MZZXT v Minster for Immigration

[2014] FCCA 1463

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZXT v MINSTER FOR IMMIGRATION & ANOR [2014] FCCA 1463

Catchwords:
MIGRATION – Procedure – show cause application – no appearance by the applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth)

NAKX and Anor v the Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
MZYMG and Ors [2012] HCA SL85
Minister for Immigration and Citizen v SZIAI (2009) 259 ALR 429

Applicant: MZZXT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2266 of 2013

Judgment of: Judge McGuire

Hearing date: 4 July 2014

Date of Last Submission: 4 July 2014

Delivered at: Melbourne

Delivered on: 4 July 2014

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: No appearance

Solicitor Advocate for the Respondents: Mr Hutton

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application be dismissed pursuant to Order 13.03(c) of the Federal Circuit Court Rules 2001.

2. The Applicant shall pay the costs of the Respondent fixed at $6,646.00 pursuant to Order 21.02(2)(a) of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2266 of 2013

MZZXT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The substantive application before me is one for judicial review of a decision of the Refugee Review Tribunal made 27 November 2013 affirming a decision of the delegate made 22 March 2012 not to grant the applicant a protection (Class XA) visa (the visa).

2. The first respondent contends that the application for judicial review is without merit. The applicant applies for an order that the respondents show cause as to why a remedy should not be granted in exercise of the Court’s jurisdiction, pursuant to section 476 of the Migration Act 1958 (the Act).

3. There is no appearance before this Court by or on behalf of the applicant.

4. The applicant is three years of age.  He is the holder of an Indian passport, but was born in Australia on 22 September 2010.

5. There has been no appearance before this Court by or on behalf of anyone purporting to be or making application to be a litigation guardian for the applicant.  I note that the applicant’s father apparently appeared before the Tribunal where no appointment of a litigation guardian is necessary.

6. The Court file shows an email sent some three days prior to the listed hearing date before this Court and on 1 July 2014 from a person purporting to be a parent of the applicant.  That email says: 

   My name is (name omitted) I have my son’s hearing at Federal Circuit Court of Australia on 4 July 2014, but I can’t attended (sic) because of my health problems so I requested to you to get another hearing date, requested to immigration lawyer on his email and I am sending you my medical certificate copy with this email please check attachment, please understand my problem and sorry for trouble.  Thanks and please reply me.  With warm regard.

7. Annexed to the email is a medical certificate from a doctor in regional Victoria dated 1 July 2014, which states: 

   To whom it may concern,

   This is to certify that (name omitted) is unfit for work due to a medical condition from 1 July 2014-6 July 2014.[1]

   [1] Exhibit A1

8. I am of the view that I must reasonably accept that email and its annexure as an application for an adjournment.  Despite the implication in the letter, the first respondent was unable to confirm that a copy had been provided to them.  The matter was stood down and the first respondent confirmed instructions to oppose any adjournment.

9. The respondent says that the medical certificate is not so particularised that a Court should give it any considerable weight and should not, therefore, accede to the application for an adjournment.  The medical certificate does not refer to any illness or condition other than the generic term “medical condition”.  It says that the patient is “unfit for work” but does not refer to the ability of the subject to attend at Court.  I infer, for instance, that the recipient of the medical certificate was able to attend on the doctor.  Further, the medical certificate is of limited assistance where the recipient is not the applicant but rather a person purporting to “represent” the applicant.  There is no evidence before me as to why another person could not represent the applicant or, more properly, make application for appointment as a litigation guardian.

10. I adopt the comments of Lindgren J in NAKX and Anor v the Minister for Immigration and Multicultural and Indigenous Affairs[2]  where his Honour observed:

    the medical certificates are quite unsatisfactory.  They do not address the critical question whether, and if so why, the medical condition would prevent the appellant from travelling to the Court and participating effectively in a Court hearing.

    I do not accept that either of the medical conditions referred to would make the sufferer “unable to attend Court” – apparently each was able to attend upon the medical practitioner.

    If the certificates were meant to say that the medical condition would prevent the sufferer from participating effectively in a Court hearing, they do not in fact say that and do not explain why the medical condition should have that effect.

