MZZQZ v Minister for Immigration

[2014] FCCA 1027

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQZ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1027

Catchwords:
MIGRATION – Review of denial by Refuge Review Tribunal – whether Tribunal decision affected by jurisdictional error – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 424A(3)(a), 36(2)(a), 36(2)(aa)

Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259

Applicant: MZZQZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1334 of 2013

Judgment of: Judge Jones

Hearing date: 8 April 2014

Date of Last Submission: 8 April 2014

Delivered at: Melbourne

Delivered on: 8 April 2014

REPRESENTATION

Counsel for the Applicant: Self represented

Counsel for the First Respondent: Mr Smith

Solicitors for the First Respondent: Sparke Helmore

ORDERS:

1. The application filed by the applicant dated 21 August 2013 is dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $5,800.00 within 28 days of these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1334 of 2013

MZZQZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised From Transcript)

Introduction

1. This is an application for judicial review made by the applicant on 21 August 2013 of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 23 July 2013 affirming the decision of the Minister’s delegate (the Minister being the first respondent in this matter) dated 7 November 2011 not to grant the applicant a Protection (Class XA) visa.

Background

1. The applicant is a male of 29 years of age born in Warangal, Andhra Pradesh. He arrived in Australia of 14 December 2008 as the holder of a student temporary class TU visa.

2. The applicant travelled to India at the end of March 2010 and married his wife in May 2010. He then returned to Australia on 18 June 2010. Subsequently he applied for a visa for his wife to join him in Australia which was refused in November 2010. What followed is described by the applicant in his statement attached to his application, which is at CB 27. He says he returned to India in May 2011 to visit his wife, and then he says at CB 27:

   “…My wife parents were angry and they are related Peoples War Group (Naxalites).All regional areas dominate by Naxalites and they are the judges for everything. They called me for public court discuss the issue of my wife. We all family members got call from Naxalites. There is no chance to disobey the Naxalites rules in Andhra Pradesh. That is why we had to go to public court (Praja court). Because of visa has been refused and you are not sharing life with their daughter neither taking her to Australia. I have tried to explain them with visas and regulations of Australia. I have paid tuition fee in Australia once I finish the studies and come back to India forever. Still they did not understand the problem and they attacked with guns and knives. Somehow we have been escaped by local people and police department.My father was also wounded at this attack. We moved to Hyderabad to escape from the Naxalites.Again I was attacked by Naxalites in Hyderabad. I was very scared and decided I had to leave before I was killed. I went to inform the police and I was told by the police that move somewhere for time being otherwise they going to kill you. Immediately my parents Book the ticket for me and send me back to Australia for time being survival. The attackers we’re the members of the Peoples war group (Naxalites). The Naxalites also attacked our house. The Naxalites would come and tell my family to bring your kid from Australia and make him surrender to Naxalites. When they came to the house they took away gold and other valuables. My whole family concerning about me if I come to India they going to kill me. I think that if I am sent back to India the Naxalites will harm me. I do not think that I can expect protection from the authorities in my country and those members of the political (or) local people according to the rule of law. Both attacks were reported to the police but each time was told they could not protect us all the time.I had no intention to come to Australia for protection I only wanted to come Australia for studies but unfortunately things gone bad and become very threat full to my life in India. This is a place I would be safe. I cannot return to India as I was in danger from the Naxalites who wanted to kill me. They already harmed my father and damaged my other relatives too. Members of the Naxalites are active throughout the country. And I was under a lot of pressure in India as I did not know what would happen. My family had been taking protection with other political leaders and negotiating with my wife family and Naxalites to solve the problem. Once they solved this problem I can go back to my own country and remember Australia forever of my life...”

3. Now, I interpolate there to note that in these proceedings before the Court the applicant has said that it is his submission that once he gets a divorce there will not be threats by the Naxalites because of what happened with his wife or because he or his family were police informants. I return to the quote:

   “…Naxalites are blaming me as police informer because I have informed to the police regarding their attack on me and family members. There is a big issue if we named as police informer, lately too many people killed in Andhra Pradesh area as name of police informers.”

