FEDERAL COURT OF AUSTRALIA

MZYMG v Minister for Immigration and Citizenship [2012] FCA 89

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1    These two matters are based on similar facts and raise similar issues and it is convenient to deal with them together in these reasons for judgment. The matters involve members of the same family. Proceeding VID 1034/2011 (“the first proceeding”) involves a husband (“the father”) and wife (“the parents”) and proceeding VID 1024/2011 (“the second proceeding”) involves the parent’s adult son (“the son”) and his wife and two sons (“the son’s family”).

2    These two proceedings raise appeals from two separate judgments of the same Federal Magistrate both delivered on 5 September 2011, MZYMG & Anor v Minister for Immigration & Anor [2011] FMCA 704 (“the first decision”) and MZYMI & Ors v Minister for Immigration & Anor [2011] FMCA 705 (“the second decision”). In each case, the learned Federal Magistrate dismissed the appellants’ applications for judicial review. In each of the matters, the Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellants Protection (Class XA) visas (“Protection visas”).

3    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellants was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4    The task of this Court in relation to the appeal brought by the appellants is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

5     For the reasons that follow I have determined to dismiss the appeals.

BACKGROUND

6    All of the appellants, except for the fourth appellant in the second proceeding (“the fourth appellant”) are citizens of India. The fourth appellant is part of the son’s family and was born on 22 September 2010 after the family’s arrival in Australia. All of the other appellants, except for the son, arrived in Australia on 18 February 2011 on Subclass 676 Visitor visas. The son arrived in Australia on 8 March 2010 on a Subclass 676 Visitor visa. On 25 March 2010 the appellants, with the exception of the fourth appellant, applied to the Department of Immigration and Citizenship (“the Department”) for Protection visas. However, the parents were advised by the Department that they could not be included in their son’s application because they were married and did not meet the definition of “member of the family unit” in reg. 112 of the Migration Regulations 1994 (Cth). They were subsequently removed from that application and the father lodged a separate application for Protection visas on 24 August 2010.

7    On 26 August 2010 a delegate of the first respondent refused the application for Protection visas made by the son and his family. On 27 September 2010 the son’s family applied to the Tribunal for a review of the delegate’s decision. In a letter from the Tribunal dated 11 October 2010, the son was advised that the Tribunal was unable to make a favourable decision in relation to his family’s claim on the material before it and that a hearing before the Tribunal was listed for 9 November 2010 to enable the appellant to give evidence and present argument. The hearing was rescheduled to 1 December 2010 which the son attended assisted by a Gujarati interpreter. Following the hearing, by way of letter dated 14 December 2010, the Tribunal wrote to the son inviting him to provide further information on a number of issues.

8    The parent’s application for Protection visas was refused by a delegate of the Minister on 11 November 2010. On 1 December 2010 the parents applied to the Tribunal for a review of that decision. In a letter from the Tribunal dated 21 December 2010, the father was advised that the Tribunal was unable to make a favourable decision in relation to his claim and that of his wife on the material before it and that a hearing before the Tribunal was listed for 20 January 2011 to enable the appellant to give evidence and present argument. The father attended the hearing assisted by a Gujarati interpreter.

THE TRIBUNAL’S DECISIONS

9    Only the father and the son made claims for refugee status. The other appellants applied for Protection visas as dependent family members. The father and son claim they were involved in a financial and property dispute in India with two close relatives, the son’s maternal uncle and one of his paternal uncles (“the uncles”). As a result of that dispute the father and son claimed to fear harm from criminals who were allegedly bribed by the uncles to harm them. The father and son also claimed that if they returned to India their wives and the son’s first child would be denied protection from harm by police because of the bribes paid to fellow police officers by the uncles.

10    In its decisions, the Tribunal accepted that:

    the father and son had been involved in a serious and ongoing financial and property dispute with the uncles;

    both the father and the son faced threats and harassment from local police and criminals as a result of bribes paid by the uncles; and

    there was a real chance of being arbitrarily detained by police in the home area of the father and the son as a result of those bribes.

11     The Tribunal also accepted that, if returned to India, the appellants faced a real chance of physical harm from criminal gangs and a real chance of being denied protection from those groups by the police due to the bribes paid to the police by the uncles. The Tribunal accepted that this was capable of constituting “serious harm” within the meaning of s 91R of the Migration Act.

12    By its decisions, the Tribunal then assessed whether the appellants’ fear of harm was for a Convention reason. That is, whether the fear was based upon one or more of the reasons specified in the definition of a refugee contained in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together “the Convention”). The Tribunal found that the only Convention based reason for which the appellants feared harm was their membership of a particular social group being, in each case, their representative families.

13    Having so found, it was necessary for the Tribunal to then consider, as it did, the qualification made by s 91S of the Migration Act. Applying s 91S, the Tribunal determined that it must disregard the feared harm because the essential and significant reason for the persecution feared by the father and the son was not for a Convention reason but was a result of the uncles seeking to gain advantage in the financial and property dispute.

14    Furthermore, the Tribunal made an alternative finding that the appellants could reasonably relocate within India to avoid the risk of harm faced in their local area. In making this finding the Tribunal considered whether it was reasonable for the appellants to relocate to a region where objectively there was no appreciable risk of the persecution feared. In coming to this finding, the Tribunal acknowledged that the appellants might face some linguistic and cultural challenges in relocating but in considering their financial circumstances and the son’s education and ability to conduct a business for over a decade, and the father’s ability to conduct a business for over two decades, the Tribunal concluded that relocation within India was a reasonable option. Additionally, the Tribunal concluded there was no evidence to support the father’s claim that police in other parts of India from the appellants’ home would target them and found the possibility that the uncles would pursue them if they did relocate was remote.

