MZZCC v Minister for Immigration

[2013] FCCA 427

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZCC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 427

Catchwords:
MIGRATION – Refugee Review Tribunal – application seeking merits review – no jurisdictional error established.

Legislation:
Migration Act 1958 ss.36(2)(aa), 36(2B)(a)

Applicant: MZZCC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1376 of 2012

Judgment of: Judge Riley

Hearing date: 28 May 2013

Date of last submission: 28 May 2013

Delivered at: Melbourne

Delivered on: 11 June 2013

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Counsel for the First Respondent: Sam Rosewarne

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The application filed on 30 October 2012 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1376 of 2012

MZZCC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Refugee Review Tribunal.  The applicant arrived in Australia on 26 April 2009 as the dependent of his wife who had a student visa valid until 12 October 2011.  The applicant and his wife travelled back to India together on

   
   

   14 June 2010.  On 4 July 2010, the applicant returned to Australia without his wife.  The wife’s student visa was cancelled on 5 August 2011. 

2. On 21 February 2012, the applicant applied for a protection visa.  A delegate of the Minister refused that visa on 28 May 2012 on the grounds that the applicant’s claims lacked credibility.  The applicant applied to the Tribunal for review on 25 June 2012.  The Tribunal affirmed the delegate’s decision.

Claims

1. The applicant is a citizen of India.  He claimed in his protection visa application that:

   a)his in-laws were “after” his life because they thought he had spoiled their daughter’s life by divorcing her;

   b)he was receiving continuous threats from his in-laws that they would kill him as soon as he returned to India;

   c)his father-in-law has a strong political and police influence so he would never get help from the police;

   d)as soon as he left the divorce court in June 2010, he was attacked by goons sent by his in-laws;

   e)he was badly injured but somehow managed to escape death;

   f)he returned to Australia urgently because his in-laws would never allow him to survive;

   g)India is a corrupt country where everything can be bought with money and power; and

   h)his father-in-law would get him killed or turn his life into hell.

2. The applicant did not lodge with the delegate or with the Tribunal a statutory declaration or other documents elaborating on his claims.  However, the applicant did provide more detail about his claims in the hearing before the Tribunal.  Significantly, the applicant told the Tribunal that:

   a)he was a Hindu and his wife was a Sikh;

   b)they got married without parental consent;

   c)his in-laws discovered the marriage after 15 days and sent people to beat him;

   d)the couple moved to his village, where they were relatively safe;

   e)the applicant’s village is 200 kilometres from the wife’s family’s home;

   f)when the couple returned to India from Australia, the brothers-in-law hit and pushed him;

   g)when he left the divorce court, two of his brothers-in-law, his father-in-law and two others approached him and pushed him;

   h)he fell down and ran away;

   i)his father-in-law was a driver for a politician who would help the father-in-law track down the applicant;

   j)he would not be safe in his state of Punjab or in the wife’s state of Chandigarh;

   k)he could not live elsewhere in India; and

   l)his grandparents had received threats.

The Tribunal’s decision

1. The Tribunal accepted that the applicant had married a Sikh woman without parental consent and that her family did not approve of the marriage.  The Tribunal accepted the applicant’s claim that his brothers-in-law beat him early in the marriage, hit him and pushed him when the couple returned to India from Australia and pushed him outside the divorce court.

2. However, the Tribunal considered that the applicant had exaggerated the threat posed by the wife’s relatives.  The Tribunal considered that the wife’s family had accomplished their objective of taking the wife back from the applicant and they no longer had any desire or plan to find or harm him: paragraph 64 of the Tribunal’s reasons for decision.

3. The Tribunal considered that, if he returned to his home village, which was 200 kilometres from the wife’s village, there was only a remote chance that he would run into members of his wife’s family.    The Tribunal considered that if the applicant returned to his own village, there was not a real chance that he would be harmed by the wife’s family or by anyone acting on their behalf.

4. The Tribunal did not accept that the applicant’s grandparents had received threats.  The Tribunal noted that this claim was not made in the initial claims.

5. The Tribunal did not accept that the politician who the applicant’s father-in-law worked for would have any interest in helping to locate the applicant.

6. The Tribunal considered that the applicant could reasonably relocate to a part of India other than the states of Punjab and Chandigarh and if he did so he would not face a real chance of harm.

7. The Tribunal also considered the complementary protection provisions under s.36(2)(aa) of the Migration Act 1958. The Tribunal noted that s.36(2B)(a) of the Act provides that:

   … there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)  it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm[.]

8. The Tribunal considered that the applicant could relocate within India and, if he did, there would not be a real risk that the wife’s family or anyone acting on its behalf would find the applicant and cause him harm.

Ground of review

1. The only ground of review in the application filed on 30 October 2012 is:

   I am not satisfied with RRT decesion [sic]

2. This court is not able to set aside a decision of the Tribunal on the ground that an applicant is dissatisfied with the decision.  The court is only empowered to set aside a Tribunal’s decision if it contains jurisdictional error. 

3. The applicant was not represented at the hearing before this court.  After the court attempted to explain to him the nature of jurisdictional error, he said that:

   a)the Tribunal did not take into account that he had entered into an interfaith marriage;

   b)the Tribunal did not make the right decision on his case; and

   c)he told the Tribunal that he would provide proof about the danger to his life.

4. In relation to the first point made orally, the Tribunal clearly did take into account the applicant’s claim that he had entered an interfaith marriage. The Tribunal set out the applicant’s evidence about his Hindu religion, his Sikh beliefs and his wife’s Sikh faith at paragraphs 21 and 23 of the reasons for decision.  The Tribunal set out country information dealing with interfaith marriages at paragraphs 42 to 44 of the reasons for decision.  The Tribunal made findings about the applicant’s interfaith marriage at paragraph 56 of the reasons for decision, under the heading, “Marriage to a Sikh without parental consent”.  The Tribunal accepted the applicant’s claims in that regard.

5. The second point made orally impermissibly seeks merits review. 

6. The third point made orally is inconsistent with the Tribunal’s record of the hearing.  There is no suggestion in that record that the applicant asked for more time to put additional proof before the Tribunal.  On the contrary, the Tribunal record, at the end of paragraph 41 and at paragraph 42, suggests that the applicant had said all that he wished to say and did not seek an opportunity to adduce any further evidence. 

7. In the absence of any admissible evidence from the applicant on this point, or a transcript of the hearing, I do not accept that the applicant sought more time to put additional material.

8. All in all, I do not consider that the applicant has pointed to any jurisdictional error on the part of the Tribunal.  The Tribunal considered all of the applicant’s claims and complied with the procedural requirements.

9. I was concerned, however, that the Tribunal had not applied the law correctly.   The Tribunal said at paragraph 63 of its reasons that the wife’s family did not have “plans to kill or severely harm” the applicant, or “find or severely harm” the applicant.  The question is whether the applicant faces a real chance of serious harm.  Severe harm, as a matter of normal English usage, is worse than serious harm. 

10. However, the Tribunal accurately described the serious harm element of the Convention definition at paragraph 10 of the reasons for decision.  Although the Tribunal used the term “severely harm” twice in paragraph 63 of the reasons for decision, the Tribunal went on to say that the applicant did not face a real chance of harm, of any description, in paragraphs 65 and 73 of the reasons for decision.  (See also paragraph 64 of the reasons for decision.)  In these circumstances, I accept that the Tribunal did apply the law correctly in connection with the question of serious harm and that it did not make a jurisdictional error in this regard.

Conclusion

1. As no jurisdictional error has been established on the part of the Tribunal, the application must be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date:  11 June 2013