MZARK v Minister for Immigration and Border Protection

THE FEDERAL CIRCUIT COURT 6 On 5 February 2015, the applicant sought judicial review of the Tribunal's decision in the FCC. He relied on 17 grounds. None of the grounds alleged jurisdictional error on the part of the Tribunal. Most simply advanced the alleged merits of his refugee claims. The Minister sought orders dismissing the proceeding on the grounds that the decision under review was not affected by jurisdictional error. 7 On 4 November 2015, the FCC conducted a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The applicant appeared in person. 8 The FCC dismissed the applicant's application for judicial review. It found that the application failed to "raise an arguable case for the claimed relief". 9 The FCC rejected each ground of the application on the basis that the Tribunal had considered each of the applicant's claims and found that there was no real chance that the applicant's ex-wife's family would seriously harm him and that his fear of persecution was not well founded. The FCC considered that it was open to the Tribunal to find that, if the applicant were returned to India, there was no real risk that he would suffer significant harm due to his relationship with his wife, the marriage, the separation and the divorce and his wife's subsequent remarriage. 10 The primary judge considered that the principal basis for the rejection of the applicant's claims was because of the adverse credibility findings made against him. Her Honour considered that it was open to the Tribunal to make such findings. There had not been any procedural fairness failings. Her Honour held that the Tribunal had afforded the applicant an opportunity to respond to its concerns relating to the credibility of his evidence. 11 The primary judge concluded, at [21]: "The Application is without merit. It is no more than an impermissible attempt at merits review. There is no arguable case for the relief claimed."

THE FEDERAL COURT 12 By his application dated 17 November 2015, the applicant now seeks leave to appeal from the FCC's decision. 13 Under the heading "grounds of application", the applicant claimed that: "I…have applied for the protection visa, delegate says that I am found not to meet the refugee criterion in s 36(2)(a), I may nevertheless meet the criteria for the grant of a protection visa being non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa)…But I myself claiming protection because of I will face significant harm in India that is the reason I have applied for the protection which was not accepted by circuit court and AAT & Immigration. In accordance with Ministerial Direction No.56, made under s 499 of the Act, the Tribunal did not take account of policy guidelines prepared by the Department of Immigration, All of the evidence provided by me although the Tribunal is not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk that he will suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. This is not accord to have protection obligations under s 36(2)(aa), if I go to India I will be killed. The applicant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal, but Refugee Review Tribunal has made applicant ineligible to protection obligations in Australia. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute? 2. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at Migration review tribunal if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection) Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn't even looked at applicant claims as there was a big barrier "Judicial review has been made which has not been proved by applicant to make his protection obligations", but he has exceptional circumstance beyond his control." [Errors in original]. 14 The draft notice of appeal filed by the applicant claims that, "I do have exceptional circumstances beyond my control going to India and being illegal in Australia. I can't go to India and decision made by Hartnett need to be reviewed." 15 The application was accompanied by an affidavit made by the applicant, in which he deposed that: "Judge has said no evidence was provided as to the date of hearing, but if I have no idea on immigration regulations to do submission before Hearing how I can submit, I have thought of to do the submissions orally at hearing. The respondents' totally made justice in wrong way that Judge Hartnett did not pay attention on my protection claims, he [sic] just said nothing wrong in tribunal decision which is to be reviewed by Federal Court Australia. Justice [sic] Hartnett did not consider that I have protection claims to meet the criterion. I do have real threats back in India that is the reason I am not travelling back to India. It is also true that Judge had not given me enough time to explain about my protection claims. Although these factors exposed the respondents to the possibility of a higher chance to get me out of the Federal Circuit court room simply made negative decision. The protection of me is a matter of considerable importance where I can live in this country that I can save my life. My return back to India will most likely cause significant harm to my life where Judge Hartnett should have considered