MZZFZ and Minister for Immigration and Anor

[2014] FCCA 43

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZFZ & MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 43

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – grounds of application consisting entirely of merits review – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa)

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
MZXYS v Minister for Immigration and Citizenship [2013] FCA 614

Applicant: MZZFZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 171 of 2013

Judgment of: Judge Burchardt

Hearing date: 22 October 2013

Date of Last Submission: 22 October 2013

Delivered at: Melbourne

Delivered on: 21 January 2014

REPRESENTATION

The Applicant: In person (assisted by an interpreter)

Counsel for the First Respondent: Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application be dismissed. 

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 171 of 2013

MZZFZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 January 2013.  The Tribunal affirmed the decision of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. Although the applicant has sought an extension of time in which to lodge his application, the first respondent’s written submissions correctly point out that it is not required. 

3. The ground set out in the applicant’s application filed 11 February 2013 asserts “The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction”.  There are particulars set out from (a) to (e) which, with one exception, simply challenge factual findings made by the Tribunal.

4. The applicant’s affidavit also filed 11 February 2013 is effectively a word for word repeat of the grounds of application. 

5. The applicant was given the opportunity to file any further submissions and amended application by orders made by Registrar Allaway on 3 April 2013 but has filed no such materials.

6. For the reasons that follow I will order that the application be dismissed with costs.

Some uncontroversial matters

1. What follows is taken from the written submissions of the first respondent filed 15 October 2013 which are not, as I understand it, controversial.

2. The applicant is a 33 year old citizen of India who arrived in Australia on 28 February 2008 on a student visa.  He held a number of visas thereafter and his application for a refugee visa was submitted on 29 May 2012, some 24 days after his most recent student visa expired.

3. The applicant claims to have a well-founded fear of persecution based upon his imputed political opinion as a supporter of the Bharitaya Janata Party (“BJP”) and his religion as a Hindu.  His claims, as set out in his statement (Court Book “CB” 48-52), are correctly analysed in my view by the first respondent which I paraphrase as follows:

   a)The applicant’s family traditionally had a very strong connection with the BJP.  His father was a prominent member and his brother-in-law was the city president of the BJP.

   b)The applicant claimed to be well known as a strong BJP supporter due to his association with his brother-in-law.

   c)The applicant attended BJP rallies that often resulted in violent attacks from opposition and supporters, particularly the supporters of the Congress Party.

   d)The applicant claimed to have been assaulted and threatened when handing out BJP pamphlets during an election campaign by Congress supporters and to have received anonymous phone calls in which threats were made.

   e)The applicant returned to India on 23 November 2010 and alleged that, together with his brother, he was assaulted by opposition supporters because of his profile as a BJP supporter.

   f)The Congress Party’s Muslim supporters had seized the opportunity, since the death of his father, to encroach upon land owned by his family and had made death threats in this context.

   g)Generally speaking there is a conflict between Muslims and Hindus in Hyderabad.

4. The applicant was invited to attend an interview to discuss his claims with a Delegate of the first respondent but did not respond to the letter and did not ultimately attend an interview (CB83-84 and 104).

5. By decision dated 11 September 2012, the Delegate refused the application for a visa.  On 5 October 2012 the applicant applied to the Tribunal for review of the Delegate’s decision.  In due course, the applicant attended a hearing before the Tribunal, with the assistance of an interpreter, and as earlier indicated the Tribunal’s decision was given on 18 January 2013.

The Tribunal’s decision

1. The Tribunal set out the application for review and relevant law at CB134-136.  In my opinion, the matters set out represent an accurate summary of the relevant law.

2. At CB136-147, the Tribunal recorded the claims and evidence before it. 

3. The Tribunal noted at paragraph 20 (CB136) that the applicant is able to speak, read and write English and Telugu and to read and write Hindi.  The Tribunal noted that the applicant had indicated that he had worked in different jobs in Mumbai and Goa.  The Tribunal set out the applicant’s claims, which I have already paraphrased above, at paragraph 21 (CB136-138).  The Tribunal then recorded at paragraphs 24-44 (CB138-146) the matters that the applicant had said at the Tribunal hearing and the matters raised by the Tribunal.  It is not necessary to set out the matters that passed between the applicant and the Tribunal in any detail.  The Tribunal put a number of questions to the applicant about the extent of his political activity and about the land dispute with Muslim neighbours.  It should be noted that the applicant agreed that Kakinada, which is where he is from, is within East Godavari which is in the Coastal Andhra region.  He put the number of Muslims in that region at around 35 per cent (paragraph 35, CB143).

