MZZIE v Minister for Immigration and Border Protection
[2013] FCA 1320
•13 December 2013
FEDERAL COURT OF AUSTRALIA
MZZIE v Minister for Immigration and Border Protection [2013] FCA 1320
Citation: MZZIE v Minister for Immigration and Border Protection [2013] FCA 1320 Appeal from: MZZIE v Minister for Immigration & Anor [2013] FCCA 1224 Parties: MZZIE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): VID 912 of 2013 Judge(s): DAVIES J Date of judgment: 13 December 2013 Catchwords: PRACTICE AND PROCEDURE – Application for an extension of time to file notice of appeal from decision of Federal Circuit Court – Proposed appeal unmeritorious – Application dismissed.
MIGRATION – Protection (Class XA) visa – Proposed appeal – Applicant claimed Tribunal failed to comply with procedural fairness obligations under s 424A of the Migration Act 1958 (Cth) – Whether Tribunal provided applicant with a reasonable opportunity to give evidence and present submissions – No error of law.
Legislation: Migration Act 1958 (Cth), ss 424A, 425 Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Parker v The Queen [2002] FCAFC 133
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609Date of hearing: 5 December 2013 Date of last submissions: 5 December 2013 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Respondents: C Symons Solicitor for the Respondents: Clayton Utz Counsel for the Appellant: MZZIE appeared In Person
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 912 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZIE
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
13 DECEMBER 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The name of the first respondent is amended to “Minister for Immigration and Border Protection”.
3.The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement.
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 912 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZIE
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE:
13 DECEMBER 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant has applied for an extension of time in which to appeal from a decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The principles guiding the exercise of the Court’s discretion to extend time in which to file the appeal are well established. The three main matters for the Court to take into account are:
·the explanation for the delay;
·any prejudice to the respondents; and
·whether the applicant has an arguable case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9; Parker v The Queen [2002] FCAFC 133.
In the present case, the delay in commencing the appeal was only three days, which is minimal and there would be no injustice to the respondents occasioned by the delay in bringing the appeal. However, for the reasons that follow, leave should not be granted because the proposed appeal lacks merit.
BACKGROUND AND CLAIMS
The applicant is a citizen of India who arrived in Australia in 2009 as the spouse of a student visa holder. The applicant and his wife divorced in 2011 and the applicant’s visa was subsequently cancelled. On 19 December 2011 the applicant applied for a protection visa. A delegate of the first respondent (“the Minister”) made a decision to refuse the applicant’s visa application on 31 January 2012.
The applicant claimed that he and his father had taken out loans in India to pay for his ex-wife’s studies and living expenses. The applicant claimed that his family was still trying to pay back the loans, and that he was working in Australia and sending money back to India to make the payments. The applicant claimed that if he was sent back to India he would not be able to make those payments and that he and his family would be attacked by loan sharks as a result and that he would not get any assistance from the authorities because the local police were paid by the moneylenders to ignore such things. The applicant claimed to fear that his life would be in great danger. He claimed that moneylenders were already sending people around to his family’s home in India demanding that his father repay the loans. The applicant claimed that on one occasion the moneylenders assaulted his father and stole a television and jewellery. He claimed to be unable to obtain effective state protection because the police were involved. He also claimed that he feared harm because he is a Sikh.
THE TRIBUNAL’S DECISION
The Tribunal did not accept that the applicant had a well-founded fear of persecution for one or more Convention reasons nor that it was reasonably foreseeable that he would suffer harm if he returned to India. The Tribunal held that the fear of harm by moneylenders that the applicant claimed to hold:
·was not a Convention ground because the fear was not for reasons of his race, religion, nationality, membership of a particular social group or political opinion; and
·was not substantiated on the evidence. The Tribunal rejected the applicant’s evidence that loans were taken out by him and his father to pay for his ex-wife’s studies, finding that there was there was no objective evidence to support the existence of such loans.
The Tribunal also rejected the applicant’s claim to fear harm because he is a Sikh, which was not supported by the independent country information.
In consequence, the Tribunal affirmed the delegate’s decision.
THE PROCEEDINGS IN THE FCC
In the FCC the applicant advanced the ground that the Tribunal “did not look at my situation”. The ground was not particularised and the applicant did not file any written submissions or appear at the hearing to make oral submissions.
The Minister made submissions to the FCC directed at the following grounds:
·whether the Tribunal failed to take into account the applicant’s statements, claims or evidence; and
·whether the Tribunal denied the applicant procedural fairness.
The FCC held that there was no jurisdictional error in the Tribunal’s decision. The FCC reasoned as follows:
[15] 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.
[16] 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.
[17] 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.
[18] On the basis of the material before it, the Tribunal did not accept the Applicant’s claims in relation to the 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.
[19] 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.
The FCC dismissed the judicial review application.