and at least justice should have given chance to me to open my mouth to give explanation why I am coming to FCCA, but this did not happen where I have to seek the further review at Federal court of Australia on my protection visa decision made by Tribunal further it was dismissed by FCCA." 16 In his written submissions, the applicant added: "On hearing date at AAT, that was sudden act no imaginable, with in hour without any extension and not considering my health. What is the use of I am coming to Migration Review Tribunal to appeal the delegate decision, no time for submission and no time given for even thinking. Applicant should wait for call, it was totally unjust and unfair as well. Here, Applicant has not thought of federal circuit court has dismissed my case until I call registry to know my application status, Federal Court says already decision has been made on, but it is mentioned in the orders have been received from e-mail. We have thought decision date is main date to consider to take the application to High court. Money and knowledge are also big matters bring the appeal to High court after time frame, there is no money left on me, and totally broke and no one was giving me free service. As I have exceptional circumstances beyond my control to lodge the review application. … When I was preparing my application on my own, and having lack of knowledge, how come Australian Judicial systems expect submissions to Court without legal advice? At least if advice been provided for poor refugee claimers in Australia I would have submitted much better submissions to Federal court. At Tribunal, I was sick, and starving for food lost, there was nothing I could live with, in addition there was health issues. It was all full of doubt, Australian medical certificate has not been accepted by Tribunal." [Errors in original]. 17 The Minister accepted that the applicant could, fairly, be understood to be making the following complaints about the decisions of the Tribunal and the FCC: The Tribunal failed to apply the correct legal test in relation to s 36(2)(aa) of the Migration Act 1958 (Cth) and the FCC had, therefore erred by not finding that the Tribunal had made a jurisdictional error. The Tribunal did not have regard to material relevant considerations, and the FCC therefore erred by failing to find that the Tribunal had, as a result, made a jurisdictional error. The FCC denied the applicant procedural fairness in the conduct of the 'show cause' hearing on 4 November 2015. The Tribunal denied the applicant a proper opportunity to be heard at the hearing on 16 December 2014 by failing to take into account his health. The applicant would have had the opportunity to put on better quality submissions in this Court if he had been assisted by a lawyer. 18 The Minister filed written submissions in which he dealt with each of these complaints. 19 The Minister submitted that the Tribunal had identified and applied the correct legal test in assessing the applicant's claims under s 36(2)(aa) of the Act. He referred to the Tribunal's application of the test at [60]: "Following the Full Federal Court decision in MIAC v SZQRB [2013] FCAFC 33, in considering s.36(2)(aa) the Tribunal notes that the 'real risk' test imposes the same standard as the 'real chance' test applicable in the context of assessment of the Refugee Convention definition. The Tribunal has found that there is no real chance that the applicant would be seriously harmed for any of the reasons claimed. Consequently for the same reasons the Tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India there is a real risk that he will suffer significant harm due to his relationship with [the applicant's ex-wife], the marriage, the separation and divorce and [the applicant's ex-wife's] subsequent re-married either individually or cumulatively." 20 The Minister noted that the applicant had not identified the material relevant considerations that the Tribunal was allegedly required, but failed, to take into account. In addition, the alleged failure to apply Government policy had not been sufficiently particularised. 21 The Minister submitted that the applicant had been afforded procedural fairness in the FCC: he had been given the opportunity to file written submissions and to address the Court. The Minister further submitted that the applicant had not produced any evidence that he had been prevented, during the FCC's show cause hearing, from making oral submissions to support his claims. 22 The Minister contended that the applicant had not raised any issue about his health in the Tribunal. Nor had the applicant raised any such issue before the FCC. 23 The Minister submitted that the applicant's claim that he would have been put in a better position had he been assisted by a lawyer is not a matter which the Court should take into account in determining whether or not to grant leave to appeal. 24 The applicant represented himself at the hearing this morning. He had the assistance of a Punjabi interpreter. 25 The applicant confirmed that he had had the FCC's reasons for decision and the Minister's written submissions translated for him. 26 The applicant agreed that the Minister had correctly understood and distilled the five points on which he wished to rely should leave be granted. Those are the points identified above at [17]. 