MZZEH v Minister for Immigration and Border Protection
[2014] FCA 603
•2 June 2014
FEDERAL COURT OF AUSTRALIA
MZZEH v Minister for Immigration and Border Protection [2014] FCA 603
Citation: MZZEH v Minister for Immigration and Border Protection [2014] FCA 603 Appeal from: MZZEH v Minister for Immigration & Anor
[2013] FCCA 1282Parties: MZZEH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 1097 of 2013 Judge: JESSUP J Date of judgment: 2 June 2014 Catchwords: MIGRATION – appellant abandoned previous grounds put before Federal Circuit Court and sought leave to advance new grounds – no reasonable explanation given and no reasonable prospect of success on advancement of new grounds – leave refused – appeal dismissed Legislation: Migration Act 1958 (Cth) s 476 Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 Date of hearing: 2 June 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: J Taylor Solicitor for the Appellant: Victorian Legal Aid Counsel for the Respondents: G Hill Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1097 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZEH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
2 JUNE 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 1097 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZEH
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JESSUP J
DATE:
2 JUNE 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court this afternoon is an appeal from a judgment of the Federal Circuit Court of Australia given on 27 September 2013 dismissing an application for judicial review under s 75(v) of the Constitution and s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 November 2012. In that decision the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellant a Protection (Class XA) Visa.
In his Notice of Appeal in this Court the appellant advanced two grounds, the second of which is not pressed at all, and the first of which is pressed only when linked to particulars other than those specified in the Notice. In place of the grounds and particulars stipulated in the Notice of Appeal the appellant now seeks to rely upon grounds all of which, if allowed to be introduced, would amount to a departure from the grounds upon which he relied and from the nature of the case which he conducted in the Federal Circuit Court. Logically, the first of the two new grounds proposed by the appellant is that described as Ground (B) as follows:
The learned Federal Circuit Court judge erred in failing to find that the Tribunal fell into jurisdictional error by failing to exercise its jurisdiction in that it did not consider whether the appellant faced a real risk of harm on the basis of his membership of a particular social group, being:
(a) as a businessman/contractor;
(b)as a successful Hazara businessman or member of prominent Hazara family; and/or
(c)as an educated Hazara and/or Hazara who has completed formal qualifications in a Western Country.
The second ground now proposed is described as Ground (A) in the following terms:
The learned Federal Circuit Court judge erred in failing to consider whether the Tribunal fell into jurisdictional error by misdirecting itself or asking the wrong question when it made a finding that it would be reasonable for the applicant to relocate to Islamabad.
…Particular c. The Tribunal considered whether or not it was reasonable for the applicant to relocate to Islamabad without considering whether the applicant faced a real risk of harm on the basis of his membership of a particular social group, being:
(a) as a businessman/contractor;
(b)as a successful Hazara businessman or member of prominent Hazara family; and/or
(c)as an educated Hazara and/or Hazara who has completed formal qualifications in a Western Country.
As advanced today on the application for leave to rely upon these new grounds the appellant’s case has not relied upon items (b) and (c) in ground B or upon sub-particulars (b) and (c) in particular c to ground A. The gravamen of the appellant’s intended case is that it was, by reference to his membership of the social group constituted of successful businessmen/contractors, that the present application for leave should be determined. The application should, in my view, be addressed by reference to three considerations, namely:
1.whether the appellant has a satisfactory explanation for not having run the case which he now seeks to run before the Federal Circuit Court;
2.whether the active respondent in this appeal, the Minister, would be prejudiced by now having to confront grounds of appeal which do not reflect the case below; and
3.whether, if leave to amend as sought were granted, the case being advanced on behalf of the appellant would have a reasonable prospect of success.
With respect to the first of these considerations the applicant relies upon an affidavit of his solicitor at Victoria Legal Aid, Yvonne Lipianin. She deposes as follows:
5.On 8 March 2013 I briefed Cameron Horn of in-house counsel to provide an opinion as to the merits of the judicial review application. Mr Horn’s opinion dated 20 March 2013 identified an argument of the type described above at paragraph 3, and recommended that such a ground was reasonably arguable in the Federal Circuit Court and ought to be pursued.
6.The Appellant’s amended application and written submissions were due to be filed in the Federal Circuit Court by 10 April 2013. Unfortunately, due to an injury sustained by Mr Horn the week before the documents were due, he was unable to finalise them. The brief to prepare the documents was therefore passed to Peta Murphy of in-house counsel on 8 April 2013.