4. The applicant included in his statements some country information about the activities of the Naxalites.

5. It is apparent from his statement that the applicant claimed fear of persecution or significant harm because:

   a)the Naxalites, being part of his wife’s family and on behalf of his wife’s disgruntled parents, will assault or kill him; and

   b)that the Naxalites will target him and his family as police informants because they reported the attacks on him and his family to the police.

6. After lodging his application for review by the Tribunal, the applicant forwarded a statement by letter dated 5 December 2011. It was cast in exactly the same terms as his earlier statement that I have just referred to, except for the addition of the following. At CB 75 – 76 the applicant stated:

   “Dear honourable member, I have lodged my protection visa on 12^th September 2011. After couple of months I have received letter from Department of Immigration and Citizenship…Other thing is “My whole family known as Police Informers”, such police Informer group will consider as social group who have lost family member, been victim, been affected with some reason by naxalites ,been become a group called Police Informers. I and my family belong to police informer group, being targeted in different manners by naxalites for decades. But I have been involved in real situation which made me give naxalites a chance to attack. Due to common man sympathy, naxalites always wait for weak point and right reason to kill or take revenge on opposition who are called as police informer, in India. That is why I am standing in front of the Australian government officials  and begging for my life which is threaten if I go back to India.”

7. From the applicant’s statement attached to his application for review by the Tribunal, it is clear that the applicant is claiming that his family is known as police informers, and have been so for many years, and for that reason they will be attacked by the Naxalites.

The Refugee Review Tribunal decision

1. The applicant appeared before the Tribunal on 11 May 2012 to give evidence and present arguments.

2. The Tribunal in its decision, at CB 89 at [16] and CB 90 at [19], made it clear that it was aware of, and had identified the claims that had been set out in the applicant’s initial application for protection and his statement that he forwarded subsequently when he sought a review by the Tribunal. The Tribunal then went on, in the Court’s view, to very fairly set out the evidence of the applicant, and this is to be found at CB 91 at [21]:

   “The following is a summary of the evidence that applicant gave at the hearing:

   i.He was born on 2 August 1982 in Warangal, India and is 29 years old.

   ii.He completed a Bachelor of Computer Application Software at Madurai Kamaraj University.

   iii.He worked in Malaysia from September 2007 to January 2008 as a software developer. Prior to this he worked on a casual basis as a mobile phone team leader in India.

   iv.He came to Australia on 14 December 2008 as the holder of a Student (TU-572) visa.

   v.He completed a Certificate III in Printing and Graphic Arts (Graphic Pre-Press) at Southern Cross Education Institute in March 2010.

   vi.He travelled to India at the end of March 2010 to enter into an arranged marriage. He and his wife married in May 2010 and he returned to Australia on 18 June 2010.

   vii.He applied for a visa for his wife so she could join him in Australia. This application was refused in November 2010.

   viii.He travelled to India again on 22 May 2011 to visit his wife. On 4 June 2011 his wife and her parents had a discussion with the applicant during which he explained the visa process and said that he would apply again for an Australia visa for his wife.

   ix.On 5 June 2011, members of the Naxalites came to his family’s home and attacked his father. His father escaped to Hyderabad on 6 June 2011. The attack was reported to police but they were unable to provide protection. Their house was later robbed and all their valuables were stolen. The applicant returned to Australia on 9 June 2011.

   x.The applicant is now separated from his wife and has no contact with her.

   xi.The Naxalites are looking from him and where he goes in India he will not be safe.”

3. The Tribunal (CB 91 at [22] to [23]) noted that, at the hearing, the applicant stated he would provide the Tribunal with a copy of the police report regarding the attack on his father and family home. The applicant did not do so. The Tribunal also noted that it wrote to the applicant on 17 April 2013 inviting the applicant to appear before the Tribunal to give further evidence. The applicant was advised that if he did not attend the hearing and a postponement was not granted the Tribunal may make a decision on his case without further notice. It noted the letter was sent by Registered Post to the applicant and the applicant did not respond to the letter, nor indicate whether he would attend the hearing, and that in fact the applicant did not attend the hearing that was listed before the tribunal on 20 May 2013.

4. The independent country information considered by the Tribunal on the Naxalites (People’s War Group) is set out commencing at CB 92 at [26].

