MZZFZ v Minister for Immigration and Border Protection

[2014] FCA 489

FEDERAL COURT OF AUSTRALIA

MZZFZ v Minister for Immigration and Border Protection [2014] FCA 489

Citation:	MZZFZ v Minister for Immigration and Border Protection [2014] FCA 489
Appeal from:	MZZFZ v Minister for Immigration and Border Protection & Anor [2014] FCCA 43
Parties:	MZZFZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 69 of 2014
Judge:	TRACEY J
Date of judgment:	15 May 2014
Catchwords:	MIGRATION – appeal from Federal Circuit court – refusal to grant Protection (Class XA) visa – whether error demonstrated in decision of Federal Circuit Court
Legislation:	Migration Act 1958 (Cth) – s 36
Cases cited:	MZZFZ v Minister for Immigration and Border Protection & Anor [2014] FCCA 43 – cited
Date of hearing:	15 May 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	22
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr B Petrie
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 69 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZFZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	15 MAY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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	VID 69 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZFZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	15 MAY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Circuit Court (“FCC”), delivered on 21 January 2014:  see MZZFZ v Minister for Immigration and Border Protection & Anor [2014] FCCA 43. The Court dismissed an application for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”).

   BACKGROUND

2. The appellant is a citizen of India who arrived in Australia on 28 February 2008 on a student visa.  Since that time he has held a total of four student visas.  His most recent Subclass 572 (Student) visa expired on 5 May 2012.  The appellant submitted an application for a Protection (Class XA) visa on 29 May 2012.  A delegate of the first respondent made a decision to refuse the application on 11 September 2012.  This decision was subsequently affirmed by the Tribunal.

3. In his application for a protection visa, the appellant claimed that he is a Hindu and an active member of the Bharatiya Janata Party (BJP).  He claimed that his father was a very prominent BJP member in the business community and his own support of the BJP was well known.  The appellant claimed that his interest in the BJP resulted from his father’s encouragement.  His connection with the BJP was further strengthened by his brother-in-law’s former position as the city president of the BJP.  He claims his brother-in-law was also a very influential person within the BHP.

4. The appellant claimed that he participated in rallies and meetings with his brother-in-law which were organised by the BJP.  He claimed that these rallies were often violent and he was attacked on a number of occasions.  On one occasion he claimed that he was seriously assaulted with sticks and rocks and required medical treatment.  The appellant claimed that he was attacked by Congress supporters while handing out pamphlets about the BJP during election time.  He alleged that they assaulted him, burnt his pamphlets, swore at him and threatened him with death.  He also claimed that his house was damaged by opposition supporters who daubed political slogans on the house and that numerous anonymous telephone threats had been made to his family home.

5. The appellant had returned to India on 23 November 2010.  He claimed that he was assaulted by opposition supporters while in the street because of his profile as a BJP supporter during his visit.

6. The appellant claimed that the Congress party’s Muslim supporters had seized the opportunity, since the death of the appellant’s father, to encroach upon the land owned by his family.  These same people had made death threats to his family following a complaint made by them to the police.  The appellant alleged that the opposition supporters continue to threaten his family.

   THE TRIBUNAL’S DECISION

7. The Tribunal accepted that the appellant is a national of India and is a Hindu.  It did not accept the assertion that the appellant was an active and ardent BJP supporter, or that the threats and assaults were motivated by religion or politics.  It rejected his claims relating to the distribution of the BJP pamphlets.

8. The appellant conceded before the Tribunal that the persons who owned the adjoining land have wanted his land for commercial purposes for up to 20 years.  The Tribunal rejected the assertion that these people, who are Muslims and support Congress, have sought the appellant’s land for reasons of religion or politics.  The Tribunal concluded that the damage to the appellant’s house and threats made to the appellant’s family were made after the appellant had exchanged insults with the persons who owned the adjoining land.  The Tribunal found that, given the period of time that has elapsed since the appellant was last in India, the anger of the persons who the appellant insulted would have subsided.

