Mzabc v Minister for Immigration and Border Protection

[2015] FCA 856

FEDERAL COURT OF AUSTRALIA

MZABC v Minister for Immigration and Border Protection [2015] FCA 856

Citation:	MZABC v Minister for Immigration and Border Protection [2015] FCA 856
Appeal from:	Application for extension of time: MZABC v Minister for Immigration & Anor [2015] FCCA 756
Parties:	MZABC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s):	VID 247 of 2015
Judge(s):	DAVIES J
Date of judgment:	13 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:	Federal Court Rules 2011, r 36.05 Migration Act 1958 (Cth), s 65
Cases cited:	SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 Minister for Immigration and Citizenship v SZSCA [2014] HCA 2014
Date of hearing:	13 August 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Ms J Lucas, 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 247 of 2015

BETWEEN:

MZABC
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	13 AUGUST 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for an extension of time, filed 12 May 2015, be dismissed.

2.The Applicant is to pay the costs of the First Respondent.

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 247 of 2015

BETWEEN:

MZABC
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	DAVIES J
DATE:	13 AUGUST 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

1. The applicant has applied for an extension of time in which to bring an appeal from the decision of the Federal Circuit Court (“FCC”) delivered on 9 April 2015. The FCC dismissed an application for judicial review of the decision of the second respondent (“the Tribunal”) which affirmed a decision of the delegate of the first respondent (“the Minister”) not to grant the applicant a Protection (Class XA) Visa. The Minister has opposed the application for an extension of time on the basis that the applicant has not provided a satisfactory explanation for the delay in filing his proposed appeal and the proposed appeal has no merit.

2. The delay was a period of 12 days. The delay was not lengthy but, nonetheless, the explanation provided by the applicant for not filing his appeal within time was not satisfactory. The explanation simply was that the applicant was on holidays and could not check his letters. The explanation lacked the detail required by the Court to be satisfied that there was good reason as to why the application was not filed in time. It was not a length delay, however, and the Minister has not suffered any prejudice by reason of the delay in making the application. Accordingly, I would not dismiss the application merely by reason of the insufficiency of the explanation of the delay.

3. It is relevant to consider whether the proposed appeal would have merit. Unless the proposed appeal would have merit, there would be no utility in granting an extension of time

4. The applicant is a citizen of India from the Adilabad area of Andhra Pradesh. The Tribunal found the applicant to be a credible and reliable witness and accepted that the applicant has a well-founded fear of persecution for a Convention reason, if he returns to Andhra Pradesh. The Tribunal accepted that he had been physically mistreated and mistreated by two men, S and B, and that they remain active in the area. The Tribunal went on to find that it would be reasonable for the applicant to relocate to another part of India where there would not be a real risk he would suffer significant harm. The Tribunal concluded that in the applicant’s particular circumstances it would be reasonable to expect him to relocate to a place outside of Andhra Pradesh, such as Bangalore or Mumbai. That finding was based on the applicant's evidence and country information.

5. In reaching that decision, the Tribunal considered the applicant’s evidence that he had been able to live in Hyderabad for almost two and a half years before he came to Australia, during which time he did not encounter any problems, apart from receiving a few phone calls from silent numbers, warning him not to return to the village. The Tribunal had regard to the applicant’s evidence that he could go and live in other parts of India but that for cultural reasons it would be difficult to do so.  The Tribunal also had regard to the applicant’s evidence that he would have a fear of being located by B or S if he relocated to Hyderabad and that he might not be safe there because of all the ongoing separatist trouble.  The Tribunal considered the applicant’s evidence that if he lived outside Andhra Pradesh, his parents would visit him and that might cause B and S to find him. However, when asked to explain how that might happen, he did not offer an explanation or suggest how that would actually happen. The Tribunal had regard to independent country information that the applicant could freely move about in India; that India has no registration or national identification system; and that India has a population of more than 1.3 billion people living in more than 27 million towns, cities or settlements, the largest of which have populations between five and 15 million people. In light of the independent country information, the Tribunal expressed the view that it was difficult to understand how the applicant could be located by B and S if he moved to a large city such as Bangalore or Mumbai, which are far away from Adilabad. The Tribunal considered the risk of B and S tracking him down to be remote and farfetched, and in light of the evidence indicating that, in the past, their issue was with his presence in the Adilabad area area and that they had not taken steps to locate him in Hyderabad, the Tribunal considered this claim to be based on mere speculation.  The Tribunal did not accept that there was a real chance he would suffer serious harm from B and S in the event that he returned to India and resided in a large city as Bangalore or Mumbai. The Tribunal also considered whether, in his particular circumstances, it would be reasonable for him to relocate to an area outside of Andhra Pradesh.  The Tribunal, at paragraphs 32 to 34, stated as follows:

   32. Having found that there is not a real chance he will suffer serious harm outside Andhra Pradesh in India, the Tribunal has also considered whether in his particular circumstances, it would be reasonable for the applicant to relocate to an area outside Andhra Pradesh. When it discussed this issue with him, his clear evidence was that he could relocate but that it would be difficult to do so for cultural reasons, as every state has a different culture, with each one being like a different country; he did not know what the culture was like in other parts of India and it would not be easy for him to settle into a new place. In his post-hearing submission he said that there had been changes to the family registration cards since he left, but did not explain how that would cause him to suffer problems or difficulties if he relocated, and as noted above, the information before the Tribunal indicates that there are no impediments or registration requirements for a person moving to another area of India. He also wrote that he would face heavy competition from local people in finding employment and that his degree would not allow him to get a job, but did not explain how or why that would be the case. He also said that he does not have family or friends outside his state, but he said his parents would travel to see him if he lived in Bangalore or Mumbai. He said that he is sad living away from his parents but he does not want to return to India and wants to be happy and have a good life, free from fear.

