MZYRA v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 538
•4 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 538 |
| MIGRATION – Judicial review of decision of the Refugee Review Tribunal – claimed well-founded fear of prosecution by reason of applicant’s father’s behaviour toward him and by reason of his religion – application dismissed. |
| Migration Act 1958 (Cth), ss.91(R), 351 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 |
| Applicant: | MZYRA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1267 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 4 April 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 4 April 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms Latif |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 1 September 2011 is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1267 of 2011
| MZYRA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings commenced upon the filing of an application by the applicant on 1 September 2011. The applicant filed, at the same time, an affidavit sworn by him on 1 September 2011 wherein he deposed as follows:
“1. I am an Indian citizen arrived Australia and applied for protection visa under the Refugee Convention. The delegate of the Minister and Tribunal Member refused to grant my visa.
2. I rely on the persecution I suffered in India and I fear that the persecution would continue if I have to return back to India. Herewith I attach RRT decision.”
The applicant sought an order of certiorari, an order of prohibition and an order in the nature of mandamus. The grounds of the application were as follows:
“1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2. The Tribunal had no jurisdiction to make the said decision because it’s “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3. The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
4. The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.”
The first respondent filed a response to the application on 22 September 2011. The first respondent sought that the application be dismissed and the applicant pay the first respondent’s costs of and incidental to the proceeding. The first respondent claimed that the second respondent’s decision dated 5 August 2011 was not affected by jurisdictional error.
Subsequently, the first respondent filed and served contentions of fact and law on 13 February 2012. The applicant filed and served a “Letter of Justice” dated 26 March 2012. On the hearing of the matter, Counsel for the first respondent submitted that the “Letter of Justice” contained matters which were not relevant to these proceedings. The “Letter of Justice”, in fact, dealt with a different visa application of the applicant and a decision of a different tribunal. Its contents were irrelevant to the matters required to be considered by me in this proceeding. Otherwise, the applicant did not respond in any way to the first respondent’s contentions of fact and law.
Before the Court was the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 5 August 2011. By that decision, the Tribunal affirmed a decision of the first respondent, by his delegate (‘the delegate’), not to grant the visa applicant a protection (class XA) visa.
Background
The applicant was born on 1 March 1984 and is a citizen of India and on 15 July 2006, he arrived in Australia on a student visa. He was subsequently granted a further student visa, which expired on 10 October 2008. The applicant then applied for a subclass 485 (skilled) visa. That application was refused on 10 June 2009 and the applicant sought merits review of such refusal. On 20 October 2009, the Migration Review Tribunal invited the applicant to attend a hearing on 5 November 2009 in relation to his application for a review. The applicant did not attend the hearing on 5 November 2009. On 12 November 2009, the Migration Review Tribunal affirmed the decision to refuse the applicant a subclass 485 (skilled) visa, because the Migration Review Tribunal, as then constituted, was not satisfied that, in the absence of any English language test results from the applicant, he had “competent English” at the time he applied for the subclass 485 (skilled) visa. The applicant then applied to the first respondent for ministerial intervention pursuant to s.351 of the Migration Act 1958 (Cth) (‘the Act’). On 25 October 2010, the first respondent refused to intervene.
On 17 November 2010, the applicant applied to the Department of Immigration and Citizenship for a protection (class XA) visa. On 25 February 2011, the applicant attended an interview with the delegate of the first respondent (‘the delegate’). By a decision dated 11 March 2011 and notified to the applicant in correspondence of that day, the delegate refused to grant the visa sought by the applicant. The delegate was not satisfied the applicant’s claims in relation to his father fell within the definition of “refugee” as set out in Article 1A(2) of the United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees (the ‘Convention’). The delegate found the applicant’s claims in relation to sectarian violence between Muslims and Hindus to be vague and lacking in substance and was not satisfied the harm feared was “serious harm” within the meaning of s.91(R) of the Act.
On 18 April 2011, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision. The applicant’s claims were summarised as being two. The first that he had suffered abuse from his father since his mother died and that he feared the abuse would recommence if he returned to India, and the second that the applicant feared the conflict and violence between Hindus and Muslims. As referred to in paragraph 5 above, the Tribunal affirmed the decision of the first respondent, by his delegate.
The Tribunal hearing
I note the applicant was assisted in the proceedings by an interpreter.
The applicant appeared before the Refugee Review Tribunal on 19 July 2011 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, Ms Delwardi. Ms Delwardi is residing in Australia on a student visa.
The applicant claimed to have a well-founded fear of persecution, firstly by reason of his father’s treatment of him and secondly by reason of his Hindu religion.
