MZZIV v Minister for Immigration
[2013] FCCA 1222
•8 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZIV v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1222 |
| Catchwords: MIGRATION – Review of decision of Refugee Review Tribunal – alleged failure to put relevant information to the Applicant – alleged factual and legal error in applying Refugee Convention criteria – decision affected by actual bias – consideration of relevant factors – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2B), 65, 415, 424A |
| Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 |
| Applicant: | MZZIV |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 405 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 8 August 2013 |
| Date of Last Submission: | 8 August 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the First Respondent be amended to
“Minister for Immigration, Multicultural Affairs and Citizenship”.
The Application filed by the Applicant on 28 March 2013 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 405 of 2013
| MZZIV |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an Application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 5 March 2013.
In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant a protection (Class XA) visa to the Applicant.
The Applicant now seeks the following orders:
1. An order in the nature of certiorari setting the purported decision of the Tribunal aside.
2. An order of prohibition to restrain the Respondent from giving any further effect to the purported decision.
3. An order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law.
4. An order that the Respondent pay the applicants costs and such other orders as the Court Sees fit.[1]
[1] Application of MZZIV filed 28 March 2013, at page 2.
Background
The Applicant is an Indian citizen. He entered Australia on
10 December 2008 on a student visa. His student visa was valid until 15 March 2011. He visited India once during the period of that visa from 17 August 2010 to 20 September 2010. On 4 March 2011,
the Applicant applied for this protection visa. He claimed that if he returned to India he would face a real chance of risk of harm from his former business partners. He claimed that his former business partners, who were Muslims, were somehow connected with terrorist groups and he claimed that the Indian authorities would not afford him protection.
The Applicant attended an interview with a delegate on 11 July 2011 and on 5 August 2011, the delegate refused to grant the Application.
On 15 August 2011, the Applicant applied to the Tribunal for a review of that decision. The Tribunal conducted a hearing over three days on
20 January, 14 February and 20 February 2013. On 5 March 2013, the Tribunal handed down its decision affirming the decision of the delegate to refuse the grant of a protection visa. On 28 March 2013, the Applicant lodged this Application for review.
The Tribunal’s decision
In its decision, the Tribunal expressed serious concerns about the credibility of the Applicant’s evidence and referred to a number of inconsistencies and other discrepancies in what he put. The Tribunal was, however, satisfied that the Applicant had given “truthful evidence about the central events in his history and the things known to him”.[2]
The Tribunal accepted that upon a return to his home area of Gujarat in India, the Applicant would face a real chance of persecution at the hands of his former business partners.
[2] Court Book, page 231 at para.235.
The Tribunal accepted that the threat of persecution was for reasons contained in the Refugee Convention (“the Convention”), namely the Applicant’s religion and his membership of a particular social group of informers or prosperous merchants or businessmen. The Tribunal also accepted that as a necessary and foreseeable consequence of the Applicant being removed from Australia to his home area of Gujarat, there was a real risk that he would suffer significant harm at the hands of his former business partners.
The Tribunal found, however, that it would be reasonable for the Applicant to relocate to a part of India outside of Gujarat and its neighbouring states, and that upon any such relocation he would not face a real chance of persecution for a reason set out in the Convention. The Tribunal also found that there was no real risk of his former business partners seeking, pursuing and finding him and causing him to suffer significant harm if he were to move to another area of India. The Tribunal had regard to the Applicant’s personal circumstances and found it would be reasonable for him to relocate to an area of India outside of Gujarat and its neighbouring states. The Tribunal concluded that the Applicant did not meet the criteria for a protection visa.
Grounds for Review
The grounds for review as set out in 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 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 4th March 2013 was effected [sic] by actual bias constituting judicial error.[3]
[3] Application of MZZIV filed 28 March 2013, at page 3.
The Applicant did not file or serve any written submissions or other written material in support of these grounds. In oral submissions, the Applicant submitted that he could relocate outside of the state of Gujarat but that he would still fear for his life. He stated that he had a good name and his business had a good name and the people he feared wished to use his good name to do something wrong.
The First Respondent’s submissions
The First Respondent provided written submissions and elaborated on those in oral submissions. The First Respondent submitted that the Applicant had not identified any adverse information which might attract the provisions of s.424A of the Migration Act 1958 (Cth)
(“the Act”). The Tribunal’s reasons referred to the Applicant’s own evidence and to country information about India. By reference to the relevant subsections of s.424A of the Act, the First Respondent submitted that neither of those attracted the operation of s.424A of the Act.
The First Respondent also submitted that there was no basis for the assertion that the Tribunal did not understand the nature of the decision-making task. Section 415 of the Act gives the Tribunal the powers given to the delegate by s.65 of the Act. Section 65 of the Act requires the delegate to grant a visa if he or she is satisfied an Applicant meets the criteria and to refuse to grant a visa if he or she is not so satisfied.
