MZZKJ v Minister for Immigration

[2013] FCCA 1770

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKJ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1770

Catchwords:
MIGRATION – Application for an adjournment refused – application of test for relocation to complementary protection criteria – application upheld – writs issued.

Legislation:

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

Du v Minister for Immigration & Anor [2011] FMCA 753
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51

Applicant: MZZKJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 605 of 2013

Judgment of: Judge Whelan

Hearing date: 21 October 2013

Date of Last Submission: 21 October 2013

Delivered at: Melbourne

Delivered on: 21 October 2013

REPRESENTATION

Counsel for the Applicant: Mr D Singh

Counsel for the Respondents: Ms J Randall-Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

2. The Application by the Applicant for adjournment of the proceedings be dismissed.

3. The Applicant be granted leave to amend the Application filed 6 May 2013 to seek orders that the decision of the Second Respondent be quashed and a writ of mandamus be directed to the Second Respondent requiring the Second Respondent to determine the Applicant’s application for review according to law.

4. An order in the nature of a writ of certiorari issue directed to the Second Respondent quashing the decision made on 3 April 2013.

5. An order in the nature of a writ of mandamus issue directing the Second Respondent to hear and determine the application for review according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 605 of 2013

MZZKJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The Adjournment Application

1. The principles in relation to the granting of extensions of time have been considered by this Court in a number of circumstances. I do not wish to refer to all of those, but in the context of a decision under the Migration Act I would refer to the judgment in Du v Minister for Immigration & Anor [2011] FMCA 753. Those principles refer to the requirements of this Court, which provide for the Court:

   [T]o operate in a manner:

   (a)    as informal as possible in the exercise of judicial power;

   (b)    which is not protracted in its proceedings;

   (c)which resolves proceedings justly, efficiently and economically;

   (d)    which uses streamlines procedures; and

   (e)     that avoids undue delay, expense and technicality. 

   The Court must also take into account the following principles when determining whether or not to grant leave to allow an adjournment:

   (a)the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;

   (b)modern principles of case management;

   (c)the avoidance of undue delay; and

   (d)the wastage of public resources.[1]

   [1] [2011] FMCA 753 at paras.24-25.

2. In this case, an application was made to the Court at very short notice.[2] It was made in writing but it was not made in the requisite form. There was no affidavit evidence provided in support and no material in relation to any submissions. It appears that the First Respondent was given notice at the same time as the Court that an application would be made orally today or that an application was being made in writing, although not in the appropriate form.  

   [2] Email dated 18 October 2013 forwarded to Chambers from Mr David Singh.

3. The First Respondent indicated to the Applicant that the application for adjournment would be opposed and the Court indicated to the Applicant that, in those circumstances, the application would have to be made orally and that the Court could proceed to make orders. 

4. The initial application was made on 6 May 2013. There was a hearing on 2 July 2013 which set down the program for this matter to be heard. There was an application made later for that program to be extended to enable the Applicant to lodge an amended application.[3] That extension was agreed to. There was no amended application lodged. The explanation given today by the Applicant’s brother relates to the difficulties that he has experienced in obtaining appropriate legal representation, mainly because of demands being made by the lawyer that he was using to pay certain amounts of money prior to the hearing, which he was not in a position to pay.

   [3] Jointly signed proposed Minute of consent orders filed 27 September 2013.

5. In my view, the First Respondent is entitled to have the matter dealt with today. 

The Substantive Application

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 April 2013. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the Applicant a protection visa. The Applicant had not sought the appropriate orders in the originating application but by leave, and with the consent of the First Respondent, the application has been amended to indicate that the Applicant now seeks an order that the decision of the Tribunal be quashed and that a writ of mandamus be directed to the Tribunal requiring it to determine the Applicant’s application according to law.

2. The Applicant is a single Sikh male from the Punjab. He is an Indian citizen. The Applicant lived in M with his two brothers until 2006. One of the Applicant’s brothers moved to Australia in 2005 and his other brother moved to Thailand in 2006. The Applicant’s parents are both deceased and, in 2006, the Applicant moved to live with a Mr K and his family, also in the Punjab but in a different town. On 23 November 2011, the Applicant left India for Australia as the holder of a tourist visa. The Applicant applied for a protection visa on 6 January 2012. The delegate refused the grant of the visa on 13 March 2013, and the Applicant applied to the Tribunal for a review of the delegate’s decision. As previously stated, on 3 April 2013, the Tribunal affirmed the delegate’s decision and the Applicant now seeks a judicial review of that decision. 