    Insofar as the medical certificate supports an application for an adjournment, then I find it unsatisfactory and attribute it no weight.  Consequently, any adjournment application is refused.

    [2] (2003) FCA 1559

11. The application before me was filed on 19 December 2013.  Orders and directions were made on 5 March 2014, including for the applicant to make, file and serve written submissions.  No written submissions have been filed.

12. The respondent filed a document titled “First Respondent’s Contentions of Fact and Law” on 19 June 2014.

13. The applicant’s claims to a protection visa relate, on the facts, entirely to circumstances of his extended family and, in particular, his father, mother, brother and paternal grandparents.  Each of those family members has previously made application for protection visa and unsuccessfully including an application to the High Court for special leave.  In that application their Honours summarised the factual matrix as follows[3]:

    [2] the [Applicant’s father] claimed to fear persecution because his relatives wanted revenge against him in relation to a financial dispute.  He claimed that they had bribed the police to threaten and harass him and his father.  The claims of the [Applicant’s mother and brother] were dependent on that claim.  A delegate of the [Minister} found that the persecution which the [Applicant’s father] claimed to fear was not Convention-related persecution.

    [3] the [Tribunal] upheld the delegate’s decision. The [Applicant’s father] has expressly stated to the Tribunal, on behalf of himself and [Applicant’s mother and brother], that they did not fear persecution in India by reason of their race, religion or nationality or political beliefs; [4] the Tribunal found that the [Applicant’s father’s] relatives had lodged complaints with the police about the [Applicant’s father], that the police had been bribed by the relatives, and that as a result the [Applicant’s father] faced a real chance of being arbitrarily detained. There was also a risk of physical harm at the hands of local criminal groups. In addition, the Tribunal found that there was a real chance that the [Applicant’s father] would be denied protection from those groups by the police. The Tribunal accepted that the applicants’ would compose a particular social group – their family. But the persecution they feared as a group was not Convention-related persecution. Accordingly, the Tribunal disregarded it pursuant to S91S of the Migration Act 1958 (Cth). The Tribunal also found that it was reasonably practicable for the family to relocate to another part of India where they would not suffer harm. The Tribunal held that it had no jurisdiction in relation to the [Applicant]. The applicant was not born when these proceedings were commenced.

    [3] MZYMG and Ors [2012] HCA SL85;  per Heydon and Bell JJ

14. The application for a protection visa for the applicant was lodged on 27 January 2012.

15. On 22 March 2012 a delegate of the Minister refused to grant the application.

16. On 16 April 2012 the applicant applied to the Tribunal for a review of the delegate’s decision.  The applicant’s father made submissions in support of the application and represented the applicant at the Tribunal hearing on 30 April 2013.  The applicant’s father submitted a number of supporting documents to the Tribunal at the hearing on 30 April 2013 and further on 8 May 2013.

17. By a decision of 27 November 2013, the Tribunal affirmed the delegate’s decision to refuse the visa.

Tribunal Decision

1. The Tribunal noted and recorded the factual and circumstantial similarity of the applicant’s claims to those of his extended family.  The Tribunal accepted the applicant was a member of a particular social group – his family.

2. The Tribunal accepted that members of the applicant’s family had been involved in serious and ongoing financial and property dispute with other family members and had consequently faced harassment from local police who had been bribed.  The Tribunal accepted that participants in the dispute had lodged complaints with local police and that members of the applicant’s family had received telephone threats from local police and local criminal groups.  The Tribunal did not, however, accept that the police were likely to act on the complaints of the competing members of the applicant’s family without the payment of bribes.

3. The Tribunal accepted that the applicant and members of his family faced a real chance of arbitrary detention by police because of the payment of bribes from competing family members and that such detention would amount to serious harm.  Further, the Tribunal accepted that both the applicant and members of his family may face physical harm (and therefore a real chance of serious harm) from local criminal groups and police and would be denied protection by local police. 

4. However, the Tribunal found that the essential and significant reason for the persecution feared by the applicant and his family was not Convention-related.  It followed that the applicant did not face a risk of harm in India for a convention reason of race, religion, nationality or political opinion and that his membership of the particular social group – his family – would be disregarded pursuant to s 91S of the Act.  The Tribunal concluded that the applicant would not face any risk of harm in the reasonably foreseeable future if returned to India for any convention reason.