5. Relevantly, for the purposes of this hearing (CB 98) the Tribunal considered the country information from the perspective of the heading “Protection by the Indian Authorities from Naxalites Violence.” The Tribunal commenced by noting at CB 98 at [50] that:

   “No sources were located that discuss the availability of state protection for ordinary individuals at risk of harm by Naxalites/Maoists.”

6. It then went on to note in that same paragraph that:

   “Nevertheless, information referred to above indicates that Andhra Pradesh’s government has adopted one of the most aggressive and successful approaches to tackling the CPI Maoists.”

7. At CB 99 [51] – [52] the Tribunal considered further information in relation to the presence of the Naxalites and the activities of the government in dealing with what is called these ‘guerrillas’ by way of counter-insurgency operations. At CB 100 at [53] the Tribunal noted that pursuant to legislation enacted by the government, the relevant group, that is the CPI Maoist Group of which the Naxalites are part, are proscribed as terrorist organisations or unlawful in the applicant's home state of Andhra Pradesh.

8. Turning to the assessment of the applicant's persecution claims, which commences at CB 102, it is clear that the Tribunal, in fact, accepted most of the applicant's evidence and relevantly stated at CB 103 at [70]:

   “The Tribunal accepts that on 4 June 2011 the applicant's father was attacked by members of the Naxalites with whom his wife's family are associated, and that his father escaped to Hyderabad. It also accepts that his family home was robbed and their valuables were stolen. It further accepts that these incidents were reported to the police and that he and his family are now regarded as police informers.”

9. At CB 103 at [71] the Tribunal stated:

   “The Tribunal accepts that the applicant fears that if he returns to India he will be harmed by members of his wife's family or by members of the Naxalites.”

10. At CB 103 at [72] the Tribunal stated:

    “The Tribunal finds that the harm the applicant fears if he were to return to India amounts to serious harm (s.91R(1)(b)) in that the relevant attacks made against his father and his family home were threats to life of the applicant and his family.”

11. I interpolate there to say that at this point the Tribunal was clearly directing its attention to section 36(2)(a) of the statute. It went on at CB 103 at [73] to state:

    “However, the Tribunal finds that the applicant has made no claim that this harm, or any future harm he may suffer if he were required to return to India relate in any way to the Convention grounds of race, religion, nationality, political opinion, or particular social group. The Tribunal does not therefore accept that there is a relevant Convention nexus to the applicant's claims.”

12. The Tribunal stated at CB 103 [76]:

    “The Tribunal finds that the applicant does not face a real chance of persecution for one or more of the Convention reasons. The Tribunal is not therefore satisfied that he has a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future if he returns to India.”

13. The Tribunal then turned to consider the complementary protection provisions criteria which had to come into effect on 24 March 2012, but which applied to all protection visa applications not finally determined as at 24 March 2012 which, as the Tribunal noted, applied to the present proceedings before the Tribunal. At CB104 [79] the Tribunal noted that it had invited the applicant to attend a second hearing, specifically to allow him to make any claims he may have against the complementary protection criteria.

14. It noted that the applicant did not attend this hearing, nevertheless, the Tribunal stated it had been careful to review his claims and circumstances:

    “…both singularly and cumulatively, under the separate lens of the complementary protection to determine whether he relevantly faces a real risk of significant harm notwithstanding the Tribunal's findings above that he does not meet the refugee definition

15. At CB 104 at [80] the Tribunal noted that:

    “The applicant claims to fear that if he returns to India he will be physically harmed by his wife's family or members of the Naxalites due to his perceived poor treatment of her during their marriage.”

16. At CB 104 at [81] the Tribunal stated:

    “For the reasons outlined above, the Tribunal accepts that the applicant and his family have been the target of harm from his wife's family who are associated with the Naxalites. However, the Tribunal does not accept that there is a real risk to the applicant of significant harm from his wife's family or members of the Naxalites should he return to India.”

17. At CB 104 at [82]the Tribunal stated:

    “The Tribunal finds that even if there were a risk of harm to the applicant from either his wife's family or from members of the Naxalites, pursuant to sections 36(2B)(b), there is no real risk that the applicant will suffer significant harm, as the authorities of India can provide an adequate level of State protection to the applicant.”

18. The Tribunal then went on to find that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to India, he faces a real risk of being subjected to significant harm. That being the relevant test under section 36(2)(aa) of the complementary protection provisions.

