MZZPL v Minister for Immigration

[2013] FCCA 2010

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZPL v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2010

Catchwords:
MIGRATION – Judicial review – applicant had a doctor’s appointment – no medical evidence of inability to appear – matter proceeded on the papers – effect of delay in applying for a visa – application dismissed. 

Legislation:

Federal Circuit Court Rules, rr.13.03C(1)(e), 15.01(b), 15.03.

Migration Act 1958 (Cth), s.36(2)(aa).

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347.

Applicant: MZZPL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1157 of 2013

Judgment of: Judge F. Turner

Hearing date: 28 October 2013

Date of Last Submission: 28 October 2013

Delivered at: Melbourne

Delivered on: 28 October 2013

REPRESENTATION

The Applicant did not appear

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. Pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (the “Rules”), the Court will proceed to deal with the claim before it.

2. Pursuant to rr.15.01(b) and 15.03 of the Rules, there being no appearance by the applicant and with the consent of the first respondent, a decision be made without hearing from the parties.

3. Pursuant to r.44.12 of the Rules, the application for judicial review filed 26 July 2013 is dismissed.

4. The applicant pay the first respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1157 of 2013

MZZPL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex-tempore & Revised)

1. Pursuant to rr.15.01(b) and 15.03 of the Federal Circuit Court Rules 2001 (the “Rules”), with the consent of the first respondent and the applicant having not appeared, a decision will be made without hearing from the parties.

2. The applicant notified the Registry today that he would be unable to attend the hearing due to a doctor’s appointment at 1 pm today. He did not provide a medical certificate. The applicant was advised by the Registry that if he failed to attend or produce medical evidence, the hearing would proceed and orders could be made in his absence. The Court therefore determined it will proceed under r.13.03C(1)(e) of the Rules.

3. The applicant therefore, has provided no submissions in support of his grounds for judicial review. The Court has therefore decided to reach a decision on the papers, with the consent of Ms Biffa appearing for the first respondent.

4. This is an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) to affirm the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. 

5. The applicant applied for a protection visa on 15 August 2012 (Court Book (“CB”) p.1). That application was rejected by the delegate on 30 October 2012 (CB p.54). The applicant then applied to the Tribunal for a review (CB p.55). On 2 July 2013, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa (CB p.69). The applicants seek judicial review of that decision.

6. The grounds for seeking judicial review are set out in the application filed 26 July 2013 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.

   And importantly:

   (3)I think RRT Tribunal and department of immigration did not look my situation.

7. The Court takes that last ground to be the only ground for seeking review. The grounds do not contain any particulars of any alleged error of law. Findings of fact are not amenable review. The Court refers to the decision of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

8. The Court finds that the applicant appeared before the Tribunal on 26 June 2013 to give evidence and present arguments (CB p.70). The Tribunal considered the applicants claims and evidence. That is set out CB pp.72 to 78. The Court finds that the Tribunal considered or ‘looked at’ the applicant’s situation, whereas the applicant’s ground for review alleges that the Tribunal and Department “did not look” at his situation.

9. The Tribunal correctly stated that the issue was “the applicant’s fear of harm from a rival political group” (CB p.72 [19]).

10. The Tribunal then set out the facts claimed by the applicant (CB p.72 [20]). The details in that paragraph accord with the details of the claim provided by the applicant (CB pp.27 to 29). The Tribunal recorded further facts about that claim (CB p.73 [22]).

11. The Tribunal recorded a summary of the evidence given by the applicant (CB p.73 [23] to [27]. The Tribunal did not believe the claim that the incidents in 2005 would have any bearing in 2013 and beyond (CB    p.74 [27]).

12. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:

    “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”

13. The Tribunal noted that “the applicant could not say why he would be at risk of harm in India in 2013” (CB p.75 [27]).

14. The Tribunal told the applicant that it was concerned that he took so long to apply for a protection visa (CB p.75 [28]). The applicant became unlawful in Australia in February 2010 but did not apply for a visa until September 2012 (CB p.1).

15. Delay is a serious factor “to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution.” The Court refers to the decision in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347.

16. The Tribunal advised the applicant that it was not satisfied that the applicant had either a real chance of serious harm or a real risk of significant harm if he returned to India. That is a finding of fact and is not amenable to review (NAHI supra). The Tribunal invited the applicant to make submissions on that aspect, but he refused (CB p.75 [29]).

17. The Tribunal set out a lengthy consideration of the details about the student wing of the Bharatiya Janata Party (“BJP”) and the National Students Union of India (“NSUI”) which is a competing student organisation. (CB p.75 [35-37]). The Tribunal did not accept the applicant’s explanation of approaching police (CB p.77 [40]). The Tribunal was entitled to reject that evidence (Lee supra) similarly; the Tribunal did not accept other claims by the applicant (CB p.77 [41] to [43]).

18. The Tribunal found that the applicant does not face “any form of harm in 2013 and for the foreseeable future for his involvement in student politics or because of one incident that occurred in 2005” (CB p.77 [44]). Those findings of fact are not amenable to review (NAHI supra). The Tribunal found that the applicant’s delay in lodging his application for a visa is further evidence of the applicant’s lack of concern about his circumstances in India (CB p.78 [45]).

19. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future arising out of his political opinion in India (CB p.78 [46]).

20. The Tribunal considered the complementary protection provisions in section 36(2)(aa) of the Migration Act 1958 (the “Act”) and was not satisfied that the applicant is a person to whom Australia owes protection obligations under section 36(2)(aa) (CB p.78 [49]).

21. The Court finds that the Tribunal considered in detail the claims put by the applicant.

22. The ground for judicial review does not raise an arguable case.

23. The Court dismisses the application pursuant to r.44.12(1)(a) of the Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 27 November 2013