MZZTG v Minister for Immigration and Border Protection

[2014] FCA 822

FEDERAL COURT OF AUSTRALIA

MZZTG v Minister for Immigration and Border Protection [2014] FCA 822

Citation:	MZZTG v Minister for Immigration and Border Protection [2014] FCA 822
Appeal from:	MZZTG & Ors v Minister for Immigration & Anor [2014] FCCA 525
Parties:	MZZTG, MZZTH and MZZTI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 221 of 2014
Judge:	MIDDLETON J
Date of judgment:	4 August 2014
Legislation:	Migration Act 1958 (Cth)
Date of hearing:	4 August 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	30
Counsel for the Appellants:	MZZTG appeared for himself and the other Appellants
Counsel for the Respondent:	Ms C Symons
Solicitor for the Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 221 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZTG
First Appellant

MZZTH
Second Appellant

MZZTI
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	4 AUGUST 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 221 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZTG
First Appellant

MZZTH
Second Appellant

MZZTI
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MIDDLETON J
DATE:	4 AUGUST 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. On 25 August 2009, the secondary appellants (MZZTH and MZZTI) made a joint application to the Department of Immigration and Citizenship, as it then was (“the Department”) for protection visas.  The application was refused by a delegate of the Minister on 16 November 2009.  By a decision dated 29 March 2010, the Refugee Review Tribunal (‘Tribunal’) affirmed the decision of the delegate.  The secondary appellants were unsuccessful in seeking judicial review of the decision.

2. The primary appellant (‘MZZTG’) was born on 16 May 2011.  On 17 October 2011, the primary appellant filed his own application for a protection visa.  The protection visa application purported to include the primary appellant’s parents, the secondary appellants, as members of the family unit.

3. In his application for a protection visa, the primary appellant made claims in the following terms:

   (a)his parents had left India because they feared persecution from the Khalistan (or ‘Khalsa’) action committee arising from the primary appellant’s father’s membership of the Dera Sacha Sauda (‘DSS’);

   (b)the primary appellant’s father had been born into a Sikh family and Sikh militants had tried to kill him because of his association with the DSS;

   (c)the primary appellant claimed that the BJP and Congress parties would also try and kill his family; and

   (d)the primary appellant claimed that government authorities would not be able to protect his family as they had been involved with opposition groups.

4. In a decision dated 1 February 2012, a delegate of the first respondent refused to grant the primary appellant a protection visa. In the decision record, the delegate found that the secondary appellants, whilst included in the application form, were precluded from obtaining a protection visa on the basis that they had previously been unsuccessful in a visa application: see s 48 of the Migration Act 1958 (Cth) (‘the Act’).

5. On 27 February 2012, the appellants applied to the Tribunal for review of the delegate’s decision.  The decision of the Tribunal was adverse to the appellants (‘the first Tribunal decision’).

6. The appellants subsequently sought judicial review of the first Tribunal decision and by order dated 27 March 2013, the Federal Magistrates Court (as it then was), made an order by consent that the appellants’ review application be re-determined by the second respondent.

7. On 28 August 2013, the Tribunal (differently constituted) affirmed the decision of the delegate in relation to the primary appellant and determined in respect of the secondary appellants, that it had no jurisdiction to determine their applications for protection visas (the ‘second Tribunal decision’).

8. On 23 September 2013 the appellants filed an application for review of the Tribunal’s decision in the Federal Circuit Court.  The application was heard in the Federal Circuit Court on 17 March 2014, and dismissed on 31 March 2014.

9. The appellants filed a notice of appeal in respect of the orders and judgment of the Federal Circuit Court on 16 April 2014.

   THE SECOND TRIBUNAL DECISION

10. The second Tribunal decision affirmed the decision of the delegate and made the following findings.

    Findings on jurisdiction

11. The Tribunal referred to s 414 of the Act and noted that its jurisdiction arose in circumstances where a valid application had been made under s 412 for review of an ‘RRT reviewable decision’, as defined in s 411 of the Act. The Tribunal noted that an application which had been determined by the delegate to be invalid, on account of the second and third appellant’s unsuccessful applications for protection visas in August 2009, could not constitute an ‘RRT reviewable decision’: [8].

12. The Tribunal found that the decision the subject of the review applications made by the secondary appellants, was not an RRT-reviewable decision within s 411 of the Act and the Tribunal accordingly had no jurisdiction to deal with it: [9].

13. The Tribunal confirmed however, that as the delegate had made a decision to refuse the primary appellant a protection visa, it would proceed to consider the primary appellant’s review application: [10].