4. It was also put to the applicant by the Tribunal that the Muslims who were allegedly seeking his land were seeking to do so for commercial or private reasons, something that the applicant denied (paragraph 36, CB143).

5. The Tribunal also dealt in terms with the issue of relocation and it was put to the applicant that he would be well able to relocate given his English skills and education and work experience (paragraph 39, CB144).

6. At CB146, the Tribunal referred to Country Information.  This noted that Muslims constitute only a small minority of coastal land in Andhra Pradesh and that Muslims are sparsely populated in East and West Godavari.  Kakinada is the district headquarters of East Godavari (paragraph 46, CB146).

7. The Tribunal also noted Country Information about the question of relocation (CB147).

8. The Tribunal’s findings and reasons run from CB147-155.  At paragraphs 52-54, the Tribunal considered and rejected the applicant’s claims of serious harm as a result of his support of the BJP.  The Tribunal found relevantly that (paragraphs 53-54, CB148):

   “53.  At the hearing, the applicant did not repeat his written claim that he had been attacked by Congress supporters while handing out BJP pamphlets.  Indeed, he did not claim to have handed out BJP pamphlets at all.  On his own claim he had little or no interest in politics, which I prefer over his written claim to have become an active and ardent BJP supporter.  As a result, I do not accept that he ever handed out BJP pamphlets or that he had ever been attacked by Congress supporters for any reason (leaving aside his personal argument with persons who owned land adjoining his land and who he claims were Congress supporters - discussed below).

   54.  …I do not take him to have claimed that there is a prospect of harm to him generally in India because he supports the BJP, or because his father and brother in law had been active members of the BJP in his home region, and I find that both he and members of his family face no prospects of serious harm, now or in the reasonably foreseeable future, nor significant harm as a necessary and foreseeable consequences of his removal to India.”

9. The Tribunal went on at paragraphs 55-61 (CB149-150) to discuss the dispute with the Muslims who support the Congress party.  The Tribunal found that Muslims are sparsely populated in both East and West Godavari and rejected the applicant’s assertion that they existed in huge numbers in East Godavari (paragraph 57, CB149).

10. At paragraphs 58-61 (CB149-150), the Tribunal said:

    “58.  I accept the applicant’s concession that the persons who own land adjoining his land have wanted his land for up to 20 years in order to complete a commercial proposal that would not be possible unless they acquired the applicant’s land.  To the extent that he suggested or claimed that these persons, who are Muslims and support Congress, have sought his land for reasons of religion or politics, I reject that proposition.  I put to him that their motivation seemed to be commercial and unrelated to any of the Convention grounds we had discussed.  I find that their motivation for wanting the land has existed for at least 20 years and that during all of this time the essential and significant reason for their interest in the land was purely commercial and not Convention-related.

    59.  The claimed incidents of the applicant’s house windows being broken, the assault of him and his brother, and the call to the applicant’s family where threats were issued against the applicant, were all claimed to have occurred after the applicant had exchanged insults with the persons who owned the land adjoining his.  While there might have been arguments, disagreements, and tensions between his family and these persons during the past 20 years, but prior to his visit to India in 2010, he did not claim that threats and/or physical violence had been used by these persons prior to his own involvement in India in 2010.

    60.  In response to my putting to him that I doubted these persons would want to find him in other parts of India, he added that he had insulted the female family members of the person with whom he was arguing and sought to demonstrate that this would have had the effect of exacerbating their anger towards him and thus providing them with the motivation to seek him out elsewhere in India.

    61.  Considering all of the applicant’s evidence, I accept that he has argued with the persons owning land adjoining his and that he has insulted them and the women of their families.  However, I reject the assertion that they are angry at him for reasons of religion, politics race, or any other Convention-ground.  I find that their anger with him lies in the arguments that he had with them, and particularly as a result of the insults which he leveled at them.  For these reasons, I find that the essential and significant reason for their anger at him has arisen and exists for personal reasons which (for the purposes of the criterion in s.36(2)(a)) are not Convention-related.”

11. The Tribunal went on to consider at paragraphs 62-70 (CB150-152) the applicant’s claims in relation to Muslim aggression towards the applicant and his family and Muslims generally.  The applicant claimed (paragraph 62, CB150) that the Muslims who wished to kill him were criminals who had murder cases pending against them and who would go to any lengths to find him and could do so anywhere in India.  Nonetheless, the Tribunal noted that:

    “His passport shows an arrival into Australia on 30 December 2010 (folio 38, Department file).  He did not claim that anything untoward happened between that time and May 2012, around one and a half years later.” 