27 I gave the applicant the opportunity of elaborating on each of these points. 28 When asked about the complaint that the Tribunal had misconstrued s 36(2)(aa) of the Act the applicant said only that the Tribunal had told him that he would be safe if he returned to a different part of India. This view was mistaken because those who wished him harm would find him anywhere in the country. Counsel for the Minister pointed out that the Tribunal had made no finding relating to relocation. This had been a matter that had been considered by the Minister's delegate. 29 The only consideration which the applicant suggested could have been but was not dealt with by the Tribunal was the practicality of relocation within India. 30 When asked about how he had been denied procedural fairness by the FCC he said that "nobody listened to me properly" which I understood to be a complaint that his submissions had not been accepted. 31 The applicant did not persist with any complaint that he had been prejudiced by ill-health at the Tribunal hearing. He said that he wasn't ill at that time of the hearing and accepted that he had been accompanied by a migration agent (who he referred to as "his lawyer") at the hearing and that the agent had not raised any issue about his health with the Tribunal. 32 The applicant said that he had been assisted, in preparing his submissions to this Court, by a relative. 33 In order for the applicant to succeed it is necessary for him to satisfy this Court that the decision of the FCC was attended by sufficient doubt such as to warrant it being reconsidered by this Court and that substantial injustice would result if leave were refused supposing the decision to be wrong: see Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328 at 330 (Gilmour J). 34 In seeking to impugn the FCC's decision the applicant points to what he appears to contend were jurisdictional errors on the part of the Tribunal and to alleged procedural errors on the part of the FCC. He also raised difficulties which he says he has experienced as a result of his inability to obtain legal assistance in prosecuting the present application. 35 I will deal immediately with this latter concern. Litigants in this Court regularly appear without legal assistance. In such cases the Court makes such allowance as is proper and possible in order to secure a fair hearing and a just outcome. In such cases the Court is careful (as I have done in the present proceeding) to examine the material before it (including the reasons for the decision under review or appeal) in order to ascertain whether there may have been some error which might justify intervention, even if such an error has not been apparent to the unrepresented litigant. 36 The principal error which the applicant may be understood to have attributed to the Tribunal was misconstruction and/or misapplication of s 36(2)(aa) of the Act. This complaint was not made to the FCC. Had it been it would, properly, have been rejected. The passage, quoted above at [19] from the Tribunal's reasons demonstrates that the Tribunal applied the construction of s 36(2)(aa) which had been propounded by a Full Court of this Court in SZQRB. This it was required to do. 37 The other error imputed to the Tribunal was a failure to have regard to certain unidentified matters. Had the issue been raised in the FCC that Court would have been in a position to determine whether or not one or more of these considerations were ones which the Tribunal was bound, but failed, to take into account. In the circumstances it is not possible for this Court to discern jurisdictional error on the part of the Tribunal much less to find that the FCC erred by failing to find that such an error had occurred. 38 The applicant does not suggest that he had been ill at the time of the Tribunal hearing. There is no evidence that he so advised the Tribunal or that any illness impeded his capacity to explain his case to the Tribunal. In the absence of any such evidence the FCC would not have been in a position, even if it had been invited to do so, to find jurisdictional error on the part of the Tribunal for this reason. 39 The remaining allegation is one of procedural unfairness on the part of the FCC itself. The applicant appears to consider that he did not have an opportunity to present his submissions as fully as he would have wished to the Court. It is clear that he could have filed written submissions before the hearing. He did not do so. He had the assistance of an interpreter at the hearing. There is nothing before this Court to suggest that he was prevented from making such oral submissions as he wished at the hearing of his judicial review application in the FCC. 40 The applicant has failed to establish an arguable case of appealable error on the part of the FCC. The decision of that Court is not attended by sufficient doubt as to justify intervention by this Court and I do not consider that any substantial injustice would ensue by refusing the applicant's application. The application will be refused with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.