MZAMI v Minister for Immigration and Border Protection
[2016] FCA 1542
•20 December 2016
FEDERAL COURT OF AUSTRALIA
MZAMI v Minister for Immigration and Border Protection [2016] FCA 1542
Appeal from: MZAMI v Minister for Immigration and Border Protection [2016] FCCA 1267 File number: VID 422 of 2016 Judge: MOSHINSKY J Date of judgment: 20 December 2016 Legislation: Migration Act 1958 (Cth), s 36 Date of hearing: 17 August 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Mr B Hornsby, Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent did not appear ORDERS
VID 422 of 2016 BETWEEN: MZAMI
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
20 DECEMBER 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY:
The appellant is a national of India. He arrived in Australia in 2009 on a student visa. In 2013, he applied for a Protection (Class XA) visa on the basis that he fears harm in the course of a dispute between his father and approximately 20 members of his extended family (the dispute) over the possession and ownership of some valuable land (the land).
On 6 May 2014, a delegate of the first respondent (the Minister) refused the appellant’s application for a protection visa.
The appellant sought review of that decision by the Refugee Review Tribunal (the Tribunal) and, on 11 September 2014, a hearing took place before the Tribunal at which the appellant gave evidence and presented arguments.
On 24 September 2014, the Tribunal notified the appellant of its decision (dated 18 September 2014) to affirm the decision of the delegate to refuse the application for a protection visa. In relation to the Tribunal’s decision, I note the following:
(a)The Tribunal found the appellant to be a truthful and reliable witness. The Tribunal found that he gave fluent and responsive evidence, and that this evidence was internally coherent, and consistent both with his claims made before the delegate and with other information about the situation in India. The Tribunal accepted the appellant’s evidence regarding the relevant events.
(b)The Tribunal found that there was (at the time of the Tribunal’s decision) a serious dispute over the land between the appellant’s father, who claims ownership of at least a significant part of the land, and approximately 20 members of the extended family.
(c)The Tribunal found that neither the appellant nor any member of his family had suffered any harm while they were in their present home town; there had been some verbal abuse when the appellant’s father attended legal proceedings relating to the dispute; as a result, the appellant’s father had engaged two security guards to attend with him at the courthouse and also sometimes to attend with him if he visited the land.
(d)The Tribunal found that, up until 2011, there had been no injury to any member of the appellant’s immediate family, although threats had been made against them; over two years before the Tribunal’s decision, the appellant went back to India and stayed for about one month with his immediate family in their home town; during his visit, the appellant’s parents did not let him go outside his home town; the appellant finished his visit without suffering any injury and returned to Australia; about two weeks after he returned to Australia, the appellant’s sister was assaulted by one of her relatives when she had visited the land with her parents; the sister’s arm was injured and the matter was reported to the police. The Tribunal found that the appellant’s extended family had threatened that if anyone came to take possession of the land, they would do the same thing as was done to the appellant’s sister.
(e)The Tribunal found that, since the assault on the appellant’s sister, there had been no injury to anyone in the appellant’s family, although further threats had been made by telephone to his immediate family; the most recent such threat that the appellant knew about occurred five months before the Tribunal hearing.
(f)The Tribunal found that the appellant had “a real chance of suffering serious harm amounting to persecution if he comes within the orbit of his extended family, for example if without the protection of a bodyguard he visits the land or attends court proceedings relating to the land or the assault on his sister” (paragraph 91). However, given that the appellant’s home and home town were not on or at the land, but some distance away, and that there had never been an attack on any member of the appellant’s immediate family in his or her home town, and various other matters, the Tribunal found that if the appellant returned to his home town, “there is not a real chance that the [appellant] may suffer an attack causing serious harm” (paragraph 93). The Tribunal found that it followed that the appellant was not a refugee and did not meet the requirements of s 36(2)(a) of the Migration Act 1958 (Cth).
(g)The Tribunal also concluded that it was both reasonable and possible, in all of the circumstances, for the appellant to relocate to another part of India, away from his home area and the disputed land, where he would not face a real chance of suffering persecution (paragraphs 102-110).