7.I was away on leave the week commencing Monday 8 April 2013. The documents were filed with the Federal Circuit Court on 12 April 2013. Upon my return from leave I reviewed the amended application and submissions, and it came to my attention that they did not articulate the integer claim which had been identified by Mr Horn.
8.Ms Murphy was unavailable to appear at the final hearing of the application in the Federal Circuit Court so on 19 April 2013 Paul Smallwood of in-house counsel was briefed to appear. Mr Smallwood argued the matter on the submissions as drafted by Ms Murphy.
The integer claim referred to by the deponent was described as follows in paragraph 3 of that affidavit:
3.This affidavit is provided in support of the Appellant’s request for leave to raise a ground in his appeal that was not raised in his Federal Circuit Court application, namely that the Second Respondent failed to consider an integer of his claim, being his membership of a particular social group of educated/Hazara businessmen (identified as Ground B in the Amended Notice of Appeal).
Normally, the fact that a solicitor or in-house counsel having responsibility for a proceeding has sustained an injury in the week before documents were due to be filed would provide at least some reasonable explanation for any incompleteness or deficiencies to be seen in those documents, but I note that Ms Lipianin was the solicitor in the case and that Mr Horn was in-house counsel. He had, it seems, given an opinion on 20 March 2013, and the amended application and written submissions were due to be filed in the Federal Circuit Court by 10 April 2013. There was, therefore, some time within which the required documents might be prepared.
I also note the submission of counsel for the respondent Minister on the present occasion that, in an experienced litigator such as Victoria Legal Aid presumably is, and particularly given a reference to an apparently written opinion provided by Mr Horn, there is a difficulty in appreciating why Ms Murphy was not in a position to place herself in command of the kind of case which was in the interests of the appellant to have put before the Federal Circuit Court. It also seems to be the case that Ms Lipianin returned from leave and noted the deficiency which is now said to have arisen due to Mr Horn’s temporary absence. However, the documents were, it seems, filed with that deficiency on 12 April 2013 or shortly thereafter, but the case itself was not heard by the Federal Circuit Court Judge until 9 May 2013. There is no explanation why the point now sought to be run was not introduced into the proceeding within the time between Ms Lipianin’s return from leave and the running of the case on 9 May 2013. It would, of course, have required a further amendment, and that amendment might have encountered opposition, but at least the ground now sought to be relied upon, namely, Mr Horn’s unfortunate injury, would then have been a more immediate circumstance for the Judge in the Federal Circuit Court to consider.
This is not a situation in which I could say that the appellant is without a legitimate explanation for his failure to run these points in the Federal Circuit Court, but I am bound to say that the explanation which has been advanced does not really complete what should be a convincing chronology of circumstances which would properly explain why this point was not advanced before the Judge below. I propose to say nothing more about that for the moment but to pass on to the other matters which arise on the application for leave. Counsel for the Minister rightly accepted that the Minister himself would suffer no prejudice but pointed out that this was a public law case where the interests of the public are also proper to be taken into account.
There is, of course, a strong discretionary disinclination to allow parties to be haphazard or less than fully conscientious in the way they conduct cases at first instance, and any indication that that had happened in this case would, in my opinion, be appropriately considered as prejudicial to the public interest. Nonetheless, I am not disposed to decide the present application by reference to a conclusion of that kind. On balance, I am inclined to the view that considerations of prejudice do not cut one way or the other on this application. That leads me to the question of whether there would be a reasonable case made available to the appellant under the proposed Amended Notice of Appeal that he does not presently have.
I have had the benefit of a fairly detailed explanation from the appellant’s counsel as to the nature of the case which he would wish to run under these two new grounds which are, as will be apparent, closely aligned. Before the Tribunal the appellant claimed that if he were not granted a protection visa but required to return to his own country, which is Pakistan, he would be subjected to persecution for Convention reasons. He contended, therefore, that he was outside that country on account of a well-founded fear of persecution for those reasons. He had a number of reasons upon which he based his assertions of fear of persecution, the only one of which which needs to be considered in the present context is that he was a member of a particular social group consisting of successful businessmen or contractors.
The first of two general propositions put on his behalf today is that the Tribunal did not follow the steps identified by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 394 at [26]. Their Honours said:
At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purpose of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for Convention reason.
