MZZYX v Minister for Immigration and Border Protection

[2014] FCA 1342

FEDERAL COURT OF AUSTRALIA

MZZYX v Minister for Immigration and Border Protection [2014] FCA 1342

Citation:	MZZYX v Minister for Immigration and Border Protection [2014] FCA 1342
Appeal from:	MZZYX & Ors v Minister for Immigration & Anor [2014] FCCA 1968
Parties:	MZZYX, MZZYY and MZZYZ v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 471 of 2014
Judge:	NORTH J
Date of judgment:	28 November 2014
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), (aa), (b),(c)
Date of hearing:	28 November 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	29
Counsel for the Appellants:	The Second Appellant appeared in person on behalf of the first, second and third appellants.
Solicitor for the First Respondent:	Mr D Brown of Australian Government Solicitor
Solicitor for the First Respondent:	Mr D Brown of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 471 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZYX
First Appellant

MZZYY
Second Appellant

MZZYZ
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	28 NOVEMBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants 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 471 of 2014

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZZYX
First Appellant

MZZYY
Second Appellant

MZZYZ
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	28 NOVEMBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from orders made by the Federal Circuit Court on 5 August 2014.  The Federal Circuit Court dismissed an application for review of a decision of the Refugee Review Tribunal made on 13 December 2013.  The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellants Protection visas.

2. The appellants are a husband and wife, and their infant daughter.  They are citizens of the Republic of India.  The first appellant, the wife, appeared at the hearing of the appeal and acted on behalf of the second and third appellants.  The second and third appellants’ claims relied on the circumstances of the first appellant. 

   THE APPELLANTS’ CLAIMS

3. The first and second appellants are Sikhs from the State of Punjab in India. Their claim to fear harm on return to India was said to arise from a dispute within the family of the first appellant. 

4. The dispute is a long-running property dispute which commenced in 1963 following the death of the first appellant’s great-grandfather.  Litigation in that dispute is still before the courts in India. In 1982, the District Court found against the interests of the first appellant’s grandfather, with which she is associated.  In 2004, her side of the family was successful when the High Court of Punjab and Haryana recognised her grandfather’s beneficial interests in the land.  An appeal was before the Supreme Court of India at the time of the Tribunal’s decision.

5. The main appellant in the Supreme Court proceedings was Santokh Singh, whom the appellants claimed to be a gangster and whose interests in the property are opposed to the interests of the first appellant’s side of the family.  Santokh Singh, it was claimed, sought to inculpate the first appellant’s father and uncle in the murder of their employee.  The first appellant’s father was arrested for the murder and, whilst he was mistreated by the police in custody, he was not charged.  The first appellant gave information to the police that one Ram Brij was instead responsible for the murder and that Santokh Singh paid him money to carry out the murder.  Ram Brij was ultimately convicted of the murder and imprisoned.  He is due to be released in 2015.

6. The first appellant claimed that she and her husband had been threatened with revenge by Ram Brij for her role in causing his imprisonment. The appellants also said that Santokh Singh had made threats of harm to the first appellant and to her family following the High Court decision in 2004, in which her family’s interests succeeded.  In addition to the threats of harm, the first appellant claimed that her brother was assaulted by agents of Santokh Singh in 2004, and that damage was done to their farm in order to persuade them from continuing with the litigation.   The first appellant said that she and her family had complained to the police about the threats and actions of Santokh Singh, but that the police have, to date, taken no action.

   THE DECISION OF THE TRIBUNAL

7. The Tribunal accepted that the first appellant’s claims were credible and accepted her evidence.  The Tribunal found that there was a real chance that the appellants would face serious harm in the reasonably foreseeable future if they returned to their home in Punjab as a result of the threats made by Ram Brij and Santokh Singh. 

8. The Tribunal then said at [25]:

   [W]hen asked to explain how and why the motivation of Santokh Singh and Ram Brij was for one of [sic] more of the Convention grounds, the first applicant claimed that Ram Brij sought revenge because she had assisted with his prosecution and Santokh Singh also sought revenge for her causing his arrest and mistreatment and because of her membership of her father’s family in relation to the property dispute; the second applicant stated that he was at risk now because of his marriage to the first applicant and his membership of her family. 

