MZYMI v Minister for Immigration - [2011] FMCA 705

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYMI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 705

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, 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
NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965

First Applicant:

MZYMI

Second Applicant:

MZYMJ

Third Applicant:

MZYMK

Fourth Applicant:

MZYML

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 628 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 first and second named applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 628 of 2011

MZYMI

First Applicant

MZYMJ

Second Applicant

MZYMK

Third Applicant

MZYML

Fourth 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 by the Refugee Review Tribunal (the “RRT) which affirmed the decision of the delegate of the Minister not to grant the applicant’s protection visas, the fourth named applicant did not apply for a visa.
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 applicant, such information was required to be sent to be 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.
Those grounds are exactly the same as the grounds in application MZYMG & Anor v Minister for Immigration & Anor (MLG627 of 2011) which was dismissed by the Court earlier today.
The first named applicant in this matter (the “applicant”) arrived in Australia on 8 March 2010 on a Subclass 676 Visitor Visa (Court Book “CB” 13). The second applicant (the “wife”) and her son, arrived in Australia on 18 February 2010. The applicants lodged applications for Protection (Class XA) visas on 25 March 2010. The applicant wife and son applied for Protection visas as dependent members of the applicant’s family unit (CB 25-48). The above applicant’s are citizens of India.
The fourth named applicant was born in Australia on 22 September 2010, and did not lodge an application for a Protection visa.
The applicant’s wife applied initially for a Protection visa as a dependent member of the applicant’s family unit (CB 43).

On 18 August 2010 the Department advised the applicant that his wife, son, mother and father are included in his application as members of the family unit, but that his mother and father do not meet the definition of “a member of the family unit” in reg.1.12 of the Migration Regulations 1994 (the “Regulations”), as they are married (CB 82). They were advised through that letter to lodge separate applications. The parents were withdrawn from the applicant’s application on 26 August 2010 (CB 84). Applications for judicial review in the parent’s applications were considered by the Court earlier today and dismissed (supra).
The applicant lodged a statement in support of his application (CB 49). The applicant claims to fear harm from two uncles, who allegedly bribed a police officer to target the applicant and his family, for reasons arising from a financial dispute involving the purchase of a property in 2000. One of the uncles pursued the applicant’s father and “tortured” him every time the uncle returned to India. While the applicant’s parents were in the USA in 2008, the uncles threatened the applicant and his family and sought to have him arrested (CB 50.6) and filed false complaints against the applicant with the police (CB 51.2).
The delegate refused the applicant’s claim for a visa. The applicant then lodged an application for review with the RRT. The application included the fourth applicant.
By letter dated 11 October 2010 the RRT invited all the applicants to attend a hearing scheduled for 9 November 2010 (CB 104) which was later rescheduled for 1 December 2010. A further invitation to attend the hearing, give evidence and present arguments, was sent out on

9 November 2010 (CB 109).
On 14 December 2010 the RRT sent a letter to the applicant pursuant to s.424A of the Migration Act 1958 (the “Act”) (CB 189). The letter invited the applicants to comment, in writing, on identified inconsistencies in the evidence given by the applicant about his financial position. The information provided by the RRT was said to be relevant as it might cause the RRT to find that the applicant’s evidence was not credible or that he could support his family financially if they returned to India.
The s.424A letter referred also to the delegate refusing the visas because the claimed fear of harm was not Convention–related, and also, because the fourth applicant had not lodged an application for a Protection visa the RRT lacked jurisdiction to make a decision relating to him (CB 189).
The applicant’s written response and documents were received by the RRT on 6 January 2011 (CB 218 [83]) and were considered by the RRT (CB 218-220). The RRT considered also a written response by the applicant received by it on 18 January 2011 (CB 197). The RRT’s consideration of that response is at CB 220 [84].
The RRT accepted that the applicant and his father had been involved in a serious and ongoing financial and property dispute with the applicant’s uncles (CB 222 [90]).
The RRT accepted that the applicant and his father faced threats and harassment from police and from criminals.
The RRT accepted that the applicant and his father faced a real chance in their local area, of being detained by the police and/or suffering harm from criminals and that this was capable of constituting “serious harm” (CB 222-223 [92-94]).
However, the RRT found that the essential reason for the risk of harm was the financial and property dispute (CB 223 [95])
The RRT then considered section 91S of the Migration 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 the applicants did not face a real chance of suffering harm for reasons of their race, religion, nationality or political opinion (CB 224 [105]).
The RRT found that the only Convention–related reason for the fear of harm was the applicant’s membership of a particular social group, comprising his father’s family.
The RRT found that the threat of harm related to the financial and property dispute, and was not for a reason set out in the Convention.
An error of law has not been shown in the RRT reaching that conclusion.
The RRT considered then whether the applicant could reasonably relocate to another part of India, to avoid the risk of harm he faced from his uncles (CB 224 [100]). In doing so, the RRT had to apply the test of “whether it was practicable in the particular circumstances of the applicant for him to relocate”. That is the test the RRT applied.
The RRT considered the particular circumstances of the applicant and his family (CB 224 [100-104]).
The RRT decided that it would be reasonable to expect the first, second and third applicants to relocate to another part of India where they would not face a risk of harm from the police, criminals or the applicant’s uncles.
The RRT found that the applicants do not have a well-founded fear of persecution for any Convention–related reason if they return to India now or in the reasonably foreseeable future (CB 225 [107]).
That finding of fact was open to the RRT on the material before it and is not amendable to 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.
A faulty inference of fact does not show an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [9].
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal.
The challenge is no more than an invitation to review the merits.
The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said:
16 “I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal”.
Even if the RRT erred in finding that the applicant’s fear of harm was not for a Convention–related reason (and the Court has not found that it did), there is an independent and unimpeachable basis for the decision (being the ability of the applicants to relocate). That is a finding of fact that is not amenable to review (NAHI supra), and would make it inappropriate to remit the matter to the Tribunal for reconsideration. The Court refers to the following decisions:
Where there is an independent and unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 at [33]
The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”. [21] Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58]”.
As stated by Justice Kirby in SZBYR at [88]:
“In effect, the discretion allows the reviewing court to say:

The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case”.
Quoting from NAWZ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 199 at [10]:
“Relief under s.75(v) of the Constitution is, like prerogative relief generally, discretionary”: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs and Another; Ex Parte Applicants S134/2002 (2003) 211 CLR 441 at [90]”.
Conversely if the finding as to relocation was found to be incorrect, the applicants cannot overcome the RRT’s finding that their claims lack requisite Convention nexus.
The RRT found that because the fourth applicant had not lodged a Protection visa application, and was not included within the application to it for review, it had no jurisdiction in relation to the fourth applicant. The applicant has not filed an application, had not had an adverse decision handed down and could not apply to the Tribunal for review. An error of law has not been shown by the RRT in making the finding that it had no jurisdiction in relation to the fourth applicant.

Ground One

The RRT complied with s.424A. An error of law has not been shown. 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

It is alleged the applicants satisfied the four elements of the Convention definition. The Tribunal found that the applicants did not fear persecution or harm for a Convention–related reason. The applicants therefore do not meet the key elements of the Convention definition. Ground three is dismissed.

Ground Four

An error has not been established in the way the RRT investigated the claims. As to the allegation of bias in ground four, the Court refers to the following decisions:
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.
The application for judicial review is dismissed.
As the Minister has succeeded in this case, the Minister is entitled to seek costs being the legal costs incurred in opposing the claim.

The Minister is entitled under the Schedule to seek $6,240.00 costs but instead seeks $5,000.00 costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of F. Turner FM

Date: 9 September 2011