15    The Tribunal also found that as the fourth appellant in the second proceeding was born after the delegate’s decision and had not lodged a Protection visa application that was the subject of review before the Tribunal, it had no jurisdiction in relation to the fourth appellant’s application for review under s 412 of the Migration Act.

16    By reason of its decisions dated 7 April 2011, the Tribunal dismissed the appellants’ applications and affirmed the delegate’s decisions not to issue Protection visas to them.

THE FEDERAL MAGISTRATE’S DECISIONS

17    On 5 May 2011 the appellants in both proceedings lodged separate applications in the Federal Magistrates Court relying upon the following identical grounds:

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 applicant, such information was required to be sent to be written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP. [sic]

2.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived [sic] 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 [sic] decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

4.    The RRT has failed to investigate [sic] applicants [sic] claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 7 April 2011 was effected by actual bias constituting judicial error.

18    As I have previously stated, the task of the Federal Magistrate was to identify any jurisdictional error in the decision of the Tribunal. As is common with migration appeals, the appellants appeared to hold the erroneous view that the Federal Magistrate was empowered to conduct a merits review. His Honour dealt with that notion at [29] of both decisions, stating: “A wrong finding of fact is not a jurisdictional error: Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.”

19    The Federal Magistrate referred to the background facts set out in the Tribunal’s decisions and outlined the claims made by the appellants (at [4] – [5] of the first decision and at [7] of the second decision). Ultimately, his Honour found that there was no error in the finding made by the Tribunal that the appellants’ fear of persecution was not for a Convention reason (at [20] of the first decision and at [21] of the second decision).

20    The Federal Magistrate found that the Tribunal had applied the correct test in finding that the appellants could reasonably relocate to another part of India (at [21]-[25] of the first decision and at [22] – [24] of the second decision). His Honour further observed that the Tribunal’s findings in relation to relocation were findings of fact and that, even if erroneous, did not constitute jurisdictional error.

21     In relation to ground one, the Federal Magistrate found that the Tribunal had complied with ss 424AA and 424A of the Migration Act and dismissed that ground (at [9]-[12] and [31] of the first decision and at [10] – [12] and [37] of the second decision). At [32] of the first decision and [38] of the second decision, his Honour held that ground two was not made out and dismissed it accordingly.

22    Having found no error in the Tribunal’s findings that the appellants fear of persecution was not for a Convention reason, at [33] and [39] of the decisions respectively, the Federal Magistrate dismissed ground three.

23    At [38] and [41] of the decisions respectively, the Federal Magistrate dismissed ground four on the basis that bias had not been established.

GROUNDS OF APPEAL IN THIS COURT

24    On 21 September 2011 the son filed a Notice of Appeal in this Court and on 23 September 2011 the father filed a Notice of Appeal in this Court both of which contained the following stated grounds of appeal:

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

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

25    The appellants’ grounds of appeal were not supported by any particulars. Despite Orders permitting the appellants to file written submissions ten clear working days before the hearing date (that is, by 26 October 2011) nothing was filed and served.

26    At the hearing on 10 November 2011, the appellants were self-represented and assisted by a Gujarati interpreter. The appellants did not relevantly add any oral or written submissions to support or particularise their stated grounds of appeal.

Ground One

27    Ground one is badly drafted and highly ambiguous. In substance, it seems to raise a complaint based upon the assertion that the Federal Magistrate failed to consider that the Tribunal had ignored the fear of persecution claimed by the appellants.

28    That assertion is without merit. The Tribunal did not ignore the appellants’ claimed fear of persecution but accepted the claim. It did, however, disregard the claimed fear because it came to the view that it was required to do so by s 91S of the Migration Act. The appellants have not contended that the Tribunal misapplied s 91S. It is not apparent that s 91S was not correctly applied. Even if there was some error in the Tribunal’s application of s 91S, the relocation findings made by the Tribunal provide an alternative and independent basis for affirming the delegate’s decision: SZMCA v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122] (Tracey and Foster JJ).

29    The reference in ground one to s 91R of the Migration Act appears to be misconceived. Section 91R defines the terms “persecution” and “serious harm” and deals with the degree of harm and the nature of the persecution required for the Convention to have a protective application. There was no issue as to the seriousness of the harm claimed by the appellants. The Tribunal accepted that their fear was of serious harm.

30    In any event, because s 91S required the Tribunal to disregard the fear of harm claimed by the appellants, it was unnecessary for the Tribunal to focus upon the degree of harm or the definition of persecution in s 91R: SZNZH v Minister for Immigration and Citizenship [2010] FCA 1286 at [47] (Dodds-Streeton J). Therefore, the appellant’s reliance on s 91R is misconceived.

31    Lastly, I agree with the Minister’s submission that the appellants’ description in ground one of the Tribunal’s reasoning as being “manifestly unreasonable” should be viewed as merely an emphatic way of expressing disagreement with it: Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J). In substance, this part of ground one amounts to an impermissible invitation to the Court to review the merits of the Tribunal’s decision

32    For those reasons ground one should be dismissed.

Ground Two

33    Ground two makes the general and unparticularised claim that the Federal Magistrate’s decision failed to consider the alleged legal and factual errors contained in the Tribunal’s decision. This is a very broad claim and no particular error on the part of the Federal Magistrate has been identified.

34    The Federal Magistrate considered all of the appellants’ claims in the Court below and dismissed them because his Honour found they did not reveal any jurisdictional error on the part of the Tribunal as outlined at [19] – [23] above. There is no apparent error in the judgment of the Federal Magistrate. Ground two should be dismissed.

DISPOSITION

35    As I have found no appealable error, both of the appeals must be dismissed. In each case the appellants should pay the Minister’s costs of the appeals. I will make orders in each proceeding to that effect.

Associate:

Dated:    14 February 2012