MZAPJ v Minister for Immigration
[2015] FCCA 3638
•29 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAPJ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3638 |
| Catchwords: MIGRATION – Refugee Review Tribunal – protection visa – registrar dismissing application for review for non-appearance at a directions hearing – application for reinstatement – whether the applicant had an adequate explanation for his non-appearance – whether the applicant has reasonable prospects of success in the substantive application. |
| Legislation: |
| Applicant: | MZAPJ |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 2579 of 2014 |
| Judgment of: | Judge Riley |
| Hearing date: | 29 June 2015 |
| Date of last submission: | 29 June 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2015 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Mr Young |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application in a case filed on 2 April 2015 be dismissed.
The applicant pay the first respondent’s costs of the application in a case fixed in the sum of $1,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2579 of 2014
| MZAPJ |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(revised from the transcript)
Introduction
This is an application to reinstate a proceeding that was dismissed by a registrar on 1 April 2015. The original application was filed on 18 December 2014. It was listed in the usual way before the registrar for directions on 1 April 2015. The applicant did not attend on that occasion. The registrar dismissed the application pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
The following day, on 2 April 2015, the applicant filed an application in a case asking that the proceeding be reinstated. The Minister for Immigration and Border Protection (“the Minister”) opposes that application.
The applicant filed an affidavit in support of his reinstatement application. The affidavit indicates that it was affirmed on 2 April 1985. That was presumably a typographical error and should have said 2015. In the affidavit, the applicant said the following:
I did not appear on court date on 1 April 2015 because of injured back. I could not get off from the bed from the last 2 days. I went to the doctor. He suggested me bed rest for more day. I am attaching my medical certificate with the following documents.
A medical certificate was attached to the affidavit. It is from a clinic in Ballarat Road, Sunshine. The applicant’s address is in Albion. The medical certificate says the following:
[The applicant] attended this clinic on 1/04/2015
because of a MEDICAL CONDITION and based on my opinion/ this condition/ patient’s statement he was unable to attend work/ school on/from
31/03/2015 to 7/04/2015 inclusive.
The medical certificate appears to have been signed by a doctor. It is dated 1 April 2015. It indicates that the applicant was able to attend the clinic on the same day that he says he was not able to attend court. It also says that he was not able to attend work or school for over a week. However, he apparently came to court the following day to file his application in a case seeking reinstatement.
In any event, medical certificates such as the one provided by the applicant, pursuant to Federal Court authority, are not sufficient to explain the absence of a person from court. The medical certificate did not indicate that the applicant was unable to attend what could be expected to be a relatively brief court hearing. The medical certificate did not contain any indication of the nature of the applicant’s illness. His claim to have had an injured back is not supported by expert medical opinion. His claim that he could not get off from the bed is contradicted by the fact that he attended the doctor on 1 April 2015.
All in all, I am not satisfied that the applicant has given an adequate explanation for not attending the directions hearing on 1 April 2015.
The court must also consider whether the applicant has a reasonably arguable case in the substantive application. The applicant is a national of India. He arrived in Australia on 22 May 2008. At that stage, he was the holder of a student visa. On 31 January 2014, he applied for a protection visa. He claimed that he was originally a Hindu, but had converted to Islam. He said that he had married a Muslim woman. He said that if he returned to India he would be harmed by his family and community, because they are opposed to inter-caste and inter-religious marriages. The applicant said that the State could not protect him.
A delegate of the Minister rejected the application on 28 May 2014. The delegate considered the claims were vague and not substantiated. In particular, the delegate did not accept that the applicant had converted to Islam.
The applicant then applied for review by the Refugee Review Tribunal on 25 June 2014. The Tribunal accepted that the applicant was from a Hindu family. The Tribunal noted that at the hearing the applicant said that he was a Hindu. The Tribunal noted that the applicant had claimed in his protection visa application that he was a Muslim. The Tribunal also noted that the applicant had said that he had separated from his wife and had not had any contact with her for two months. The Tribunal considered that there was not a real chance that the applicant would return to India with his wife. In these circumstances, the Tribunal considered that the applicant would not attract any attention or significant disapproval from his family or the broader Hindu community.
The Tribunal noted that independent country information indicated that people in rural northern India who had been in Hindu-Islamic relationships had not been harmed or mistreated. Rural northern India was the applicant’s home area. The Tribunal considered that, because of the applicant’s marriage to a Muslim, he may face some ostracism from his parents and some discrimination from the broader community. However, the Tribunal did not accept that this would constitute serious harm. The Tribunal did not accept that the applicant faced a real chance of persecution in India for any Convention or non-Convention reason. For the same reasons, the Tribunal did not accept that the applicant faced a real risk of significant harm if he were to return to India.
In the alternative, the Tribunal considered that, even if the applicant did reunite with his wife and she returned with him to India, the applicant could relocate within India without any appreciable risk of significant or serious harm. In making these findings, the Tribunal considered relevant independent country information and also considered the applicant’s individual circumstances. Those circumstances included that the applicant is well educated, can read, speak and write Hindi, is a Hindu, and has qualifications and work experience in construction and security.
