MZZBR v Minister for Immigration

[2013] FCCA 244

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 244

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – no jurisdictional error – application dismissed.

Legislation: 

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(b), 415, 424, 424A, 427, 474(2)

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

Minister for Immigration and Citizenship v SZGUR & Anor (2011) 214 CLR 594

VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) HCA 60

First Applicant: MZZBR

Second Applicant: MZZBS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1306 of 2012

Judgment of: Judge Hartnett

Hearing date: 6 May 2013

Delivered at: Melbourne

Delivered on: 10 May 2013

REPRESENTATION

The First Applicant: In person

The Second Applicant: No Appearance

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Clayton Utz Lawyers

ORDERS

1. The Application filed 17 October 2012 is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1306 of 2012

MZZBR

First Applicant

MZZBS

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with an Application filed by the Applicants on 17 October 2012.  The Applicants sought judicial review of a decision of the Second Respondent dated 21 September 2012 and handed down on 25 September 2012.  The Second Respondent affirmed a decision of a Delegate of the Minister for Immigration and Citizenship (‘the Delegate’) to not grant protection visas to the Applicants.

2. 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 it’s “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 applicant’s claim, specifically the grounds of persecution, in India.  Therefore, the Tribunal decision dated 21 September 2012 was effected by actual bias constituting judicial error.”

3. The First Respondent opposes the application of the Applicants asserting that the decision of the Refugee Review Tribunal (‘the Tribunal’) was not affected by jurisdictional error and therefore is a privative clause decision within the meaning of s.474(2) of the Migration Act 1958 (Cth) (‘the Act’) as set out in its Response to Application filed 1 November 2012.

4. On 5 December 2012, this Court relevantly ordered that by 1 April 2013 the Applicants file and serve:-

   (a)an Amended Application, if any;

   (b)a supplementary Court Book, if any; and

   (c)written submissions. 

5. At the time of the hearing the Applicants had not filed or served any of the documents provided for in the Orders of 1 April 2013.  The First Applicant appeared in person.  The Second Applicant, the wife of the First Applicant, makes her application as a member of her husband’s family unit.  She was not present at the hearing.  The First Applicant made no oral submissions to the Court in support of his application.  An interpreter was present to assist the First Applicant, and interpreted for him the First Respondent’s submissions filed 29 April 2013.  The proceedings were stood down to enable the interpreter to so interpret.

Background

1. The Applicants are citizens of India.  They entered Australia on 13 January 2011 holding Indian passports and tourist visas. 

2. On 20 May 2011, the Applicants applied for protection visas. The First Applicant claimed that if he returned to India in the reasonably foreseeable future he would face a real chance of persecution or risk of harm as a result of a dispute with a person who had loaned money to him. The Second Applicant did not make any specific claims and instead relied on her membership of the same family unit as the First Applicant.

3. On 7 December 2011, the First Applicant was interviewed by the Delegate.  The Tribunal subsequently listened to a recording of that interview.  The First Applicant discussed his claims and provided the documents referred to by him in support of his application.  Further information was provided by the First Applicant orally.  The First Applicant said he came to Australia because he thought it was a good place.  The First Applicant’s children did not travel to Australia with the First Applicant because of the First Applicant’s financial problems.  The Delegate listened to the various claims made by the First Applicant and noted the evidence provided by him.  On 12 December 2011, the Delegate refused to grant the Applicants protection visas.  The Delegate relevantly found that the First Applicant’s fear of harm was “based on a personal dispute concerning money in India” and, as such, there was no basis for any protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugee Convention’).  The Delegate was also satisfied that the First Applicant would not be denied effective State protection in India.

4. On 5 January 2012, the Applicants applied to the Tribunal for a review of the Delegate’s decision.  On 1 June 2012, the Tribunal conducted a hearing at which the First Applicant, assisted by an interpreter, gave evidence and made submissions.  On 25 September 2012, the Tribunal handed down its decision dated 21 September 2012 in which it affirmed the Delegate’s decision to refuse to grant the Applicants protection visas.  The Tribunal was not satisfied that either of the Applicants were persons to whom Australia had protection obligations.

The Tribunal’s decision

1. The Tribunal accepted that the Applicants were citizens of India.  The Tribunal summarised the First Applicant’s claims at paragraph 88 of its reasons as follows:-

   “The applicant claims that at the end of 2008 he borrowed a large sum of money from a money lender who, in April 2009, refused to accept repayment of the balance owing and demanded an exorbitant additional amount that the applicant could not pay.  The money lender made threats to the applicant and physically mistreated him and damaged some of his property in January 2010.  The applicant has complained to police at various levels and applied to a court but has not seen any positive action to resolve the matter or to protect him from harm.”