3. In his application for a protection visa, the Applicant claimed that he was sexually assaulted by Mr K while living in his family’s home. The Applicant also claimed that he felt he had to endure the abuse because he owed Mr K for allowing him into his home and taking care of him. The Applicant told his brother, D, and his brother’s partner about what had occurred, and D had confronted Mr K. Mr K had threatened to kill the Applicant if he was to tell anyone about the sexual assaults. The Applicant stated that Mr K had a good reputation in the community, and had influence over many people with high standing in the community, both in the Punjab and in India. 

4. As a result of Mr K’s standing in the community, the Applicant further claimed that the authorities would not be able to protect him if he was to return to India and that the authorities in India are paid bribes. The Applicant stated that there are a lot of incidents which are often not reported due to fear of being tortured or killed. The Applicant also stated that homosexuality is not accepted in India and that Mr K would do anything to protect himself and his family.

5. The Applicant gave evidence at a Tribunal hearing on 5 March 2013, as did his brother. His oral evidence is summarised in the Court Book. 

6. The Applicant claimed that he was first sexually assaulted by Mr K about one month after the Applicant started living in his home and that the last incident took place about one week before he departed India. Mr K first threatened him about two years after the Applicant started to live at his home when the Applicant had told him to stop the abuse. Mr K threatened to kill the Applicant or get someone else to kill him. Even if the Applicant left Mr K’s home he would find the Applicant and kill him. The Applicant stated that the threat had been prompted by the Applicant stating to Mr K that he was going to tell his wife about the abuse. 

7. The Applicant had been threatened on one other occasion about a week before he departed for India. Mr K then told the Applicant if the Applicant talked to anyone about the abuse Mr K or others would kill him. The Applicant stated that the money that he received from his brother was not sufficient for him to live elsewhere as the Applicant had not been working in India. 

The Tribunal’s decision

1. While noting that there were some inconsistencies in the Applicant’s oral evidence, the Tribunal considered that the inconsistencies were minor in nature and did not detract from the Tribunal’s overall impression that the Applicant gave consistent evidence. 

2. Importantly, the Tribunal accepted the Applicant’s evidence regarding the sexual assaults and threats as credible. The Tribunal found that the Applicant’s fear in relation to Mr K does not possess a nexus with a Convention reason but was rather the result of criminal behaviour towards him. In addition to finding that the Applicant’s fear of harm was not for reasons associated with the Convention, the Tribunal found there was no reason to believe that the authorities in India would discriminatorily withhold or deny the Applicant protection from Mr K’s actions for any Convention reason.

3. The Tribunal therefore concluded that the Applicant did not meet the refugee criteria in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal went on to consider whether the Applicant met the criteria in s.36(2)(aa) of the Act. The Tribunal concluded that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India there was a real risk that the Applicant would suffer significant harm. However, the Tribunal considered that there were circumstances in s.36(2B) of the Act in which it would not be taken to be a real risk that the Applicant would suffer significant harm and those were the reasons that the Tribunal gave in relation to the reasonableness of relocation.

4. When questioned on the issue of relocation, the Applicant stated:

   ·He only knows a little English;

   ·He has no family in India; 

   ·He did not have a house to live in; 

   ·He had not learned any skills in India and the qualifications he held were not a big qualification;  and

   ·He would need proof of identity wherever he went and Mr K would find him. 

   The Tribunal considered whether it would be reasonable for the Applicant to relocate to an area of the country where there would not be a real risk that the Applicant would suffer significant harm. 

5. The Tribunal, in that context, noted that the Applicant’s claims were highly localised to the Punjab and that there was no appreciable risk to the Applicant in cities such as Mumbai or Delhi. In arriving at its conclusion about the reasonableness of relocation, the Tribunal had regard to the following: 

   ·The Applicant’s age; 

   ·The fact that the Applicant had shown himself to be flexible and adaptable by travelling to Australia; 

   ·The Applicant was fluent in Hindi and English; and

   ·The Applicant had a year 12 qualification in India and employment in Australia which should enhance his prospects to some extent. 

6. The Tribunal referred to the Applicant’s claim about his lack of family and accommodation but did not consider that those would be reasons why it would not be reasonable for him to relocate. In response to the Applicant’s submission that Mr K would find him wherever he was living in India, the Tribunal referred to country information which indicated that there were no checks on newcomers to any part of India arriving from another part of India and that the local police had neither the resources nor language skills to conduct such background checks. 

7. The Tribunal concluded there would not be a real risk that the Applicant would suffer significant harm outside of his district or at least outside his State, and that the Tribunal considered that it would be reasonable for the Applicant to relocate. 

