MZZGL v Minister for Immigration

[2014] FCCA 55

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZGL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 55

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – applicant’s claims arising from land dispute and alleged difficulties arising from political activity – Tribunal not accepting applicant’s claims – grounds of review challenging Tribunal’s factual findings – no jurisdictional error shown.

Legislation:  

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

Applicant: MZZGL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 218 of 2013

Judgment of: Judge Burchardt

Hearing date: 23 October 2013

Date of Last Submission: 23 October 2013

Delivered at: Melbourne

Delivered on: 21 January 2014

REPRESENTATION

The Applicant: In person (assisted by an interpreter)

Counsel for the First Respondent: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore

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 218 of 2013

MZZGL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed 22 February 2013, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 January 2013 by which the Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

2. The grounds of application are simple.  It is asserted that “The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction”.  There are three particulars to those grounds.  I will return to them.

3. The affidavit in support of the application also filed 22 February 2013 adds nothing to the grounds set out in the application itself. 

4. On 3 April 2013, Registrar Allaway made orders which relevantly provided an opportunity for the applicant to file and serve written submissions but he has not done so. 

5. The Tribunal’s decision commences at Court Book (“CB”) 131.  The Tribunal set out the nature of the application and the relevant law at CB131-133.  It is clear that the Tribunal was well seized of the nature of the law it had to apply.

6. The Tribunal set out at paragraph 21 (CB133-136) the whole of a statement made by the applicant in support of his visa application (see CB28-33).

7. The written submissions of the first respondent filed 15 October 2013 at paragraph 2, in my view, correctly summarise the applicant’s claims as follows:

   “The applicant, a citizen of India, claimed to fear harm from Congress Party supporters on account of a 2005 land dispute and his family’s subsequent defection to the Telugu Desam Party (TDP).  He also claimed to fear harm from Telangana separatist supporters on account of his involvement in the TDP and as an Andhrahite from Andhra Pradesh who did not support a separate state of Telangana.”

8. The Tribunal set out at CB136-141 an account of the hearing before the Tribunal on 24 January 2013.  It recalls a process whereby the Tribunal explored with the applicant various aspects of his claim.

9. At CB141-143, the Tribunal set out Country Information.  This information canvassed the affairs of the TDP and some of the disturbances arising from the proposal that there be a separate Telangana state.

10. At CB143-148, the Tribunal set out its Findings and Reasons (note CB144 and 145 are repeats of CB142 and 143).  At paragraph 76 (CB143), the Tribunal paraphrased the applicant’s claims arising out of the land dispute and his family’s support of the TDP.  At paragraph 80 (CB147), the Tribunal recorded the applicant’s fear of harm as an Andhraite from Telangana separatist supporters.  The Tribunal said at paragraph 80:

    “…I put to him that Telangana activist had clashed with police at rallies and protests that got out of hand, not between Telangana supporters and Andhraites, and again I did not consider that the applicant would be personally targeted.  The applicant provided a blog post and photographs of violence associated with the Telangana issue.  Again, these focus on clashes between the authorities and Telangana supporters.  I therefore do not consider that these give any strength to the applicant’s claims.”

11. At paragraphs 77-79 (CB146-147), the Tribunal had already recorded concerns put to the applicant about his claims in relation to TDP support and the land dispute, which the Tribunal considered to be a local issue.  It is fair to say, and as the first respondent’s written submissions assert (at paragraph 7), that:

    “The Tribunal rejected all of the applicant’s claims to fear harm on account of adverse credibility findings.  It found that the applicant’s evidence at the hearing was “vague and undetailed”, particularly in relation to his claims of past harm, which the Tribunal found “unconvincing”.  The Tribunal rejected that the applicant had been attacked twice on his return to India in 2011 and 2012 because of his failure to mention these key claims in his protection visa statement.  The Tribunal found that this caused it to doubt the applicant’s general credibility and to find that he was not a witness of truth in relation to his other claims: CB145, par 77.”

12. The Tribunal concluded at paragraph 83 (CB147):

    “I find, on the basis of my credibility finding above and my analysis of his claims, that the applicant has not been harmed in Hyderabad or in Narsannapalem.  I consider it possible that he was threatened and may have had stones thrown at him in relation to the land dispute in Serinarsannapalem, but that this was in the considerable past, and that any further ill feelings of the village heads, or local people, whether or not they are also Congress supporters, is localised to Serinarsannapalem.  I find that any ill-feelings about the applicant and his family changing allegiance from the Congress party to the TDP is also localised to Serinarsannapalem.  I find that if the applicant returns to Hyderabad or Narsannapalem he will not be harmed for reasons to do with the land dispute or his changing allegiance to the TDP.  I further find, on the basis of my credibility finding, that I do not accept he has been harmed as a TDP supporter or as an Adhraite in the past, either in Hyderabad in 2005 or 2011 or in Narsannapalem in 2012.  I have considered what may happen to the applicant if he returns to Hyderabad, which seems most likely given he lived there before his departure, or to Narsannapalem.  I have considered whether the applicant, as an Andhraite, Hindu, low-level supporter of the TDP would be targeted for these reason in either of these places.  The country information does not support a conclusion that he will be for these reasons alone.  Nor does the information submitted by the applicant.  I have found above that I do not accept the applicant’s claims of him being specifically targeted.  Therefore, I am not satisfied on the evidence before me that the applicant faces a real chance of serious harm for a Convention reasons if he returns to Hyderabad or Narsannapalem, now or in the reasonably foreseeable future.”