2. Although the Tribunal did not accept the First Applicant’s statement in his tourist visa application that he was the proprietor of a business, and found that the statement may have been made with a view to maximising the prospects of success of that application, the Tribunal however considered that in relation to his claims for a protection visa the First Applicant gave evidence in a substantially coherent way.  Importantly, he made a number of concessions against his interests and he did not hesitate to say where his own knowledge was limited.  The Tribunal accepted his evidence as credible and reliable.

3. The Tribunal accepted that the threats made against the First Applicant in January 2010 and the mistreatment of him at that time had constituted serious harm.  The Tribunal found the threats to be made on 26 January 2010, by a group of five or six people, who included the money lender.  At the same time, the First Applicant was mishandled and property was damaged.  The Tribunal, having considered that this constituted serious harm, then went on to consider the risk of future persecution of the First Applicant (VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) HCA 60 at paragraph 3). The Tribunal found that the First Applicant had not come to any serious harm at the hands of the money lender during the 12 months from January 2010 to January 2011 and found further that whatever the case, the history subsequent to January 2010 led the Tribunal to conclude that there was now no real chance that the First Applicant would suffer serious harm from the money lender, or his associates, in the reasonably foreseeable future, if he were to return to India. The Tribunal further found that even if there was a real chance that the First Applicant would in future suffer serious harm, amounting to persecution “…that would not be for a Convention reason”. In the Tribunal’s view, there was “insufficient evidence of the kind to take the matter beyond personal financial interest to something Convention-related” (paragraph 95 of the Tribunal’s Statement of Decision and Reasons).

4. The Tribunal also found that it could not:-

   “…conclude that the State of India was not reasonably able to protect him so that he would now be justified in saying that he was unable or unwilling to seek its protection” (paragraph 101 of the Tribunal’s Statement of Decision and Reasons).

5. The Tribunal also found that it would be reasonable, in the sense of practicable, for the First Applicants to relocate to a place in India outside of the State of Gujarat, and that upon any such relocation, the First Applicant would face no real chance of persecution for a Refugee Convention related reason. For all of these reasons, the Tribunal concluded that the Applicants did not meet the refugee criterion in s.36(2)(a) of the Act.

6. The Tribunal considered, also, whether the First Applicant met the criterion in s.36(2)(aa) of the Act. The Tribunal concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there was a real risk that the First Applicant would suffer “significant harm”, as that expression is defined in the Act. The Tribunal found that the First Applicant’s situation fell within one or more of the circumstances set out in s.36(2)(b) of the Act. In particular, the Tribunal found it would be reasonable for the First Applicant to relocate outside of Gujarat, and that outside Gujarat there would not be a real risk that the First Applicant would suffer significant harm.

7. The Tribunal was thus not satisfied that either of the Applicants was a person to whom Australia owed protection obligations, and that neither of them could satisfy the criteria for the grant of a protection visa. 

Consideration

1. The Applicants’ application for judicial review alleges that the Tribunal’s decision is affected by jurisdictional error, yet no details of any of the grounds claimed exist in the Application, nor is there any supporting material by way of submissions put before the Court in which the Applicants particularise the grounds stated by them. 

2. On a fair reading of the Tribunal’s decision, none of the grounds alleged by the Applicants are capable of being made out. There is no evidence before the Court that the Tribunal failed to comply with s.424A of the Act. The First Applicant does not point to any “information” within the meaning of s.424A of the Act, which he claims the Tribunal failed to invite him to comment on. The Tribunal’s reasons relevantly refer to the First Applicant’s own evidence and country information about India. This information does not attract the operation of s.424A of the Act. There is no basis for the First Applicant to assert that the Tribunal did not understand the nature of its decision-making task under the Act. The Tribunal considered the evidence before it, relevant country information and the various submissions made to it, and made findings reasonably open to the Tribunal on the material before it. On a fair reading of the Tribunal’s decision, it cannot be said by the Applicants that in its findings and reasons, the Tribunal departed from a correct statement and application of the law.

3. It is not for the Tribunal to make out the Applicants’ case. That is the responsibility of the Applicant, who is to be afforded a proper opportunity to present his case, which was done in these circumstances. There is no evidence that the Tribunal’s decision was somehow affected by actual bias, and that serious allegation is not made out. The First Applicant claimed that the Tribunal was under an obligation to investigate his claims. This claim, also, is without merit. Sections 415, 424 and 427 of the Act give the Tribunal wide discretionary powers to investigate an applicant’s claims. However, these provisions do not impose upon the Tribunal any general duty to make inquiries (Minister for Immigration and Citizenship v SZGUR & Anor (2011) 214 CLR 594 at paragraphs 20, 75, 91 and 92). The Tribunal’s power to make inquiries pursuant to these provision is permissive and facilitative.

4. On no ground have the Applicants established that the Tribunal’s decision is affected by jurisdictional error.  Accordingly, the application for judicial review will be dismissed, and costs shall follow the event.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  10 May 2013