In its reasons, the Tribunal in the present case laid out the nature of the appellant’s claimed fear that he would encounter persecution on account of his membership of the social group referred to and mentioned many of the detailed facts and circumstances upon which he had relied in that regard. In the result the Tribunal came to the conclusion that such fear of persecution as the appellant had was not well-founded. In a summary of its conclusion the Tribunal said:
In light of this, the Tribunal does not accept that if he returns to Quetta now, where he no longer has that particular contract, that he will face serious harm from these unidentified extremist or militant groups or private actors such as contractors in his home region or that he would face a real chance of persecution for reasons of his membership of a particular social group of successful businessmen or contractors.
I should say at this point that the Tribunal’s reference to Quetta arose because that is the part of Pakistan where the appellant originally lived and where, in his case, the circumstances particularly arose that would have given him cause to fear persecution. Returning to the appellant’s reliance upon Dranichnikov, it will be seen that in the passage from the Tribunal’s reasons which I have just read, the Tribunal approached the matter as though the appellant was a member of a social group of the kind that would be relevant under the Convention, that is to say, the Tribunal assumed in the appellant’s favour affirmative answers to the questions identified in the first two steps in para [26] of their Honours’ judgment in that case.
Counsel for the appellant submitted today that that was not good enough: that although the Tribunal may have made such an assumption, nonetheless, it was a jurisdictional error for it not to have made specific determinations of the kinds identified in those first two steps. I should say that the authorities referred to today by counsel for the Minister give me cause to doubt the correctness of that proposition advanced on behalf of the appellant. But what is significant is the fact that the Tribunal has, in effect, dealt with the first two steps in an abbreviated way without specific findings favourably to the appellant puts the appellant in no position to ask the Court to exercise its discretion favourably to him, to introduce grounds of challenge which were not part of his case in the Federal Circuit Court.
The real question, as distinct from any theoretical question which would arise on any appeal conducted in accordance with the grounds now proposed to be introduced, is whether the Tribunal misdirected itself, or asked itself the wrong question, or failed to consider the appellant’s case with respect to the third step identified by their Honours in Dranichnikov, namely, whether any alleged fear which the appellant holds is well‑founded. In my opinion, it is quite unlikely that the Court would answer that question favourably for the appellant. In several parts of its lengthy decision the Tribunal left no doubt but that it perceived itself to be considering a claim which was based in part upon what was said to be a fear of persecution for reason of membership of a social group constituted by successful businessmen and contractors.
Indeed, in the paragraphs of the Tribunal’s reasons leading to the summary passage which I have previously read, the Tribunal focuses specifically upon the details of and the merit of the appellant’s case that his position as a successful businessman or contractor exposed him to persecution from the extremist groups in Pakistan which he had identified. In this respect it is worth noting that the Tribunal accepted the appellant’s case that in his home region of Quetta there was a greater than remote or far-fetched possibility that he would experience serious harm from those groups by reason of his Hazara race and Shia religion. However, insofar as the perceived fear of persecution was said to be based upon the membership of the social group referred to, the Tribunal’s conclusion was otherwise. The conclusion was as I have stated above, and any suggestion that the Tribunal misdirected itself or asked itself the wrong question in that regard would not, in my view, withstand examination.
The other way in which the appellant now seeks to express his jurisdictional challenge to the way the Tribunal decided the matter is to say that the Tribunal either misdirected itself or asked the wrong question when dealing with the prospect that the appellant would not be able to avoid the persecution which he feared by undertaking such reasonable relocation of his place of residence within Pakistan as was proposed. The structure of the Tribunal’s reasons is that the question of relocation was considered downstream of and as a consequence of the finding to which I have referred that there was more than remote or far-fetched possibility that the appellant would experience serious harm for reasons of his Hazara race and Shia religion if he were to return to his home in Quetta. So far as the particular social group dimension of the proposed case is concerned, as it seems to me, there was not any occasion for the Tribunal to turn its mind to the possibility of relocation. The primary case advanced by the appellant that he would be subject to more than a remote or far‑fetched risk of persecution in the place to which he would naturally return: his home, Quetta, had been rejected by the Tribunal. And that, in my opinion, explains the absence, to the extent that there is an absence, in the Tribunal’s subsequent reasoning of any comprehensive treatment of the issue of relocation apropos persecution by reason of membership of the social group.
For those reasons I think that any case conducted by the appellant in accordance with the grounds of appeal now sought to be introduced would be unlikely to succeed. Together with the only marginally credible explanation for the appellant’s failure to advance these grounds before the Federal Circuit Court to which I have referred, I am of the view that the amendment should not be allowed. There will be no amendment to the grounds of appeal.
[Counsel for the appellant having accepted that the above ruling disposes of the appeal,] I shall order that the appeal be dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 13 June 2014
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