(h)The Tribunal also concluded that the appellant did not meet the complementary protection criterion, both because there was no real risk of significant harm in his home area, and because it would be reasonable for the appellant to relocate within India. Therefore, it was concluded, there was not a real risk of significant harm (paragraphs 111-123).
On 21 October 2014, the appellant commenced judicial review proceedings in the Federal Circuit Court of Australia. The matter was heard on 15 April 2016. The appellant was not represented. The primary judge gave ex tempore reasons for dismissing the application for judicial review. In relation to the proceeding in the Federal Circuit Court, I note the following:
(a)The first ground of appeal was that the Tribunal erred in giving two conflicting reasons for its decision: that the harm feared was not genuine and that, even if the harm feared was genuine, the appellant could relocate to another part of India. It was contended that the decision-making was not sound and intelligible but was conflicting and confusing. In relation to this ground, the primary judge found that the ground misstated the Tribunal’s reasons and that there was nothing in the Tribunal’s reasoning on this issue that was not sound and intelligible or that was conflicting and confusing (at [9]-[11]).
(b)The second ground of appeal was that the Tribunal failed to appreciate that the appellant was not able to live in any other distant location in India. In relation to this ground, the primary judge found that it essentially sought merits review. The primary judge was unable to discern any error in the Tribunal’s consideration of the relocation issue (at [12]-[14]).
(c)The third ground was that the Tribunal failed to appreciate that the appellant had a genuine fear of harm and could not return to India. In relation to this ground, the primary judge found that this also amounted to an application for merits review. The primary judge concluded that the Tribunal had correctly approached the issue of whether the appellant could return to India. The primary judge concluded that the Tribunal’s conclusion was open to it and was unable to detect any jurisdictional error in relation to the matters raised by this ground (at [15]-[17]).
On 6 May 2016, the appellant filed a notice of appeal from the Federal Circuit Court. The notice of appeal raises six grounds which may be summarised as follows:
(a)The primary judge erred by failing to find that the Tribunal failed to take into account relevant evidence and/or took into account irrelevant evidence, in that it ignored that the appellant faced a real risk of significant harm from his relatives (ground 1(a)).
(b)The primary judge erred by failing to find that the Tribunal fell into jurisdictional error by finding that if the appellant were to return to his home in India he would not face a real chance that he may suffer an attack causing serious harm amounting to persecution, in circumstances where the Tribunal accepted that he may suffer serious harm if he came within the orbit of his extended family, which was likely to occur (ground 1(b)).
(c)The primary judge erred by failing to find that the Tribunal fell into jurisdictional error by not giving proper consideration and weight to evidence that the area that the appellant would be residing in on return to India is only 50 kilometres from the location of his extended family (ground 1(c)).
(d)The primary judge erred by failing to find that the Tribunal fell into jurisdictional error when it “summarily determined” that because the appellant’s sister was attacked in the relatives’ home town and not in the appellant’s home town, the appellant was not and could not be at serious risk of suffering serious harm if he were to return to India, as if the geographical proximity of the relatives to the appellant’s family home was of no account (ground 1(d)).
(e)The primary judge erred by failing to find that the Tribunal fell into jurisdictional error by finding that the appellant could relocate to another part of India, as opposed to considering what the appellant would do or would be likely to do, which would be to gravitate towards his home town and family where he would likely be the target for significant harm as heir to the property (ground 1(e)).
(f)The primary judge erred by failing to find that the Tribunal fell into jurisdictional error by failing to consider the appellant’s evidence “in totality and cumulatively” (ground 1(f)).
A number of these grounds of appeal raise new points, in that they were not argued before the Federal Circuit Court. To this extent, the appellant requires leave. The Minister opposes leave being granted on the basis that the grounds have insufficient prospects of success. However, given the conclusions I reach, below, in relation to the grounds of appeal, it is unnecessary to consider the question of leave.
