found that the applicant could reasonably relocate to another part of India to avoid the risk of harm he faced in his local area (CB 103 [94]).
In reaching that conclusion the RRT applied the correct test of whether it was practicable in the particular circumstances of the applicant for him to relocate.
As decided by the Full Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46:
“The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa [1994] FCA 1253; 52 FCR 437 at 442–443, especially at 443C–D.
We do not think that the decision of Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 dictates any different result. In our view, the result in that case turned on its own facts. Of particular importance in that case was the acceptance by the Tribunal that the applicant had been harassed in the past as he had alleged
In the present case, the Tribunal rejected all of the appellant’s claims of past harm and there was no basis for the Tribunal to speculate that the appellant may be harmed if he relocated”.
In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Black CJ observed that the focus of the Convention is not upon the protection that the country of nationality might be able to provide in particular regions, but upon a more general notion of protection by the whole of the country. At 441, Black CJ considered that the reason for this was that:
“If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders”.
In Randhawa, Black CJ held that given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether he or she could “reasonably be expected to do so”. His Honour stated (at 442):
“...a person’s fear of persecution in relation to that country [of nationality] will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person”.
Justice Beaumont agreed that relocation must be a reasonable option, stating at [451]:
“…that is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution”.
As stated by Justice Hayne in Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23 at [21-22]:
Consideration may be given to the possibility of a claimant for protection if relocation is a reasonable (in the sense of practicable) response to a fear of persecution[4]. As three members of this Court pointed out in SZATV v Minister for Immigration and Citizenship[5], “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person…It is evident that the particular circumstances of the plaintiff were not considered by the delegate… By not correctly identifying the relevant question, the delegate made a jurisdictional error”
[4] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
5 (2007) 233 CLR 18 at 27 [24] per Gummow, Hayne and Crennan JJ; [2007] HCA 40. See also at 48-49 [100]–[102] per Kirby J, 49 [105] per Callinan J.
The Court notes that in this case before it at present the Tribunal considered the particular circumstances of the applicant. Those circumstances are discussed by the Tribunal at CB 103 [90-94]. The finding as to the practicability of relocation is a finding of fact, and as such is not amenable to judicial review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
And at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.
A wrong finding of fact is not a jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
If the Tribunal had fallen into error in finding that the applicant did not face the risk of persecution for a Convention reason there is another basis for upholding the decision of the Tribunal; that is, that the applicant can relocate within India.
Grounds in the Application
Ground One
The Court finds that the Tribunal complied with s.424AA of the Act. Section 424A was not breached as alleged by the applicant. Ground one is dismissed.
Ground Two
An error of law has not been shown in the way the RRT reached its decision. Ground two is dismissed.
Ground Three
The applicant alleges that he satisfies the four key elements of the Convention definition. The Tribunal found correctly that the applicants do not fear persecution for a Convention-related reason. Ground three is dismissed.
Ground Four
Ground four alleges that the Tribunal failed to investigate the applicant’s claims. An error of law has not been established in the way the RRT considered the claim. The ground also alleges bias.
No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be distinctly made and clearly proven.
No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
In order to make out a case of actual bias on a decision-maker’s part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently; see e.g., Minister for Immigration and Multicultural Affairs v JiaLegeng (2001) 205 CLR 507 (Jia) at 531 per 531 per Gleeson CJ and Gummow J.
A party alleging bias carries a heavy onus. The allegation must be “distinctly made and clearly proved” see Jia 531 per Gleeson J and Gummow J and 546 per Kirby J. A case of actual bias is seldom made out by reference solely to the decision-maker’s reasons for decision.
Bias has not been established in this case. Ground four is dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
The application for judicial review is therefore dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 9 September 2011
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