MZZSM v Minister for Immigration
[2015] FCCA 1743
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZSM v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1743 |
| Catchwords: MIGRATION – Judicial review – no jurisdictional error established – application dismissed – costs. |
| Legislation: Migration Act 1958 (Cth) |
| Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Htun v Minister for Immigration and Multicultural Affairs [2001] 194 LAR 244 |
| Applicant: | MZZSM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1490 of 2013 |
| Judgment of: | Judge Harland |
| Hearing date: | 14 May 2015 |
| Date of Last Submission: | 14 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Smyth |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
That the application for judicial review filed on 12 September 2013 is dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1490 of 2013
| MZZSM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 12 September 2013, the applicant applied for a judicial review of the decision made by the Refugee Review Tribunal on 22 August 2013, affirming the Delegate’s decision to refuse the applicant’s application for a protection visa.
The applicant sets out two grounds for review. The first is that the Tribunal failed to properly consider all of his claims. The second is that the Tribunal denied him procedural fairness by not giving him a fair hearing. He did not provide particulars of either ground.
On 20 November 2013, Registrar Caporale made standard directions which gave the applicant the opportunity to file amended grounds, further evidence and submissions. The applicant did not file anything further.
On 24 March 2014, Judge Whelan vacated the hearing pending the outcome of proceedings S297 of 2013 in the High Court.
The Tribunal summarised the applicant’s protection claims which covered 4 areas. These are:
a)Fear of harm based on his Hazara ethnicity;
b)Fear of harm based on his religion being of the Shia faith;
c)Fear of harm based on an imputed political opinion because of being appointed as the family representative of his cousin’s estate who was a police officer killed during a Taliban attack. The applicant says that the Taliban would see his role as family representative as being connected to the government;
d)Fear of harm based on being a member of a particular social group being his family;
e)Fear of harm being a failed asylum seeker.
The applicant says that in 2005 the Taliban discovered him carrying two English books. He was beaten unconscious and spent a month in hospital.
In September 2011 his cousin was killed along with 4 others during a Taliban attack. His cousin’s wife appointed him as the family’s representative. The applicant says that on his way back to Kabul from his cousin’s funeral in Khaldar village, their car was stopped and three male members of his family were kidnapped.
The Tribunal considered the applicant’s fear of harm based on being Hazaras and a Shaias and quoted extracts from various pieces of country information at length.
The Tribunal assessed the applicant’s claims of fear of harm based on being Harara Shia, having an imputed political opinion and being member of a social group being his family at paragraph 59 and following.
The Tribunal assessed his credibility taking into account his various medical conditions. The Tribunal accepted the applicant’s claims with respect to the 2005 incident and noted his account was consistent with country information available at that time.
The Tribunal also accepted the applicant’s claims that his cousin was a policeman killed in a Taliban attack and that he was appointed as the family’s representative.
The Tribunal also accepted the applicant’s claims that he and his family were stopped by the Taliban on the road back to Kabul and that two of his sons and his son-in-law were taken and have not returned. It accepted that the Taliban threatened to kill the applicant if he travelled those roads again and would face a real chance of persecution if he did so because of his imputed political opinion.[1] However, the Tribunal went on to say that the applicant’s home area was Kabul and assessed his protection claims against this area. The Tribunal found that the applicant has a low profile. The incident in 2005 occurred 8 years previously and it was 6 years before there was another incident. After assessing the evidence and that country information, the Tribunal concluded that the applicant did not suffer a real risk of harm in Kabul.
[1] See [64] CB 365.
The Tribunal considered that the applicant was not at a real risk of harm based on his ethnicity and religion because of recent country information which indicate that Hazaras are not being singled out and that Hazaras are not at a higher risk than other groups.
The country information was put to the applicant and he was asked to comment on it.[2]
[2] See [68] CB 367.
The applicant raised an issue about his son who is a taekwondo champion in Kabul being threatened by another competitor. The applicant was unable to point to this being linked to any of the applicant’s problems with the Taliban. The applicant raised his claim about his son at the hearing but said that the Tribunal did not consider it. However, as was pointed out to the applicant at the hearing, the Tribunal did consider it. There was no convention reason that would make this complaint relevant to the applicant’s claims.[3]
[3] See [70] CB 378.
After considering the country information the Tribunal concluded that the applicant did not face a real risk of harm based on being a failed asylum seeker.