At the hearing of the appeal, the appellant represented himself. An interpreter was available in Court to assist if needed, but the interpreter’s assistance was not required. In his oral submissions, the appellant reiterated his fear of harm if he returned to India and stated that he did not know how he would relocate. The submissions he made were largely, if not entirely, directed to issues of fact that had been determined by the Tribunal. In particular, he challenged the Tribunal’s findings that there was not a real chance that the appellant may suffer an attack causing serious harm and that it would be reasonable and possible for the appellant to relocate to another part of India away from his home area and from the land.
I will now consider each ground of appeal in turn.
In relation to the first ground, this ground is essentially seeking merits review of the Tribunal’s factual finding that, if the appellant returns to his home town, there is not a real chance that he may suffer an attack causing serious harm (paragraph 93). There does not appear to be any jurisdictional error in the Tribunal’s approach to this issue. The Tribunal accepted that the appellant did have a real chance of suffering serious harm amounting to persecution if he were to come within the orbit of his extended family, for example if without the protection of a bodyguard he were to visit the land or were to attend court proceedings relating to the land or to the assault of the sister (paragraph 91). However, the Tribunal reasoned that, in circumstances where the appellant’s home and town were not on or at the land, and there had never been an attack on any member of the appellant’s immediate family in his or her home town, there was not a real chance that the appellant may suffer an attack causing serious harm (paragraph 93). I do not think the Tribunal failed to take into account relevant evidence or took into account irrelevant evidence in making this finding.
In relation to the second ground, this ground substantially overlaps with the first ground. It relates to the same factual finding. Again, there does not appear to be any jurisdictional error in the Tribunal’s approach to this issue.
In relation to the third ground, the Tribunal examined the facts carefully, setting them out (in particular) in paragraph 89. Earlier, at paragraph 10, the Tribunal noted that the appellant’s home town was “not very far away (less than 50 km)” from the land. I do not think there is any basis to suggest that the Tribunal did not give proper consideration and weight to this fact.
In relation to the fourth ground, this ground overlaps to some degree with the third ground. As indicated in the preceding paragraph, the Tribunal was aware of the proximity of the relatives to the appellant’s family home. It was open to the Tribunal to rely on the fact that there had never been an attack on any member of the appellant’s immediate family in his or her home town, and that the only attack and injury occurred in the house on the land when the appellant’s sister was alone in a room in the house, which gave a “fortuitous opportunity for her uncle to hurt her”. There does not appear to be any jurisdictional error in the way in which the Tribunal relied on these facts.
In relation to the fifth ground, the part of the Tribunal’s reasons dealing with relocation (paragraphs 95-110) was a discrete and independent basis for its decision. The reason why the Tribunal considered relocation is explained in paragraph 98, namely: “While the Tribunal has found that there is not a real chance that the [appellant] may suffer serious harm amounting to persecution in his home town ..., because the Tribunal accepts that the [appellant] genuinely fears such harm, and may genuinely fear to return to his home town, it also makes the following findings …”. The factual proposition underpinning the appellant’s fifth ground (namely that he would gravitate to his home town), if accepted, would have rendered it unnecessary for the Tribunal to consider the relocation issue. It thus does not provide a logical basis upon which to challenge the Tribunal’s consideration (in the alternative) of the relocation issue. Further, and in any event, it is clear that the Tribunal considered the particular circumstances of the appellant (see, eg, paragraphs 97, 99 and 101 of the Tribunal’s reasons). No jurisdictional error is apparent in the Tribunal’s conclusion that relocation was reasonable in the appellant’s circumstances.
In relation to the sixth ground, this ground does not identify any particular defect in the Tribunal’s approach.
None of the grounds in the notice of appeal demonstrates jurisdictional error in the approach of the Tribunal. Nor do any of these grounds identify error in the reasons of the primary judge.
It follows that the appeal is to be dismissed. There is no proper basis to depart from the usual rule that costs follow the event. The appellant indicated that he would be unable to pay costs. This does not provide a proper basis to depart from the usual rule. I will therefore make an order that the appellant pay the Minister’s costs of the appeal.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 20 December 2016
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