FEDERAL COURT OF AUSTRALIA

MZZXT v Minister for Immigration and Border Protection [2014] FCA 1219

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to appeal the orders of the Federal Circuit Court of Australia made on 4 July 2014 is dismissed.

2.    The applicant pay the costs of the first respondent fixed in the amount of $2,500.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The applicant (‘MZZXT’), by his litigation representative (‘the applicant’s father’), seeks an extension of time and leave to appeal from the orders of the Federal Circuit Court of Australia (‘the Federal Circuit Court’) made on 4 July 2014.

2    The Federal Circuit Court ordered that the application for judicial review of a decision of the second respondent (‘the Tribunal’), made in the Federal Circuit Court on 27 November 2013 be dismissed. The Tribunal affirmed the decision of the delegate of the first respondent (‘the Minister’), dated 22 March 2012, not to grant MZZXT a protection (Class XA) visa.

3    The applicant requires an extension of time, but not leave to appeal.

4    The Minister contends that no extension of time should be granted, as the proposed grounds of appeal are entirely without merit.

FACTUAL OVERVIEW

5    The applicant is the holder of an Indian passport and was born in Australia on 22 September 2010. He claims to engage Australia’s protection obligations that relate entirely to his family’s previously determined claims (his father and mother, his brother and his paternal grandparents). His family’s claims were determined by the Tribunal on 7 April 2011. There were two separate protection visa applications (one pertaining to the applicant’s father, mother and brother, made on 22 March 2010 and the other pertaining to the applicant’s paternal grandparents made on 24 August 2010). As the applicant was not born at the time of those visa applications, he was not included in his father’s application and therefore not considered in that context.

6    The decisions of the Tribunal were judicially reviewed by the Federal Magistrates Court of Australia (as it then was) on 5 September 2011 in MZYMG v Minister for Immigration and Citizenship [2011] FMCA 704 and MZYMI v Minister for Immigration and Citizenship [2011] FMCA 705. Appeals filed in the Federal Court of Australia were dismissed by Bromberg J on 14 February 2012: see MZYMG v Minister for Immigration and Citizenship [2012] FCA 89.

7    The High Court of Australia refused special leave to appeal from the judgments of Bromberg J on 20 June 2012: see MZYMG v Minister for Immigration and Citizenship [2012] HCASL 85; MZYMI v Minister for Immigration and Citizenship [2012] HCASL 86.

8    The applicant’s paternal grandparents’ claim is related to the same factual matrix: see MZYMG v Minister for Immigration and Citizenship [2012] HCASL 85 at [2].

9    The protection visa application pertaining to the applicant was lodged on 27 January 2012.

10    On 22 March, a delegate of the Minister refused to grant the applicant a protection visa. The delegate determined that the applicant’s membership of a particular social group, his family, was excluded from the determination of whether the applicant had a well-founded fear of being persecuted by reason of s 91S(a) of the Migration Act 1958 (Cth) (‘the Act’), as the reason for the fear of persecution or persecution was not for a Convention reason. The delegate did not consider s 36(2)(aa) of the Act , as that provision was not yet in force.

11    On 16 April 2012, the applicant applied to the Tribunal to review the Minister’s delegate’s decision. The applicant’s father submitted the application for review and represented the applicant at the Tribunal hearing on 30 April 2013. The applicant’s father submitted various supporting documents to the Tribunal at the hearing on 30 April 2013 and shortly thereafter on 8 May 2013.

12    On 27 November 2013, the Tribunal affirmed the Minister’s delegate’s decision.

THE TRIBUNAL DECISION

13    It is important to detail the reasons of the Tribunal.

14    At [51], the Tribunal recorded that the applicant’s claims were based on the same reasons that other members of his immediate family claimed a risk of harm if they were to return to India — that is due to a financial and property dispute and the bribery of police. At [52] the Tribunal accepted the applicant was a member of a particular social group, namely the family of the applicant’s father and paternal grandfather.

15    At [54], the Tribunal accepted the applicant’s father (and his paternal grandfather) had been involved in a serious and ongoing financial and property dispute with his maternal uncle and one of his paternal uncles, and had faced harassment from local police because the applicant’s father’s uncles had been paying bribes to do so. The Tribunal also accepted that the uncles had lodged complaints to local police to justify the bribed conduct of the police, and that this constituted threats and harassment. The Tribunal also accepted that the applicant’s family received telephone threats from local police and local criminal groups. The Tribunal did not accept that the police were likely to act on the applicant’s father’s uncles’ complaints without the payment of bribes. The Tribunal also accepted that the applicant’s father’s uncles had induced local criminals to harass and threaten the applicant’s father and paternal grandfather.

