MZZZO v Minister for Immigration

[2015] FCCA 115

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZZO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 115

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – whether the Tribunal failed to give consideration to the Applicants’ real fear of being harmed – jurisdictional error – reasonableness of Tribunal’s decision – Tribunal’s decision was reasonable – no jurisdictional error made out – application dismissed – costs awarded.

Legislation:
Migration Act 1958 (Cth)

First Applicant: MZZZO

Second Applicant: MZZZP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 118 of 2014

Judgment of: Judge Vasta

Hearing date: 14 January 2015

Date of Last Submission: 14 January 2015

Delivered at: Melbourne

Delivered on: 14 January 2015

REPRESENTATION

The Applicants appeared on their own behalf.

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed 22 January 2014 is dismissed.

2. The Applicant pay to the First Respondent costs fixed in the sum of $3000 (“the costs”) with the Applicant to pay the costs within fourteen (14) days. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 118 of 2014

MZZZO

First Applicant

MZZZP

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Applicant

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application dated 22 January 2014 the Applicants, MZZZO and MZZZP, seek from this Court an order that the decision of the Refugee Review Tribunal of 19 December 2013 be quashed.  This is in effect an application for judicial review of the decision of the Refugee Review Tribunal. 

2. A short chronology is this: both MZZZO and MZZZP are citizens of India from Kanpur, Uttar Pradesh.  MZZZO claims to be a Sunni Muslim, and MZZZP claims to be a Brahman Hindu.  These are claims that were accepted by the delegate and the Tribunal, and there is no challenge to them.

3. The First Applicant arrived in Australia on 28 May 2008.  He was the holder of a Student Visa.  The Student Visa expired on 28 August 2010.  He applied for a further Student Visa the day before it was to expire, 27 August 2010.  That application was refused by a Delegate of the Minister on 20 January 2011.  That decision was affirmed by the Migration Review Tribunal on 14 December 2011.  The First Applicant filed an application for judicial review of that decision in this Court, (then called the Federal Magistrates Court), on 12 January 2012.

4. The Second Applicant arrived in Australia on 19 February 2012 as the holder of a Student Visa.  The First Applicant and the Second Applicant married on 24 March 2012 in Melbourne.  On 6 June 2012, the First Applicant withdrew the application for judicial review of his Student Visa refusal, and on 27 July 2012 both the First Applicant and the Second Applicant lodged the current visa application, that being an application for a Protection Visa. The basis for that application for a Protection Visa is, in very short compass:

   · The First Applicant is a Sunni Muslim and the Second Applicant is a Brahman Hindu.

   ·  An interfaith marriage in their culture in India is certainly frowned upon. They claim, more than being simply frowned upon, such a marriage would inevitably lead to serious harm being brought upon them if they were to go back to India.  The serious harm would come from, firstly, the families of both, because such a marriage has brought great shame upon the families, and secondly, if the families weren’t able to reach them, the rest of society would see such a marriage as an affront to their values, and an honour killing would be almost inevitable. 

5. To make a successful application for a Protection Visa, the Minister must be satisfied that:

   “…the Applicant is a person for whom the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, or commonly known as the Refugees Convention, or Convention applies.”

   Relevantly, the Convention defines a refugee as, any person who:

   “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling, to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

6. If the person does not fit into the Convention category, then the “Complementary Protection” criterion must also be considered. Such criterion will be satisfied if the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is real risk that he or she will suffer significant harm. 

7. It is obvious that, unless there is “a well-founded fear of being persecuted”, or “a real risk of serious harm” if returned to the receiving Country, an application for a Protection Visa will ultimately fail.  Therefore, satisfaction of the reality of actual danger to these Applicants if they were to be returned to India was the paramount issue to be looked at in determining this application for a Protection Visa. 

8. The Delegate refused to grant the Visa.  On a fair reading of the decision of the Delegate, he did so by finding that the Applicants did not meet the criteria necessary to invoke the Refugee Convention.  He also found that the Applicants did not meet the criteria for Complementary Protection. 

9. On 18 December 2012 the Applicants lodged an application to review that decision in the Refugee Review Tribunal.  On 25 September 2013 the Refugee Review Tribunal heard extensive evidence from the Applicants and also received from them Wikipedia articles, newspaper reports and other articles gathered from the internet.