Grounds

1. The application for judicial review was put before the Court in the terms of a document headed ‘Appeal’ and that contains some 20 paragraphs.[4] From my reading of that document I have discerned that, essentially, the Applicant makes two claims: 

   ·First, the Tribunal rejected the complementary protections criteria without giving it adequate consideration;  and

   ·Second, the Tribunal failed to correctly apply the proper principles in terms of whether it was reasonable for him to relocate. 

   [4] Affidavit of MZZKJ filed 6 May 2013 at Attachment 1.

2. The Applicant, in that submission, sets out the reasons why he considered that it was not reasonable for him to relocate. In part, the Applicant raises some new matters and, as submitted by the First Respondent, I have not taken those new matters into account. I have, however, taken into account all of the matters that were before the Tribunal. 

The First Respondent’s Submissions

1. The First Respondent submits that the application is without merit and that the Applicant seeks to place new material before the Court, which I have rejected. 

2. The Tribunal, on the submission of the First Respondent, correctly stated the test for relocation being the test posed in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”) and further, that that test was confirmed as being applicable to cases concerning the complementary protection criteria in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 (“MZYXS”). The First Respondent submits that the Tribunal had considered the reasonable practicability of the relocation to another part of India and had made findings on that and that those findings were within the scope of the findings open to the Tribunal to make.

Conclusions

1. The First Respondent correctly identified that the test for relocation, with respect to the complementary protection criteria, is the same as that posed by the Court with respect to the criteria for the granting of a protection visa and further, that the issues which arise when considering the reasonableness of relocation in the complementary protection context are the same as those which arise in the refugee context. I go first to the matters that the Tribunal took into account and those are contained at paragraphs 72-75 of the Tribunal’s decision.[5] 

   [5] Court Book filed 9 September 2013 at pp.109-110.

2. In paragraph 72 of its decision, the Tribunal essentially sets out the tests that are derived from the decisions of the High Court in SZATV and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 (“SZFDV”).[6] In paragraph 73 of its decision, the Tribunal states that it considered the Applicant’s claims were highly localised to the Punjab and that there would be no appreciable risk to the Applicant in Mumbai or Delhi, and that relocation to such a place would be reasonable in the sense that it would be practicable.[7] 

   [6] Ibid at p.109.

   [7] Ibid at p.110.

3. In paragraph 74 of its decision, the Tribunal says:

   In arriving at that conclusion, the Tribunal has had regard to the applicant’s age (29 years old) and general circumstances. As put to the applicant at the hearing, he has shown himself to be flexible and adaptable by travelling to Australia, he is fluent in Hindi and English (which is recognised as an associate official language to Hindi), and he has a year 12 qualification in India and employment in Australia which should enhance his prospects to some extent. The applicant referred to his lack of family and accommodation as reasons why it would not be reasonable for him to relocate. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights.[8]

   [8] Ibid.

4. In paragraph 75 of its decision, the Tribunal went on to say:

   The applicant also stated his fear that K would be able to find him, wherever he was living in India. However, the Tribunal prefers the country information from the United Kingdom Home Office that there are no checks on a newcomer to any part of India arriving from another part of India; local police have neither the resources nor the language abilities to undertake background checks on individuals relocating within India.[9]

   [9] Ibid.

5. Those are the matters taken into account. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”), Black CJ, as he then was, referred to the humanitarian aims of the Convention in determining that, in considering if a person could avoid persecution by moving to another area within the country of origin, the question to be asked was not merely whether an applicant could relocate to another area, but whether he or she could be reasonably expected to do so. 

6. The test was also stated in the matter of SZATV in the following terms:

   What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.[10]

   [10] (2007) 233 CLR 18 at para.24.

7. In this case, the Tribunal referred to the following features of the Applicant: 

   ·The Applicant’s age;

   ·The Applicant’s flexibility and adaptability shown by travelling to Australia;

   ·The Applicant’s fluency in Hindi and English; and

   ·The Applicant’s year 12 qualification in India and employment in Australia. 

   It is not clear to me why the age of the Applicant was relevant unless it was taken to be an indication of his capacity to live away from his family. 

8. The evidence before the Tribunal was that the Applicant had never lived alone. The Applicant had lived at one address since his birth until 2006 with his family and then in another town, also in the Punjab, until his departure for Australia, with the same family. The Applicant had lived with a person who sexually abused him. The Tribunal accepted the Applicant’s evidence regarding the sexual assaults and threats to kill him if he told anyone about the abuse as credible. The Applicant’s evidence was that he had not worked in India and that the money his brother sent him was not sufficient for him to live elsewhere. Since coming to Australia he has lived with his brother. He has no siblings in India and both his parents and grandparents are dead. 

