MZYYV v Minister for Immigration
[2012] FMCA 1165
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYYV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1165 |
| MIGRATION – Application for judicial review – applicant not attending hearing at Federal Magistrates Court and not filing any written submissions – ground raised in respect of relocation finding by Refugee Review Tribunal – ground not made out – application dismissed. |
| Migration Act 1958 (Cth) |
| CZAY v Minister for Immigration and Citizenship [2012] FMCA 50 Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 |
| Applicant: | MZYYV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 782 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 7 November 2012 |
| Date of Last Submission: | 7 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 18 December 2012 |
REPRESENTATION
| The Applicant: | No appearance |
| Counsel for the First Respondent: | Ms Symons |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 782 of 2012
| MZYYV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 May 2012. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant has not provided any written submissions and did not attend the hearing, which clearly presents the Court with some difficulties.
Nonetheless and for the reasons that follow, I am going to order that the application be dismissed.
Procedural Matters
The application was filed on 27 June 2012 together with an affidavit and a copy of the Tribunal’s decision.
The application listed as grounds of application the following:
“That relocation is not possible as I seek refugee from the present government and this doesn’t guarantee me any safety.
The officer does accept that I am a refugee and on that basis alone, I deserve protection from my own government.”
The affidavit in support relevantly states:
“That relocation is not possible as I seek refugee from the present government and that has no guarantee of safety.
The officer accepts that I am a refugee and on those grounds the Australian Government owes me protection.”
On 27 July 2012, Registrar Caporale made orders by consent of the parties which required the applicant to file and serve any amended application and written submissions, and he fixed the matter for hearing on 7 November 2012.
The notice of listing, as is apparent from the Court file, was forwarded to the applicant by the Court on 15 August 2012.
The applicant did not file any amended application or written submissions and did not attend the hearing as earlier indicated. I was informed by counsel for the first respondent that representatives of the Department had been in touch with the applicant about the listing of the matter on three occasions prior to the hearing.
In the circumstances, it seemed appropriate to hear and determine the matter. The first respondent relied upon the written submissions filed.
The Relocation Issue
It should be noted that the Tribunal formed an extremely adverse view of the applicant’s credit as a witness. It is not necessary to trawl through the Tribunal’s extensive and comprehensive reasons for those findings in these circumstances. It is sufficient to say that, having read the Tribunal’s decision carefully, I have no doubt that the Tribunal’s conclusions were well and truly open to it on the material presented.
The Tribunal dealt with the issue of relocation at paragraphs 166-167 of its decision (CB 333).
The Tribunal paraphrased the relevant law in terms which seemed to me to be entirely unexceptionable at paragraph 166, and went on to say at 167:
“In this case, the Tribunal finds that the applicant could avoid his feared persecution by relocating to Bulawayo. Country information cited earlier confirmed that Bulawayo is a MDC stronghold, with sources indicating that active MDC supporters face only a low risk of politically motivated harm. For example, the latest UK Border Agency Operational Guidance Note – Zimbabwe (cited earlier) advises that: “A returnee to Bulawayo will in general not suffer the adverse attention of the ZANU-PF, including the security forces, even if he or she has a significant MDC profile”. Given the Tribunal’s finding that the applicant has not been involved with the MDC in the past and would not seek to do so in the future, the Tribunal finds that the risk of him being harmed in Bulawayo either now or in the reasonably foreseeable future for reason of his actual or imputed political opinion is so remote as to not amount to a real chance. In making this finding, the Tribunal notes and is prepared to accept the applicant’s claim that he and his family voted for the MDC in past elections and would do so again in future elections. However, based on relevant country information, the Tribunal finds that, if living in Bulawayo, the risk of serious harm (including the threat of serious harm) for the applicant arising from voting for the MDC, but otherwise having no other form of involvement with the MDC, is so remote as to not amount to a real chance.”