12. Put shortly, the Tribunal did not accept the applicant’s claims.  The Tribunal concluded at paragraphs 63-65 (CB151):

    “63.  In conclusion, I find, mindful of s.91R(2)(a) and applying VBAO v MIMIA (2006) 233 CLR 1 at [1]-[3], that the various actions claimed to have been taken against the applicant and his family were not designed to, and did not, occasion serious harm to the applicant or his family members, whether as threats of future harm, or attempts at direct harm. I also find that he did not suffer significant harm arising from these events.

    64.  I find that now, in 2013, two years after the applicant had returned to Australia, that the anger of the persons whom the applicant had insulted has subsided, which is evidenced by the family having received only two phone calls during this two year period.  The applicant did not claim that if he returned to India he would antagonise or insult these persons, as he had done in the past, and I find that he will not.

    65.  For the reasons above, I find there is less than a real chance of these people acting to cause the applicant serious harm now or in the reasonably foreseeable future, and there are no substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia to India, there is a real risk that they will cause him significant harm.”

13. The Tribunal went on to consider the question of Muslims generally.  The Tribunal concluded that the applicant did not face harm as he claimed under this heading.  It is sufficient to say that the Tribunal’s reasoning seems cogent.

14. Accordingly the Tribunal concluded that the applicant did not meet the Convention based criteria.  He was therefore not a refugee (paragraph 71, CB152).

15. The Tribunal went on to consider whether the applicant satisfies the complementary protection criteria in s.36(2)(aa) of the Migration Act 1958 (“the Act”). As the Tribunal recorded at paragraph 72 (CB152), the applicant’s claims having been considered individually and cumulatively, there was no real risk that the applicant would suffer significant harm in any location in India including his home location.

16. Although not strictly necessary given the conclusions that the Tribunal had reached, the Tribunal at paragraphs 73-81 (CB152-154) considered the question of relocation and concluded that the applicant could relocate were it necessary.

17. At paragraph 82 (CB154) under the heading “Further Material”, the Tribunal noted the applicant’s reference to further material that could be obtained from India.  The Tribunal said:

    “In this regard, I refer to the discussion I had with the applicant (summarised above) regarding further material he said he could obtain from India being his brother in law’s BJP membership car and pictures of either him or his brother in law at BJP events.  I informed the applicant at the hearing that insofar as that was a request by him for further time in which to obtain and submit these documents, that it was refused.  In addition to the reasons given to the applicant at the hearing, I refuse that request because: I have accepted, in any event, that the applicant’s brother in law and father were active members of the BJP in their home area as claimed, that the applicant was also a BJP supporter, and that he participated in one election campaign with them as claimed at the hearing; I find that, in any event, the applicant does not face any prospect of harm arising out of his or his family members’ involvement with the BJP, either in his home region or across India generally; and, separately, I find the applicant is able to relocate within India to places where there is no appreciable chance or risk of him coming to any form of harm.  For all these reasons, I consider the additional documents that the applicant claimed he could obtain from India would not assist the Tribunal further than the evidence already provided by the applicant himself, and would not go to be determinative issues in this application.”

The submissions made at court

1. The applicant, who was self-represented with the assistance of an interpreter, submitted that he would like to provide more information and documentation and required time to do so.  This, he explained, was to, as it were, put the current situation in Andhra Pradesh before the Court.  The applicant complained that the Tribunal had only considered information on the internet at the time of the hearing.  He complained that the Tribunal did not listen to what the applicant said at the time. 

2. The applicant said that he had told the Tribunal he did not completely fall into the refugee category but said there would be harm to his life if he went back to his country.  He said he told the Tribunal about his injuries.  He told the Tribunal it was not his intention to stay in Australia but that he was eligible for complementary protection.  This was because harm would be done to him if he went back before the election.

