MZZTG v Minister for Immigration

[2014] FCCA 525

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZTG & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 525

Catchwords:
MIGRATION – Refugee Review Tribunal – application of second and third applicants for protection visas invalid because a previous protection visa application by them was refused – application to this court seeking impermissible merits review – application dismissed.

Legislation:
Migration Act 1958 ss.48A, 48B, 411, 414

Federal Circuit Court Rules 2001 rr.1.06, 11.11

Cases cited:
SZJHT v Minister for Immigration & Anor [2010] FMCA 1005

First Applicant: MZZTG

Second Applicant: MZZTH

Third Applicant: MZZTI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1569 of 2013

Judgment of: Judge Riley

Hearing date: 17 March 2014

Date of last submission: 17 March 2014

Delivered at: Melbourne

Delivered on: 31 March 2014

REPRESENTATION

Advocate for the First Applicant: The second applicant, as the first applicant’s litigation guardian

Solicitors for the First Applicant: None

Counsel for the Second Applicant: The second applicant appeared in person

Solicitors for the Second Applicant: None

Advocate for the Third Applicant: The second applicant

Solicitors for the Third Applicant: None

Counsel for the First Respondent: Catherine Symons

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. Pursuant to r.11.11(1) of the Federal Circuit Court Rules 2001 (“the rules”), the second applicant be appointed as the litigation guardian of the first applicant.

2. The requirement in r.11.11(2) of the rules for the litigation guardian to file an affidavit of consent be dispensed with pursuant to r.1.06 of the rules.

3. The application filed on 23 September 2013 be dismissed.

4. The applicants pay the first respondent’s costs, fixed in the sum of $6,646.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1569 of 2013

MZZTG

First Applicant

MZZTH

Second Applicant

MZZTI

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal. The primary applicant is a two year old boy.  The second applicant is his father. The third applicant is the boy’s mother.

2. The second applicant appeared in person at the hearing before this court.  He will be the litigation guardian for the first applicant.  The second applicant was given leave to represent the third applicant who did not otherwise appear. The applicants did not file written submissions.

3. The first applicant lodged an application for a protection visa on

   
   

   17 October 2011.  The second and third applicants were included in the application as members of the family unit.

4. A delegate of the Minister considered that the inclusion in the application of the second and third applicants was invalid as they had previously been refused protection visas. Under s.48A of the Migration Act 1958 (“the Act”), a non-citizen whose protection visa application has been refused may not make another protection visa application while he or she is in the migration zone. That provision is subject to s.48B of the Act, which permits the Minister personally to allow a person to make a further protection visa application if the Minister considers it to be in the public interest to do so. No such permission was given in the present case. Consequently, the protection visa application made by the second and third applicants was invalid. It made no difference that they were included as secondary applicants rather than as applicants in their own right: SZJHT v Minister for Immigration & Anor [2010] FMCA 1005 at [9] to [12].

5. The Tribunal considered that it had no jurisdiction to review the delegate’s decision in respect of the second and third applicants. The Tribunal noted that s.414 of the Act gives the Tribunal jurisdiction to review RRT-reviewable decisions. Such decisions are defined in s.411 of the Act to be decisions granting or refusing protection visas but not decisions determining that a protection visa application is invalid.

6. The applicants made no specific challenge to the Tribunal’s approach to the questions of the validity of the protection visa applications made by the second and third applicants and the jurisdiction of the Tribunal in relation to those applications.  In any event, it seems to me that the Tribunal dealt with these matters correctly. I will not consider them further.

The first applicant’s claims

1. The first applicant’s claims in his protection visa application were as follows:

   a)his parents left India because of the fear of persecution;

   b)his father was a Sikh who later joined the Dera Saucha Sauda (“DSS”);

   c)the Khalsa Action Committee threatened to kill his father;

   d)his father was accused and charged with false cases;

   e)if the family were to return to India, their lives would be in real danger;

   f)the Sikh militants had tried to kill his father because of his association with the DSS;

   g)the BJP and Congress Party members will try to kill the family;

   h)the Khalsa Action Committee and opposition party members will try to harm the family; and

   i)the government and the authorities are involved with the opposition groups.

2. The first applicant’s father appeared on behalf of the first applicant at a hearing before the Tribunal.   The first applicant was not present at that hearing.   The first applicant’s father told the Tribunal that:

   a)he was a leader of the DSS and attracted many followers;

   b)he was injured in a fight with Shiromani Akali Dal; and

   c)the police would not protect him and asked for money.