Judicial review

1. The applicant has applied for judicial review. In his application filed 21 August 2013, the applicant specifies his grounds for judicial review.

   Ground 2:

   “I am not happy with Tribunal decision, applying for judicial review for legitimate decision.”

   Ground 3:

   “Still I do have life threat back in India.”

2. In his affidavit filed on the same date, the applicant, in effect, repeats those grounds for review. I have, because the applicant is self-represented, attempted to explain to him the nature of these proceedings before the Court which are judicial review proceedings, and the difference between these proceedings and those that occurred before the Tribunal. In particular, I stated to him that this is not a merits review, that it is not the function of the Court to look at his evidence and to decide whether he should be granted a protection visa, but rather to focus on the Tribunal decision and to determine whether there was a legal error or legal mistake.

3. I asked the applicant to indicate what he thought was the legal mistake of the Tribunal. The applicant was not able to identify any proper ground for judicial review. What he did say was this, and this is in the context of the applicant wanting the Court to have a look at documentation which he did not provide to the Tribunal. I indicated to the applicant that, given that he had not provided that documentation to the Tribunal, it was not appropriate and I would not examine the document. However, what the applicant said was that once he gets a divorce from his wife, which his parents are seeking to complete, there will not be threats by Naxalites or on the basis he and his family are police informers.

4. He said that he applied for a divorce on 19 October 2012 and that he anticipates he will get a divorce at the end of this year or next year. In some senses that is neither here nor there, given the judicial review to be conducted by this Court. However, it appears that, on the applicant's submission, the threat of persecution, the threat of significant harm, will evaporate once he obtains a divorce which he appears to believe he will do so. There is little that can be said about the applicant's grounds for judicial review. The Minister has pointed out, quite correctly, that they are not properly pleaded. However, this is quite common when applicants are self-represented.

5. The Court has not been assisted today in understanding the applicant's grounds for judicial review, other than he is simply unhappy with the outcome of the decision, and that is because he wants a protection visa until he can get the divorce finalised from his wife. The applicant has not claimed that there was procedural unfairness. He simply says that he still has a life threat and he wants a different outcome.

6. The Minister has correctly pointed out if it was necessary, that the applicant was afforded procedural fairness by the Tribunal. I will refer to the written submissions of the Minister at [11], which are as follows:

   “In any event, it cannot be said that the Tribunal fell into jurisdictional error in any way. It is plain that the Tribunal invited the applicant to attend the hearing to present arguments and makes submissions (in accordance with s 425), and that such invitation was meaningful. There can also be no suggestion that the Tribunal failed to comply with its obligations under s 424A or s424AA.

   While it is true that the Tribunal relied heavily on items of country information in reaching its decision, there was no requirement to put such country information to the applicant to allow him to comment: s 424A(3)(a). It also cannot be said that the Tribunal failed to apply the correct test in relation to either the applicant's Convention-related claims (the criterion for which is set out in

   
   

   s36(2)(a) or his “complementary protection” claims (the criterion for which is set out in s 36(2)(aa)).”

1. The Court agrees with this. The Tribunal afforded the necessary procedural fairness required under the statutory provisions. The Tribunal was not required to put the country information to the applicant and, indeed, it is a function of the Tribunal to decide what weight to give the country information. It is clear, from the Tribunal's decision, that it put weight on the country information that indicated that the Indian government was taking active steps to deal with the Naxalite groups which were now part of the CPI Maoist Group and, consequently, the Tribunal formed the opinion and found that the applicant would not suffer significant harm as the authorities of India can provide an adequate level of state protection to the applicant.

2. As I indicated, the Tribunal accepted most of the applicant's claims as to the threats and attacks by the Naxalites. However, the Tribunal found that the applicant’s claims were not related in any way to a convention ground. That is, the necessary nexus between his claims of harm and the convention grounds were not established and there is nothing wrong with this reasoning of the Tribunal.

3. It appears to the Court that, really, what is happening here is that the applicant is seeking an impermissible merits review, and I refer to the decision of the High Court in Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259.

4. For those reasons, the Court is satisfied that the decision of the Tribunal discloses no jurisdictional error and that the Court should dismiss the applicant's application. Consequently, for the reasons set out in my decision, I make the orders accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:

Date: 2 June 2014