MZZWB v Minister for Immigration

[2014] FCCA 1879

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZWB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1879

Catchwords:
MIGRATION – Refugee Review Tribunal – thorough consideration of claims – events claimed by applicants accepted – no real chance of serious or significant harm – relocation found to be reasonable.

Legislation:
Migration Act 1958 s.476(2)(a)

First Applicant: MZZWB

Second Applicant: MZZWC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 2000 of 2013

Judgment of: Judge Riley

Hearing date: 31 July 2014

Date of last submission: 31 July 2014

Delivered at: Melbourne

Delivered on: 31 July 2014

REPRESENTATION

Counsel for the First Applicant: The first applicant appeared in person

Solicitors for the First Applicant: The first applicant was not represented

Counsel for the Second Applicant: No appearance

Solicitors for the Second Applicant: The second applicant was not represented

Counsel for the First Respondent: Liam Brown

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second  Respondent: Clayton Utz

ORDERS

1. The application filed on 21 November 2013 be dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 2000 of 2013

MZZWB

First Applicant

MZZWC

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal.  The first applicant is the husband of the second applicant.  The applicants were not represented before the court today and do not appear to have had legal assistance with the preparation of their application.  The second applicant did not attend the hearing today.  The first applicant appeared for himself with the assistance of a Gujarati interpreter by telephone.

2. The application stated the grounds of application as follows:

   1.I applied for the protection visa to department of immigration which was refused;

   2.Then I apply to RRT for review of that decision;

   3.I think RRT Tribunal and department of immigration did not look [at] my situation.

3. Insofar as the applicants are challenging the decision made by the delegate of the first respondent, this court has no power of review. See s.476(2)(a) of the Migration Act 1958.  Moreover, the review conducted by the Tribunal gave the applicants a further opportunity to present their case and enable a review of their circumstances to occur.

4. The first applicant claimed that:

   a)he was from Gujarat in India;

   b)he ran a food canteen business;

   c)he had some difficulty with a group of people who attended his business;

   d)they were drunk and refused to pay for their food;

   e)they claimed to be influential people and abused and physically hurt him;

   f)he forgot about that incident, but some time later the same group of people came again to his canteen;

   g)he refused to serve them;

   h)they appeared to be offended and abused the first applicant in the presence of other customers;

   i)they warned the first applicant that they would see him in the future;

   j)he later discovered that the group of people belonged to the BJP and they were linked with the local mafia, thugs and notorious elements in the community;

   k)he complained to the police, but they did not investigate his complaint;

   l)he sought help from a political activist who was connected with the Congress Party;

   m)he began to work with the Congress Party, attended meetings and received support from people within the Congress Party;

   n)because of his involvement with the Congress Party, the BJP group attacked him, harassed his customers and eventually ruined his business;

   o)subsequently he had no income;

   p)he feared that his life was in danger; and

   q)he left India as a result.

5. The applicants came to Australia on tourist visas on 5 November 2012. On 1 February 2013, the first applicant applied for a protection visa with the second applicant as a member of the same family unit.

6. The Tribunal at paragraph 70 of its reasons for decision set out all of the facts that it accepted.  Those facts were essentially everything that the applicant had claimed.  Paragraph 70 of the Tribunal’s reasons for decision is as follows:

   The Tribunal accepts the first applicant’s evidence given to the Tribunal at the hearing, that:

   vhe is from Gujarat;

   vhe had a profitable canteen business in Gujarat, employing about ten people, and serving food at tables on the premises;

   von one occasions (sic), about six months before elections in Gujarat, about ten men, whom others told him were BJP members (“the BJP men”), came to his business. The applicant served them and asked for payment but they refused. They said they were influential people, should not be forced to pay, and quarrelled with him. A few of this group were drunk and abusive, hurt the first applicant physically and left his shop.

   von a second occasion, a few weeks later, the same group of men came again to the applicant’s canteen. Again they began to abuse him, but this time there were other customers present. The first applicant told them to leave, they felt insulted and left the shop, but warned the first applicant they would see him in the future.

   vthe first applicant went to the police, but the police said this (the behaviour of the men who disrupted the first applicant’s business, assaulted him, broke furniture and injured some patrons) was a very small incident and they did not have time to investigate it. The police did note his complaint.