9. The Tribunal also referred to the Applicant’s ‘flexibility and adaptability’ in coming to Australia. The Applicant left India because his brother was able to pay his fare to come to Australia. His brother also stated that he assisted the Applicant with his visa application.

10. The Applicant did not tell his brother of the sexual assault until he arrived in Australia. In a letter written by the Applicant’s brother to the Tribunal, he expressed concern about his brother to the extent that he worried about whether the Applicant might take his own life if he was sent back to India. The Applicant had never been outside the Punjab until he arrived in Australia. 

11. Further, it is difficult to ascertain how the Tribunal concluded that the Applicant was fluent in English and Hindi. The Applicant did indicate on his application for refugee status that he spoke, read and wrote both English and Hindi. The Applicant gave evidence before the Tribunal, however, with the assistance of an interpreter and told the Tribunal he knew a ‘little bit’ of English. The material contained in the Court Book in relation to his language capacity consists of two things. First are the results from his three tests for which he sat under the International English Language Testing System.[11] His results in each of those tests would not be sufficient for him to be regarded in Australia as competent in English for the purposes of a student visa. On the basis of those results it would be hard to find that the Applicant was fluent in English. 

    [11] Court Book filed 9 September 2013 at pp.69-71.

1. The only evidence of the Applicant’s fluency in Hindi is one certificate from the Punjab Education Board, which shows that in March 2005, he received a mark of 58 out of 100 for Hindi.[12] I am not sure how fluent that indicates the Applicant is in that language, so I am unable to find the evidence upon which the Tribunal relied when it came to the conclusion that the Applicant was fluent in both English and Hindi. 

   [12] Ibid at p.67.

2. It is also difficult to ascertain how the Tribunal concluded that the Applicant had shown that he was ‘flexible and adaptable’ in coming to Australia, when he had essentially left a situation of five years of abuse only with the assistance of his brother and came here to live with him.

3. It is also difficult to see, on the evidence, how the Tribunal concluded that the Applicant’s year 12 qualification in India would assist him in finding employment, when the Applicant had concluded year 12 in 2007 and had not had a job in India since. In Australia, the Applicant has worked as a kitchen hand, a job he most likely obtained also with the assistance of his brother. 

4. In NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 (“NAIZ”), the Court gave consideration to the issue of relocation, referring to the decision of the Court in Randhawa and the reasons given by the Tribunal for its conclusion that it would not be unreasonable for the applicant to relocate. The applicant, in that case, had submitted that it might be unreasonable for her to relocate given her age, lack of education and her mental scars from earlier harassment.

5. Branson J, with whom North J concurred, after considering the applicant’s situation, considered that the applicant’s concern about where she would live and how without friends or family members in close proximity she would be looked after, and came to the following conclusions:

   I do not accept the appellant’s submission that there was no probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate within Fiji. However, the summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no-one in Fiji ‘to look after her’, causes me to conclude that the Tribunal did not apply the right test when it concluded that it was satisfied that, with the assistance of her daughter, the appellant would be able to relocate within Fiji.[13]

   And I note that in NAIZ, the daughter did not live in Fiji but was sending her mother money from Australia. 

   The Tribunal did not, as the passage from Randhawa set out in [16] above requires, give consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji. This is not to say that it was not open to the Tribunal to conclude that the appellant could deal with those practical realities, perhaps with financial help from her daughter. However, the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.

   For the above reasons, in my view, the Tribunal’s reasons for decision reveal that it misconceived the elements of the test for determining whether the appellant is a person in respect of whom Australia owes protection obligations under the Convention within the meaning of s 36 of the Act. The Tribunal appreciated that it was required to consider the ‘internal flight alternative’, and that for that purpose it was required to determine whether it would be unreasonable for the appellant to relocate within Fiji. However, I am satisfied that, because it misconceived the content of the requirement that it not be unreasonable for the appellant to relocate within Fiji, it did not ask itself the right questions before determining that it was not satisfied that the appellant is a person in respect of whom Australia owes protection obligations under the Convention.[14]

   [13] [2005] FCAFC 37 at para.22.

   [14] [2005] FCAFC 37 at paras.22-23.

6. The Tribunal found in this case that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to India, there was a real risk that the Applicant would suffer significant harm. It was then required to consider the provisions of s.36(2B) to determine if there was an exception to s.36(2)(aa) which applied. In doing so, I am not satisfied that the Tribunal correctly applied the test for determining that relocation was reasonable. The Tribunal did not consider the particular circumstances of the Applicant but, in a rather perfunctory way, considered only certain characteristics of the Applicant, some of which, in my view, were not based on any probity of evidence.

1. For these reasons, the application is upheld.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  31 October 2013