    Findings on credibility

14. The Tribunal made adverse credibility findings about the primary appellant’s father. It found that in light of inconsistencies between information contained in his original protection visa application and the information that he had given orally to the Tribunal, that it was not satisfied the primary appellant’s father’s involvement with DSS was at a high level as claimed and it did not accept that the primary appellant’s father had a leadership role or that he attracted followers: [19]-[23].

15. The Tribunal, again having regard to what it considered to be inconsistencies in the evidence of the primary appellant’s father and in relation to the circumstances of a claimed attack outside DSS headquarters, did not accept that the primary appellant’s father had been attacked in Sirsa for being a member of the DSS and did not accept that he had been harmed in the past for reasons of his DSS membership: [26]-[28].

16. The Tribunal accepted that the primary appellant’s father had been associated with and worked for DSS in the past, and that he would continue to be a member of DSS if he returned to India: [29].

    Findings on refugee criterion

17. The Tribunal accepted that the primary appellant would travel with his parents, and that circumstances which would affect them, would also affect him. The Tribunal also found, having regard to current country information, that circumstances were now different for members of the DSS: [45].

18. The Tribunal found that there was no evidence to suggest that there was a real chance of DSS members being threatened or harmed by the authorities in India and there was no indication that there was a real chance that DSS members would be targeted or harmed by the government, or other groups in India: [47].

19. The Tribunal noted that country information supported the primary appellant’s claims that there were people who were against Baba Ram Rahim and that he was a controversial figure. However, it also observed that country information did not indicate that the followers of Baba Ram Rahim, DSS supporters or their families, faced a real chance of harm from other groups, the authorities, political parties or others sources in India, at the present time, or in the reasonably foreseeable future: [50].

20. The Tribunal found, having regard to the country information regarding the current situation of DSS members, that there was not a real chance that the primary appellant or his parents would face any harm if they were to return to India now, or in the reasonably foreseeable future. The Tribunal found that the primary appellant did not have a well-founded fear of persecution in India, and that he did not meet the refugee criterion: [51].

    Findings on complementary protection claims

21. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the primary appellant being removed from Australia to India, that there was a real risk he would suffer significant harm and that he did not meet the complementary protection criteria. The Tribunal made this finding for the same reasons that applied in respect of the refugee criterion: [52].

22. The Tribunal separately considered the appellant’s claim that members of the Khalsa Action Committee gave harsh looks to DSS members and told them they were on the wrong path, but found that the country information did not indicate that there was a real chance that DSS followers, the appellant or his parents would face any harm on this basis. It followed that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to India, there was a real risk of any of the types of significant harm set out in the Act: [53].

    THE FEDERAL CIRCUIT COURT

23. In their application to the Federal Circuit Court the appellants identified four grounds of application being:

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

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

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

24. The Federal Circuit Court dismissed the application.  In doing so it considered each of the four grounds of application and made findings, as follows:

    (a)Ground 1 - the Tribunal had considered whether the first appellant’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 appellant or his family to access effective protection: [19];

    (b)Ground 2 - the Federal Circuit Court was unable to discern any basis upon which the ground could be sustained: [21];

    (c)Ground 3 - the ground sought review on the merits.  The Tribunal carefully considered the appellants’ circumstances and took them into account: [23];

    (d)Ground 4 - the Tribunal’s reasons for decision showed that it investigated the claims as put by comparing the current claims with those in the previous protection visa application made by the second and third appellants, and by accessing a considerable amount of country information.  In the circumstances it could not be said that the Tribunal made a jurisdictional error: [25]

25. The Federal Circuit Court noted that the Tribunal had correctly dealt with the matter of its jurisdiction to review the delegate’s decision in respect of the second and third appellants: [4]-[6].

    NOTICE OF APPEAL

26. The Notice of Appeal in this Court contains the following grounds of appeal:

    1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec. 91R or the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

    2.The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

27. The Federal Circuit Court, by addressing the reasoning of the Tribunal, considered the legal and factual conclusions of the Tribunal.  The Federal Circuit Court correctly found that the Tribunal had made no jurisdictional error.

28. The reasoning of the Tribunal indicates that the Tribunal was aware of the claims advanced by the appellants and made no legal or factual errors in the reasoning process. The Federal Circuit Court rightly concluded that the Tribunal had considered and properly investigated the appellants’ claims according to law. The Federal Circuit Court did not act in any unreasonable way in considering the decision of the Tribunal or in considering the claims of the appellants in the context of the Act.

29. The conclusion that the Tribunal properly considered the matter is evident from the various finings described above, which were in turn considered by the Federal Circuit Court.

    CONCLUSION

30. In light of the foregoing reasons, no error has been shown in the decision of the Federal Circuit Court.  The appeal should be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

Associate: 

Dated:        4 August 2014