   vduring these two incidents, the BJP men broke some things, including some tables, threw a counter outside, and injured a couple of people. (The first applicant gave no detailed evidence of these injuries to other people, and the Tribunal makes no finding about the nature of these injuries.)

   vby their behaviour on these two occasions, this group of BJP men caused damage to the first applicant’s business and the goodwill of the business, which caused his eventual closure of the business;

   vthe first applicant sought help from the police, who noted the incident, but said it was a small matter; they did not help;

   vthe first applicant sought help from the Congress Party, but they were unable to help. The Congress Party lost the elections in Gujarat in 2012 to the BJP.

   vthe first applicant had worked in support of the Congress Party before these incidents, but had not joined it until afterwards.

   vthe first applicant joined the Congress Party after the incidents in the canteen. He went to some party meetings and activities. He is not an office holder or leader in the Congress Party.

   vthe BJP men did not later see, threaten, harm or injure the applicants in any way;

   vthe applicants suffered no threats or harm in the village where they lived from the time of the two incidents in the canteen until they left India some months later.

   vThe first applicant owns a house and enough land to build two houses in his village. Relatives are looking after this property in the applicants’ absence.

   vThe applicants’ children are living with other relatives in another village in Gujarat. They have been there for more than a year, and are studying there. They have had threats there, apparently from the BJP men who beat the first applicant in his canteen and disrupted his business, but have not taken these threats seriously. They have not been harmed.

   vThe second applicant has some health problems, but there is no evidence that these are such as to require assistance of a kind obtainable only in the home area nor that they otherwise limit the ability of the applicants to live in their home area or to relocate in some other part of Gujarat or another area of India where Gujarati is spoken.

   vthe second applicant is doing some low paid, casual work with her husband in Australia.

   vthe applicants remain disturbed and genuinely fearful as a result of the two incidents when BJP men disrupted the first applicant’s business.

7. The Tribunal also accepted at paragraph 71 of its reasons for decision that the men who were part of the group that disrupted the first applicant’s business may have had links with the local mafia and thugs.  Paragraph 71 is as follows:

   The Tribunal further notes that it considers it is possible, given the extent of political corruption and violent alliances in India, that the men who disrupted the first applicant’s business and assaulted him on the two occasions he claimed, were also linked with local mafia and thugs, and the Tribunal proceeds on the assumption that they have such links, although this was a claim mentioned only in the written statement prepared by the applicant’s acquaintance, and was not a claim pressed by the applicant at the hearing. (footnote omitted)

8. Although the Tribunal accepted the basic facts claimed by the first applicant, the Tribunal did not accept that they resulted in the applicants facing a real risk of serious harm in Gujarat.  The Tribunal gave extensive reasons for that conclusion.  In particular, the Tribunal considered that if the group of people had wished to harm the first applicant, they would have done so in the months between the last incident and when he left for Australia. For similar reasons, the Tribunal did not accept that the applicants faced a real risk of significant harm in Gujarat.

9. The Tribunal also considered the question of internal relocation.  The Tribunal put the possibility of relocation to the applicants during the hearing before the Tribunal.  The applicants expressed some reservations.

10. However, the Tribunal considered that internal relocation was reasonable in the applicants’ circumstances. The Tribunal considered that the applicants could relocate within the state of Gujarat or to the neighbouring state of Maharashtra.  The Tribunal noted that the neighbouring state has many people who also speak Gujarati.  The Tribunal considered that it would be reasonable for the applicants to relocate either to the neighbouring state or elsewhere in Gujarat.  In these circumstances, the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas.

11. The first applicant before the court today was not able to add anything to his written application.  He simply asked the court to do a bit more searching.  I have read the Tribunal’s decision, and the applicants’ claims.  I am unable to detect any jurisdictional error.  The Tribunal appears to have thoroughly considered all of the applicants’ claims.  The Tribunal also appears to have given the applicants natural justice in relation to the issue of internal relocation. It appears to me that the Tribunal’s findings were open to it on the evidence.

1. In all the circumstances, there appears to be no basis to interfere with the Tribunal’s decision. Consequently, the application must be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 21 August 2014