MZYRW v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 938
•30 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRW v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 938 |
| MIGRATION – Application for judicial review of Refugee Review Tribunal decision – grounds of application wholly unparticularised – applicant not making any written or oral submissions – consideration of Tribunal’s decision – no error revealed – application dismissed. |
| Migration Act 1958 (Cth) |
| Applicant: | MZYRW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 535 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 2 October 2012 |
| Date of Last Submission: | 2 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Ms Whittemore |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 535 of 2012
| MZYRW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 8 May 2012, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 16 April 2012. The grounds of application are as follows:
“A The Tribunal failed to consider the application as been under immense & intimidating pressure from my own family which would have ended my life;
B Applicant last decision was also quashing the decision of the Refugee Review tribunal, dated 22 September 2011 requesting the Federal Magistrate to take the application under review.”
In his affidavit filed also on 8 May 2012, the applicant deposed:
“I am an Indian citizen arrived and applied for protection visa under the refugee convention in Australia. The delegate of the minister and tribunal member affirm my decision.”
He annexed a copy of the decision of the Tribunal.
On 3 July 2012, Registrar Allaway made orders by consent which, inter alia, required the applicant to file and serve on or before 22 August 2012 any amended application including any additional grounds of review with complete particulars of each ground and any affidavits.
The applicant did not file any further amended application or affidavits. The first respondent’s written submissions assert at paragraphs 20 and 21:
“20. The applicant’s first ground is no more than a request for impermissible merits review. The Tribunal considered the applicant’s claims to be under pressure from his family, but on account of its identified credibility concerns with the applicant’s evidence, it rejected those claims in their entirety: CB 102, pars 74-78. That the applicant does not agree with the Tribunal’s findings in this regard is not indicative of error.
21. The applicant’s second ground is meaningless and not a proper ground of review.”
Put shortly, and given further that the applicant at the hearing before the Court expressly declined to make any further submissions of any sort, it is clear that the first respondent’s submission is correct and the application will be dismissed.
While the inadequacy of the grounds of the application and the applicant’s failure to elaborate or amend them either in writing or orally in one sense leaves little work for the Court to do, it is still appropriate nonetheless to look at the applicant’s claims and how the Tribunal dealt with them.
The applicant’s claims in his original application are set out at CB18-20. Globally, they assert threats against the applicant from his own family and that of a girl he was allegedly supposed to marry. He also asserts a different risk as a result of his apostasy from Islam, from his brother in particular. These matters are elaborated in greater detail at CB19-20.
A delegate of the Minister considered the application and the decision record is at CB49-56. The delegate concluded that there was no reason to doubt the applicant’s credibility but that:
a)Effective state protection was available to him;
b)Internal relocation was an option for the applicant should he wish; and
c)The delegate was not satisfied that the applicant faced a real chance of serious harm if he returned to India. (CB55)
At CB52, the delegate recorded:
“The applicant fears he would be threatened psychologically and emotionally by his brother, his brother’s friends and the community because he no longer has faith in Islam. He further fears that his brother’s contacts in the religious and political community could try to harm him. He stated at interview that he does not believe he would be physically harmed or killed by his family, but that he would suffer from severe depression by living the life and adopting the beliefs that his family and community have, which is against the values and beliefs that the applicant possesses. At interview the applicant stated that if he needs to continue life according to his family’s beliefs and values, that it is like “killing myself from the inside”.”
On the same page in dealing with the issue of the relationship of the alleged fiancée (whose name is Simran) the delegate recorded:
“He further fears harm from Simran’s family because they may think the applicant will try to re-establish the relationship if he returns to India. The harm the applicant fears from Simran’s family is a dispute relating to the family relationship, rather than for a convention reason.”
At CB53, the delegate recorded:
“In my view the applicant has been unable to demonstrate that he has experienced serious harm in the past or would do so in the future if he returned to India. The harassment from his brother and his friend’s and the speculation and ‘gossip’ by the community he fears does not, according to section 91 R(2) constitute serious harm.
This is further indicated by the fact that the applicant has not reported these matters to the police. I am not satisfied that he would suffer serious harm upon return to India for reasons of his religious beliefs of no longer having faith in Islam.”
The applicant’s application for review did not elaborate any further matters nor did he otherwise file any material, save that he forwarded, apparently on 13 April 2012, three photographs of himself with the woman he asserted was Simran, this being after discussion of the matter at the Tribunal hearing on 28 March 2012.
The Tribunal’s decision commences by setting out the details of the application and the relevant law in terms which, in my respectful view, permit no criticism.