9. The Tribunal then said at [26]:

   As discussed with the applicants, their evidence indicated that the reasons they were at risk were personal and not because of their race, religion, nationality, political opinion or membership of a particular social group; while it accepts that a family is a particular social group, s.91S of the Act requires the Tribunal to disregard the relevant fear of persecution if the underlying reason why the family would be singled out is not a Convention ground.  As discussed with the applicants, their evidence indicated that the reasons Dalbara Singh and Santokh Singh had an adverse interest in her father and family were financial, to obtain a greater interest in her great grandfather’s estate. The Tribunal has carefully considered their evidence and claims, but does not accept that there is or was a Convention basis for why her family has been or would be in the future singled out for mistreatment; it considers that the reasons they have been and would continue to be are financial and accordingly s.91S applies and the Tribunal must disregard their fear of being persecuted for those reasons.  Similarly with regard to Ram Brij, as discussed at the hearing, the evidence before the Tribunal indicates that his motivation in seeking to harm the applicants is revenge and not for a Convention ground and accordingly it does not accept that claim comes within the refugee criterion. 

10. After discussing the availability of State protection, the Tribunal said at [28]:

    However, even if it is accepted that the police in the Punjab are corrupt and that the applicants would not receive protection because Santokh Singh would bribe or influence the police, the evidence and information before the Tribunal does not indicate that the reasons for the applicants being denied protection by the police would be because of their race, religion, nationality, political opinion or membership of a particular social group; indeed, according to the applicants evidence [sic], the ‘essential and significant’ reason for the police not assisting them is corruption and the ability of Santokh Singh to influence their actions and not because of any particular attribute of the applicants that would bring the situation within the refugee criterion. 

11. The Tribunal then considered whether the appellants were entitled to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth).

12. Consistently with its earlier acceptance of the first and second appellants’ evidence, the Tribunal found that there was a real chance that the appellants would suffer serious harm if they returned to their home.  The Tribunal concluded at [31]:

    [T]he Tribunal considers there are substantial grounds for believing there is a real risk they will suffer significant harm in that way in their home area.  The Tribunal considers that the harm they are at a real risk of suffering would amount to ‘significant harm’ as it could include arbitrary loss of life, torture, or cruel, inhuman or degrading treatment, and that it is one faced by each of them personally and not by the population generally.

13. However, the Tribunal then considered whether it would be reasonable for the appellants to relocate to an area of India where there would not be a real risk that they would suffer significant harm.  The Tribunal noted that there are 1.3 billion people in India in over 27 million towns, cities and settlements, and no system of registration or national identification which requires registration with police when relocating.  The Tribunal found that the risk of the appellants being located outside the State of Punjab by Santokh Singh or Ram Brij was remote and far-fetched.  It took into account that despite his considerable resources, Santokh Singh did not locate them for five and a half years after he first threatened them, and that the first and second appellants have been residing outside the country for the last four years, during which time they did not receive any threats. 

14. Having concluded that there was only a remote possibility that Santokh Singh or Ram Brij would locate the appellants outside Punjab, the Tribunal considered the appellants’ personal circumstances in order to determine whether it would be reasonable for them to relocate.

15. The Tribunal took into account that the first appellant speaks three languages, Punjabi, Hindi and English, has completed a teaching degree and has taught as a graduate teacher for over 12 months before leaving India.  The second appellant speaks Punjabi fluently, in addition to also speaking Hindi and English, and has worked in Australia as a truck driver and a labourer.

16. The Tribunal considered the fact that the first and second appellants come from families with resources sufficient to support the appellants.  The Tribunal also took into account that they have demonstrated resourcefulness and resilience in adapting to the new environment in Australia.  It noted that there was no indication that Sikhs were harmed by reason of their religion or discriminated against in employment in India, that unemployment is relatively low, and that the economy in India was expected to grow in the next few years. 

17. For those reasons, the Tribunal determined that it would be reasonable for the appellants to relocate to an area outside Punjab if they returned to India.

    THE JUDGMENT OF THE FEDERAL CIRCUIT COURT

18. The appellants then sought review of the decision of the Tribunal in the Federal Circuit Court.  The ground stated in the application for judicial review was:

    Sir/Madam, I am … writing to you about my case.  I am not agree with RRT decision so I appealed in Federal Court.  They said we refused your application.  They are unhappy with our application and Interview on 19/09/2013 which we said and gave them the evidence.  Please you do something like read all file and help us to give your decision we honest about our case.

19. The Federal Circuit Court held as follows:

    58.If the applicants do not agree with the decision of the Tribunal, and seek a review of the merits, that is not available on judicial review.

    59.The applicants filed a document headed “Explain About Decision Of Refugee Review Tribunal” on 18 July 2014.  The document states that the applicants are not happy, or the applicant is not happy with the decision, and seeks a review of the merits and the evidence.  As stated above, a review of the merits is not available on judicial review.