In his visa application, the applicant had claimed (as accurately summarised by Counsel for the first respondent):
a)his mother and youngest brother died in an accident when he was 12 years old, his father remarrying shortly afterwards. He claimed his father started to hit and mentally harass him. He left his father’s house to live with his aunt, who helped him obtain his student visa to study in Australia. He claimed that if he returned to India, his father would continue to harass and physically abuse him;
b)to fear the local authorities. He stated that if his father complained to the police, he did not have money to pay bribes to secure his release. At the hearing, the applicant clarified that he feared his father might give false evidence against him and he did not have money to pay the police off;
c)there was “a lot of fighting between the Hindus and the Muslims in (his) area”. The fighting was ongoing and the police could not maintain order. Rich people paid bribes to be released, whilst the middle class and poor remained in jail and were subject to abuse by the police. The applicant filed country information that addressed incidents of tension between Hindus and Muslims in Baroda and incidents of human rights abuses by the Indian police.
The applicant filed a statement and further country information addressing the preceding matters with the Tribunal. He gave additional oral evidence on the hearing explaining that, when he returned to India to visit his paternal uncle in 2009, his father demanded money and slapped him in the face. The applicant gave his father AUD $3,000 to avoid further violence from his father. The applicant’s wife and the applicant gave evidence that their families did not approve of their marriage, because they were from different castes. The applicant gave evidence that he did not hold any subjective fear of harm for this reason.
The Tribunal accepted that the applicant was a citizen of India and that he had:
a)been beaten and abused by his father during his childhood and at least once as an adult during his visit to India in 2009; and
b)paid his father money to avoid further contact with him.
The Tribunal also accepted there was a real chance of the applicant suffering serious harm from his father in the future, but doubted whether the applicant had suffered serious harm from his father in the past.
The Tribunal further accepted that there was a real chance of the applicant being arbitrarily detained by police in the applicant’s home area as result of bribes paid by the applicant’s father and that such detention would amount to serious harm. It accepted that the applicant’s father could bribe local police which could lead the local authorities to deny the applicant police protection.
However, the Tribunal found that (at paragraph 83 of the reasons):
“the essential and significant reason the applicant faces a risk of harm either at hands of the local police or directly at the hands of his father or that the police would deny the applicant protection from harm at the hands of his father, is because his father seeks to personally punish him either for not providing him with more money earned in Australia or for other personal reasons arising from his and the applicant’s familial history. For this reason, the Tribunal finds that any risk of harm faced by the applicant at the hands of his father or the police on his return to India would not be as a result of his race, religion, nationality, political opinion or membership of a particular social group.”
Although the Tribunal accepted that the applicant was Hindu and was aware of and affected by communal violence in the past in his home area in the Gujarat, the Tribunal found that the applicant’s description of how he had been affected by communal violence in the past to be largely comprising of either being under curfew by the army or briefly detained by police as part of a general effort by the police and army to keep the peace, rather than suffering serious or any other harm for a Convention reason. Based on the country information put to the applicant in relation to the relative sizes of the Muslim and Hindu populations in both the Gujarat and the applicant’s home area, and the limited number of reported incidents of communal violence in recent years, the Tribunal found that the chances of a Hindu person like the applicant, with no other religious or political profile, facing a risk of harm by reason of his religion to be remote.
The Tribunal also considered the issue of relocation and found it to be reasonable to expect the applicant to be able to relocate to another part of India where he could live safe from any risk of harm of the nature claimed by him. Further, the Tribunal found that the applicant was a young, able bodied male with tertiary qualifications in India and Australia, who had been employed in India in the past and who was likely to be able to obtain an income for himself so that he could adequately subsist, if he were to relocate to another part of India.
The Tribunal concluded that the applicant did not face a real chance of suffering serious harm now or in the reasonably foreseeable future for reasons of his race, religion, nationality, political opinion or membership of a particular social group. The Tribunal also found it would be reasonable to expect the applicant to relocate to another part of India, where he would not face a risk of harm at the hands of his father.
The matters raised by the applicant in his application do not disclose jurisdictional error on the part of the Tribunal. The function of this Court is not to engage in a merits review of the Tribunal decision. The Tribunal identified the correct legal test, considered the evidence before it and made findings available on such evidence.
In determining whether relocation was a reasonable option for the applicant, the task of the Tribunal was to consider whether it was reasonable in all the circumstances of the case, having regard to the practical reality faced by the visa applicant, to relocate to another part of the country of nationality where there was no appreciable risk of the feared persecution [Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-1 per Black CJ, SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51]. The Tribunal included its findings on relocation for completeness only.
The application must fail and costs will follow the event.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 21 June 2012
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