The Tribunal consequently affirmed the delegate’s decision.
The affidavit in support of the substantive application said that the applicant believes that he is a genuine refugee and fears returning to Pakistan. The applicant told the court today that the reference to Pakistan was an error made by the person who assisted him. He confirmed that he is in fact from India.
The application filed on 18 December 2014 includes eight grounds. The first ground is as follows:
At paragraph 38 the decision Tribunal failed to understand and misinterpreted my statements and my position as indicated in the protection application. I have been threatened by my parents if I return. I did say to the Tribunal that my parents have said they only have one son. This means that they will threaten me kill me or mistreat me if I return to India. I have stated in my Protection application that I will be attacked, killed or mistreated by the KHAP and the RSS if I returned to India.
The Tribunal failed to understand that it is not ostracism but attacks on me that would be perpetrated by the family because I have dishonoured the family and my conservative religious community. In the traditional rural village that I came from where Hinduism is the sole religion I will face attacks, threatens to my life and degrading and humiliating treatment and punishment if I was to return to India. The Tribunal failed in its task of assessing my claims by not considering these claims adequately or with sufficient diligence.
The Minister said that the decision record indicated that the Tribunal did properly consider the applicant’s claims and evidence and made findings that were open to it. The Minister submitted that this ground seeks impermissible merits review.
The Tribunal specifically noted that the applicant claimed to have been threatened by the KHAP and RSS. At paragraph 38 of its reasons for decision, the Tribunal said that the applicant told the Tribunal at the hearing that he had not been threatened by anyone in the community, including by the KHAP or the RSS. In paragraph 40, the Tribunal concluded that the applicant did not face a real chance of persecution from his family or the KHAP, the RSS or anyone else. In paragraph 43, the Tribunal noted that the RSS is a national organisation, but considered that the applicant could relocate to an area where there would be no appreciable risk of persecution from the KHAP or the RSS.
In paragraph 47 of its reasons for decision, the Tribunal said that the applicant did not face a real chance of persecution from his family, the RSS, the KHAP, or anyone else. The Tribunal, throughout its reasons, considered the risk of harm from the applicant’s family. The Tribunal accepted that the applicant’s family had not spoken to him for six months. The Tribunal also accepted that the applicant’s parents had said that they only have one son, and by that, presumably, meant the applicant’s brother. It seems to me that the Tribunal did understand and consider the claims that the applicant has set out in ground 1 of his application.
The second ground in the application filed on 18 December 2014 is:
The Tribunal failed to understand that religious and cultural factors will impact upon me throughout India upon my return to India. The Tribunal did not consider the full ramifications on me of a return to India and whether in the current circumstances I find myself. The Tribunal failed to consider whether it would be reasonable and practicable to return not only to my home village but indeed in all of India. The Tribunal erred in misapplying the principle of relocation in my particular circumstances. I cannot relocate because I will not have the necessary resources nor [be] able to find a job because getting a job in India is based on networks. I do not have networks in India. Also the RSS and KHAP persecute people throughout India and make life hard for them by threatening employers not to hire people like me. The Tribunal has misunderstood the evidence about the RSS and KHAP and the danger these organisations present to me throughout India.
The Minister submitted that the Tribunal had properly considered the relevant country information and the applicant’s personal circumstances.
The Tribunal set out its relocation findings in paragraphs 42 to 48 of its reasons for decision. Particularly in paragraph 45 of its reasons for decision, the Tribunal considered the applicant’s personal circumstances. Otherwise the applicant, with this ground, appears to be seeking impermissible merits review.
The third ground in the application filed on 18 December 2014 is:
The Tribunal makes an incorrect assumption about the return of my wife to India. There is no basis of fact about the Tribunals’ position. Decision making on the basis of assumptions or suspicions is not a decision based on facts. The Tribunal erred and misapplied the law in this regard.
The Minister submitted in relation to this ground that the Tribunal’s findings were open to it and logical. The Minister submitted that this ground seeks impermissible merits review.
This ground appears to be without substance. The Tribunal considered two different scenarios in relation to the applicant’s wife. The first scenario was that the wife did not return with the applicant to India. It was reasonable for the Tribunal to consider that that was a likely outcome, given that the applicant and his wife had not spoken for two months. It cannot be said that there was no evidence that the wife would not return to India or would not go to India with the applicant. In any event, the Tribunal considered an alternative scenario in which the applicant and his wife did reunite. In that eventuality, the Tribunal considered that it would be reasonable for the applicant to relocate within India. As previously mentioned, there appears to be no error in the Tribunal’s handling of the relocation issue.
The fourth ground in the application filed on 18 December 2014 is:
The Tribunal makes assumptions about impact on me on my return purely based on my gender. Such generalization is wrong in law and morally incorrect. Such a decision is also discriminatory.
The Minister submitted that this ground is meaningless. The applicant did not say anything about this ground in his oral submissions to this court. It possibly suggests that the Tribunal took the view that women suffer from honour killings but men do not. However, there is nothing in the Tribunal’s decision to indicate that it took that view. There appears to be no substance to this ground.
