MZAHU v Minister for Immigration

[2015] FCCA 3519

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAHU & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3519

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – alleged failure to consider facts of case – application for merits review.

First Applicant: MZAHU

Second Applicant: MZAHV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1362 of 2014

Judgment of: Judge Riley

Hearing date: 8 December 2015

Date of last submission: 8 December 2015

Delivered at: Melbourne

Delivered on: 8 December 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: No appearance

Solicitors for the second applicant: The second applicant was no represented

Counsel for the first respondent: Julia Noble

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Sparke Helmore

ORDERS

1. The application filed on 8 July 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.

3. The title of the proceeding be amended so that the name of the second respondent is the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1362 of 2014

MZAHU

First Applicant

MZAHV

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (“the tribunal”). The first applicant (“the applicant”) is a citizen of India. The second applicant is her daughter. She was born in Australia.

2. The applicant arrived in Australia on 18 June 2009 on a student visa.  Her then husband arrived at the same time on a dependent student visa.  The applicant and her husband separated.  On 27 March 2014, the applicants lodged applications for protection visas. The delegate refused the protection visa applications.  The matter was reviewed by the tribunal, which affirmed the delegate’s decision.

3. The applicant claimed that:

   a)her husband’s family would kill her and take away her daughter if she returned to India; 

   b)her husband was abusive;

   c)women are second-class citizens in India; 

   d)her husband’s family was influential in the Indian community;

   e)the authorities would not protect her; and

   f)India is a politically driven country where the police and politicians are corrupt.

4. The tribunal accepted that the applicant had suffered abuse during her  marriage, which ended in August 2013.  The tribunal accepted that the applicant and her husband continued to live under the same roof until the applicant left for a holiday in India in January 2014.  The tribunal accepted that the applicant had a subjective fear that she would be harmed by her husband’s parents in India.  However, the tribunal did not accept that the applicant faced a real chance of serious harm from the husband’s parents in the reasonably foreseeable future.

5. The tribunal considered that the husband’s family were aware that the applicant had returned to India for a month but that the husband’s family had not, at that time, harmed the applicant or taken away her daughter. The tribunal noted that the applicant said that her husband’s family had done nothing to her during that time because there was a large family function happening at that time, which operated as a protection for her. However, the tribunal did not accept that explanation.

6. The tribunal also considered that there were some discrepancies in the evidence that the applicant had given. The tribunal found that the applicant had not been consistent in her claims made in her protection visa application and subsequently. The tribunal considered that the applicant’s husband’s parents had no interest in having custody of the applicant’s daughter.

7. The tribunal also considered an issue of inheritance that the applicant raised at the tribunal hearing.  The tribunal found those claims to be lacking in credibility.  The tribunal considered, on the applicant’s own evidence, that her husband did not have any interest in either the applicant or her daughter and would not seek to take away the daughter.

8. The tribunal did not accept the applicant’s claims that her husband’s family had connections in the police force or with politicians.  The tribunal rejected the applicant’s claims to fear harm from her husband’s parents if she were to return to India.

9. The tribunal also rejected the applicant’s claim that she would not have enough money to provide for her daughter, particularly in relation to her education.  The tribunal noted that the applicant had said that she would have the support of her mother and sister on her return to India. 

10. The tribunal considered the complementary protection criteria and concluded, for essentially the same reasons, that the applicant did not face a real risk of significant harm, as defined, on return to India.

11. The application to this court has been adjourned twice to enable the applicants to obtain legal assistance.  On the first occasion, the applicant said that she would be able to obtain legal assistance privately.  That did not occur.

12. On the second occasion, the applicant said that she was having her claim assessed by Victoria Legal Aid.  I have been told by the first respondent’s solicitor that they have been contacted by VLA, which has said that they are unable to assist the applicant.  In any event, they have not attended today and have not lodged a notice of address for service on behalf of the applicants.  Therefore, the matter has proceeded today with the applicant appearing in person.

13. The application to this court contains one ground of review, which is as follows:

    There is a jurisdictional error made by the RRT. RRT has over looked the facts of my case and refused the case on the basis that I am not entitled to be a refugee.  I am eligible under the criterion of complimentary protection.  I have a severe threat from my ex partners family in India who want to kills me.  Its a threat to my childs life and I would like to plea to the federal court of Australia to look into this matter and please reopen my case (errors in orginal)

14. To a large extent, that purported ground of review is an application for merits review.  This court is not permitted to review matters on that basis.  As explained to the applicant at the hearing, the court is only able to remit a matter to the tribunal if there has been a jurisdictional error. The applicant, in oral submissions, was unable to identify any jurisdictional error. 

15. The applicant said in her application that the tribunal had overlooked the facts of her case.  However, the applicant was not able to particularise that claim in any way.  It seems to me that the tribunal has carefully and thoroughly assessed all of the pertinent facts that the applicants raised.  I do not accept that the tribunal has overlooked the facts of the applicants’ case.  The applicants did not otherwise give any indication of what the jurisdictional error allegedly made by the tribunal might have been. 

16. In oral submissions, the applicant said that:

    a)her daughter was born here in Australia;

    b)when she has been back to India, she has become ill;

    c)she is very sensitive and the Indian weather does not suit her;

    d)her in-laws would snatch her daughter; and

    e)she cannot live without her mother.

17. Again, these are matters going to the merits of the decision.  The court is not able to entertain applications on that basis. 

18. I have read the tribunal’s decision.  I am unable to detect any jurisdictional error in it.  Nor does there appear to be jurisdictional error in the tribunal’s decision-making process.  The tribunal relied on the information that the applicant gave it. The tribunal discussed with the applicant at the hearing the various concerns that the tribunal had with her claims.  In all the circumstances, there is no sign of any jurisdictional error in the tribunal’s reasons for decision or decision making process. The application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  12 January 2016