The Tribunal then proceeded (CB87-97) to record the applicant’s claims both as previously analysed by an earlier Tribunal hearing and at the hearing itself. Since the applicant has not submitted either in written or oral submissions that any of the matters recorded by the Tribunal were in any way inaccurate, I accept that the Tribunal correctly recorded the matters that transpired at the hearing.
At paragraph 60 (CB97), having noted the provision of the three photographs to which I have referred, the Tribunal said:
“For the reasons that follow, the Tribunal has found that there are multiple reasons as to why the applicant does not meet the refugee definition in this case.”
The Tribunal went on to refer to the “What if I am wrong?” test and made it clear that it was not applying it because:
“Rather, the Tribunal considers that there are several separate and standalone grounds for finding that the applicant does not meet the refugee definition in this matter and the Tribunal considers it appropriate for its reasons to reflect this.”
At paragraphs 39 and 40, the Tribunal recorded (CB93):
“… The Tribunal asked again why Simran’s family would still wish to harm him. The applicant responded that he cannot say 100% that they would wish to harm him. The Tribunal noted it could seem that it was merely a remote risk of him being seriously harmed by Simran’s family rather than a real chance. The applicant agreed and added that the risk was much lower now than before. The Tribunal noted that it might seem that the risk was not simply lower, but was remote and less than a real chance. The applicant agreed there was not a real chance that they would seek to seriously harm him. The Tribunal sought to clarify with the applicant that it was his evidence that he was conceding that his risk of serious harm from Simran’s family was merely a remote risk and not a real chance. The applicant responded that he cannot say. He said that if he tried to be in contact with her, or she with him, then the same problems might arise. When asked if he intended to be in contact with her again, the applicant responded that he does not know.”
At paragraph 43 (CB94), the Tribunal continued:
“The Tribunal explained to the applicant that it had concerns from his evidence as to whether he met the definition of a refugee in connection with his fears of Simran’s family. The Tribunal explained that this was because it could seem that his risk of harm was merely remote and did not amount to a real chance; there did not appear to be a link to a Convention ground in relation to these fears; and there appeared to be no reason to believe that the state would not provide him with a reasonable standard of protection for any reason, let alone for a Convention reason. The applicant agreed that this was correct and that the situation was different now than before.”
In relation to his claim of fear of harm from his family as a result of his apostasy from Islam, the Tribunal recorded at paragraph 49 (CB95):
“The Tribunal put to the applicant that the delegate found that his fears of harm relating to his brother and loss of faith in Islam did not amount to serious harm. The Tribunal noted that it could seem that his fears in connection with this matter amounted to something less than serious harm, such as social disapproval and unpleasant looks or comments. The applicant responded that he does not know what they would do. He said that if a person breaches the laws of Islam, such as marrying against Islamic law, their life can be ruined. The Tribunal noted that it could seem that the chance of him being seriously harmed in connection with this matter was remote, especially given the passage of time. The applicant agreed with this and said that the situation has now changed. The Tribunal sought to clarify whether he was agreeing that he did not believe that he faced a real chance of serious harm. The applicant agreed that the risk today is less than when he was back in India. The Tribunal explained that the risk might appear to be so low now as to not amount to a real chance. The applicant agreed with this, although noted that the risk might increase if he goes back. The Tribunal noted that, even making allowances for this, when looking to the reasonably foreseeable future it might nevertheless seem that the risk in his case was still remote. The applicant agreed.”
At CB98-102, the Tribunal dealt with the issue of the applicant’s credibility. It is sufficient to say that the Tribunal formed a view that the applicant was not at all a credible witness and concluded (paragraph 67, CB99) that:
“the Tribunal does not accept that the applicant ever had a relationship with a woman named Simran as alleged”.
The reasons for this finding are set out in the decision and, in my respectful view, display no error of a kind that would give rise to a successful application for judicial review.
Even if the findings as to credibility were to be set aside, the Tribunal’s conclusion at paragraphs 80 to 85 (CB102-103) that the applicant was well-able to relocate internally were it necessary is unimpeachable on the materials presented.
The Tribunal did not address the issue of state protection, but it would seem on the materials as they stand that the applicant would, in any event, have readily available to him state protection to an appropriate degree were it to be required, which the Tribunal expressly found it was not.
Regrettably, the applicant’s case is so minimalist that it is not possible to do more, as I hope I have done, than point to the materials and the reasoning process of the Tribunal. In my view, there is no error disclosed in the Tribunal’s Reasons for Judgment and the grounds of application are not made out. It follows that the application must be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 30 October 2012
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