MZZGL v Minister for Immigration and Border Protection

[2014] FCA 490

FEDERAL COURT OF AUSTRALIA

MZZGL v Minister for Immigration and Border Protection [2014] FCA 490

Citation:	MZZGL v Minister for Immigration and Border Protection [2014] FCA 490
Appeal from:	MZZGL v Minister for Immigration and Border Protection & Anor [2014] FCCA 55
Parties:	MZZGL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 72 of 2014
Judge:	TRACEY J
Date of judgment:	15 May 2014
Catchwords:	MIGRATION – appeal from the Federal Circuit Court – refusal of a Protection (Class XA) visa – whether error in decision of the Federal Circuit Court
Legislation:	Migration Act 1958 (Cth) s 36
Cases cited:	MZZGL v Minister for Immigration and Border Protection & Anor [2014] FCCA 55 – cited
Date of hearing:	15 May 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	29
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr N Swan
Solicitor for the Respondents:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 72 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZGL
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 72 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZGL
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 MZZGL v Minister for Immigration and Border Protection & Anor [2014] FCCA 55. The Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

   BACKGROUND

2. The appellant is a citizen of India who arrived in Australia on 30 May 2009 as the holder of a Class TU (Subclass 572) (Vocational education and training) visa.  That visa expired on 27 July 2011. On 22 June 2011, the appellant applied to the Department of Immigration and Citizenship (as it then was) (“the Department”) for a Class VC (Subclass 485) (Skilled-Graduate) visa.  A delegate of the Minister refused the application on 28 March 2012.

3. On 29 May 2012, the appellant applied to the Department for a Protection (Class XA) visa.  On 19 July 2012, a delegate of the Minister refused to grant the application because he did not accept the appellant’s claims to fear harm for Convention reasons on return to India.  The delegate made adverse credibility findings in relation to the appellant’s evidence.

4. The appellant is from a small village called Sarinarsannapalem in the state of Andhra Pradesh.  He claimed that his family was involved in a land dispute with the heads of the village.  The heads of the village tried to occupy the land but his family informed them that they were not interested in selling it.  He alleged that the heads of the village refused to accept “no” for an answer and made death threats and hired criminals to attack the appellant and his family.

5. The appellant claimed to be a supporter of the Congress party from whom his family sought support.  No support was forthcoming from the party as the heads of the village were also Congress party members.

6. The appellant and his family turned to the Telugu Desam Party (TDP) who provided support and assistance.  The appellant claimed that he became involved in the TDP by attending rallies and meetings, handing out leaflets and pasting posters on walls and buildings to “spread the message” to younger people.  The appellant claimed that the switching of alliance by his family caused Congress party supporters to abuse and threaten him and his family.

7. The appellant alleged that, in 2005, the land dispute escalated.  The village heads started to harass and threaten the appellant and his family and their home was attacked by thugs.  He obtained employment in Hyderabad, in the state of Andhra Pradesh, and moved there in 2005.  His family members subsequently moved to Narsannapalem.

8. In Hyderabad the appellant continued to support the TDP and became an active member.  The appellant claimed that there is no safety for people in Andhra Pradesh where there are robberies and killings in the name of Telangana.  He claimed that, as a supporter of the TDP, and not a supporter of a separate state, he was attacked by Telangana separation supporters and suffered injury.  Following this he became very concerned for his safety and moved to Australia.

9. The appellant returned to India in December 2011 and spent three weeks in Hyderabad and two to three weeks in Narsannapalem.  He claimed that he was attacked in Hyderabad by Telangana supports and again while in Narsannapalem by Congress party members who were associated with the land dispute.

10. The appellant claimed there have been outbreaks of violence and riots in Hyderabad and corruption within the Indian police.  He claimed there is a real chance of persecution should he be forced to return to Hyderabad.

    THE TRIBUNAL’S DECISION

11. The Tribunal accepted that the appellant is a national of India and does not have the right to enter and reside in another country.  It found that the appellant’s claims were “vague and undetailed” and the evidence of his work with the TDP and the harm he faced as a TDP supporter “unconvincing”.  The Tribunal expressed concern about the credibility of the appellant after he claimed to have “forgotten” to include the attacks which occurred in 2011 and 2012 in his application of a protection visa.  The Tribunal concluded that the appellant was “not a witness of truth” and that it “did not believe the other claims the [appellant] has made.”