5. The Tribunal then considered the provisions of s.36(2)(aa).  The tribunal accepted that the applicant and his immediate family faced a real risk of suffering significant harm at the hands of local police, local criminal elements and members of the applicant’s competing family in their home area.  However, the Tribunal was satisfied that if the applicant’s family was to relocate then, although they may receive threatening calls, this would not of itself constitute significant harm.  The Tribunal found that the chances of the applicant’s competing family seeking to pursue the applicant and his immediate family to another part of India was remote.  In arriving at these findings, the Tribunal noted that the applicant’s paternal grandparents had returned to India and lived in Mumbai but had not been contacted by any of the competing family disputants. 

6. An argument was mounted that the applicant would suffer significant harm because of difficulties in obtaining necessary vaccinations and that because of high pollution levels in India.  The Tribunal was of the view that these claims were “vague and generalised” and that no corroborating evidence was provided.  Specifically, the Tribunal found that the applicant would be able to obtain necessary vaccinations.  The Tribunal noted that pollution levels in India were high but that the government was taking active steps to address this situation.  No evidence peculiar to the applicant was adduced.  The Tribunal therefore concluded that the applicant would not face a risk of significant harm outside of the applicant’s home area as a result of medical and environmental issues.

7. The Tribunal considered that the applicant and his family could relocate within India and did not then face a risk of suffering significant harm.  The Tribunal considered the reasonableness of any relocation, noting the family’s financial circumstances and considering such a relocation as reasonably available to them. 

8. The Tribunal concluded that the applicant did not meet the requirements for a protection visa and therefore affirmed the decision of the delegate. 

Application before this Court

1. The application filed on behalf of the applicant seeks the following orders:

   (1) “an order in the nature of certiorari setting the purported decision of Tribunal aside”;  (2) “an order of prohibition to restrain the Respondent from giving any further effect to the purported decision”;  (3) “an order in the nature of mandamus remitting the matter back to the Tribunal to be determined according to law”;  and (4) “an order that the Respondent pay the applicant’s costs and Such other orders as the Court Sees fit.”

2. There are four grounds of the application pleaded:

   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 required 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 had not arrived in accordance with the requirements of the Migration Act. 3. The applicants satisfy the four key elements of the Convention definitions detailed in page 2 and 3 of the Tribunal decision. The Tribunal does not consider this aspect and therefore committed factual and legal error. 4. The RRT has failed to investigate applicants’ claim, specially (sic) the grounds of persecution, in India. Therefore, the Tribunal decision dated 27 Nov 2013 was effected by actual bias constituting judicial error.

3. The application is supported by an affidavit of the applicant’s father which deposes inter alia:

   (3) the Tribunal exceeded is (sic) jurisdictional (sic) or constructively or failed to exercise its jurisdiction or denied my son procedural fairness in that the Tribunal failed to investigate my son (sic) genuine claims with the requirement of Migration Act.

Ground 1

1. The applicant does not particularise the information “required to be sent to me”.  The Tribunal in its reasons at [39-42] states:

   I put certain information to (name omitted), on the applicant’s behalf under s 424AA of the Act.  This information was that: (a) documents provided with his and his father’s visitor visa applications indicated that the family owned agricultural land valued at 50,40,000 Indian Rupees;  received income from that land throughout 2009 and that (name omitted) bank account in India received regular payments throughout that time;  and at the hearing before me in relation to his own protection claims, (name omitted) stated that his business continued to run throughout 2009 from rented premises with two employees.  [40] I asked (name omitted) if he understood the information.  He stated that he did.  [41] I advised (name omitted) that this information was relevant to the application for review because it may lead me to decide that the applicant and his family would continue to receive an income from the family-owned agricultural land if they were to relocate to another part of India and that (name omitted) was able to run a business despite the difficulties he faced in 2009, which may lead me to decided it would be reasonable for the applicant and his family to relocate to another part of India where they would not face a real chance of serious harm or a real risk of significant harm, which would be a reason or part of a reason for affirming the decision under review, (name omitted) stated that he understood the relevance of the information.  [42] I asked (name omitted) if he wanted to have the hearing adjourned to consider his response to this information or to respond to it straightaway.  He stated that he would respond immediately.