The Tribunal’s reasons

1. The Tribunal noted certain inconsistencies in when the first applicant’s father claimed to have joined DSS, variously, 2000 and 2005.  The Tribunal also noted certain inconsistencies in his claims about how many followers he had recruited, variously, between 100 and 250 and between 2000 and 3000. In the light of these inconsistencies, the Tribunal did not accept that the first applicant’s father’s involvement with DSS was as high-level as he claimed.

2. The Tribunal noted a certain inconsistency in the claims of the first applicant’s father to have been injured in a fight. In his first visa application, the first applicant’s father claimed that he was bashed by eight to 10 unidentified people in December 2008.   In the current visa application, the first applicant’s father claimed that there were 200 to 300 people in the opposing party. In view of the inconsistency, the Tribunal did not accept that the first applicant’s father had been attacked for being a member of the DSS or harmed for reasons of being a member of the DSS.

3. Nevertheless, the Tribunal accepted that the first applicant’s father displayed some knowledge of DSS activities and history.  Consequently, the Tribunal accepted that the first applicant’s father had been associated with and worked for the DSS in the past and would continue to be member of the DSS if he returned to India.

4. The Tribunal noted that there had been widespread clashes between Sikhs and DSS followers in 2007 and 2008.   However, the Tribunal considered that similar clashes since then had been scarce and had been confined to particular locales in the Punjab. The first applicant’s family is from the state of Uttarakhand.

5. The Tribunal noted that there were no reports that the Khalsa Action Committee was active at the present time.   The first applicant’s father claimed that they were active in the Punjab. However, the Tribunal noted that the first applicant’s family was from Uttarakhand.

6. The Tribunal considered that although there had been clashes in the past, there were no relevant reports of the Khalsa Action Committee taking action against DSS supporters in Uttarakhand in 2013.

7. The Tribunal considered that country information regarding DSS members led to the conclusion that there was not a real chance that the first applicant or his parents would face any harm if they were to return to India now or in the reasonably foreseeable future.

8. For the same reasons, the Tribunal did not accept that the first applicant faced a real chance of significant harm under the complementary protection provisions if he were to return to India.

9. Consequently, the Tribunal did not accept that the first applicant is a person to whom Australia owes protection obligations.

Ground 1

1. The first ground of review in the application filed on 23 September 2013 is:

   The Tribunal failed to consider an integer of the applicants (sic) claim, in failing to consider whether or not a DSS activist in India was at risk of harm from radical Sikhs, and not able to access effective protection.

2. The Tribunal patently did consider whether the first applicant’s father, as a DSS activist in India, was at risk of harm from radical Sikhs or anyone else and decided that he was not.  Consequently, there was no need for the first applicant or his family to access effective protection.  This ground is not made out.

Ground 2

1. The second ground of review in the application filed on 23 September 2013 is:

   The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

2. The first applicant provided no particulars of this ground.   I am unable to discern any basis upon which this ground could be sustained. This ground is not made out.

Ground 3

1. The third ground of review in the application filed on 23 September 2013 is:

   The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants (sic) circumstances and consequences of the claim.

2. This ground appears to seek review on the merits. The Tribunal carefully considered the applicants’ circumstances and clearly took them into account. This ground is not made out.

Ground 4

1. The fourth ground of review in the application filed on 23 September 2013 is:

   The Tribunal has failed to investigate the claim, specially (sic) the grounds of persecution in India.  Therefore the Tribunal decision dated on 28 August 2013 was a judicial (sic) error.

2. The Tribunal’s reasons for decision show that it did investigate the claim as put by comparing the current claims with those in the previous protection visa application made by the second and third applicants and by accessing a considerable amount of country information about the grounds of persecution raised by the applicants. In the circumstances it cannot be said that the Tribunal made a jurisdictional error. This ground is not made out.

Oral submissions

1. At the hearing before this court, the applicants declined to elaborate on any of the grounds contained in the application.   The second applicant said that the decision of the Tribunal was wrong and that the Tribunal did not enquire fully as a background check. The second applicant said that terrorists are still a threat in India. He asked the court to check the background.

2. These oral submissions amount to a request for the court to undertake merits review. The court is not permitted to do that. To the extent that the oral submissions raised any fresh grounds, they are not made out.

Conclusion

1. In all the circumstances, the application must be dismissed with costs.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 31 March 2014