3. He said the Tribunal had said that India was a large country, but he said that he could not relocate.  All the other states spoke different languages such as Hindi and Tamil.  He said he can speak English but most people can’t speak English.  He said he would not be able to survive if he moved.  He pointed out the fact that the state of Telangana had been declared.  He said that “they” can follow him and attack him and he had explained all of this clearly to the Tribunal member.  He said the Tribunal had referred to Country Information but that the member had only asked him one question, which is why he had not applied for a protection visa earlier.  He said he had no knowledge of protection visas and came here to study.  He said he needed another two to three years to complete his studies and had tried to do so.  He said that in the event that the BJP wins the next election he will have no difficulties in returning and he confirmed again that he had enough reasons to want to stay in India.  He described his studies and said that if he stays in Australia for more than one year the position will change and he will go back to India.  The applicant said he was asked by the Tribunal when elections took place and he could not tell the Tribunal.  He said he is not interested in politics so is not interested when the elections took place.  He accused the Tribunal of factual errors about his membership of the BJP. 

4. The applicant said he had explained the aspects of his claims to the Tribunal and could not understand why he was not believed.

The submissions of the first respondent

1. The first respondent’s counsel was content to rely upon the written submissions filed in relation to the grounds of application as filed.  In respect to the new matters raised before the Court, counsel submitted that there was no indication as to what new evidence would be brought forward in the event that the applicant was granted further opportunity to do so.  Counsel submitted the Tribunal was under no duty to inquire and referred to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.

2. Counsel further submitted that the Tribunal had considered complementary protection and the fact that this was interwoven with consideration of the refugee claim was not in any sense problematic and referred to MZXYS v Minister for Immigration and Citizenship [2013] FCA 614 at 16-27 in this regard.

3. Counsel further took issue with the challenge to the Tribunal’s findings about the applicant’s BJP support.

4. In reply the applicant said he had five/six points.  Firstly, Telangana is not a Muslim state.  The applicant said he was not able to stay anywhere else in his home state.  He said he was not an active supporter of the BJP.  His brother-in-law had asked him to help him but he was not a member of the BJP and does not like politics.  He said there had been a lot of time to submit evidence but things were still happening and it is not possible to get information on the internet.

1. The applicant complained of his incapacity to work and the financial stress that this is causing him.  He said that his brother had done nothing to the Muslims but had still been attacked even though it was the applicant who had insulted them. 

Consideration

1. The above, of course, is a relatively brief paraphrase of the matters raised.  I will deal with each of the particulars in the application.

Particular a. The Tribunal has erred in its conclusion that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk that Muslims generally will cause him significant harm.

1. The first respondent submits that this is simply merits review and, regrettably for the applicant, I think this is right.  The Tribunal’s conclusions about both the Muslim neighbours that the applicant had previously insulted and Muslims generally was, in my opinion, well open to it on the facts as disclosed.  

Particular b. The Tribunal has also erred in its conclusion that the applicant does not meet the criterion in s36(2)(aa).

1. Once again, the first respondent is correct to submit that this is simply merits review.  In my opinion, the Tribunal did not err in its conclusion in this regard in any event. 

Particular c. The Tribunal has erred in its conclusion that the essential and significant reason for the Muslims was their interest in the land and was purely commercial and not Convention related and was not for personal reasons and was motived by the fact that he was a Hindu and a BJP person.

1. Once again, this is clearly an attack on the factual conclusion of the Tribunal.  The Tribunal’s conclusions were well open to it on the evidence.

Particular d. The tribunal erred by not giving proper weight to the injuries suffered by the applicant at the hands of these Muslims.

1. The applicant’s findings of fact were quintessentially a matter for the Tribunal.  The Tribunal’s conclusions about the alleged assaults on the applicant were well open to it on the materials.

Particular e. The issue of relocation has not been properly considered, in that it is not reasonable for the applicant to relocate to another area of the country.

1. As already noted it was not strictly necessary for the Tribunal to consider relocation as it found conclusively that the applicant was not a refugee and was not a person who fell within the complementary protection criteria in s.36(2)(aa) of the Act. Nonetheless, the Tribunal’s findings were clearly open to it on the facts. The applicant is a well-educated person who has in fact worked in other parts of India including Mumbai and Goa. The Tribunal’s conclusion that it would be reasonable for the applicant to relocate if required was clearly open to it.

Conclusion

1. None of the applicant’s grounds of application are made out.  His criticisms advanced at the Court hearing of unfair dealings by the Tribunal are not, in my view, made out on reading the decision itself.  His assertion that the Tribunal did not effectively pay proper attention to what he was saying seems wholly contrary to the terms of the reasons of the Tribunal.  The oral submissions the applicant made, to the extent that they do not repeat the matters in the grounds in the application, take the matter no further.  The application will be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  21 January 2014