MZACF v Minister for Immigration

[2015] FCCA 936

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACF & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 936

Catchwords:
MIGRATION – Refugee Review Tribunal – relocation within India – whether the tribunal considered the risks to the applicants.

Legislation:
Migration Act 1958 s.91R(2)(a)

First Applicant: MZACF

Second Applicant: MZACG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 547 of 2014

Judgment of: Judge Riley

Hearing date: 17 March 2015

Date of last submission: 17 March 2015

Delivered at: Melbourne

Delivered on: 17 March 2015

REPRESENTATION

Counsel for the First Applicant: The First Applicant appeared in person

Solicitors for the First Applicant The First Applicant was not represented

Counsel for the Second Applicant: The Second Applicant did not appear

Solicitors for the Second Applicant: The Second Applicant was not represented

Advocate for the First Respondent: Ned Rogers

Solicitors for the First  Respondent: Australian Government Solicitor

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 28 March 2014 be dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 547 of 2014

MZACF

First Applicant

MZACG

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal.  There are two applicants, a husband and a wife. The first applicant, the husband, appeared in court without the benefit of a legal representative. The second applicant, the wife, did not attend the hearing.

2. The applicants are Indian citizens from the State of Gujarat.  The first applicant said that:

   a)he had begun a business in the late 1990s; 

   b)he borrowed some money from a money-lender;

   c)he repaid most of the money, but the money-lender said that he owed much more;

   d)the applicant complained to the local police;

   e)because the loan had not been documented, they said they could not help;

   f)the money-lender threatened to harm or kill the first applicant if he made any further complaint to the police;

   g)the money-lender attended the applicant's house and business with a number of thugs;

   h)the money-lender assaulted the first applicant and smashed furniture;

   i)the first applicant and his wife and parents then moved to another place some hundreds of kilometres from their home town; and

   j)the applicants lived in the other place, having a simple life, for some years. 

3. In 2013, the applicants applied for and were granted tourist visas to Australia.  They subsequently applied for protection visas.  The first applicant said that his parents have continued to live without harm in the village remote from their former home.  The money-lender has not found, harassed, or harmed the applicant's parents in the remote village. 

4. The tribunal accepted the applicant's claims, in particular that:

   a)the applicant was a member of a particular social group consisting of people who default on loans from money-lenders;

   b)money-lenders were known to perpetrate brutal assaults, and even killings, of defaulting debtors; and

   c)due to corruption, political influence, lack of resources, and sometimes incompetence, there were often serious obstacles to accessing adequate state protection in India. 

5. The tribunal noted the first applicant's evidence given before the tribunal that the applicants could safely and reasonably return to and make a living in the remote village where the first applicants’ parents had continued to live for several years, and that they could also relocate to other parts of India.  The first applicant told the tribunal that he considered that it would be reasonable and possible for the applicants to live without a real chance of suffering harm from the money-lender if they were to relocate far from their home village. 

6. The tribunal considered that the applicants did face a real chance of persecution if they returned to their own village.  However, the tribunal found that it would be reasonable for the applicants to relocate elsewhere in India, and that they could do so without facing a real chance of persecution in the remote location. 

7. The tribunal noted that the applicants were young, in good health, had twice built up profitable businesses, and, in the first applicant’s case, spoke Gujarati and Hindi.  The tribunal considered that there may be some hardship for the applicants if they were to relocate to a part of India where Gujarati is not spoken commonly, but also noted that that is the case in Australia.  Particularly because of the applicant’s previous successful relocation, the tribunal considered that it would be reasonable for the applicants to relocate elsewhere in India. 

8. The tribunal also considered the complementary protection provisions. Following the same reasoning as expressed previously, the tribunal considered that the applicants could relocate within India without facing a real risk of significant harm. 

9. The application lists four grounds of review.  The applicant did not file written submissions in support of those grounds.  He initially said to the court that he did not wish to say anything in support of the grounds. 

10. The first ground is:

    The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

11. This ground contains no particulars.  It does not identify any specific error.  I am not able to discern any error of the type alleged in the tribunal’s reasons.

12. The second ground in the application is:

    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. 

13. In fact, the tribunal 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.  There is no substance to this ground. 

14. The third ground in the application is:

    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.

15. This ground misapprehends 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 given honestly and truthfully. However, the tribunal considered that the legal consequences of the first applicant's evidence were such that there was no obligation on Australia to give the applicants protection visas.  There was no denial of procedural fairness for the reasons alleged. 

16. The fourth ground of review in the application is that:

    The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec.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 failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

17. Section 91R(2)(a) of the Migration Act 1958 provides that serious harm includes a threat to a person’s life or liberty.  The tribunal did consider whether the applicants would face serious harm if they relocated within India.  The first applicant himself gave evidence that he had been safe in the village remote from his home village.  He also gave evidence that the applicants would be safe elsewhere within India.  The tribunal properly considered that issue.  This ground is not made out.

18. In oral submissions in reply before the court today, the first applicant said that there was no guarantee that nothing would happen to him if he were to relocate within India.  However, the test under the Refugees Convention does not require guarantees.  The test is whether there is a real chance.  The tribunal properly applied that test. 

19. As none of the applicants’ grounds has been made out, the application must be dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:16 April 2015