MZZZX v Minister for Immigration and Border Protection
[2015] FCA 455
•8 May 2015
FEDERAL COURT OF AUSTRALIA
MZZZX v Minister for Immigration and Border Protection [2015] FCA 455
Citation: MZZZX v Minister for Immigration and Border Protection [2015] FCA 455 Appeal from: MZZZX & Anor v Minister for Immigration & Anor [2015] FCCA 114 Parties: MZZZX and MZZZY v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): VID 40 of 2015 Judge(s): DAVIES J Date of judgment: 8 May 2015 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – whether primary judge acted in manifestly unreasonable way – whether factual and legal errors in the decision of the Refugee Review Tribunal were not considered by primary judge – no appealable error identified Legislation: Migration Act 1958 (Cth) ss 65, 36(2)(a), 36(2)(aa), 36(2B), 36(3), 91R, 424A, 424AA
Date of hearing: 8 May 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the First Appellant: The First Appellant appeared in person Counsel for the Second Appellant: The Second Appellant did not appear Counsel for the Respondents: Ms Bosnjak Solicitor for the Respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 40 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZZX
First AppellantMZZZY
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
8 MAY 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The First Appellant pay the First Respondent’s costs.
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 40 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZZX
First AppellantMZZZY
Second AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE:
8 MAY 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
The appellants have appealed the decision of the Federal Circuit Court (“FCC”), MZZZX & Anor v Minister for Immigration & Anor [2015] FCCA 114, dismissing their application for an order to show cause in respect of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) to refuse to grant the appellants Protection (Class XA) Visas under s 65 of the Migration Act 1958 (Cth)(“the Act”).
BACKGROUND AND CLAIMS
The appellants are citizens of India who first came to Australia on student visas in 2009. Those visas expired on 21 May 2013.. On 29 May 2013, the first appellant lodged an application for a Protection (Class XA) Visa which included the second appellant as a dependant. In his application, the first appellant claimed that he had owned a dairy farm in Gujurat India between 2003 and 2009. In 2006, he borrowed money from two private financiers and used his land as security. In 2007, when he went to pay the remaining balance due, they demanded more money from him and he was threatened, pushed and beaten. The first appellant claimed that two days later the financiers put a proposal to him that he obtain a butcher’s licence and convert his land to be used as a cattle slaughtering house, which was contrary to his ideology because he is a Hindu, and that when he was slow to reply they threatened to kill him if he did not repay the remaining amount immediately. He went to the police to request help but was told they were unable to help him. One of the lenders then threatened to kill him if he went to the police again. He claimed to have been beaten up by one of the financiers and that he continued to receive threats until he came to Australia in 2009. A delegate of the Minister was not satisfied that the appellants met the criteria for the grant of a protection visa under ss 36(2)(a) or (aa) of the Act and refused the application.
The Tribunal found that the harm feared by the first appellant was a harm feared for a Convention reason, namely for reasons of religion. The Tribunal also accepted that there were substantial grounds for believing that as a necessary and foreseeable consequence of the appellants being removed from Australia to India that there is a real risk that they will suffer significant harm in their home area. However, the Tribunal went onto find that it would be reasonable for the appellants to relocate to another state in India to avoid the localised threat of harm that they face in their home state. In making that finding the Tribunal relied on independent country information. At [54] to [57] the Tribunal stated:
It was put to the applicant at the hearing that India is a vast and very populous nation, and that country information, does not support the proposition that debt collectors have the ability to track down and target debtors wherever they are located in that country especially given information about the lack of central registries and the difficulties that even the police have in tracking down individuals. The applicant stated that the financiers were powerful people and could find him. He noted that his parents had moved to another town in Gujarat but the financiers had located them. He said the financiers were Muslims who have communities right through India and that they could locate him. I have accepted that the financiers have located the applicant's parents but this was in the home state of Gujarat. I accept that there are Muslim communities throughout India but this needs to be seen in the context of India's huge population and size. Even if the financiers have connections with the authorities, the country information concerning the lack of central registries and difficulties police have in tracking down individuals across the nation indicates that the chance that they would be able to locate the applicants are remote. Given the independent country information, I find that the applicants could relocate to other Indian states where there is no appreciable risk of the occurrence of the feared persecution.
There are a number of factors (put to the applicant for comment at the hearing) that strongly indicate that it would [be] reasonable for the applicants to relocate to another state of India to avoid the localised risk of serious harm and significant harm in Gujarat. Both applicants read, speak and write Hindi which is understood by around 40% of the Indian population and a majority in eight northern slates. The applicant can speak, read and write English and the second named applicant can read and write it - English is recognised as an "associate" official language to Hindi, and is used predominantly by educated and professional groups, the media, and in administrative contexts. Both applicants are Hindus which is the religion of the large majority of Indians. Unemployment is low in India and the country is experiencing substantial economic growth. The applicant has experience running his own businesses and has worked in teaching in India. Both applicants are tertiary educated.
