MZAMI and Minister for Immigration and Anor

[2016] FCCA 1267

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAMI & MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1267

Catchwords:
MIGRATION – Refugee Review Tribunal – application for protection visa – relocation within India – no jurisdictional error detected.

Legislation:

Migration Act 1958 (Cth) s.36(2)

SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18, (2007) 97 ALD 1, (2007) 237 ALR 634, (2007) 81 ALJR 1659, [2007] HCA 40

Applicant: MZAMI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2113 of 2014

Judgment of: Judge Riley

Hearing date: 15 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Melbourne

Delivered on: 15 April 2016

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: None

Counsel for the First Respondent: Bromley Hornsby

Solicitors for the First Respondent: Sparke Helmore Lawyers

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore Lawyers

ORDERS

1. The application filed 21 October 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $5,800.

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 2113 of 2014

MZAMI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refuge Review Tribunal.  The Tribunal affirmed a decision of the delegate refusing the applicant a protection visa.  The applicant is a man in his twenties.  He is a national of India.  He was born in a village in Jammu and Kashmir, but soon afterwards his family moved to a town in the Punjab.  The applicant can speak read and write Punjabi, Hindi and English. 

2. The applicant first came to Australia as the holder of an Indian passport in his own name as a student in 2009.  He undertook a trade qualification in Australia and has done other studies.  Since 2009, the applicant has lived in Australia except for periods totalling about four months when he was apparently in India.  The applicant said that his father has a good income and has a senior commercial position in an Indian company. 

3. The applicant claimed to be affected by a family land dispute.  The applicant said that there was a particular parcel of land in Jammu and Kashmir which his immediate family had an entitlement to, but his extended family objected to that claim.  He said that this had developed into a very serious dispute, and that, on one occasion, his sister had been assaulted.  This had been reported to the police.  It occurred in the area of the applicant’s birth, which is where the land in dispute is located.

4. The Tribunal essentially accepted the applicant’s claims.  The Tribunal considered that the applicant was a credible and reliable witness.  The Tribunal accepted that country information showed that land disputes are a particular problem in India, and that they often result in violence and, indeed, murder.  The Tribunal, however, considered that the risk to the applicant was confined to the area of his birthplace in Jammu and Kashmir. 

5. The Tribunal considered that if he were to return to his home town in the Punjab he would not be at risk of harm in that area.  The Tribunal noted that the injury to the applicant’s sister happened when she was in the vicinity of the disputed land, which is in Jammu and Kashmir, and not in the Punjab, which is where the applicant’s hometown is located. 

6. The Tribunal also considered that the applicant could reasonably relocate elsewhere in India.  The Tribunal noted that the applicant is a young man with trade qualifications who is in good health.  He is able to speak, read and write Punjabi, Hindi and English.  He has no dependants.  He told the Tribunal that he was not concerned about obtaining employment.  The only thing he said against relocation was that his family would not be able to protect him elsewhere.  However, the Tribunal did not consider that the applicant would need protection elsewhere.

7. The Tribunal expressly considered the complementary protection provisions, but for substantially the same reasons, considered that they did not apply in the applicant’s case.  The Tribunal, accordingly, affirmed the delegate’s decision. 

8. The applicant appeared before this court, and his application to this court appears to have been prepared, without the benefit of legal assistance.

9. The first ground in the application was that:

   The RRT erred in giving two conflicting reasons for its decision, firstly that the harm feared was not genuine, and secondly that even if the harm feared was genuine, the Applicant to relocate to another part of India. There the decision making is not sound and intelligible, conflicting and confusing. (errors in original)

10. This ground actually misstates the Tribunal’s reasons.  The Tribunal did accept that the applicant’s fear was genuine.  However, the Tribunal considered that the fear that the applicant felt was not well-founded insofar as it related to his hometown in the Punjab as opposed to his birthplace in Jammu and Kashmir.

11. The land dispute concerned property in Jammu and Kashmir, not in the Punjab.  For the reasons the Tribunal gave, the Tribunal did accept that the applicant’s fear of harm in Jammu and Kashmir was well-founded.  However, the Tribunal considered that the applicant could reasonably relocate within India.  Consequently, there is nothing in the Tribunal’s reasoning on this issue that is not sound and intelligible, or that is conflicting or confusing.  The Tribunal simply considered a further option.  There is nothing untoward in its handling of that matter.

12. The second ground in the application for review was that:

    The RRT failed to appreciate that the Applicant is not able to live in any other distant location in India.

13. This ground is essentially seeking merits review.  The Tribunal appears to have correctly applied the High Court’s decision in SZATV v Minister for Immigration and Citizenship & Anor (2007) 233 CLR 18; (2007) 97 ALD 1; (2007) 237 ALR 634; (2007) 81 ALJR 1659; [2007] HCA 40; BC2007707277.

14. The Tribunal considered the matters that the applicant advanced, and considered the other circumstances of the applicant as they were known to the Tribunal.  The Tribunal concluded that the applicant could reasonably relocate within India.  I am unable to discern any error in the Tribunal’s handling of that aspect of the matter.

15. The third ground in the application is that:

    The RRT failed to appreciate that the Applicant has a genuine fear of harm and cannot return to India.

16. This, again, is an application for merits review.  It seems to me that the Tribunal did correctly assess whether the applicant could return to India.  The Tribunal expressly accepted that the applicant had a genuine fear.  However, the Tribunal considered that that fear was well founded only in relation to the area around the applicant’s birthplace in Jammu and Kashmir but did not apply to the area where the applicant grew up and where his family resided in Punjab.

17. Moreover, the Tribunal considered that there were other places within India where the applicant could live without a real risk of serious or significant harm.  It seems to me, for the reasons expressed, that that conclusion was open to the Tribunal.  I am unable to detect any jurisdictional error relating to the matters raised in the third ground of the application.

18. Before the court today the applicant said that he could not relocate.  He said that he did not have any issue with the legal aspects of the Tribunal’s decision but said that he did not agree with the outcome.  This is a blatant application for merits review, which this court is not able to provide.  Having read the decision of the Tribunal, I am unable to detect any jurisdictional error in it.  Consequently, 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

Date: 24 May 2016