At paragraph 175 (CB 335) the Tribunal went on to say:
“The Tribunal further finds that relocation by the applicant to Bulawayo would be reasonable, in the sense of practicable, having regard to his individual circumstances. The applicant gave evidence that his family maintains their family home in Bulawayo. The applicant has spent most of his life living in Bulawayo and previously found employment there. At the time of the hearing, one of his siblings had recently returned there. He also gave evidence that his wife and children continue to travel to Bulawayo regularly, and the Tribunal is satisfied that there are no impediments to them returning to Bulawayo to join him there. As set out above, the Tribunal was also satisfied that the applicant does not hold any significant profile with the Zimbabwean (or ZANU-PF) authorities such as to cause difficulties for the applicant in relocating to Bulawayo following his return to Zimbabwe.”
I should say straightaway that the findings made by the Tribunal set out above were well open to the Tribunal on the facts as they stood and in my view, indeed, correctly record the matters asserted.
Counsel for the first respondent properly took the Court to the decision of CZAY v Minister for Immigration and Citizenship [2012] FMCA 50, a decision of Neville FM in which his Honour traversed the law in relation to relocation in some detail.
I accept that that case is clearly different on its facts to the circumstances here. In CZAY, the Tribunal had addressed the circumstances of a single woman in India without, it would appear, having turned any attention to precisely where the applicant could in fact relocate in India and without any sufficient attention to the personal circumstances of the applicant.
The decision here plainly addresses exactly the sort of issues which gave rise to criticism on the part of Neville FM of the Tribunal’s decision in CZAY, and I entirely accept that this decision would not fall foul of his Honour’s criticism in that case.
Thus it is clear that the applicant’s articulated ground that “relocation is not possible” is not capable of being made out.
It is not only, it would seem to me, incorrect on the materials as presented to the Tribunal, but more particularly there is nothing in what the Tribunal did that could possibly be said to give rise to jurisdictional error in this regard.
It is also worthy of note that the phrase in the application “the officer does accept that I am a refugee” is not correct. The Tribunal did not accept that this was the case, and did not fall into jurisdictional error in doing so.
Other Issues Raised by the First Respondent
The first respondent has dealt, at paragraphs 32-36 of their written submissions, with the question of the risk of future harm asserted by the applicant. While the application for review does not raise this matter in terms, it should be noted that I accept the submissions that the first respondent makes. The Tribunal came to the conclusion that the applicant did not face risk of future harm as an MDC activist because he had not, in fact, been an MDC activist as he asserted. To the extent that the Tribunal identified any risk of harm as a result of generalised ZANU-PF thuggery, this was limited to the area of Gokwe (see paragraphs 163-165; CB 332-333). The Tribunal was quite satisfied that the applicant could relocate and as I have already stated, the Tribunal’s findings in that regard are not affected by jurisdictional error.
Return through Immigration Controls at the Airport
To the extent that the applicant articulated a concern of fear through being interrogated upon return, the Tribunal found that:
a)country information suggested that the applicant’s prolonged absence in Australia was not sufficient to give rise to a real chance of serious harm (CB 334 at paragraph 169); and
b)the applicant simply did not have a sufficient profile to give rise to serious harm when entering the country (CB 334 at paragraphs 170-171).
The first respondent’s written submissions very properly addressed the issue of the decision of the Federal Court in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025, in which case the Federal Court discerned error in the way an Independent Merits Reviewer had approached a question of potential harm or risk attending a likely interrogation and/or detention process that would have awaited the applicant upon his return to Sri Lanka through official channels. That case involved a very particular set of factual findings which are not present here. I accept that this case is distinguishable, as the written submissions of the first respondent assert.
Conclusions
For the absence of doubt, I would confirm that I have read the Tribunal’s decision carefully and I accept the submission of the first respondent that nothing in the decision gives rise to any conclusion that the Tribunal’s decision was affected by jurisdictional error. The application is dismissed accordingly.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 18 December 2012
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