MZACJ v Minister for Immigration

[2015] FCCA 856

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACJ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 856

Catchwords:
MIGRATION – Refugee Review Tribunal – application seeking review on merits – no Convention nexus – relocation within India reasonably practicable.

First Applicant: MZACJ

Second Applicant: MZACK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 556 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: Ms Lucas

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 $3,900.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 556 of 2014

MZACJ

First applicant

MZACK

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 but with the assistance of an interpreter.  The second applicant, the wife, did not attend the hearing.

2. The first applicant claimed that he and his wife are from India.  He said that there was a land dispute between two people who I will refer to as

   
   

   X and Y.  He said that Y injured X and the first applicant was called to come and take X to hospital, which he did. 

3. The first applicant said that the assailant, Y, has strong political connections and is famous for his criminal activities.  He said Y is backed by the local police and politicians.  The first applicant said that a court case was commenced and Y threatened the first applicant to persuade him not to participate in the court case. 

4. The tribunal had considerable doubts about various aspects of the first applicant’s claims.  The tribunal found that there were various inconsistencies in the first applicant’s account, which it explained in some detail.  However, ultimately, the tribunal accepted that there was an assault by Y on X and that the first applicant was assaulted by Y after complaining to the police about Y. 

5. Ultimately, the tribunal did not accept that there was a convention nexus.  The tribunal considered that Y was motivated by criminal intent and greed.  The fact that Y may have had political affiliations did not mean that the reason for his attack on the first applicant was for reason of the first applicant’s actual or imputed political opinion.  The tribunal also considered that, even if there were some persecution, the applicants would be able to relocate within India.  The tribunal considered that in the circumstances of this case, it would be reasonable for the applicants to do so. 

6. The tribunal considered the question of complementary protection.  The tribunal considered that the first applicant would not face a real risk of significant harm if he did not participate in the legal proceedings against Y.  The tribunal noted that the first applicant claimed that he had a moral obligation to participate in those legal proceedings. However, the tribunal also noted that that claim was inconsistent with the first applicant having left India to avoid the legal proceedings.  All in all, the tribunal was not satisfied that Australia owes the applicants protection obligations. 

7. The application filed in this court gives the grounds for application as follows: 

   (1)I applied for the visa to department of immigration which was refused; 

   (2)Then I apply to RRT for review of that decision,.

   (3)I think RRT and department of immigration did not look [at] my situation. 

8. To the extent that the first applicant challenges the delegate’s decision, it is not open to do so in this court.   Insofar as the first applicant says the RRT did not look at his situation, the tribunal, in fact, looked at the claims extensively.  The tribunal set out accurately the applicant’s claims and analysed them in considerable detail. 

9. It is not for this court to take a different view of the merits of the application.  The court can only send the matter back to the tribunal if there has been a jurisdictional error.  The first applicant has not identified any such error. 

10. In submissions before this court, the applicant said that he was not satisfied with the decision.  He said that maybe the tribunal did not understand his evidence.  He was asked to identify anything in particular that the tribunal had not understood, but he simply repeated that the tribunal had not understood his situation. 

11. In reply, the first applicant said that he did not want to live in Australia forever.  He said that he would go back to India when the legal proceedings against Y had been finalised.  He had also made a similar statement to the tribunal, which the tribunal considered, and concluded that the first applicant did not face a real risk of serious or significant harm because he could avoid the legal case in India as he was doing by coming to Australia. 

12. The tribunal noted that the applicant had conceded that there was no Convention nexus in this case.  I do not consider that an applicant’s concession about such a matter would be binding on the first applicant.  However, on the facts of this case, it seems to me that the tribunal was correct to decide that there was no Convention nexus.  Just because the first applicant’s assailant has political connections does not mean that the first applicant faced harm for reasons of his actual or imputed political opinion. 

13. The tribunal’s view that the first applicant could avoid the threatened harm by not participating in the legal proceedings in India is somewhat reminiscent of the discreet homosexuals cases. However, there is a significant difference in that the first applicant has in fact come to Australia to avoid the legal case in India.  He told the court today that he would go back when the case was finished, clearly indicating that he wishes to avoid the case himself. 

14. In any event, the tribunal considered that the first applicant could reasonably and safely relocate elsewhere in India.  That matter was raised with the first applicant at the hearing.  The tribunal appears to have dealt with the point in a manner that was procedurally fair.  The conclusion that relocation was reasonably practicable for the applicants was open to the tribunal on the evidence before it. 

15. In view of the relocation finding, even if there were some issue about the other aspects of the tribunal’s decision, the ultimate conclusion would be sustainable. 

16. For these reasons, the application must be dismissed. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Associate: 

Date: 9 April 2015