Considering all of their individual circumstances and the country information, I find that it would be reasonable for both applicants to relocate to another state in India to avoid the localised threat of serious harm that the applicants face in their home state of Gujarat. According, I find that the applicants do not in the reasonably foreseeable future face a real chance of persecution (Convention or non-Convention related) in India from the financiers and their men or anyone and that their fear of persecution is not well-founded.
Considering the independent country information and the individual circumstances, I find that it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that they will suffer significant harm and that 36(2B)(a) applies in their cases. Accordingly, I find that [there] are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to India that there is a real risk that they will suffer significant harm at the hands of the financiers and their men or anyone else.
FCC DECISION
The appellants applied to the FCC for an order to show cause. The grounds of the application were:
1.My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.
2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3.The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
4.The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore the Tribunal decision dated 22nd Jan 2014 was effected by actual bias constituting judicial error.
The FCC dismissed the application. As to Ground 1, the FCC held that there had been no breach of s 424A of the Act, reasoning, amongst other things, that the information taken into account by the Tribunal in reaching its decision was of a kind falling within s 424A(3) of the Act, or was information in respect of which the first appellant had clearly been given the proper particulars and opportunity to comment in accordance with s 424AA of the Act.
As to Ground 2, the FCC held that the Tribunal did address the statutory requirements and properly applied the requirements of the Act and reached a reasonable satisfaction based on the evidence.
The FCC rejected Ground 3 on the basis that the Tribunal had found that the appellants could relocate to another part of India and therefore there was no well-founded fear within the meaning of the Convention.
The FCC rejected Ground 4 on the basis that the ground was an impermissible attempt to challenge the merits of the Tribunal decision and findings of fact made. The FCC concluded that it was reasonably open on the material before the Tribunal to come to the findings that it did in respect of the ability of the appellants to relocate in India and the reasonableness and the practicality for the appellants to do so.
THE APPEAL
The appellants have appealed the decision of the FCC. The grounds of appeal are as follows:
1.The Hon. Judge failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2.The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.
The grounds are not easily understood nor is it clear whether the appellants intended to raise new grounds that were not raised before the FCC or whether the appellants were essentially relying on the same grounds. The first appellant, who appeared at the hearing, was asked to explain what he meant by the grounds. He stated that the Tribunal wrongly found that it was reasonable for him to relocate to another part of India as the financiers could still find him and he fears that he will be harmed by them. He also stated that the Tribunal did not give him the opportunity to provide proofs that he had been attacked by the financiers and had made complaints to the police.
Insofar as the appellants intended to rely upon the same grounds they had advanced before the FCC, the FCC was correct to hold for the reasons given that no error of law was shown in the Tribunal’s decision and that each of the grounds lacked any merit. Insofar as the grounds were intended to raise new grounds, those grounds also lack any merit. The reasons for the Tribunal show that the Tribunal addressed the criterion for the grant of a protection visa and did not ignore questions of persecution and harm in terms of s 91R of the Act. Indeed, the Tribunal accepted the appellants’ claims that they would face persecution for a Convention reason and/or significant harm in their home state. However, as set out correctly in the Tribunal’s decision at [15] and [20], the effect of ss 36(2B) and (3) of the Act is that Australia will not owe protection obligations to a non-citizen, even if they otherwise would be entitled to a protection visa, if he or she can reasonably relocate to another region in his or her home country and not face a real chance of persecution or a real risk of significant harm. In this case the Tribunal concluded on the basis of independent country information available to it that and the appellants’ particular circumstances that it would be reasonable for the appellants to relocate to other states in India where they would not face persecution or a real risk of significant harm. At [31] of the FCC’s decision, FCC held that the statutory requirements were clearly addressed by the Tribunal and that the Tribunal did properly apply the requirements of the Act and reached a reasonable satisfaction based on the identified evidence. That evidence provided a proper foundation for the finding by the Tribunal as to the capacity of the appellants to relocate to another part of India and the reasonableness and practicality in that regard for the appellants to do so. At [33] the FCC also found that it was reasonably open on the material before the Tribunal to come to the findings that it did in respect of the ability of the appellants to relocate in India and the reasonableness and practicality for the appellants to do so. No error of law is shown in the decision of the Tribunal or the FCC, and insofar as ground 1 of the appeal seeks to advance some new or different ground to the grounds considered by the FCC, that ground does not add anything further and should be dismissed.
Ground 2 is not particularised and also lacks any merit. The FCC correctly addressed each ground raised in the application for show cause, and no discernible appealable error can be identified in the FCC’s reasons for decision. As the FCC stated at [33]:
… what is sought to be raised is really an attack on the findings made by the Tribunal.
The FCC and this Court can only entertain a challenge which falls within the kind which is jurisdictional error of law. Neither the FCC nor this court can engage in a rehearing of the merits or a challenge to findings of fact.
Finally, in relation to the first appellant’s oral submission that the Tribunal did not give him opportunity to provide proofs, it is noted that the Tribunal did in fact accept the first appellant’s claim to have been attacked and the inaction by the police.
CONCLUSION
The appeal should be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 8 May 2015
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