WZAVU v Minister for Immigration

[2015] FCCA 2580

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAVU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2580

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the applicant will face a real risk he will suffer significant harm if he returned to India – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: WZAVU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 27 of 2015

Judgment of: Judge Street

Hearing date: 17 September 2015

Date of Last Submission: 17 September 2015

Delivered at: Sydney

Delivered on: 17 September 2015

REPRESENTATION

The Applicant appeared in person (by video-link with interpreter)

Solicitors for the Respondents: Mr D Carroll
Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 27 of 2015

WZAVU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 December 2014 affirming the decision of the delegate not to grant the applicant a protection (Class XA) visa.

2. The applicant arrived in Australia on 12 March 2008 as a dependent on his former wife’s student visa.  The grounds of the application are as follows:

   1. I have more evidence and enough information for fair complimentary protection review

   2. The R.R.T. deprived me of natural justice.

   3. Trying to send me back home will result in jeopordising my life. Pushing me into life threatening, physical & mental torture.

   4. The decision made by the member in R.R.T is wrong.

   5. The secondry respondent made an error of law by not considering.

   6. The R.R.T member did not assess my complementary protection properly.

   7. There are some jurisdictional errors in R.R.T decision.

   8. The situation had I had to go back home would be very critical and life threatening to myself: also I will be tortured for the rest of my life.

3. On 29 April 2015 orders were made by the Registrar that provided the applicant with an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

4. The applicant claimed that he did not wish to return to India, because he had no money and because he wants to buy a farm in Australia.  The applicant apparently told the Tribunal that he would harm himself if he had to return.  The Tribunal noted it can only consider whether there is a real chance he will suffer persecution in India or a real risk he will suffer significant harm if he returned to India. 

5. The applicant stated that he had lost his memory, since he was taking medication.  The applicant identified that he was suffering from memory loss, which the Tribunal said it took into account.  The Tribunal found the applicant was able to meaningfully participate in the hearing and gave him an extended period after the hearing to provide further information.  The Tribunal relevantly held:

   29. The Tribunal does not accept that the family of the applicant's former wife have threatened to kill the applicant in India or will seek kill the applicant in India in an honour killing because of the divorce. The marriage was a financial arrangement in which the applicant provided financial support that enabled the wife to obtain student visa. The wife gained from the arrangement and the wife ended the arrangement. The divorce occurred in 2009 and, whilst the applicant suffered some harm from the applicant's brother and cousins in Australia in 2 fights in 2010 and 2011 , he has had no further contact from his former wife's brother or cousins since then although they could presumably find him through friends if they wished to; and the applicant has had friendly contact with his former wife's uncle in Australia since 2010. For these reasons, the Tribunal does not accept that the applicant's former wife's family wish to kill him in an honour killing.

   30. The Tribunal does not accept that the applicant's former wife's cousins went to his last address in India and said they would kill him if he returns. Firstly, the Tribunal does not accept that this event occurred because the address was a rental address and they would have known he was in Australia. Secondly, the Tribunal does not accept that her cousins in India threatened to kill him when her brother and cousins in Australia have not harmed him or contacted him since 2011. Thirdly, the Tribunal does not accept that his former wife's cousins will harm him on return to India given that he has had no contact from her brother and cousins in Australia since 2011 and has had friendly contact with her uncle.

   31. As a separate and independent finding, the Tribunal is satisfied that the applicant can safely and reasonably relocate to another district within Punjab state. The Tribunal is satisfied that the harm the applicant fears is confined to his former wife's relatives in their home district of [X] district of Punjab. The Tribunal is satisfied that the applicant could return to India and reside in a different part of Punjab without his former wife's family becoming aware of his return or his whereabouts. Freedom of movement is guaranteed under the Indian constitution so there is no legal impediment to him moving to a different district.  The current population of Punjab is 28.8 million people and Sikhs comprise over 50% of the population. The applicant has lived independently of his family since he was a child and has had no contact with them since 2008 so there is no impediment to him living away from his family. He has lived and worked in Australia for 6 years and the Tribunal is satisfied that he could establish himself in another town or district of Punjab and obtain employment and accommodation and live a normal life there. The Tribunal notes that the applicant is currently taking painkillers and has problems with his memory. The evidence before the Tribunal does not indicate that he is suffering from a mental health condition that would impede his ability to establish himself in a different part of Punjab.

   32. For all of the reasons set out above, the Tribunal does not accept that the applicant faces a real chance of serious harm in India now or in the reasonably foreseeable future because his wife divorced him in 2009. The applicant has not claimed to fear harm in India for any other reasons. Accordingly, the Tribunal finds that the applicant does not have a well -founded fear of persecution in India.

   33. For the reasons set out above, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if removed from Australia and returned to India.

6. It was in those circumstances that the Tribunal held that the applicant was not a person in respect of whom Australia had a protection obligation and that the applicant did not meet the criteria under ss.36(2)(a) or 36(2)(aa).

7. Ground 1 fails to identify any arguable jurisdictional error.  Ground 2 fails to identify any basis upon which there could be identified any jurisdictional error.  Ground 3 fails to identify any matter giving rise to any jurisdictional error.  Ground 4 fails to identify any arguable jurisdictional error.  Ground 5 is a general allegation un-particularised and fails to identify any jurisdictional error. 

8. In relation to ground 6, it is clear that the Tribunal turned its mind to whether there was a risk the applicant would suffer significant harm if removed from Australian and returned to India.  The Tribunal’s findings in that regard were open and its findings in relation to the applicant’s ability to relocate to another area were also open.  Ground 6 fails to identify any jurisdictional error.  In relation to ground 7, the generalised allegation of errors, do not identify any jurisdictional error.  Ground 8 also fails to identify any jurisdictional error. 

9. The applicant did not say anything from the bar table in answer to the first respondent’s submissions or in support of his application to identify any arguable jurisdictional error.  The application is dismissed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 23 September 2015