The Tribunal found that it was not so satisfied and this was a finding reasonably open to the Tribunal on the material before it. The Applicant’s claim related to specific people in a specific area. In finding that the Applicant could relocate, the Tribunal looked at the evidence and reached the conclusion that it was reasonable for the Applicant to relocate.
The First Respondent further submitted that the Tribunal had not failed to correctly apply the protection visa criteria in the Act. At the commencement of the decision, the Tribunal correctly set out the relevant legal principles. The First Respondent took the Court to where the Tribunal set out the elements about which it was required to be satisfied and also to the parts of the Tribunal’s decision where it made findings on those matters.
The First Respondent then addressed the issue of whether the Tribunal was under an obligation to investigate the Applicant’s claims.
The First Respondent pointed to the fact that the Applicant was given considerable opportunity to put his case, the hearing taking place over several hours over three separate days. Further, while the relevant provisions of the Act give the Tribunal wide powers to investigate an Applicant’s claim, these provisions do not impose upon the Tribunal a general duty to make inquiries.[4]
[4] MIAC v SZGUR (2011) 241 CLR 594.
The First Respondent submitted that if the Tribunal had any obligation to make inquiries, this only arose in very limited and exceptional circumstances, and the Applicant had not shown how such circumstances might be said to have arisen in this case. In relation to the allegation that the Tribunal’s decision was affected by actual bias, the First Respondent submits that this is a serious allegation. There was no indication that before reaching its decision, the Tribunal had made up its mind and was incapable of being persuaded differently.[5]
[5] MIMA v Jia (2001) 205 CLR 507.
The Tribunal showed careful reasoning and indeed, made findings that were often favourable to the Applicant.
Conclusions
Section 424A of the Act requires the Tribunal to give the Applicant clear particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review, and to invite the Applicant to comment or respond to that information. The provisions do not apply to information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or another person is a member.
Country information, in this case information about terrorist groups in India, organised criminals in India, moneylenders and state protection in India, all of which were referred to by the Tribunal, are prime examples of matters excluded from the provisions of s.424A of the Act. Also excluded from s.424A of the Act is information given by the Applicant for the purposes of the Application. The Tribunal’s decision refers to both country information and the Applicant’s own evidence. The Applicant does not specify what information was required to be sent to him in writing to make comments about and therefore subject to s.424A of the Act.
Section 415 of the Act sets out the powers of the Tribunal in reviewing the decision of a delegate. The Tribunal set out the relevant legislative requirements and case law at paragraphs [13] to [47] of its Statement of Decision and Reasons. The Applicant has not shown where the Tribunal failed to apply those requirements in reaching its decision.
The Applicant contends that the Tribunal committed factual and legal error because the Applicant satisfied the four key elements of the Convention definition as detailed in pages 2 and 3 of the Tribunal’s decision.
The elements of the Convention definition are actually set out in paragraphs [20] to [41] of the Decision which appear on pages 4 to 9 of the decision at pages 188 to 193 of the Court Book. The Tribunal set out the relevant elements and how they had been applied by the courts. The First Respondent has taken the Court to those parts of the decision where the Tribunal addressed each of those elements. The Applicant does not state how the Tribunal committed factual and legal error in applying those criteria.
It would appear that the Applicant’s real claim is that the Tribunal did not find in his favour. To the extent that this relates to findings going to the merit of the Applicant’s claims, those are matters within the jurisdiction of the Tribunal.
The last ground claims that the Tribunal failed to investigate the Applicant’s claim and as a result, the Tribunal’s decision is affected by actual bias. The Applicant has not specified what inquiries the Tribunal ought to have made. As the First Respondent pointed out, the Tribunal does not have a general duty to inquire. The obligation to inquire is limited to circumstances where an obvious inquiry ought to have been made about a critical fact, the existence of which is easily ascertained.[6]
[6] MIAC v SZIAI (2009) 111 ALD 15.
The Applicant has not identified what critical fact about which there was an obvious inquiry the Tribunal ought to have made. Further, the Applicant has not identified how the Tribunal was biased against him. Indeed the Tribunal, despite its misgivings, accepted that the Applicant had given truthful evidence about the central events in his history.
The Tribunal’s decision turned on s.36(2B) of the Act. It found that there was not a real risk that the Applicant would suffer significant harm should he return to India because it would be reasonable for him to relocate to an area of the country where there would not be a risk of him suffering significant harm. The Tribunal correctly identified that the test of whether relocation was reasonable, in the sense of practicable, dependent on the particular circumstances of the Applicant and the impact upon him of relocation within his own country. It referred at paragraph [47] to relevant cases.[7]
[7] SZATV v MIAC (2007) 233 CLR 18, SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
The Tribunal addressed the issue with the Applicant at pages 214 and 215 of the Court Book. At pages 237 and 238, the Tribunal considered if the Applicant could reasonably relocate to another area of India and concluded that he could. I am satisfied that the Tribunal correctly applied the test of whether it was reasonable for the Applicant to relocate in reaching its conclusion. I find nothing else in the Tribunal’s decision to indicate a jurisdictional error. For these reasons, the Application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Date: 27 August 2013
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