MZZSX v Minister for Immigration

[2014] FCCA 879

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZSX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 879

Catchwords:
MIGRATION – Application for review of a decision of the Refugee Review Tribunal – one ground of review contained in application, being ‘administrative error’ – no jurisdictional error identified – Refugee Review Tribunal complied with ss.425 and 425A of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 422B, 425, 425A, 426A

SZOZO v Minister for Immigration and Citizenship [2011] FCA 944

Applicant: MZZSX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1528 of 2013

Judgment of: Judge Whelan

Hearing date: 4 April 2014

Date of Last Submission: 4 April 2014

Delivered at: Melbourne

Delivered on: 4 April 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Ms Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.

2. The Application filed on 18 September 2013 be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1528 of 2013

MZZSX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for judicial review of a decision by the

   
   

   Refugee Review Tribunal (“the Tribunal”), which was made on

   
   

   21 August 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa. The Applicant now seeks an order that the decision of the Tribunal be quashed.

Background

1. The Applicant is a citizen of Nepal who arrived in Australia on

   
   

   4 April 2008 on a student visa. He applied for a further student visa on 2 June 2009, but this application was refused on 11 September 2009. The Applicant then appealed to the Migration Review Tribunal

   
   

   (“the MRT”), who affirmed the decision of the delegate on

   
   

   27 February 2012.

2. On 25 March 2012, the Applicant sought ministerial intervention under s.351 of the Migration Act 1958 (Cth) (“the Act”) in respect of the MRT decision. He was notified on 7 June 2012 that his application for ministerial intervention had been refused and, on 3 July 2012, the Applicant applied for a protection visa. In his application,

   
   

   the Applicant claimed that:

   ·He had been beaten in early 2008 by four people;

   ·His family was constantly threatened and he was scared that something was going to happen to them;

   ·He did not want to leave Australia; and

   ·He feared harm from the Communist Party who had threatened his family.

3. The Applicant was invited to attend an interview with the delegate and he did so on 31 July 2012. According to the delegate’s decision record, at that time the Applicant made additional claims that he:

   ·Was a Hindu;

   ·Belonged to the Brahmin caste; and

   ·Had lived in Nepal before arriving in Australia.

   The Applicant claimed that he had left Nepal because he was scared of being killed by Maoists. He further claimed that he was targeted by Maoists because he was very active in the Congress Party.

4. In 2006, a group of people came to the Applicant’s house and threatened to abduct him and, on a separate occasion, three people tried to abduct the Applicant from the roadside. When the Applicant tried to escape, they hit him with a rod and injured his cheek. The Applicant fears being taken by Maoists if he returns to Nepal, who will force him to join them and fight for them. He stated that none of these past experiences of harm were reported to the police as the Maoists attack police stations and Nepalese authorities are unable to protect him.

5. The delegate of the Minister issued a decision on 23 November 2012 refusing to grant the visa. The delegate found that the Applicant was the holder of a Nepalese passport and was a citizen of Nepal.

   
   

   The delegate found, however, that the Applicant had a legally enforceable right to enter India and that there was no information to suggest the Applicant would be prevented from entering or residing in India. The delegate found that, for the purposes of s.36(3) of the Act, the Applicant had not taken all possible steps to exercise his right to enter and reside in India.

6. The delegate further found that the Applicant did not have a

   
   

   well-founded fear of persecution, or that there were substantial reasons for believing that he was at real risk of suffering significant harm in India. The delegate’s finding in this regard was based on available information and the Applicant’s father’s previous travel to, and residence in, India without being harmed. The delegate found that the Applicant was not owed any protection obligations.

7. Further, the delegate was not convinced that the Applicant did face harm at the hands of Maoists in Nepal, based on the fact that the Applicant’s claims were vague, lacked essential detail, and that the claims were purely speculative. The Applicant’s claims regarding the threats posed to his family were inconsistent with the fact that his family continued to reside at the same address, and, although the Applicant said police in Nepal could not help him, he also stated that he never sought police assistance.

8. The delegate did not accept that the Applicant left Nepal because he feared for his life, and had serious concerns regarding the delay, on the Applicant’s part, in applying for a protection visa after arriving in Australia. The delegate did not accept that the claims for protection were credible or genuine, or that Australia owed the Applicant protection for the purposes of either ss.36(2)(a) or 36(2)(aa) of the Act.