10. On 30 October 2013 both Applicants, responding to letters sent by the Refugee Review Tribunal on 10 October 2013, provided further statements and submissions to the Refugee Review Tribunal.  On 19 December 2013 the Refugee Review Tribunal affirmed the decision of the delegate.  The Refugee Review Tribunal made quite clear and categorical findings of fact.  The Refugee Review Tribunal found that there were many inconsistencies in the evidence of the Applicants.  Again, on a fair reading of the decision, the Refugee Review Tribunal found that neither Applicant was a reliable or credible witness.

11. This was not a finding that was made lightly.  The Refugee Review Tribunal thoroughly assessed the evidence given, took into account the health issues of the Second Applicant, took into account the stresses of their experiences and of the Tribunal proceedings themselves, and took into account the ordinary human fallibility of the Applicants.  The Refugee Review Tribunal was sensitive to the differences the cultural backgrounds of the Applicants could have upon evidence given, and was also cognizant of the Tribunal’s own “Guidance on the Assessment of Credibility”.  Having weighed all these matters, the Refugee Review Tribunal did not accept that there was a real chance that the Applicants would suffer serious harm for any reason if they returned to India now or in the reasonably foreseeable future.

12. Accordingly, the Refugee Review Tribunal found that the Applicants did not have “a well-founded fear of persecution” in India.  Such a finding means that the Applicants do not meet the criteria with respect to the Convention, nor that of Complementary Protection, and thus the Refugee Review Tribunal affirmed the decision of the Delegate. 

13. The Applicants’ application lists five grounds of appeal.  These grounds are:

    “(1) section 477A, subsection (1), an application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A, subsection (1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision; 

    (2) I do have a well-founded fear back in India, as I am seeking Protection in Australia; 

    (3) there are similar court decisions at Apex Court which will be favoured in regard my case; 

    (4) more evidence lightened and gathered from India towards my Protection claim; 

    (5) member from Refugee Review Tribunal has taken wrongful consideration on my claims, which has leaded to my review affirmed not to grant the Protection visa. (sic)”

14. By submissions filed in this Court on 6 January 2014 the Applicants (it is taken by this Court to be both Applicants), again expanded upon those grounds.  In looking at those, a fair summary of the claims made is that there is a well-founded fear of persecution arising from their interfaith marriage. 

15. The three claims made are in effect that:

    · They fear that their families will torture and kill them if they return to India;

    · They fear harm from the Indian population at large because of their interfaith marriage;

    ·  They fear harm from the Indian authorities as a result of their interfaith marriage.

16. In oral submissions made today before me, the Second Applicant, on behalf of both Applicants,  made the following submissions:

    “Firstly, the Tribunal was wrong on the issue of relocation, that relocation is a danger because you cannot simply start up a life without reference checks being made, and the reference checks necessarily will go back to our parents and families, therefore the parents and families will know where we are, therefore we are not going to be safe; 

    Secondly, the Tribunal was wrong in looking at our social circumstances, and that not realising that our whereabouts will get back to family, that social connections are the same as family connections in the society of India; 

    Thirdly, that the Tribunal was wrong in finding that there were inconsistencies in what we said to the Tribunal;

    That these were merely slips of the tongue caused by stress, caused by physical pain having regard to a medical condition that [the Second Applicant] was suffering at the time. [She submitted that she was informed that she had to go to that ‘meeting’ and that she had to have the medication and still continue with the ‘meeting’.  This led to confusion and that her mind was not working properly on the day.] 

    Fourthly, that the Tribunal was wrong in finding that there was no official discrimination, notwithstanding that the Country information was that there was no such discrimination. The Country information was merely the official line but in reality there is quite a deal of corruption and discrimination in India. 

    And lastly, that our family will harm us and that the family know that whatever they do that is illegal in India will be concealed and that they will be able to get away with it. Whereas if they tried to do anything like that in Australia, they would be caught and prosecuted. Therefore there is no fear of doing the wrong thing in India because the authorities will do nothing.”

17. Together with those oral submissions, the Second Applicant also handed to the Court, and the Court received, a story that seems to have come from the Internet entitled “Another Idea from Hindutava Lab Bahu Layall Beti Bakael” and part of that was read into the record.