16    At [55], the Tribunal accepted that the applicant and his father faced a real chance of arbitrary detention by the police because of the applicant’s father’s uncles’ payment of bribes. Given that such detention would not be because of a law of general application, the risk of such detention would amount to serious harm (particularly in the context of likely prison conditions). The Tribunal accepted that the applicant, his father and his paternal grandfather 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.

17    At [56], the Tribunal found that the “essential and significant reason” for the likely harm faced by the applicant and his family arose because of the payment of bribes by the applicant’s father’s uncles arising from the ongoing financial and property dispute with the applicant’s father and paternal grandfather. As the applicant did not face a risk of harm in India for a Convention reason of race, religion, nationality or political opinion, and the membership of a particular social group — the family of the applicant’s father and paternal grandfather — had to be disregarded by reason of s 91S of the Act, because the “essential and significant reason” for the persecution feared by the applicant’s family was not Convention-related. The Tribunal concluded that the applicant would not face any risk of harm in the reasonably foreseeable future of return to India for any Convention reason: see [58] and [59].

18    The Tribunal then considered the operation of s 36(2)(aa) of the Act. At [61], the Tribunal accepted the applicant and his immediate family faced a real risk of suffering significant harm at the hands of local police, local criminal elements and the applicant’s father’s uncles in their home area.

19    At [62], the Tribunal accepted that if the applicant’s immediate family were to relocate within India but outside the home area, they may receive threatening calls, but did not accept that this itself will constitute significant harm. The Tribunal also did not accept that such calls would be acted upon if the applicant’s family did not return to the home area. The Tribunal also rejected the possibility of police in other parts of India targeting the applicant or his immediate family. The Tribunal found the chances of the applicant’s father’s uncles seeking to pursue the applicant and his immediate family to another part of India was remote.

20    At [63], the Tribunal further found that the applicant’s paternal grandparents had returned to India and lived in Mumbai, and had not been contacted by any of the relevant persons who were seeking to harm them in the home area. The Tribunal considered this gave greater weight to its finding that the prospect of the applicant and his family suffering harm outside the home area was not real and was remote.

21    At [64], the Tribunal found that the applicant’s father’s claims that the applicant would suffer significant harm because of difficulties in obtaining the necessary vaccinations for him and because of pollution levels in India were vague and generalised, and there was no evidence provided in support of pollution other than the applicant’s father’s assertions

22    At [65] and [66], in dealing with pollution, the Tribunal said as follows:

[65]    As put to [the applicant’s father] at the hearing, it appears to me that the applicant would be able to obtain any necessary vaccinations under Indian health care, and the National Immunisation Program in particular. Further, there is scant evidence before me to suggest that the level of pollution in India would cause the applicant significant harm. While I accept, in light of the country information set out below, that levels of pollution in India are high, I also find that the government of India has taken active steps to reduce the level of pollution. I also note the comment of Judge Driver in the recent decision SZSFX v MIBP [2013] FCCA 1309 (18 October 2013) at [32] that he did:

“ ... not find persuasive the applicant’s contention that being exposed to pollution can of itself amount to “degrading treatment” for the purpose of s.36(2)(aa) of the Migraiton Act. The mere fact that someone happens to live in a polluted environment cannot of itself, in my view, found a claim to complementary protection.’’

[66]    I do not preclude the possibility that a level of pollution intentionally allowed to cause or inflict cruel, inhuman and degrading treatment or punishment to a particular individual could amount to significant harm, it was acknowledged at the hearing that the applicant does not suffer any particular health problems that would make him vulnerable to pollution, other than his youth. In the absence of medical evidence as to the effect of the current level of pollution in urban centres in India on the applicant in particular or of there being any intention to cause or inflict cruel, inhuman or degrading treatment or punishment on the applicant as a result of the effect of that level of pollution on the applicant, I am not satisfied he faces a risk of suffering significant harm as a result of the level of pollution in India.

23    The Tribunal concluded that the applicant would not face a risk of suffering significant harm outside the applicant’s home area as a result of the medical and environmental issues raised (at [67]).

24    At [68], the Tribunal found the applicant and his immediate family did not face a real risk of suffering significant harm outside their home area and, if they could relocate to another part of India, they would not face a real risk of suffering significant harm from the groups of individuals seeking to harm them in their home area.

25    At [69], the Tribunal had regard to the financial circumstances of the applicant’s parents and their income-generating ability. The Tribunal concluded that it would be reasonable for the applicant in the care of and with his family to relocate to an area of India such as Mumbai or another major city, where there would not be a real risk of significant harm. Taking into account its findings and following s 36(2B), the Tribunal concluded the applicant therefore did not meet s 36(2)(aa) criteria (at [70]).