    …

    62.The Court accepts the contention that, in considering the reasonableness of relocation, the Tribunal took into account the particular circumstances of the applicants, and the impact on them of relocation within India.  The Court finds that the applicants have not established an error of law by the Tribunal.

    THE APPEAL

20. On 14 August 2014, the appellants filed a notice of appeal in this Court.  The ground of appeal is stated as follows:

    I am not satisfied with Federal Circuit decision and order.  They give us decision same as RRT.  So I appeal in Federal Court.

21. The ground was elaborated in the notice of appeal as follows:

    Federal Circuit Court gave us same decision as a RRT and immigration.  But I want to Federal Court just read all file which we put in and give us right decision. (See the attachment.)

22. The elaboration continued in the attachment as follows:

    The Federal Circuit gave us the decision they just dismiss our case in the court. The decision same as immigration and RRT. They said RRT not gave any wrong decision. Your story put as in Refugee this not acceptable. This is not any politics this is a family matter and if some one take the revenge they not indicate Santokh Singh as a life matter had taken any step to carry revenge. They said if we are living in our country any where in other State. They not find you. But we are not agree if we have any harm so that why we put the refugee case in Australia. We need the right decision from the federal court and put case in again federal circuit court is challenge again Federal circuit court’s order. So please see and understand our situation and give us right thing or decision.

23. At the hearing the first appellant, who was assisted by an interpreter of the Punjabi language, was asked by the Court to explain the basis of the appeal.  She repeated that the Federal Circuit Court made the same decision as the Tribunal.  When asked by the Court why that was wrong, the first appellant said that the Federal Circuit Court did not investigate the case. 

24. The Court then asked the first appellant what mistake the Tribunal made. She replied that it did not undertake an investigation in India, and that she was not able to get the statement which she had made to the police in India.  It was explained to her by the Court that these issues were not material because the Tribunal had accepted her evidence about what happened in India. 

25. The first appellant then said that she did not agree with the Tribunal decision that the appellants could relocate to other places in India, but did not further explain why this finding was erroneous. 

26. Finally, the first appellant said that when she attended the Federal Circuit Court hearing she had had a tooth removed and could not speak.  She said that a medical certificate was not accepted by the Court.  This circumstance was referred to in the Federal Circuit Court judgment as follows:

    4.The applicant sent an email to the Court on 4 August 2014 seeking an adjournment of the hearing because she has a dental problem which has made her unable to speak.  The applicant attached a medical certificate from her dental surgery.  That certificate does not state what the dental or medical condition is.  The certificate does not state that the applicant cannot appear in Court.  It states that she underwent treatment on 4 August 2014 and is not fit for work until 5 August 2014, that being the hearing date.

    5.The first respondent opposes an adjournment.  The Court responded to the request for an adjournment via email and refused that application for an adjournment.

    6.The applicant appears today but submits she is unable to take part in the hearing.  The Court found that there was no reason to adjourn the hearing and would proceed.  The applicant stated that she did not wish to make submissions to the Court.  The Court provided the applicant with an interpreter by telephone. 

27. The first respondent correctly contended that the fact-finding process in relation to the issue of relocation was a matter for the Tribunal. No error is evident in the manner in which the Tribunal considered that issue. A review of the Tribunal’s decision with regard to the merits of the case is not available. The appellants disagree with the view which the Tribunal formed about the reasonableness of their relocation in India but, without more, that does not demonstrate an error which can be corrected by this Court.  All of the other material findings of fact were in the appellants’ favour and, consequently, they have no basis on which to take issue with those findings. Therefore, the appellants’ dissatisfaction with the Tribunal decision outlined in the notice of appeal does not demonstrate any jurisdictional error.

28. The Federal Circuit Court gave its reasons in relation to its decision to refuse to adjourn the hearing.  It determined that the evidence provided in support of the medical condition did not justify an adjournment. Furthermore, no injustice flowed from the refusal of the adjournment. The first appellant appeared at the hearing of the appeal before this Court and was, in effect, given the same opportunity as was available to her in the Federal Circuit Court to address the appellants’ criticisms of the Tribunal’s decision.  The ground before the Federal Circuit Court mirrored the ground upon which she relied in the appeal before this Court. It is not suggested by the first appellant that she would have made different submissions before the Federal Circuit Court to those which she submitted on the appeal in this Court.  The Federal Circuit Court made no jurisdictional error in refusing the adjournment.

29. Consequently, the appeal must be dismissed.

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

Associate:

Dated:        9 December 2014