MZZCC v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 858

FEDERAL COURT OF AUSTRALIA

MZZCC v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 858

Citation:		MZZCC v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 858
Appeal from:		MZZCC v Minister for Immigration & Anor [2013] FCCA 427
Parties:		MZZCC v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 503/2013
Judge:		MARSHALL J
Date of judgment:		20 August 2013
Catchwords:		MIGRATION – appeal from Federal Circuit Court of Australia – protection visa – Refugee Review Tribunal – no appealable error disclosed – impermissible merits review – appeal dismissed.
Legislation:		Migration Act 1958 (Cth) ss 36(2), 36(2B)(a)
Date of hearing:	20 August 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	The appellant did not appear
Counsel for the First Respondent:	Ms C Symons
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID503/2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZCC
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	20 AUGUST 2013
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship” and the title of the proceeding be amended accordingly. 

2.The appeal is dismissed.

3.The appellant pay the first respondent’s costs to be taxed in default of agreement.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID503/2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZCC
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	20 AUGUST 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Circuit Court of Australia published on 11 June 2013. The Court below dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

   BACKGROUND

2. The appellant is a male citizen of India who arrived in Australia on 26 April 2009 as a dependent of his then wife who was on a temporary student visa. He returned to India with her on 14 June 2010. On 4 July 2010, the appellant returned to Australia without his ex-wife. His ex-wife’s student visa was cancelled on 5 August 2011. On 21 February 2012, the appellant applied to the Department of the respondent Minister for a protection visa. On 28 May 2012, a delegate of the Minister refused the application on the ground that the appellant’s claims lacked credibility. 

   THE APPLICATION BEFORE THE TRIBUNAL

3. The appellant claimed that he had married his ex-wife in secret and without their parents’ permission in September 2008. It was an interfaith marriage, as he was Hindu and she was Sikh. He claimed that when his wife’s family discovered their marriage after fifteen days, his brothers-in-law and their friends approached and tried to beat him.

4. The appellant and his wife then moved to his village 200 km away from his wife’s home in Chandigarh where he said they were relatively safe and could live a normal and happy life. During this time, the appellant said his wife’s family would telephone to ask after his wife and no threats were made.

5. The couple made plans to move to Australia and did so in April 2009. The appellant said the purpose of coming to Australia was to study and obtain permanent residence and also to get away from his ex-wife’s family. He said her family knew of their plans to relocate to Australia.

6. In June 2010, the couple returned to India whereupon the appellant’s wife moved back with her relatives and commenced divorce proceedings. The appellant agreed to the divorce, which was granted. The appellant claimed that, outside the divorce court, his ex-wife’s father and brothers pushed him and he ran away.

7. The appellant claimed that his father-in-law was a driver for a politician who would assist his father-in-law to track the appellant down so that he could exact revenge. The appellant also said that because of his father-in-law’s influence, he would never get help from the police because he could not afford to pay bribes. He stated that he returned to Australia immediately and feared his in-laws would harm him if he returned to India because they blame him for “spoiling” their daughter’s life.

   THE TRIBUNAL’S DECISION

8. The Tribunal affirmed the decision of the delegate.  The Tribunal accepted that the appellant had married a Sikh woman in September 2008, that her family disapproved of the marriage (either because they were not consulted or because the appellant was a Hindu) and that the appellant was attacked by his brothers-in-law early in the marriage. It was also accepted that his father-in-law and brothers-in-law pushed him outside the divorce court.

9. The Tribunal said that the appellant had exaggerated the severity of the threat posed by his ex-wife’s relatives and considered that her family no longer had any desire or plan to find or harm him, as they had accomplished their objective of taking back their daughter.

10. Further, the Tribunal rejected the appellant’s claim that his grandparents had received a letter and telephone calls threatening the appellant.

11. The Tribunal found that, had the appellant’s ex-wife’s family been determined to kill or seriously harm him, the opportune time to do so would have been during the six months prior to them coming to Australia, as they knew where the couple was living in the appellant’s home village.

12. The Tribunal accepted that if the appellant were to return to India and cross paths with the family of his ex-wife, there was a chance they may seek to abuse him but found that chance was remote in his home town and did not accept that there was a real chance that the appellant would be seriously harmed by his wife’s family or anyone acting on their behalf.

13. The Tribunal did not accept that the politician for whom the appellant’s father-in-law worked as a driver would have any interest in harming the appellant.

14. Although the Tribunal found that there was only a remote chance of the appellant running into members of his ex-wife’s family in his home village, the Tribunal went on to find that the appellant could also reasonably relocate to other parts of India and that if he did so, he would not face a real chance of harm. Consequently, the appellant fell foul of the refugee criteria in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

15. Further, the appellant did not satisfy the complementary protection criteria in s 36(2)(aa) of the Act. Given its findings in relation to the reasonableness of relocation, the operation of s 36(2B)(a) of the Act meant that there was no real risk the appellant would suffer significant harm in India.

    THE FEDERAL CIRCUIT COURT PROCEEDING

16. On 30 October 2012, the appellant filed an application in the Federal Magistrates Court (now the Federal Circuit Court) with a single ground of review:

    I am not satisfied with RRT decision.

17. The appellant did not provide particulars or otherwise seek to expand or explain this ground. However, at the hearing, the appellant argued that the Tribunal did not take into account that he had entered into an interfaith marriage; that the Tribunal did not make the right decision; and that he told the Tribunal that he would provide proof about the dangers to his life.

18. Judge Riley noted that the Tribunal’s decision could only be set aside in the event of jurisdictional error and not merely because the appellant was unsatisfied with the decision.

19. Her Honour found, in respect of the appellant’s first point made orally, that the Tribunal did take into account the claim that the appellant had entered into an interfaith marriage and accepted that he had married a Sikh without the consent of his wife’s parents. Judge Riley held the second point raised impermissible merits review. Her Honour found that the third argument was inconsistent with the Tribunal’s record of the hearing suggesting that the appellant said all that he wished to say and did not require any further opportunity to submit further evidence.

20. Judge Riley was concerned as to whether the Tribunal’s reference to “severe” harm twice in paragraph 63 of its reasons, in contrast with the legal test of “serious” harm, gave rise to jurisdictional error. However, her Honour found the Tribunal accurately summarised the serious harm element of the Convention definition in paragraph 10 of its reasons for decision and found that the appellant did not face a real chance of harm in paragraphs 65 and 73 of the reasons for decision. In the circumstances, her Honour was satisfied that the Tribunal had applied the law correctly.

    THE APPEAL

21. The appellant filed a Notice of Appeal against the judgment of the Federal Circuit Court on 18 June 2013, which stated the following grounds of review:

    1. Judge Riley Reasons for Judgment paragraph No. 21, I object because my wife family kill me.
    2. I object, paragraph No. 16, because, it interfaith marriage.
    3. I object, paragraph No. 20, I have copy of proof.

22. No written submissions were filed by the appellant. At the hearing, the appellant did not appear and accordingly did not advance any argument in support of the above grounds. None of the above grounds reveal any appealable error in the reasons for judgment of Riley J. They also disclose no jurisdictional error in the reasons for decision of the Tribunal.

23. The appeal must be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       22 August 2013