MZZWU v Minister for Immigration
[2014] FCCA 1425
•2 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZWU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1425 |
| Catchwords: MIGRATION – No appearance by or on behalf of the Applicants – application dismissed pursuant to r.13.03(c) Federal Circuit Court Rules 2001. |
| Legislation: Federal Circuit Court Rules 2001 Migration Act 1958 |
| Cases cited: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 |
| Applicants: | MZZWU & MZZWV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2137 of 2013 |
| Judgment of: | Judge McGuire |
| Hearing date: | 2 July 2014 |
| Date of Last Submission: | 2 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 2 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Unrepresented |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application filed 5 December 2013 be dismissed pursuant to r.13.03(c) of Federal Circuit Court Rules 2001.
Applicant pay the 1st Respondent’s costs in the quantum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2137 of 2013
| MZZWU & MZZWV |
Applicants
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants apply for an order that the Respondents show cause why the remedy sought by the Applicant not be granted. They seek a writ of certiorari quashing the decision of the 2nd Respondent made 11 November 2013 which affirmed the decision of the delegate not to grant the applicants each a Protection (Class XA) visa.
The Application was filed on 5 December 2013. Orders and directions were made including for the filing of written submissions by the Registrar on the 19 February 2014. The court file shows that the Applicants have not complied with those orders and directions. This matter was called today at 10.00am there was no appearance by or on behalf of the Applicants. As a courtesy and as a precaution the matter was stood down for 30 minutes and there has still been no appearance by or on behalf of the Applicants. There has been no notification to my chambers of anything untoward or any delay.
Mr Brown appears as Counsel for the 1st named Respondent and has filed written submissions.
The applicants raise the following grounds of complaint:
1. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was require to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.
2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act”.
3. The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
4. The RRT has failed to investigate the applicants claim, specially (sic) the grounds of persecution, in India. Therefore, the Tribunal decision dated 11the Nov 2013 was effected by actual bias constituting judicial error.
I have considered the submissions of the 1st Respondent set out in detail in the First Respondents Outline of Submissions filed 24 June 2014.
Background facts
Both applicants are from India and arrived in Australia on 27 February 2013 holding sub-class 676 (Tourist) visas. The primary applicant is the husband. The secondary applicant is his wife.
The applicants made application to the Department on 19 March 2013. The second applicant applied for a visa as a member of the same family unit as the primary applicant pursuant to s.36 (2)(b) of the Migration Act 1958 (“the Act”).
The primary applicant claimed to fear harm from a named money lender to whom he was indebted and unable to repay. He says that the money lender sought additional moneys to be repaid and threatened harm if not paid. The primary applicant says he sought assistance from police and the Courts but such assistance was not forthcoming as the money lender was well-connected, had bribed officials and paid for false witnesses. The primary applicant also claimed that he feared harm within this context as he is Hindu and the money lender is Muslim.
On 2 July 2013 the delegate refused the applications for visas finding that the primary applicant’s evidence was not credible, was vague, lacking in detail and without documentary support.
On 18 July the applicants made application to the Tribunal for review of the delegate’s determination.
The hearing record discloses that both applicants were present on 11 October 2013 before the Tribunal and were assisted by an interpreter. The primary applicant appeared before the Tribunal on 11 October 2013 at the hearing adjourned from 24 September 2013. He gave evidence and presented argument. The second applicant did not attend but the Tribunal confirmed with the primary applicant that he would be representing her at the hearing.
The Tribunal put information to the primary applicant pursuant to s.424AA of the Act with the primary applicant providing some response. The primary applicant then made a request for further time in which to respond. That request was granted. The Tribunal determined to write to the applicant putting him on notice as to the adverse information. No response was forthcoming from the applicants.
On 11 November 2013 the Tribunal affirmed the decision of the applicant not to grant the visas.
Relevant law
S 36 of the Act and Part 866 of schedule 2 of the Regulations provide the criteria for the granting of a protection visa. Pursuant to s.36(2)(a) the applicant must satisfy the Tribunal he was owed protection obligations under the Refugees Convention as amended by the Refugees Protocol, or under s.36(2)(aa) of the Act that there was a real risk that he would suffer significant harm if he were to return to India. The primary applicant was required to demonstrate that he had a well-founded fear of persecution for a reason specified in the Convention, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to India, there is a real risk that he will suffer significant harm.
The Tribunals determination
The Tribunal found that the applicant lacked credibility in his evidence. The Tribunal found that the applicant was inconsistent in his evidence claiming variously that he was indebted to a bank and a money-lender. Further, the Tribunal noted inconsistencies and contradictions between the applicant’s evidence to the Tribunal and information provided to the Department when applying for his Tourist visa in respect of the financial viability of his business which contradicted his contention that he was in a difficult financial position necessitating a loan.
The applicants did not respond to the Tribunal’s invitation to comment on adverse information.
At paragraphs [49], [50] the Tribunal did not accept the credit of the applicant and said:
The Tribunal also does not accept that the applicants have not travelled overseas prior to travelling to Australia. The tribunal considers that the evidence in the passports showed genuine trips to overseas locations in the 2 years leading up to travel in Australia. This provides further evidence of the positive financial resources available to the applicants, based on the applicant’s income and savings, as shown in his financial documents.
Based on the documentary evidence provided by the applicant, the Tribunal does not accept that the applicant had a significant debt arising from the failure of his business
The Tribunal does not accept that the applicant has been threatened or otherwise harmed by a man called (named) or that he owes any money to (named) or has provided security over his property to (named).
It followed that the Tribunal did not accept the applicant’s claim that he will be harmed because of his business. It did not accept that he had been required to seek assistance of the authorities or has made any application to a Court.
