MZZRB v Minister for Immigration

[2015] FCCA 1374

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZRB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1374

Catchwords:
MIGRATION – Judicial review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth)

AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175

Applicant: MZZRB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1354 of 2013

Judgment of: Judge Harland

Hearing date: 14 May 2015

Date of Last Submission: 14 May 2015

Delivered at: Melbourne

Delivered on: 14 May 2015

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the application for judicial review filed on 26 August is dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1354 of 2013

MZZRB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

1. At the beginning of the hearing, the applicant sought an adjournment.  This case has been before the Court for a very long time. The applicant has had more than ample opportunity to seek legal advice, whether voluntary or paid.  As the hearing was previously adjourned, the applicant has actually had more of an opportunity than other self-represented litigants in his position.  It is an unfortunate reality that many people have to appear before this Court without the assistance of a lawyer. 

2. If I was to adjourn this case for a second time for another hearing, it would be a delay of several more months. The Court has a full diary, with many other cases waiting to be heard.  That is a relevant factor for me to take into account when considering whether or not to grant the adjournment.  In that regard, I refer to the comments of the High Court in AON Risk Management Services Ltd v Australian National University (2009) 239 CLR 175. So for those reasons, I refuse the oral application for an adjournment.

3. This is an application by the applicant for a judicial review, which was filed on 26 August 2013.  This matter has been before the court for a very long time.  The Registrar made orders by consent on 16 October 2013 for the usual directions to prepare the matter for hearing.  The matter was listed for hearing on 18 March 2014.  The hearing did not go ahead on that occasion.  On 20 August 2014, Judge Whelan listed the matter for a further hearing on 14 May 2015. 

4. The applicant has been aware of the Minister’s position in response to his application since March 2014.  The applicant seeks to review a decision of the Refugee Review Tribunal, which was handed down on 31 July 2013. 

5. In his application for judicial review, the applicant seeks an extension of time.  However, that was unnecessary, because there was an error on the original decision that was issued, which showed a wrong date.  That was corrected and that is shown in Court Book (CB) page 287.  Therefore, the applicant filed the application within the timeframe provided under the Migration Act1958 (Cth). So it is then necessary to consider the grounds for review.

6. The applicant does not provide any particulars of his complaints.  He simply says that the decision of the Tribunal was affected by an error of law, did not provide procedural fairness and took into account irrelevant considerations.  The applicant declined to expand on those grounds during the hearing today. 

7. The written submissions for the Minister set out the background to this matter.  The applicant is a citizen of Sri Lanka and entered Australia on 25 June 2012.  He applied for a protection visa on 14 January 2013.  He had the assistance of a migration agent, who prepared written submissions on his behalf.  He claimed that if he was returned to Sri Lanka, he would face a real chance of harm, due to his Tamil ethnicity.

8. The applicant was given the opportunity of attending an interview with a Delegate of the Minister and did so on 21 January 2013.  The Delegate of the Minister issued a decision on 13 February 2013, refusing his application for a protection visa.  The applicant applied for a review of that decision on 15 February 2013. 

9. He was invited to attend a hearing before the Tribunal and did so on 30 April 2013.  At the hearing, he had the assistance of his migration agent, and his agent also filed written submissions in support of his claim.  Against that background, the applicant has not established that the Tribunal did not accord him procedural fairness and did not meet the obligations set out in the relevant provisions of the Migration Act 1958, being sections 414, 424A and 425.  That disposes of his procedural fairness complaint. 

10. As the Minister says in his written submissions, it is difficult to discern upon what basis the applicant says the Tribunal made an error of law, or took into account irrelevant considerations, in the absence of any particulars. 

The Legislation

1. The Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows:

   The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.

   It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).

   The Act provides for classes of visas: s 31.  Visas may be permanent or temporary: s 30.  One class of visa is a protection visa: s 36(1).  The criterion for a protection visa is provided for in s 36(2).  It relevantly provides:

   (2)    A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

   Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:

   … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.

   Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.

   If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order.  First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention.  If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa.  If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.  If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa.  If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.

   Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.

The Tribunal’s decision

1. The decision also sets out the complaints that the applicant made and sets out in some detail, starting at paragraph 14, his allegations of threats being made by Sinhalese shopkeepers and public health inspectors, assaults on his father, election problems, his cousin’s marriage to a Sinhalese person, harassment on the way to school, witnessing a murder, difficulties in obtaining an ID card, allegations in relation to an assault, allegations of being at a real chance of serious harm due to being a young Tamil male and because of his religion.  Those complaints and the Tribunal’s assessment of those are set out in detail at paragraphs 14 to 43.

2. The Tribunal found that the applicant did not face a real chance of harm if he returned to Sri Lanka.  The Tribunal then went on to consider whether or not the applicant would face serious risk of harm on his return as a failed asylum seeker, because of his illegal departure from Sri Lanka.  The Tribunal considered and discussed the relevant country information with respect to these issues and also found, based on that information, that he would not face a real risk of serious harm upon his return and that because of those reasons, he was not a person with respect of whom Australia has protection obligations under the Refugees Convention and also does not meet the alternative criterion and is not a person in respect of whom Australia has protection obligations.

3. There is nothing apparent on the face of the decision that indicates a failure by the Tribunal to consider the applicant’s claim or part of it.  Nor is there anything in the decision that indicates the tribunal took into account irrelevant considerations that infected its decision.  The role of the Court in conducting a judicial review is quite narrow.  The court does not have jurisdictional power to undertake a merits review of the Tribunal’s decision.

4. A Court is limited to examining the material before the Tribunal and the Tribunal’s decision itself to see whether there has been an error in the legal process, such as to amount to a jurisdictional error.  As there is nothing in the material before the Court that points to such an error, the application for judicial review must be dismissed.

5. The Minister seeks costs, which is appropriate, given in this jurisdiction costs follow the events and the applicant has been unsuccessful. The Minister seeks the sum of $5,800, which is less than the amount provided for in the costs scale in schedule 1 of the Federal Circuit Court Rules 2001 (Cth). I order the applicant to pay the first respondent’s costs in the sum of $5,800.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  25 May 2015