26    At [71] to [73], the Tribunal determined the applicant did not meet the requirements for a protection visa in s 36(2) of the Act. The Tribunal therefore affirmed the decision under review (at [74]).

APPLICATION TO THE FEDERAL CIRCUIT COURT

27    In the Federal Circuit Court, the applicant made the following grounds of application:

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” was 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 [Tribunal] has failed to investigate applicants’ claim, specially the grounds of persecution in India. Therefore, the Tribunal decision dated 27 Nov 2013 was effected by actual bias constituting judicial error.

THE FEDERAL CIRCUIT COURT JUDGMENT

28    At the time of the scheduled hearing before the Federal Circuit Court, there was no appearance by the applicant’s father on behalf of the applicant. In the reasons for judgment, the Federal Circuit Court noted that the father requested an adjournment of the hearing for the reasons outlined there at [6] to [8]. The request for an adjournment was refused on the basis of the insufficient nature of the accompanying medical certificate provided to the court: see [10].

29    The Federal Circuit Court proceeded, however, to consider the grounds of application as follows:

(1)    At [29] to [31], the Federal Circuit Court dismissed the applicant’s first ground of application on the basis that it was satisfied that the Tribunal (in its decision-record at [39] to [42]) had complied with· ss 424AA of the Act.

(2)    At [32] and [33], the Federal Circuit Court considered that the applicant’s second ground of application did no more than impermissibly seek to challenge the Tribunal’s fact finding function and the merits of the facts as found by the Tribunal.

(3)    At [34] to [36], the Federal Circuit Court considered that the applicant’s third ground of application was not made out. The Federal Circuit Court considered that [57] of the Tribunal’s decision demonstrated “conscious and direct consideration” as to whether the applicant’s claims engaged s 36(2) of the Act.

(4)    At [37] to [42], the Federal Circuit Court considered that the applicant’s fourth ground of application was without merit. The Federal Circuit Court considered that there was nothing to suggest that the Tribunal’s conduct evidenced actual or apprehended bias within the meaning of the relevant legal thresholds, and particularly, that the bias complaint was not made out on the basis of the Tribunal’s alleged failure to make certain inquiries - no such obvious inquiry ought to have been made.

30    At [43], the Federal Circuit Court concluded the Tribunal’s decision was not infected by jurisdictional error.

31    At [44] to [46], the Federal Circuit Court concluded the application for judicial review had not been properly constituted.

32    At [47], the Federal Circuit Court dismissed the application for judicial review pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

GROUNDS OF APPEAL

33    The grounds of appeal in this Court are expressed as follows:

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

(2)    The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of RRT.

CONSIDERATION

34    An appeal from a judgment of the Federal Circuit Court is an appeal by way of rehearing. The Court may set aside the judgment under appeal if legal, factual or discretionary error is identified: see, eg, SZIAT v Minister for Immigration and Citizenship [2008] FCA 766 at [10] per Gordon J. The applicant must demonstrate the Tribunal’s decision is infected by jurisdictional error.

35    Rule 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (‘the Federal Court Rules’) provides that an appellant must file a notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made. The applicant is therefore approximately 10 days out of time.

36    In considering whether an extension of time should be granted, the court must consider a number of principles, including whether there was an acceptable explanation of the delay and the merits of the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348-9.

37    The delay is minimal. A sufficient explanation (although not completely satisfactory) has been proffered by the applicant as to the delay in bringing the appeal. I will then move to determine whether there are any substantive merits in the proposed ground of appeal.

38    Having considered the Tribunal’s reasoning as set out above, in my view, the Tribunal’s findings of fact were open on the available material, were correct in law and were not unreasonable, illogical or irrational. The Tribunal performed its statutory task of coming to the requisite state of satisfaction mandated by s 36(2) of the Act in determining whether the applicant is owed protection obligations.

39    The Federal Circuit Court correctly rejected the grounds of application. No appealable error is identified by the applicant.

40    This is a case where the applicant is seeking merits review, and no basis has been demonstrated to disturb the decision of the Federal Circuit Court or the Tribunal. It is not open for this Court to conduct a merits review.

41    The application for an extension of time in which to appeal the orders of the Federal Circuit Court of 4 July 2014 is dismissed.

42    I will order, therefore, that the application for an extension of time in which to appeal the orders of the Federal Circuit Court on 4 July 2014 is dismissed and that the applicant pay the costs of the first respondent fixed in the amount of $2,500.

Associate:

Dated:    12 November 2014