9. On 20 December 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision. On 1 July 2013, the Tribunal,

   
   

   by registered post, sent a letter to the Applicant at the address that he had nominated in his application form, and invited him to attend the hearing on 14 August 2013 to give evidence and to present arguments.

   
   

   The Tribunal notified the Applicant that:

   ·It had considered the material before it;

   ·It was unable to make a favourable decision on that information;

   ·It would only change the scheduled date for good reason; and

   ·If the Applicant failed to appear, the Tribunal might make a decision without taking any action to allow, or enable him, to appear before it.[1]

   [1] Court Book filed 28 October 2013, at pp.134-135.

10. The Applicant did not respond to the Tribunal’s letter and did not return a response to the hearing information form. He failed to attend on the date on which the hearing was set down, and, on 20 August 2013,

    
    

    the Tribunal affirmed the decision of the delegate not to grant a visa. On 18 September 2013, the Applicant lodged this application for judicial review. On 20 November 2013, orders were made by consent listing that application for today’s date.[2]

    [2] Order by Registrar Caporale dated 20 November 2013.

11. The Tribunal, in its decision, observed that the Applicant had not availed himself of the opportunity to attend the hearing. It was, therefore, not able to investigate, or explore, with the Applicant details in relation to his claim, and that it was not satisfied, on the evidence before it, that the Applicant was a person to whom Australia had protection obligations for the purposes of the Act.

Grounds for review

1. The Applicant’s grounds for review contained in the application simply state “administrative error”.[3] In oral submissions today, the Applicant was not able to indicate to the Court what administrative error on the part of the Tribunal he relied upon. The Applicant appears simply to have re-agitated his claim as made before the delegate and in his original application.

   [3] Application filed 18 September 2013, at p.3.

The First Respondent’s submissions

1. The First Respondent has submitted that there is no support for a claim that the Tribunal made an administrative error. The Tribunal complied with the rules of procedural fairness insofar as they apply to a review conducted by the Tribunal in accordance with s.422B of the Act.

   
   

   The Tribunal also complied with its obligations to invite the Applicant to a hearing, and with the obligations of s.425A of the Act. Section 425A of the Act sets out the steps which the Tribunal must take in inviting an applicant to appear before it, and the matters which it needs to do. The First Respondent submits that the Tribunal complied with those requirements.

2. The First Respondent also submits that s.426A of the Act confers a discretion on the Tribunal to exercise its statutory powers, assuming that it has met the requirements of s.425A of the Act. It may make a decision on review without taking any further action to allow, or enable, an applicant to appear before it, or it may reschedule the hearing. The First Respondent has referred to a number of decisions of the Court in relation to the Tribunal’s obligations and how those are exercised.

3. In particular, the First Respondent refers to the observations of

   
   

   Reeves J in SZOZO v the Minister for Immigration and Citizenship [2011] FCA 944 where his Honour says:

   The appellant’s fundamental problem … is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims.[4]

   [4] [2011] FCA 944 at para.21.

4. With respect to the power under s.426A of the Act, his Honour said:

   While that power must be exercised reasonably and cannot be exercised capriciously, the election to proceed to a decision on the review in the absence of the appellant cannot, by itself,

   
   

   be treated as the expression of an unreasonable exercise of the power …[5]

   [5] Ibid, at para.22.

Conclusions

1. The Applicant has not articulated any administrative error on behalf of the Tribunal. As the First Respondent points out, the Tribunal complied with the obligations of ss.425 and 425A of the Act. The address to which the Tribunal forwarded the notice of hearing was the same address as the Applicant had given in his application for review to the Tribunal. As the First Respondent points out, it is also the same address in his application for judicial review.

2. Having complied with ss.425 and 425A of the Act, it was a matter for the discretion of the Tribunal whether it made a decision without taking any further action to allow, or enable, the Applicant to appear before it. Even if the failure to appear was no fault of the Applicant’s,

   
   

   the Tribunal was still able to proceed to decide the review in his absence. While the election to proceed cannot be exercised capriciously, it is not unreasonable for the Tribunal to decide to proceed when an applicant fails to appear. There is no obligation on the Tribunal to make any inquiry as to why the failure to appear has occurred.

3. The Tribunal did consider the Applicant’s claims. It is not for the Tribunal to make out a case; it is for the Applicant to do so, and for the Tribunal to be positively satisfied that the Applicant was a person to whom Australia had protective obligations. In determining that it could not be so positively satisfied on the material before it, the Tribunal made no error in exercising its jurisdiction. On that basis,

   
   

   the application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 29 April 2014