At paragraph [55] of its reasons the Tribunal said:
The applicant’s application states that the applicant will have problems because he is a Hindu. The Tribunal asked the applicant about this claim but the applicant provided no further information regarding this claim. The Tribunal considers that this claim is vague and has no basis. Having found that the applicant does not have any claims arising from his business dealings generally, the Tribunal does not consider that the applicant faces any real chance of serious harm or real risk of significant harm arising out of his Hindu background in his business dealings in the community.
Given its findings of fact and credit, the Tribunal did not consider the primary applicant to have a well-founded fear of persecution or a real risk of significant harm for the purpose of s.36(2)(aa) of the Act. Consequently, the Tribunal affirmed the delegate’s decision not to grant the applicants each a Protection (class CXA) visa.
Application before this Court
Ground 1
The applicant’s claim that the Tribunal decision was made without the applicants being given the opportunity to make comment pursuant to s.424A of the Act. The applicant relies on the authority of SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[1] .
[1] (2005) 228 CLR 294
Section 424A of the Act provides:
1. subject to subsections (2A & 3) the Tribunal must:
a. give the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
b. ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
c. invite the applicant, to comment on or respond to it.
2. The information and invitation must be given to the applicant:
a. except where paragraph (b) applies--by one of the methods specified in section 441A; or
b. if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
2A. The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
3. This section does not apply to information:
a. that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
b. that the applicant gave for the purpose of the application for review; or
ba. that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
c. that is non-disclosable information.
The application does not particularise what information ought to have been given to them for comment under S.424A of the Act. Pursuant to ss.424AA and 424A the Tribunal must disclose particular information before a hearing or, if disclosed at the hearing, then it must describe the nature and the effect of the information and adjourn the hearing to allow the applicant the opportunity to consider the material. The applicant does not particularise any allegation that the Tribunal failed to properly disclose information. No such failure is apparent on the fact of the Tribunal’s reasons.
The Tribunal did put certain information to the applicants for comment under s.424AA. The Tribunal’s reasons disclose that a partial response was provided but a request for additional time was sought and was granted. The Tribunal then wrote to the applicants by letter of 11 October 2013 setting out the adverse information and requesting a written response and/or comments by 6 November 2013. The applicants did not respond to the Tribunal’s invitation.
The information set out in the Tribunal’s letter of 11 October 2013 fell within the exception specified in s.424A(3) in that it was information provided by the applicants and therefore an exception to the requirements of s.424A(1).
Taking all of these matters into consideration I am satisfied that this ground of review has no merit.
Ground 2
The Applicant claims that the Tribunal had no jurisdiction to make its determination because its “reasonable satisfaction” was not arrived at in accordance with the requirements of the Act.
Section 65 of the Act provides that certain criteria must be satisfied prior to the granting of a visa. I accept the submission of counsel for the respondent that the Tribunal is not required to make out the case of an applicant but it is the applicant who must supply relevant material and evidence to satisfy the statutory criteria.[2]
[2] Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, 169-70
The Tribunal has jurisdiction pursuant to section 338 of the Act. The applicants do not particularise their complaint as to how they say the Tribunal’s decision was “not arrived in accordance with requirements of the Migration Act”.
I find that this ground of review has no merit.
Ground 3
The applicants argue that their circumstances satisfy the “four key elements of the Convention in definition” but that the Tribunal failed to take this into account and therefore fell into “factual and legal error”.
I accept the submission of Counsel for the 1st Respondent that the reasons of the Tribunal clearly show a direct consideration as to whether the applicants satisfied the relevant criteria for protection under the Refugees Convention. Contrary to the assertion of the applicants, the Tribunal found at [56] of its reasons:
Based on its credibility findings regarding the applicant’s evidence, the Tribunal finds that the applicant did not have a real chance of serious harm arising out of any business dealings in India. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason, now or in the reasonably foreseeable future.
Consequently, and contrary to the applicants’ assertions, the applicants did not satisfy ‘the key criteria’ for the granting of the visa under the Refugees Convention on the consideration of the Tribunal.
Accordingly, this ground has no merit.
Ground 4
The applicants claim that the Tribunal’s decision was affected by actual bias constituting judicial error in that the Tribunal failed to investigate the applicants’ claims of persecution.
I accept the submissions of counsel for the Respondent that the Tribunals decision or other materials, does not disclose any prejudgment, partisanship, or hostility by the Tribunal towards the applicants. I again note compliance with s.424A of the Act.
The applicants have not particularised any allegations of bias.
I am grateful to counsel for the respondent in providing me with decision of the plurality of the High Court in Minister for Immigration & Citizenship v SZIAI [3] where there honours observed:
it may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an enquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[3] (2009) 259 ALR 429; [2009] HCA 39, [25]
There is, however, no general obligation on the Tribunal to investigate the applicant’s claims. Any consideration of whether the Tribunal had and/or failed to make enquiries require some particularisation from the applicants or, at the very least, the identifying of such an error on the face of the reasons. Given the lack of particulars, there was no obligation on the Tribunal to investigate the applicants’ claims. The obligation is to review the decision of the delegate and it is for the applicants to give and adduce evidence and material and mount argument to satisfy the Tribunal on the merits.
Accordingly, this ground has no merit.
Conclusion
For the reasons set out above, I find no merit in the application for judicial review. The applicants did not attend the hearing. Consequently, the application will be dismissed pursuant to rule 13.03(c) of the Federal Circuit Court Rules 2001.
In all of the circumstances it is appropriate that the Respondent has his costs. There will be a further order that the Applicants pay the Respondent’s costs in quantum of $6,646.00. These reasons will be settled, taken out and placed on the court file.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 7 August 2014
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