The Tribunal then considered the applicant’s complaint about the standard of medical care he would receive in Afghanistan. The Tribunal accepted that the standard of care would be less than what he would receive in Australia but there was no information before the Tribunal to indicate that he would be subjected to any discriminatory treatment in being able to access medial services.[4]
[4] See [74] – [75] CB 369.
The Legislation
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 applicant was unable to expand on his grounds for review at the hearing. The applicant was assisted by an interpreter at the hearing.
Mr Smyth, Counsel for the Minister very helpfully outlined the nature of the court proceedings. It is not a review of the merits of the applicant’s case. Merits hearings were conducted by the Delegate and the Tribunal. The Court is tasked with conducting a judicial review. In order to succeed on a judicial review, the applicant must establish that the Tribunal made a jurisdictional error. The law only provides protection to people in certain circumstances set out in the Refugees Convention. The complaint the applicant raises about his son does not fall within one of these convention grounds.
The Minister’s written submissions address the two areas of the applicant’s complaint which the Tribunal did not address. The Minister correctly submits that the Tribunal did not need to address the applicant’s complaint that the State would be unable or unwilling to protect him from threats from the Taliban because the Tribunal did not find that the applicant had a well-founded fear of persecution for a convention reason.
The Minister sets out Sundberg J’s explanation of the Tribuinal’s task in this regard at [7] and [9] of Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953:
…For the Tribunal to have erred in relation to the "relocation principle", the applicant would have to establish that it was in error in accepting that protection could be provided by forces that were to any extent international in character. In any event, the applicant's submission, whether as formulated or as it must in my view be formulated, misunderstands the Tribunal's course of reasoning. As a result of cl 866.221 of Schedule 2 of the Migration Regulations 1994, Australia has protection obligations under the Refugees Convention to an applicant who:
"... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular 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 ...."
Accordingly, the Tribunal's initial task was to determine whether or not the applicant had a well-founded fear of persecution for a Convention reason. If such a fear existed, it was then required to decide whether the applicant's state of nationality was or was not able to offer protection to him...
In Ordeniza v Minister for Immigration and Multicultural Affairs [2001] FCA 35 Katz J (at [22]-[24]), summarising the effect of the Full Court's decision in Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67, observed that
"a finding by the Tribunal of the availability of effective protection in a refugee claimant's country of nationality had two consequences.
One was that any fear on the refugee claimant's part of being persecuted for a Convention reason could not be treated as being well-founded. That in turn meant (among other things) that any unwillingness on the part of the refugee claimant to avail himself or herself of the protection of his or her country of nationality could not be said to be owing to a well-founded fear on the refugee claimant's part of being persecuted for a Convention reason.
Another consequence was that the refugee claimant could not be said to be unable to avail himself or herself of the protection of his or her country of nationality. The refugee claimant would have a realistic choice of availing himself or herself of the protection of his or her country of nationality and reliance on that country would be of practical utility."
The applicant also submitted to the Tribunal that he would be unable to relocate within Afghanistan. The Tribunal did not need to address this because it was not satisfied that the applicant had a well-grounded fear of persecution. See SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [61]:
…There was no need to consider the question of relocation because a finding was made that the appellants had not established that they had a well-founded fear of persecution. The question of relocation would only have arisen if a contrary finding had been made. The Tribunal did not err by inquiring into whether the appellant had suffered "sustained or systemic" harm in circumstances where it found that the appellant had suffered no harm. It did not thereby misconstrue the test of persecution. Lastly, the Tribunal did not purport to suggest that corroboration was required as a matter of law. It simply found that there was no corroborative evidence in circumstances where such evidence should have been available.
The Tribunal dealt with all other aspects of the applicant’s claim. The applicant has failed to demonstrate how the Tribunal failed to consider the integer of his claim. See Htun v Minister for Immigration and Multicultural Affairs [2001] 194 LAR 244 at [42]:
…The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 ; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; 58 ALD 30 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant for example 866.211, make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant...
Ground 1 must fail.
In his second ground, the applicant complains that the Tribunal did not give him a fair hearing. This is about the process at the hearing, not the result. The applicant has not provided any particulars to support his complaint that the hearing was unfair. He was invited to attend the hearing and did so. The Tribunal’s decision clearly sets out the applicant’s evidence and the country information which it relied on in reaching its decision. The brief comments the applicant made at the hearing before this Court were directed at a merits review.
Ground 2 must also be dismissed. The Minister seeks costs in accordance with the scale in the sum of $6,285. As costs follow the event, I will make that order.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 26 June 2015
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