The fifth ground in the application filed on 18 December 2014 is:
The Tribunal has not understood the concept of dishonour and how this will impact upon me. The Tribunal has failed to understand the ideology of the RSS and KHAP and the manner in which they make attacks on people like me.
The Minister submits that this ground again seeks impermissible merits review. The Minister also noted that the selection of country information and weight to be given to it is a matter for the Tribunal.
The Tribunal set out in its reasons for decision certain items of country information. It was for the Tribunal to assess the evidence before it. The Tribunal specifically noted that country information indicated that many inter-faith couples from rural areas relocate to the more liberal cities for protection. Furthermore, the country information indicated that most reported cases of violence against inter-religious couples takes place in villages and small towns in northern and western India and not in the more liberal cities. The Tribunal specifically noted that RSS is a national organisation but considered on the basis of the evidence before it that there was no appreciable risk from RSS or KHAP.
It seems to me that the applicant is seeking merits review in this ground. The Tribunal has addressed the relevant claims. The applicant cannot now give additional evidence about the ideology of RSS and KHAP to this court. This ground appears to have no substance.
The sixth ground in the application filed on 18 December 2014, which is numbered 7 in the application, is as follows:
The Tribunal makes an incorrect assumption and misapplies the law when it considers that my marriage to my wife is over or that she will not accompany me to India. The tribunal is speculating. However at paragraph 43 of the Decision record the Tribunal says that I may be able to relocate to another city with my wife. The Tribunal has failed to understand the personal circumstances of my wife and whether it would be reasonable for someone who has drug problems and is of the Muslim faith.
The Tribunal did not make an assumption about the applicant’s marriage to his wife. The Tribunal found on the evidence that the applicant had not spoken to his wife for two months and that they were unlikely to return to India together. There does not appear to be any jurisdictional error in that regard. In relation to the relocation finding, the Tribunal noted the applicant’s personal circumstances. The Tribunal was aware of the applicant’s wife’s drug problems but still formed the view that the applicant could relocate with her elsewhere in India. It seems to me that the Tribunal adequately considered the relevant matters in concluding that the applicant and his wife could relocate elsewhere in India. The Tribunal noted that the applicant is well able to earn a livelihood in India. It was implicit in the Tribunal’s reasons for decision that the applicant would be able to support and care for his wife if she returned with him. It appears to me that this ground is without substance.
The seventh ground in the application filed on 18 December 2014, which is numbered 8 in the application, is as follows:
The Tribunal erred in law by not considering the Complementary protection claims I have with regards to the fears of mistreatment by the family and the extremist religious organizations.
The Tribunal set out at paragraphs 16 to 18 of its reasons for decision the relevant law in relation to complementary protection. The Tribunal said at various points throughout its reasons that the applicant would not face a real risk of serious or significant harm, for example, at paragraphs 38 and 44. The Tribunal also considered in other paragraphs that the applicant would not face significant harm, for example, at paragraphs 39, 41 and 48. In the circumstances there does not appear to be any substance to the applicant’s claim that the Tribunal did not consider the complementary protection claims.
The eighth ground in the application filed on 18 December 2014, which is numbered 9 in the application, is as follows:
The Tribunal misunderstood or misapplied the evidence I gave about my religion. I have stated that I am a Muslim convert in my Protection application. The Tribunal did not understand my response nor did it note the possibility of me misunderstanding the question or if there had been a mistranslation. I did not say that I was Hindu. I was a Hindu and I am now a Muslim Convert.
The applicant has not provided any evidence to support his claims in this ground. He has not provided a transcript of the hearing before the Tribunal. He has not provided any expert or other evidence of a mistranslation. In these circumstances there is no reason to doubt that the Tribunal correctly stated at paragraph 35 of its reasons for decision that the applicant stated at the hearing before it that he was a Hindu. Consequently, it was open to the Tribunal to conclude that the applicant was a Hindu, contrary to the claims in his protection visa application. It seems to me that this ground is without substance.
The applicant made some brief oral submissions before the court today. He did not address the grounds set out in his substantive application. Initially, he said that it was not possible for him to relocate within India. However, in reply he said that he could relocate within India but it would be very difficult.
The Tribunal did not suggest that it would be easy for him to relocate. However, the Tribunal did conclude that it would be reasonable for him to do so. As discussed previously, there appears to be no jurisdictional error in the Tribunal’s findings in relation to relocation.
The applicant also said to the court today that the Tribunal did listen to his evidence but did not give importance to the evidence he provided. It is well established that it is for the Tribunal to give such weight to items of evidence as it sees fit. This ground challenges the merits of the decision. This court is not permitted to embark on a review of the merits.
All in all, I do not consider that there is a reasonable prospect of success in any of the applicant’s arguments. In view of the fact that the applicant also did not have an adequate explanation for his failure to attend the hearing on 1 April 2015, it seems to me that the only option is to dismiss the application for reinstatement of the proceeding.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 9 July 2018
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