MZYGN v Minister for Immigration
[2010] FMCA 234
•13 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYGN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 234 |
| MIGRATION – Alleged jurisdictional error – grounds of application unparticularised – consideration of matters raised by the applicant – application dismissed. |
| Migration Act 1958, ss.424A, 424A(1), 424A(3)(a), 424A(3)(b) |
| Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 |
| Applicant: | MZYGN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1154 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 12 March 2010 |
| Date of Last Submission: | 12 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 13 April 2010 |
REPRESENTATION
| The Applicant: | In person (assisted by an interpreter) |
| Counsel for the Respondents: | Ms K. Miller |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1154 of 2009
| MZYGN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 17 August 2009. The Tribunal affirmed the decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.
The applicant’s original application filed on 11 September 2009 states various grounds of application. Those grounds are exactly the same as I have seen in at least three other matters filed recently. It is not possible to avoid the impression that these grounds, which are the same even as to grammar and typing errors, are being put before me lately by some party unknown to the Court who is assisting applicants.
The grounds, as asserted, are devoid of any particularity, although on their face they raise breach of s.424A of the Migration Act 1958
(“the Act”), lack of procedural fairness giving rise to jurisdictional error and denial of natural justice.
The applicant’s affidavit merely annexed a copy of the decision of the Tribunal.
Following orders made by Registrar Caporale on 4 November 2009, the applicant filed an amended application, but failed to file any written submissions in support of that application.
The grounds of application are still, despite being slightly longer, devoid of any meaningful level of particularity.
When the matter came before the Court on 26 February 2010, it could not continue because there was no interpreter available and it was clear the applicant did not speak or understand sufficient English to represent himself.
When the matter was called on 12 March 2010, the applicant was invited by me to put forward anything that he wished were to support his application. The only matters the applicant asserted was that he would not be able to relocate in India and that it would be unsafe for him there.
Counsel for the Minister submitted, correctly in my view, that there were two issues for the Court. First, did the Tribunal err in its dealing with the issue of relocation by the applicant in India and second, did the Tribunal err in finding that state protection would be available?
It should be noted that the Tribunal expressly accepted that there was a risk of persecution for the applicant from Hindus in certain regions of Punjab. It accepted the applicant’s involvement as a Christian in various activities and the fact that the applicant had been the subject of serious harm by Shiv Sena and Bajrang Dal in the past because of his religion. The Tribunal accepted that the applicant faced a real chance of serious harm from such groups in the Punjab now or in the reasonably foreseeable future (CB105 - paragraphs 123 to 124).
The Tribunal also accepted that if the applicant were to return to Punjab and encounter such persecution, state protection would not be available to him in accordance with international standards (CB105 – paragraph 130).
Nonetheless, the Tribunal went on to consider whether the applicant could relocate to another part of India where he would not face such persecution. The Tribunal referred to the decision of the Full Federal Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 and set out relevant passages from that judgment.
It is clear that the Tribunal was well aware of the task confronting it. At paragraph 135 (CB106), the Tribunal said:
“135. What is reasonable will depend on the circumstances in the individual case. It may often be necessary to have regard to a broad range of issues in determining whether an applicant has genuine access to meaningful protection in their country of origin.”
The Tribunal took account of country information, as in my view it was entitled to, and considered that it was reasonable for the applicant to relocate (paragraph 146 CB107) and that if he did so, he would receive state protection (paragraph 151 – CB108).
Accordingly, the Tribunal found that the applicant was not a person to whom Australia owed Convention obligations.
I turn to examine the grounds specifically raised by the amended application.
Ground 1
The first ground asserts that “the tribunal has wrongly applies the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to his political opinion persecution the applicant claims …”. It is also asserted that the Tribunal “failed for not providing more opportunities to the applicant and therefore generalize the applicants claim and therefore failed to apply correct test in accordence with section 424A(1) of the Migration Act. Ref. SAAP vs Minister for Immigration and Multicultural Affairs HCA”.
The difficulty here, as counsel for the Minister rightly pointed out, was that these grounds of social and political opinion were not advanced by the applicant before the Tribunal as being the basis upon which he feared serious harm. His claims were solely based on the issue of his religion.
The Tribunal did not fall into any error in this regard because it was not asked to consider the matter on this basis.
Ground 2
The ground here is that:
“There was certain informations used by the tribunal without providing an opportunity to respond. The adverse informations used by the tribunal was not given by the applicant for the purpose of review. This information was given for protection visa claim purpose to the delegate in deciding protection visa. The tribunal did not disclose the information in accordence with
S 424A (1) of the migration act.”
The applicant has not provided any particulars of the information said to have been so received. Counsel for the Minister submits, and I accept, that the only matter not received from the applicant orally or in his materials to which the Tribunal had regard was the fact that the applicant spoke Hindu and Punjabi. This was not, of course, a part of the reason for decision. Furthermore, it did not in any way undermine the applicant’s claims.
The Tribunal relied upon this material in relation to the question of relocation. This use reflected the Tribunal’s own internal processes of reasoning. It was not information for the purposes of s.424A(1).
The other material relevant to the issue of relocation was either provided by the applicant at hearing, thus raising the exception in s.424A(3)(b), or was country information properly received pursuant to s.424A(3)(a). It should be noted that country information was put to the applicant by the Tribunal for comment in any event.
Ground 3
This ground reads as follows:
“The tribunal has importantly dealt with the aspect of the applicant’s claim relating to state tolerance and complicity of the applicants religion and membership of a particular religion or social group and as result of all he faced financial hardship, to whom the australia has protection obligation as a member of such group. and therefore the tribunal’s decision was involved jurisdictional error and failure of jurisdiction or mis application of law and procedure. The tribunal conclude that the applicant can relocate in other parts of India. And therefore did not apply correct test of relocation principles.”
Further words are included but they are not presently relevant.
The Tribunal, in my view, did consider the applicant’s circumstances in detail. The decision at CB105 to 108 (paragraphs 131 to 152) was in my view a comprehensive resume of the information before the Tribunal. It should be noted that the Tribunal had regard to the fact that the applicant spoke more than one language and that he had a capacity to engage in business outside Punjab. It noted that the applicant’s family had already relocated. The Tribunal did consider the issue of difficulties if he set up another business (paragraphs 143 – 144 CB107).
This is not a sur place claim and the fact that the applicant is in Australia is of no moment, contrary to the additional words in Ground 3 to which I refer in paragraph 25 above.
I have thus far dealt with the grounds raised in the amended application and it will be clear that the findings I make closely mirror the Minister’s submissions. In the circumstances, given that I think the submissions are extremely persuasive, this is scarcely surprising. It should not be thought, however, that I have merely paraphrased the Minister’s submissions with a view to repeating them. I have used them as a template, because they reflect my own conclusions.
Finally, the applicant in reply said that his father had been threatened once he had relocated. He further said that his family had been threatened at home while he was away and that he believed whatever the Court decided would be good for him. The material asserted was not before the Tribunal and contradicts evidence the applicant gave at the hearing (paragraph 149 – CB107). It cannot assist the applicant in these circumstances, (MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8].
It is clear that the application does not disclose jurisdictional error on the Tribunal’s part. I will order the application be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 13 April 2010
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