MZZIE v Minister for Immigration

[2013] FCCA 1224

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZIE v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1224

Catchwords:
MIGRATION – Review of decision of Refugee Review Tribunal – alleged failure by Refugee Review Tribunal to consider claims – no error found – application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.424A, 425

SZBYR v Minister for Immigration and Citizenship (2007) 235 CLR 609

Applicant: MZZIE

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 331 of 2013

Judgment of: Judge Whelan

Hearing date: 6 August 2013

Date of Last Submission: 6 August 2013

Delivered at: Melbourne

Delivered on: 6 August 2013

REPRESENTATION

Solicitors for the Applicant: No appearance by the Applicant

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to

   
   

   “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The Application filed on 18 March 2013 be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 331 of 2013

MZZIE

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an Application for judicial review of a decision of the

   
   

   Refugee Review Tribunal (“the Tribunal”) of 27 February 2013. In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection (Class XA) visa.

   
   

   The Applicant, in his Application to this Court, seeks:

   ·that the decision of the Tribunal be quashed;

   ·a writ of mandamus be directed to the Tribunal requiring it to determine the Applicant’s Application according to law;

   ·a declaration that the recommendation of the Independent Protection Assessment reviewer was not made in accordance with law; and

   ·an injunction restraining the Minister, officers, delegates or agents from relying on the recommendation.

   Given that the Applicant has ticked all the boxes, I assume he was not quite clear as to what he was seeking or what applied to this particular Application.

Background

1. The Applicant is an Indian national. He came to Australia in 2009 as the spouse of a student visa holder. In 2011, the parties were divorced and his visa was cancelled. On 19 December 2011, the Applicant applied to the Department for a protection visa and, as indicated by Counsel for the First Respondent, various material was produced to the delegate at that stage relating to loans taken out and moneys provided for the ex-Wife and the Applicant’s stay in Australia.

2. On 31 January 2012, the delegate refused the Application and on

   
   

   21 February 2012, the Applicant applied to the Tribunal for a review of the decision. On 28 February 2012, the Applicant provided a statement to the Tribunal and attended a hearing, on 1 June 2012, to give evidence and present arguments. The Applicant was assisted in that hearing by an interpreter. On 28 February 2013, the Tribunal informed the Applicant of its decision and the Applicant then lodged this Application for review on 18 March 2013.

The Tribunal’s decision

1. In its decision, the Tribunal referred to the Applicant’s statements that had been provided on 21 February 2012 and 29 May 2012 and summarised his claims. Those claims, essentially, went to the fact that:

   ·a loan had been taken out in India to pay for his ex-Wife’s course and living expenses;

   ·his family were paying back that loan and he was working in Australia and sending money back to make the payments;

   ·if he was sent back to India he would not be able to make those payments;

   ·his family had suffered greatly during the 1984 riots and was still recovering from the damage that they had incurred as a result of it; and

   ·his family could not afford to help him make the repayments and the failure to do so would result in further attacks on his family.[1]

   [1] Court Book, pages 150 and 151 at para.22.

2. The Applicant claimed that if he was to return to India:

   ·he would surely be attacked and his life would be in great risk;

   ·loan sharks would attack him and his family and would also have repercussions from local political parties and the police;

   ·his father could not pay back the money as he did not have enough income;

   ·moneylenders were sending people around to his home to ask his father to repay and on one occasion they took the television and some jewellery and assaulted his father;

   ·he would not get any assistance from the local police as they were part of it all and got paid to ignore these things.

   The Applicant also said that he had been advised by a lawyer to apply for a protection visa.[2]

   [2] Ibid, page 151 at paras.22 and 23.

3. The Tribunal did not accept that the Applicant had a well-founded fear of persecution for one or more convention reasons, nor was it reasonably foreseeable that he would suffer harm if he returned to India. The Tribunal did not accept the Applicant’s claim to fear harm from moneylenders as there was no objective evidence before the Tribunal to believe that a loan had been taken out by the Applicant’s father. The only evidence of a loan was one taken out by the Applicant’s ex-Wife and her family for studies in Australia, and the Applicant had not provided any evidence to support his claim that he had been repaying this loan.

4. The Tribunal considered but rejected a possible convention reason based on a particular social group consisting of debtors owing money to private moneylenders in India, but was not satisfied that such a group amounted to a particular social group and was not satisfied, in any case, that there was evidence of authorities discriminating against debtors as such a group. The Tribunal found if moneylenders were motivated to commit harm to the Applicant that it would be because of defaulting in payment of loans and not for a convention reason. As the claim to fear harm from moneylenders was not a convention reason, it was not necessary for the Tribunal to consider whether the fear was well-founded.

5. In relation to the Applicant’s claim that he feared harm because he was a Sikh, the Tribunal noted that the Applicant did not expand on his claim apart from saying his family was still being discriminated against as a consequence of riots in 1984. He was unable to provide any detail of any harm feared by them apart from to say that his family had experienced economic hardship. The Tribunal was of the view that independent country information did not support the Applicant’s claim that during and since the riots, he and all Sikhs were being targeted on the basis of their religion. The Tribunal, therefore, did not accept that the Applicant would be targeted because he was a Sikh or that he was likely to suffer any harm in India as a result of being a Sikh.