12. The Tribunal found that the 2005 land dispute in Sarinarsannapalem and any resulting harm was a local issue.  It went on to find that the appellant’s family have not suffered any harm on relocating to Narsannapalem based on the appellant’s own evidence that his family have readjusted to life there and are making a living off his grandfather’s land. It concluded that any evidence of harm towards the appellant or his family during the time they have lived in Narsannapalem was “vague and general.”

13. The Tribunal accepted that the appellant may have had some involvement with the TDP but this would not have provoked anyone to attack him as a low-level supporter.  There was no evidence before the Tribunal to indicate that the TDP supporters are targeted for harm in Hyderabad or elsewhere in Andhra Pradesh.  Although the Tribunal accepted that it was possible that the appellant may have had stones thrown at him in the course of the land dispute, this was in the considerable past and any ill feelings of the village heads, whether or not they are Congress supporters, is localised in Sarinarsannapalem.

14. The Tribunal also found that the appellant’s claim of fear as an Andrehite from Telangana separatists was not supported by the available country information.  While the Tribunal accepted that communal riots had taken place, they were between Telangana supporters and the authorities, and the appellant had not been targeted personally.

15. Accordingly, the Tribunal was not satisfied that the appellant faced a real chance of serious harm for any Convention reason if he were to return to Hyderabad or Narsannapalem.

16. Although the Tribunal accepted that the Telanagana issue was real in a broader sense it was not satisfied that the appellant was targeted for harm. Accordingly, the Tribunal concluded that the appellant did not meet the complementary protection criteria under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

    THE FEDERAL CIRCUIT COURT’S DECISION

17. The appellant sought judicial review of the Tribunal’s decision in the FCC.  He relied on three grounds.

    “1. The decision of the Tribunal was made without jurisdiction or is affected 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 he will suffer significant harm.

    b.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 generalized 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 be subjected to significant harm.

    c.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.” (sic)

18. Judge Burchardt considered the three grounds advanced by the appellant.  His Honour concluded that each ground of appeal sought impermissible merits review and that the Tribunal’s findings were open to it.  They did not reveal any jurisdictional error.  His Honour concluded that “[u]nfortunately for the [appellant] 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.”

19. His Honour dismissed the application with costs.

    THE APPEAL

20. The appellant now seeks to appeal to this Court from the decision of the FCC. The grounds of appeal mirror those relied on his application to the FCC: see above at [17]. The appellant did not file any written submissions in support of his appeal.

21. The appellant appeared in person on the hearing of his appeal.  He had the assistance of an interpreter.  He was invited to elaborate on his grounds of appeal.

22. The appellant complained that the Tribunal had not taken into account material contained in newspaper clippings which he had submitted to it.  These clippings related to civil disturbances on the area from which he came in India.  He said that the problem with the land dispute involving his family was ongoing and that he was frightened for his safety.  He said he needed a little more time in Australia until these issues had been resolved.

23. The Minister submitted that Ground 1(a) raised nothing more that the appellant’s disagreement with the Tribunal’s finding of fact.  It submitted that the Tribunal applied the law in relation to complementary protection and his Honour was correct in finding that this claim “constitutes impermissible merits review.”

24. The Minister contended that Ground 1(b) again takes issue with the Tribunal’s finding of fact in relation to complementary protection. The Minister asserted that the choice and assessment of the country information relied on by the Tribunal was a factual matter for the Tribunal and constitutes impermissible merits review as correctly identified by the trial judge. The Minister also emphasised that s 36(2B)(c) of the Act states that a person will not 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.”

25. In relation to Ground 1(c), the Minister submitted that the Tribunal gave cogent reasons for finding that the difficulties faced by the appellant with Congress party supporters was localised to Sarinarsannapalem and he would not suffer harm from them if he returned to Hyderabad or Narsannapalem.  The Minister submitted that the further request for review by the appellant was impermissible merits review as the trial judge had found.

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

27. 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.  The Tribunal did receive and have regard to the newspaper clippings provided by the appellant.  It concluded that the articles did not support the appellant’s contention that he might be harmed on return for any reason.  It accepted that there was some civil disorder relating to the debate about whether there should be a State of Telangana but found that there was no indication that there was likely to be widespread violence or that people with the appellant’s profile would be targeted for harm.  The appellant’s concern about him suffering harm as a result of the land dispute was also considered but discounted by the Tribunal.

28. I have read the reasons of the trial judge.  They disclose no appealable error.

    DISPOSITION

29. The appeal must be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        15 May 2014