13. The Tribunal went on to consider the applicant against the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958  (“the Act”) but decided that he did not face a risk of significant harm as a consequence of being removed from Australia to India.

Ground 1a.   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 he will suffer significant harm. 

1. What the Tribunal said at paragraph 84 (CB148) was as follows:

   “Having found that the applicant does not satisfy s.36(2)(a), I have considered the applicant’s claims against the provisions of s.36(2)(aa).  I find, on the basis of the applicant’s passport, which he provided to me at the hearing, that India is the applicant’s country of nationality and therefore his receiving country.  I have found that the applicant has not suffered harm in Hyderabad or Narsannapalem in the past.  I have considered whether there are substantial grounds for me to believe that there is a real risk that the applicant will be harmed on return to these places in India.  I find that there is not.  The applicant and his family have essentially resolved the land dispute by living in Narsannapalem, and continuing to farm and derive rental income.  There is evidence that the Telangana issue is significant in a broader sense, but no evidence that people with the applicant’s profile are targeted for harm.  The applicant’s claims of the harm he received in the past were not convincing and I have found above that the claimed incidents of harm in 2011 and 2012 did not occur.  Therefore, I am not satisfied, on the evidence before me, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.”

2. The applicant did not articulate, either in his application or affidavit or in his submissions before the Court, any matters that would throw any doubt upon the Tribunal’s conclusion.  The Tribunal set out the law in relation to complementary protection and appears to me to have applied it.  In substance this is a claim that takes issue with the Tribunal’s finding and constitutes impermissible merits review.

Ground 1b.   The Tribunal has not properly considered the issue of Telangana separatism and the fact he was a low level supporter does not exclude him as someone who would be subjected to harm.  The country information paints a picture of generalised violence in Hyderabad and whilst the violence highlighted is that between the Telangana supporters and the police at rallies and protests, the applicant as a TDP supporter is viewed as being anti Telangana and it is likely he will subjected to significant harm.

1. Regrettably, once again, this is a matter of impermissible merits review.  I accept the submission of the first respondent that the Tribunal expressly rejected that the applicant would face significant harm on account of the Telangana issue.

2. I also note the submission at paragraph 13 of the first respondent’s written submissions, that:

   “…Moreover, s 36(2B)(c) states that a person will not be taken to be at real risk of significant harm if the Minister is satisfied that “the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally”.  Accordingly, the applicant’s contention that a situation of generalised violence could give rise to a real risk of significant harm is misconceived.”

3. It is sufficient in these circumstances for me to say that that submission also strikes me as having considerable force.  Ground b is, in any event, not made out. 

Ground 1c.   The Tribunal erred in dismissing the applicant’s claim with regards to harm suffered from Congress Supporters on the basis that it was a local issue.

1. Once again, this is a matter of merits review.  The Tribunal turned its mind to the difficulties faced by the applicant from Congress Party supporters, but found that the 2005 land dispute was localised to Serinarsannapalem, and rejected the applicant’s claims to fear harm in either Hyderabad or Narsannapalem.  The Tribunal’s finding that the applicant would not face a real risk of significant harm on his return from Congress Party supporters was clearly open to the Tribunal on the facts and does not reveal jurisdictional error.

The Applicant’s Oral Submissions

1. The applicant, in his submissions before the Court, referred to the difficulties in Andhra Pradesh arising out of the Telangana issue.  He further referred to the land dispute and said it was still going on and that he was really scared to go back to India.  On both the basis of the difficulties with the Telangana issue (the state, according to the applicant, has been declared, but the government of Andhra Pradesh is not accepting it) and on the basis of the land dispute he said he was very scared to return.

2. In reply, the applicant said he cannot go back because he is scared of the Telangana issue and the land dispute and its difficulties.  He said if these resolved he would like to go back.

3. He said he tried to provide all relevant documentation to the Tribunal, but the Tribunal would not consider these matters at all.  He said that the Tribunal did not refuse to receive material from him, but did not consider it.

4. It is readily apparent that these remarks add nothing to the applicant’s application and affidavit, and do not disclose any jurisdictional error on the part of the Tribunal.

Conclusion

1. Unfortunately for the applicant what he is seeking to do is to challenge the factual findings made by the Tribunal.  The Tribunal’s findings were clearly open to it on the materials before it and the application must be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  21 January 2014