   
   

   The Tribunal also considered the complementary protection provisions but was of the view that the Applicant had not provided credible evidence of fear of harm on return to India due to moneylenders and on the basis of being a Sikh.

Grounds of review

1. The Applicant’s grounds for review are expressed as follows:

   1.  I applied for the protection visa to department of immigration which was refused.

   2.  Then I apply to RRT for review of that decision;.

   3.  I think RRT Tribunal and department of immigration did not look at my situation.[3]

   [3] Application of MZZIE filed 18 March 2013, at page 2.

2. The Applicant did not particularise those grounds any further. He did not seek to amend the Application. He made no written submissions and did not attend the hearing today to make oral submissions.

The First Respondent’s submissions

1. The First Respondent, in written submissions, submitted that the Tribunal did not fail to consider the Applicant’s statement or claims or the evidence given. It submitted that the Tribunal dealt comprehensively with all the material evidence submitted, and in particular, the Tribunal identified the Applicant’s written statements, his oral evidence and his documentary evidence. The decision record indicates the Tribunal gave careful consideration to this evidence when it came to findings and expressed reasons about the Application. Further, the Tribunal’s Reasons for Decision demonstrate an awareness of the Applicant’s claims and they were dealt with in relation to:

   (a)the claim of persecution based on the applicant’s father’s indebtedness…;

   (b)the claim of persecution based on the applicant’s Sikh religion…; and

   (c)     the claim for complementary protection.[4]

   [4] First Respondent’s Outline of Submissions filed 25 July 2013, page 6 at para.21.

2. The Tribunal made findings about all of those matters and ultimately rejected the claim. The Tribunal did not breach its obligations pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”).

   
   

   The decision was informed by:

   (a)deficiencies in the applicant’s evidence, particularly concerning a loan allegedly taken out by the applicant’s father and the applicant’s failure to produce evidence of his efforts to repay a loan taken out by his ex-wife’s family.

   
   

   The Tribunal also took into account the applicant’s failure to expand…on his claim concerning the consequences of the 1984 riot;

   (b)evidence provided by the applicant…particularly evidence of a loan taken out by the applicant’s ex-wife and her family for her studies and stay in Australia;

   (c)country information on a range of topics, including the activities of moneylenders in India and the treatment of Sikhs.[5]

   [5] First Respondent’s Outline of Submissions filed 25 July 2013, page 6 at para.23.

3. While that information in general fell outside the statutory requirements s.424A[6] of the Act, the Tribunal went to considerable lengths to identify the information concerning the ex-Wife’s loan that had been provided to the Tribunal, provided the Applicant with copies of documents and gave the Applicant some six weeks in which he could gather evidence directed to the issues which he failed to do.

   [6] See SZBYR & Ors v Minister for Immigration and Citizenship & Ors (2007) 235 ALR 609 at [18].

4. The Tribunal did not breach its obligations pursuant to s.425 of the Act. The Applicant was invited to attend a hearing. There was no suggestion he was unable to participate in that hearing and the conduct of the Tribunal of that hearing makes it clear that the issues upon which the Tribunal made its decision were clearly before the Tribunal and were all matters which were put to the Applicant.

Conclusions

1. This is an Application for a judicial review of a decision by the Refugee Review Tribunal. It is not a review of the merits of the Applicant’s claim. Rather, the Court is required to consider if the Tribunal complied with its statutory obligations and whether it made any jurisdictional error.

2. The only ground articulated by the Applicant suggests that the Tribunal failed to consider his claims. A reading of the Statement of Decisions and Reasons, however, reveals that the Tribunal dealt with the claims as set out in the Applicant’s statements of 21 February 2012 and

   
   

   29 May 2012, as well as the material contained in his Application.

   
   

   The Tribunal also considered country information about the practices of moneylenders in the Punjab, the treatment of Sikhs in the Punjab, particularly since 1984, and the issue of state protection.

3. Essentially, the Applicant claimed to fear harm from moneylenders because of an inability to pay loans taken out by his father to pay for his wedding, his travel to Australia and his ex-Wife’s tuition. He also claimed discrimination as a Sikh and referred to the damage to his family because of the 1984 riots.

4. On the basis of the material before it, the Tribunal did not accept the Applicant’s claims in relation to loans taken out by his father and fear of harm associated with his failure to repay. The Tribunal gave cogent reasons for its failure to accept that such loans existed. The Tribunal found also that a fear of harm from moneylenders was a

   
   

   non-convention reason. It also gave consideration as to whether there was any basis for the Applicant’s claim to fear harm for a

   
   

   convention-related reason and considered that the chance he would suffer harm from any convention-related reason was remote.

5. The Tribunal’s decision does not reveal a failure to consider the Applicant’s claims nor is there any jurisdictional error I am able to discern in how it went about the decision-making process. For these reasons I am of the view that the Application should be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 27 August 2013