APPEAL TO THIS COURT
The applicant seeks to appeal the FCC decision. The proposed ground of appeal is as follows:
The [FCC] failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall (sic) under jurisdictional error.
That ground was particularised as follows:
There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with
s 424A(1).The “certain adverse information” was not identified and the applicant did not file any submissions.
Section 424A(1) of the Migration Act 1958 (Cth) provides that:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
Relevantly, s 424A(3) provides that:
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
…
Section 424A was considered by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. The High Court found that the Tribunal’s disbelief of the appellants’ evidence was not “information” for the purpose of s 424A because “information” related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
A careful reading of the judgment of the Tribunal does not disclose any failure by the Tribunal to comply with its obligations under s 424A(1) for the reasons set out at [16] – [18] of the FCC’s reasons for judgment. There is no merit in the proposed appeal on the ground advanced in the application and accordingly, there is no warrant in granting an extension of time in which to appeal on that basis.
In the course of hearing the application for leave, the applicant raised for the first time that the Tribunal had told him that he would be given the opportunity to provide further material in support of his application and adjourned the hearing to a date which would be notified to the applicant. The applicant claimed that he did not provide the further information to the Tribunal because he was waiting to be notified of the date of the hearing at which to present that information. As the Minister was not on notice of this claim and not in a position to respond to it, the matter was stood over to enable the parties to obtain and review the transcript of the Tribunal hearing.
The transcript of the Tribunal hearing revealed that:
a.toward the beginning of the hearing, but after the Tribunal had gone through introductory matters in some detail, the applicant indicated to the Tribunal that he did not have any objection to the use of the particular interpreter and further indicated that he was able to understand the interpreter;
b.the Tribunal brought to the attention of the applicant that he had not provided any documentation about the loans with the bank;
c.the applicant requested some time to show the Tribunal “the papers”;
d.later, in the context of giving evidence that private lenders had bashed his father, the applicant again told the Tribunal that he needed some time and would give the Tribunal more information about his case. The applicant suggested a period of one or two months;
e.the Tribunal identified for the applicant information that if relied upon could be “the reason or part of the reason” for affirming the decision (of the delegate). This information was identified as a document from the Syndicate Bank dated February 2009, an affidavit from the parents of the applicant’s ex-wife, an affidavit from the applicant’s ex-wife, a letter from the Syndicate Bank which referred to an overdraft limit of 7 lakhs secured against an agricultural property and a valuation certificate relating to the property;
f.the applicant again stated that he could show the Tribunal the “bank papers” (for the loan);
g.the Tribunal put the applicant on notice that there was no proof that the applicant’s father had borrowed any money;
h.the applicant again asked for some time to obtain proof from the bank;
i.the Tribunal concluded its questioning of the applicant about his claims by asking the applicant if there was anything else he wanted to tell the Tribunal, informing the applicant that there were no further questions it had of the applicant and telling the applicant that it would give him 6 weeks to get “any kind of documentation you think is going to help your case”;
j.the Tribunal then, in response to a question from the applicant about the documents he should bring, indicated to the applicant that there was no proof about the loans and also inquired as to whether it was possible for the applicant to get a medical certificate about the injuries sustained by the applicant’s father. The Tribunal also indicated that the applicant could get documents relating to money borrowed from friends and moneylenders;
k.the Tribunal impressed upon the applicant the importance of obtaining legal advice about his immigration status, including his work permission;
l.the Tribunal concluded the hearing by:
i.informing the applicant that it would adjourn the case for 6 weeks so that the applicant would have the opportunity to get whatever information he could from his father;
ii.reminding the applicant to get advice and “get the documents”; and
iii.advising the applicant that the Tribunal would wait until it obtained the further information from the applicant before any decision was made.
The Tribunal decision was delivered on 27 February 2013 without a further hearing. The decision recorded at [118] that the applicant had not provided any further comments or further evidence to the Tribunal.
The review of the transcript showed that decision to adjourn the hearing was solely to provide the applicant, at his request, with a further opportunity to put evidence before the Tribunal in support of his application for review, having explained to the applicant that the information then before the Tribunal, if relied upon, could be “the reason or part of the reason” for affirming the decision. The applicant was given 6 weeks to provide that information and was told by the Tribunal that the Tribunal would wait until it had received the further information before it made any decision. The applicant was not told that he would be invited, or have the opportunity, to participate in a resumed hearing or that he did not have to provide any further information until contacted by the Tribunal with a date for a resumed hearing of his application for review. The applicant did not take advantage of the opportunity provided to him and the Tribunal, in due course, well after the 6 weeks had elapsed, made a decision on the material available to it. In the circumstances I am satisfied that the hearing process was completed by the Tribunal and that there was no failure by the Tribunal to comply with its obligations under s 425 of the Act to provide reasonable opportunity to the applicant to give evidence and present submissions.
The application is therefore dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 13 December 2013
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