   33. The evidence before the Tribunal is that the applicant can speak three languages, Telugu, Hindi and English, has completed 16 years of education and worked for over 4.5 years in Australia in various service roles, including at a reception centre, at a marketing centre selling SIM cards and at a postal centre, all of which required him to be fluent in English and to deal face to face with customers. In addition, he comes from a relatively wealthy family who own property and an agricultural and farming business, and are involved in the construction industry, and that he has a close relationship with them and they financed his travel to and study in Australia, as well as his return trip to India in 2012.

   34. The Tribunal has carefully considered the evidence and information before it, including information which indicates that unemployment in India is relatively low and that the economy is expected to continue to grow in the next few years. It notes that the applicant agreed with that information and that the prospects of him finding work outside Andhra Pradesh were good; it notes his post-hearing claim that he would face heavy competition from locals and that his degree would not allow him to get a job, however, in the absence of a credible explanation as to how or why that would be the case, the Tribunal does not accept that his degree from Andhra Pradesh would not be recognised in other parts of India and, while it accepts he would face competition from local residents in his place of relocation, it does not accept that it would be a barrier to him obtaining employment outside Andhra Pradesh. It accepts his evidence that India is [a] collection of many individual states, each with its own culture, and that he would encounter some difficulties in moving to an area outside Andhra Pradesh, where the culture was foreign to that [with] which he is familiar. However, as noted above, he can speak, read and write in the national language, Hindi, and in English, which is also widely spoken in large cities such as Bangalore and Mumbai, and he has shown through his residence in Australia, that he was resourceful and adaptable to a new environment in which he did not know anyone before he arrived, which indicates he has the necessary skills and resilience to relocate, including in finding employment in a competitive labour market. The Tribunal accepts that he feels sad because he lives away from his family, but notes that that situation would exist if he is in India but outside Andhra Pradesh or in Australia, and, as discussed with him, if he lived in Bangalore or Mumbai or some other place outside Andhra Pradesh, it would be possible for his family to visit him, which would alleviate to a degree his sadness from being separated from his parents.

   The Tribunal accordingly concluded that the applicant did not satisfy the criterion for the grant of a protection visa.

6. The only ground advanced by the applicant in his judicial review application was that:

   The Tribunal denied me procedural fairness because they didn’t give me a fair hearing and failed to properly consider all of my claims.

7. The FCC dismissed the application for judicial review. The FCC stated as follows:

   29. I asked the applicant to explain to me why he submitted that the Tribunal failed to accord him procedural fairness and failed to consider all his claims.

   30. The applicant's (sic) responded by setting out his particular circumstances he would face on returning to another part of India. He said the following:

   ŸThe main problem is the language barrier. The national language is Hindi but each state has its local language. His m ain spoken language is Telugu (the mother tongue). He only studied Hindi and English as part of passing his higher education. He can’t speak or communicate in these languages;

   ŸThere are cultural differences in each state. The lifestyle will be different. In Australia there is a lot of help available but in India, there is no unity, people don't help each other;

   ŸHe completed his degree six to seven years ago and if he goes back to employment he may not be able to get some work;

   ŸHe is 28 years old and now single but if he marries, he has to start his life over again. His parents will support him financially but he does not want to rely on them. If he has a family and can't get employment he will struggle.

   31. The applicant said that the Tribunal did not consider these problems he will face in the future in its decision on relocation.

   32. It is apparent from the applicant's oral submissions that his grounds for review are that the Tribunal failed to consider his claims that, in his particular circumstances, it would not be reasonable for him to relocate. Before turning to a consideration of this ground, I will however, first deal with the procedural fairness ground which was not relied on in the applicant's oral submissions but which was specified as a ground for review.

8. The FCC held that the Tribunal had correctly identified and applied the two limbs of the relocation test, namely:

   (a)having accepted that the applicant has a well-founded fear of being persecuted for a Convention reason if he returned to Adilabad area of Andhra Pradesh, was there a different region in India where, objectively, there is no appreciable risk of the feared persecution?

   (b)If yes, is it reasonable, in the sense of practicable, to expect the applicant to be sent to that other region, having regard to his particular circumstances, the circumstances that he would reasonably be expected to face in the place of relocation, and the impact on him of being sent to the place of relocation: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; Minister for Immigration and Citizenship v SZSCA [2014] HCA 2014.

9. The FCC held that the Tribunal had considered whether there was an appreciable risk of the feared persecution if the applicant resided in large cities outside Andhra Pradesh and found that the chance was remote. The FCC also held that the Tribunal had given consideration to the applicant’s particular circumstances in determining that it was reasonable for him to relocate to an area outside Andhra Pradesh if he returned to India.

10. In an affidavit in support of his application for an extension of time to appeal from the decision of the FCC, the applicant stated that he did not get a fair hearing from the Tribunal or the FCC. He claimed that neither the Tribunal nor the FCC considered his claims of relocation and the problems which he would face in new places. He stated that he had some more matters that he wished to raise before the Court in support of his claim that he should be given a visa.

11. The question for this Court, however, is whether there was jurisdictional error by the Tribunal or appealable error by the primary judge. The Tribunal correctly identified the two limbs of the relocation test in concluding that it was reasonable to expect the applicant to relocate to a place outside of Andhra Pradesh. The Tribunal had regard to the objections raised by the applicant and gave consideration to his particular circumstances. No jurisdictional error in the Tribunal decision is shown. The FCC was correct for the reasons given to dismiss the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.

Associate:

Dated:       13 August 2015