18. For the Applicants to succeed I must find that there has been a jurisdictional error.  In effect I must find that the Refugee Review Tribunal made a mistake in its findings either based on an incorrect apprehension of the law or the evidence before it. 

19. Going very quickly through the grounds of appeal it would seem that certainly ground number 1 is simply a statement of the law that allows this Court to look at the matter, while grounds 2, 3 and 4 are more submissions than grounds of appeal. The last ground, ground 5 reads:-

    “A member from Refugee Review Tribunal has taken wrongful consideration on my claims which has leaded to my review affirmed not to grant the Protection Visa”

    I take this ground as saying that there has been an error in the way in which the Tribunal has approached its fact finding function. This is the appropriate way to treat the effect of all of the submissions for the Applicants.

20. A fair reading of the record discloses that the Refugee Review Tribunal looked at whether there was a well-founded fear of persecution arising from their interfaith marriage.  The claim was that they fear that their families will torture and kill them if they return to India.  They fear harm from the Indian population at large and they fear harm from the Indian authorities as a result of their interfaith marriage. 

21. The Tribunal looked at not only what it was that the Applicants said but also to quite a deal of Country Information from independent sources.  Where that information conflicted with what the Applicants put before the Tribunal, the Tribunal had to make findings of fact.  What the Tribunal did, as has already been discussed, is assess the credibility of the Applicants and then, having regard to their credibility, put that against the independent evidence. 

22. In effect, the Refugee Review Tribunal was being asked to accept a claim that what would happen to the Applicants if they went back to India is, that no matter where they went, their families would find out where they were.  The Tribunal was asked to accept that the marriage that the Applicants had entered into had brought such shame on their families that, independently of each other, the families would do what they could to find the Applicants. The Tribunal was asked to accept that once their families knew that the Applicants were in India, their families would be able, without fear of reprisal from the Indian legal system, harm to the point of killing each of them or, in the case of the Second Applicant, force her into a brothel. 

23. Those claims were made and tested by the Refugee Review Tribunal extremely thoroughly. 

24. What this application boils down to is whether the Refugee Review Tribunal was entitled to make the findings it did on the matters of credibility and reliability of the two Applicants.  In my view the Refugee Review Tribunal was extremely thorough in its assessment of the evidence.  It was quite within its purview to simply assess the evidence that was given on 13 September 2013.  That evidence, in and of itself, would have raised grave questions of the credibility of both Applicants. 

25. But to ensure absolute fairness, a letter was sent to each Applicant on 10 October 2013.  Those letters are before the Court in the Court Book.

26. The letters told both Applicants about the areas of concern the Tribunal had, and it gave them a chance to respond.  Some 20 days after sending the letter the Applicants did respond.  Unlike the Migration Review Tribunal hearing, there was nothing of any pressure, or nervousness that would have in any way affected the responses of the Applicants. 

27. The response seemed to have also been compiled with the assistance of a migration agent because that migration agent also sent a supplementary submission to the Refugee Review Tribunal.  Having seen the responses, in my view, it was certainly open for the Refugee Review Tribunal to make the adverse findings that it did. Based on firstly the written visa application made by the First Applicant; secondly the evidence taken in four separate ways on 25 September 2013 and then finally in the letters that were sent by both Applicants on 30 October 2013, it was well within the purview of the Refugee Review Tribunal to rule as they did.

28. Paragraphs 117 to 122 of that decision show that the Refugee Review Tribunal was not only cognisant of the relevant law, it followed it.  I can find no error in the reasoning of the Refugee Review Tribunal.  It follows that I can find no jurisdictional error of such a kind that would warrant the relief sought. 

29. The further submissions and material before me would also lead to the conclusion that while an interfaith marriage in India would certainly be difficult, the evidence could never reach the stage where it could be said that there was a justifiable fear of serious harm or that there would be insufficient protection by the Indian authorities for persons and specifically for the two Applicants, who enter into an interfaith marriage. Nothing in the further material before me or the submissions made by the Applicants convince me that the Refugee Review Tribunal made any jurisdictional error.

30. I therefore dismiss the application with costs fixed in the sum of $3,000.00.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  27 January 2015