9. The appellant asserted that Muslims generally may cause him problems should he be required to return to India.  Although the appellant conceded that his home town of Kakinada is not within the new State of Telangana, he suggested that Muslim’s of Telangana would affect “every place”.  Relying on Country Information, the Tribunal found that Muslims are the minority in the applicant’s state and India generally.  It concluded that there are no prospects of serious harm to the appellant from Muslims generally.

10. The Tribunal concluded that the appellant did not meet the Convention based criteria and was, therefore, not a refugee.

11. The Tribunal went on to consider whether the appellant satisfied the complementary protection criteria under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). Having considered the appellant’s claims individually and cumulatively, the Tribunal concluded that there was no real risk that the appellant would suffer significant harm in any location in India, including his home.

12. The Tribunal also considered the question of relocation within India and concluded on the evidence that the appellant could relocate were it necessary.  The application was dismissed.

    THE FEDERAL CIRCUIT COURT’S DECISION

13. The appellant sought judicial review of the Tribunal’s decision in the FCC.  He relied on a single ground.

    “1.       The decision of the Tribunal was made without jurisdiction or is affect (sic) by an error of jurisdiction;

    PARTICULARS

    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.

    b.The tribunal has also erred in its conclusion that the applicant does not meet the criterion in s 36(2)(aa).

    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 motivated by the fact that he was a Hindu and a BJP person.

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

    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.” (sic)

14. The appeal sought a merits review of the Tribunal’s decision. The FCC concluded that it was open to the Tribunal to make the findings which it did on the material before it. In relation to Ground 1(e) the Court noted that it was not strictly necessary for the Tribunal to consider the issue of relocation as it found conclusively that the appellant was not a refugee and was not a person who fell within the complementary protection criteria in s 36(2)(aa) of the Act. The Court concluded that it would be reasonable for the appellant to relocate if required and this conclusion was clearly open to the Tribunal on the facts.

    THE APPEAL

15. The appellant now seeks to appeal to this Court from the decision of the FCC. The grounds of appeal mirror those relied on in the application before the FCC: see above at [13].

16. The appellant appeared in person on the hearing of his appeal.  He had the assistance of an interpreter.  I doubt that he needed this assistance.  He was invited to elaborate on his grounds of appeal.  The appellant responded to this invitation by making fluent submissions in English.

17. The appellant made some short submissions in which he took issue with some of the factual findings made by the Tribunal.  He contended, for example, that language barriers would prevent him relocating elsewhere in India.  This was an issue which had been raised by him in the Tribunal and on which the Tribunal had determined that relocation to places such as Delhi, Bombay or Bangalore was practicable.

18. The Minister submitted that grounds 1(a), (b), (c) and (d) sought to challenge the factual findings of the Tribunal, or alternatively, seek impermissible merits review of the Tribunal’s decision.  The Minister asserted that it is not the Court’s function to substitute its own decision for that of the Tribunal’s, nor is it for the Court to weigh the evidence that was before the Tribunal.  It submitted that to the extent that the appellant seeks merits review of the Tribunal’s decision the appeal must fail.

19. In ground 1(e) the appellant asserted that the Tribunal did not “properly consider” the issues of relocation and that it would be unreasonable for the appellant to relocate within India. The Minister submitted that, while the Tribunal was not obliged to do so in light of its finding, it considered this issue in the context of the appellant’s claims for protection under the Refugee Convention and the complementary protection criteria contained in s 36(2)(aa) of the Act. So far as the appellant submits that the Tribunal’s finding does not conform with his own opinion, the Minister again submitted that it is not for the Court to engage in a merits review of the decision.

20. The Minister submitted that the appeal should be dismissed with costs.

21. I have read the reasons of the trial judge with care.  They disclose no appealable error.  I accept the Minister’s submissions that the appeal raises no more than merits issues and that, accordingly, no basis for the intervention of this Court on appeal has been established.

    DISPOSITION

22. The appeal must be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        15 May 2014