2. I am satisfied that the Tribunal has complied with s.424AA of the Act and is therefore not obliged under s.424A. 

3. I find that this ground of complaint has no merit.

Ground 2

1. The applicant complains that the Tribunal “had no jurisdiction to make the said decision” because “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act. The complaint is not particularised and is difficult to ascertain as to its meaning. I am satisfied that the Tribunal has jurisdiction under section 338 of the Act. I agree with the submission of the first respondent that the complainant challenges the merits of the tribunal’s fact-finding role. Such a challenge is impermissible before this court.

2. I find that the ground of complaint has no merit.

Ground 3

1. The applicant complains that he has satisfied the “four key elements” of the Convention definition but that the tribunal did not consider this aspect and therefore committed factual and legal error.

2. A reading of the Tribunal’s reasons demonstrates a conscious and direct consideration as to whether the applicant satisfied the relevant statutory criteria for protection under the Refugees Convention.  At [57] of its reasons the Tribunal states:

   As a result, I find that the only Convention-related reason relating to the risk of harm the applicant faces is his membership of particular social groups comprising (name omitted) family and (name omitted) father’s family.  I find that the applicant does not face a risk of harm in India on account of either his race, religion, nationality or political opinion.  I also find that following S91S of the Act and STCB v MIMIA, because the essential and significant reason for the persecution feared by (name omitted) and his father is not Convention-related, I must disregard the fear of persecution held on behalf of the applicant arising from his membership of those particular social groups.

3. Accordingly, the applicant’s assertion that he has satisfied each criterion is factually incorrect on the face of the Tribunal’s reasons.  This ground has no merit. 

Ground 4

1. The applicant asserts that the Tribunal failed to investigate the applicant’s claim, specifically grounds of persecution in India, and therefore was affected by actual bias constituting judicial error.

2. The applicant’s claims are again not particularised.

3. In its reasons under the heading “Conclusion on Persecution” the Tribunal’s reasons state:

   In light of the above, I find that, while the applicant’s parents and his paternal grandparents have suffered harassment and threats from the police, local criminal elements and (name omitted) uncles in the home area, the applicant does not face a real chance of suffering serious harm now or in the reasonably foreseeable future for reasons for his race, religion, nationality, political opinion, or following S91S of the Act, his membership of a particular social group.  As a result, I am not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.

4. I consider this ground of complaint to be an impermissible attempt to argue the findings of fact of the Tribunal.  And in any event, even had the Tribunal failed to investigate the applicant’s claims then this would be insufficient to justify a finding of actual bias or jurisdictional error as there is no general obligation on the Tribunal to investigate the applicant’s claims.  Although, as to the plurality of the High Court noted in Minister for Immigration and Citizen v SZIAI[4]:

   It may be that a failure to make an obvious inquiry 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 inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

   [4] (2009) 259 ALR 429; [2009] HCA 339, [25]

1. The applicant points to no particular failure.  A consideration of the Tribunal’s reasons on their face demonstrates no “obvious” failure to inquire.  I am satisfied that the Tribunal carried out its obligation to review the decision of the delegate and, in doing so, considered the material, evidence and argument in support of the applicant’s claims.

2. There is no merit to this ground.

3. Consequently, I am satisfied that the decision of the Tribunal has not fallen into jurisdictional error. 

4. Although I raised the issue with the solicitor advocate for the first respondent but no argument was mounted, I think it proper to comment on the application before this court. It is my view that the application is not properly constituted. Rule 11.08 of the Federal Circuit Court Rules states:

   (2) Unless the court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceedings.

5. Rule 11.09(1) provides:

   A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian.

6. No litigation guardian has been appointed in this matter.  No application for a litigation guardian has been made.  There were no appearances before me today so that I could properly make such an appointment.  Consequently, I am of the view that the application is not properly constituted. 

7. However, and on the submissions of solicitor advocate for the first respondent, the application will be dismissed pursuant to rule 13.03(c) of the Federal Circuit Court Rules.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  25 July 2014