FEDERAL COURT OF AUSTRALIA

MZACF v Minister for Immigration and Border Protection [2015] FCA 866 

Citation:	MZACF v Minister for Immigration and Border Protection [2015] FCA 866	
		
Appeal from:	Application for extension of time: MZACF & Anor v Minister for Immigration & Anor [2015] FCCA 936	
		
Parties:	MZACF and MZACG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL	
		
File number:	VID 181 of 2015	
		
Judge:	DAVIES J	
		
Date of judgment:	17 August 2015	
		
Catchwords:	MIGRATION – Appeal from decision of Federal Circuit Court of Australia – application for extension of time – merit of proposed appeal – application dismissed	
		
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 91R(2)(a)
Federal Court Rules 2011 (Cth) r 36.05 	
		
Date of hearing:	17 August 2015	
		
Place:	Melbourne	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	15	
		
Counsel for the Applicants:	The Applicants did not appear	
		
Solicitor for the First Respondent:	Mr N Rogers of Australian Government Solicitor	
		
Counsel for the Second Respondent:	The Second Respondent entered a submitting appearance, save as to costs	

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 181 of 2015	
 
BETWEEN:	MZACF
First Applicant

MZACG
Second Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J	
DATE OF ORDER:	17 August 2015	
WHERE MADE:	MELBOURNE	

THE COURT ORDERS THAT:

1.	The application for an extension of time in which to file an appeal be dismissed.
2.	The Applicants pay the First Respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 181 of 2015	
 
BETWEEN:	MZACF
First Applicant

MZACG
Second Applicant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J	
DATE:	17 August 2015	
PLACE:	MELBOURNE	

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
1		This is an application for an extension of time in which to bring an appeal from a judgment of the Federal Circuit Court of Australia (“FCC”) dismissing the applicants’ application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) not to grant the applicants Protection (Class XA) Visas. The applicants have not appeared to prosecute their application and the application is opposed by the Minister on the grounds that the applicants have not provided an explanation for the delay in filing their proposed appeal and the proposed appeal is without merit and cannot succeed. For the reasons that follow the application should be dismissed.
2		The applicants are out of time by one day only for the filing of their appeal. In the circumstances, although no explanation was provided by them as to why they were late in filing their appeal, I do not think that the failure to provide an explanation for the delay, as required by r 36.05 of the Federal Court Rules 2011 (Cth), carries any significant weight against the grant of the application. 
3		The more significant question is whether there is any merit in the proposed grounds of appeal. The proposed grounds are as follows:
1.	The [FCC] 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 [Migration Act]. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 
2.	The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal].
4		Ground 1 was before the FCC in Ground 4 of the application for review in the following terms:
The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The [Tribunal’s] failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal. 

5		The FCC correctly rejected that ground. The reasons for decision of the Tribunal record that the Tribunal concluded that the applicants have a real chance of suffering persecution at the hands of money lenders or their agents if they return to the area where they lived. However, the Tribunal went on to find that it was reasonable in all their circumstances, and possible, for the applicants to relocate to a part of India where there was not a real chance that they would suffer serious harm at the instance of the money lenders. That finding was based on the first applicant’s own evidence that he and his wife could safely and reasonably live in another area in India. In making this finding, the Tribunal had regard to the applicants’ circumstances, including their health, education, language ability and the first applicant’s business experience. The Tribunal therefore concluded that the applicants did not have a well-founded fear of persecution in India and therefore did not meet the refugee criteria in s 36(2)(a) of the Migration Act or the criteria for complementary protection in s 36(2)(aa) of the Migration Act. This ground cannot succeed on appeal. 
6		The second ground is a generalised statement which does not identify the particular legal and factual errors contained in the decision of the Tribunal that were not considered by the FCC. The FCC’s reasons for judgment reveal, in any event, that the FCC dealt with each of the grounds of review in the application. 
7		The first ground before the FCC was:
The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived [at] in accordance with the provisions of the Migration Act. 

8		The ground did not contain particulars and did not identify a specific error. The FCC was not able to discern any error of the type alleged in the Tribunal’s decision. 
9		The second ground was:
The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims. The Tribunal did not consider the applicant who had been under immense and intimidating pressure from money lender. 

10		The FCC stated that the Tribunal, in fact, did accept the full gravity of the applicants’ claims and did appreciate that the first applicant was at serious risk of harm from the money lender. Taking those matters into account the Tribunal then considered whether it would be reasonable for the applicants to relocate within India. The Tribunal concluded that it would be reasonable for them to do so. Accordingly, there was no substance to that ground. 
11		The third ground of the application was:
The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.
12		The FCC stated that the ground misapprehended the Tribunal’s reasons. The Tribunal did not find any of the first applicant’s claims to be implausible. The Tribunal accepted that the first applicant’s evidence was honest and truthful. However, the Tribunal considered that the consequence of the first applicant’s evidence was such that there was no obligation on Australia to give the applicants Protection Visas by reason that the applicants could reasonably be expected to relocate to a place outside of their home village. The FCC concluded that there was no denial of procedural fairness. 
13		The fourth ground before the FCC has been dealt with above.
14		There is no error in the conclusion of the FCC that there was no substance in any of the grounds advanced before it. In the circumstances, there would be no utility in granting an extension of time because the proposed grounds of appeal would be bound to fail. 
15		Accordingly, the application should be dismissed. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.	

Associate: 
Dated:	26 August 2015