MZZYX & Ors v Minister for Immigration & Anor [2014] FCCA 1968 (5 August 2014)

Last Updated: 29 August 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZYX & ORS v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1968

Catchwords: MIGRATION – Application for judicial review – medical certificate not support an adjournment – applicants would be at risk on return to India – relocation – whether reasonable in the particular circumstances of the applicants.

Legislation: Federal Circuit Court Rules 2001, r.15.03 Migration Act 1958 (Cth), ss.36(2), 91R(1)(a), 91S

Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Ethnic Affairs & Anor [1994] FCA 1105; (1994) 34 ALD 347 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303; (2003) 134 FCR 43 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703

First Applicant:

MZZYX

Second Applicant:

MZZYY

Third Applicant:

MZZYZ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 43 of 2014

Judgment of:

Judge F. Turner

Hearing date:

5 August 2014

Date of Last Submission:

5 August 2014

Delivered at:

Melbourne

Delivered on:

5 August 2014

REPRESENTATION

The Applicant appeared In Person with the assistance of a Punjabi interpreter

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application for judicial review filed by the first applicant on
13 January 2014 is dismissed.
(2) The applications for judicial review filed by the second and third applicant’s on 13 January 2014 are dismissed.
(3) The first and second applicant pay the first respondent’s costs fixed in the amount of $6,646.00.
(4) All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE

MLG 43 of 2014

MZZYX

First Applicant

MZZYY

Second Applicant

MZZYZ

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for a judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) which is dated 13 December 2013. That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection not to grant the applicants Protection (Class XA) visas.
2. The first and second applicants entered Australia as wife and husband on 11 June 2009 on student visas. The third applicant is their daughter, who was born in Leeton, Australia, on 29 March 2013 (Court Book “CB” pp.44 and 173.1)
3. The first applicant is the wife and will be referred to as the applicant. The second applicant is the husband, who applies as a member of the family unit pursuant to s.36(2)(b) of the Migration Act 1958 (the “Act”). The third applicant has an application made on her behalf as a member of the family unit. The third applicant is just over two years old. The applications of the second and third applicants depend on the outcome of the application by the applicant.
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.
7. The parties have consented to the Court proceeding pursuant to r.15.03 of the Federal Circuit Court Rules 2001 (the “Rules”) to make a decision without hearing oral submissions today.
8. The delegate to the Minister refused to grant protection visas to the three applicants by a decision dated 21 November 2012 (CB p.134).
9. At CB p.138, the claims by the applicant are summarised.
   • “The applicant’s written claims are located at ff42-45 of Department of Immigration and Citizenship file CLF2012/172927 which contains her application for a Protection visa. Her statement of claims is summarised below.

• She was a victim of a family dispute between her father and his uncle. She was threatened by her father’s uncle.
• Her father was in jail on false accusation. Her uncle killed one of the house workers but her father was accused of the crime.
• He has threatened to kill the whole family for the property. She was lucky to be alive. Her husband was also threatened.
• The case they won in the court was appealed by her father’s uncle.
• She said that they were attached by the uncle while she was in the farmhouse.
• He attempted to murder her family so he can get the property. She never returned to India due to her fear of being killed.
• The Indian authorities detained her father and tortured him. Her father’s uncle bribed the police. They do not have any father in the Indian government authorities.”

10. During an interview with the applicant on 19 November 2012, the delegate found “significant elements of the applicant’s testimony to be vague and inconsistent with her written ‘statement of claims’” which is referred to above and the delegate had “significant doubts as to the credibility of her claimed occurred incidents” (CB p.138.7).
11. The delegate stated at CB p.141.5 that:
    • “The applicant must establish that she has a well-founded fear of being persecuted for a Refugees Convention ground such as race, religion, nationality, membership of a particular social group or political opinion.”
12. The delegate continued:
    • “I am not satisfied that the applicant has substantiated her claim of well-founded fear of persecution in India for a Convention reason for the following reasons,”
13. The delegate then set out the reasons for that finding.
14. The delegate found that:
    • “the agents of persecution in the applicant’s case are private individuals, meaning the agents of persecution are non-government” (CB p.142.3).
    • “Persecution by private individuals or groups does not by itself fall within the definition of refugee unless either the State encourages it.”(CB p142.4)
15. The delegate did not accept that the fears of the applicant relate to any Convention related reason (CB p.142.5).
16. The delegate questioned “the credibility of the applicant and the veracity of the claims made...” (CB p.143.5).
17. The delegate was not satisfied that the applicant genuinely fears persecution in India as she delayed making an application for a protection visa for three years after her arrival in Australia (CB p.143.6).
18. The court refers to the decision of Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor [1994] FCA 1105; (1994) 34 ALD 347:
    • “The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution.”
19. The delegate found that:
    • the applicant has the option to relocate within India (CB pp.143.8
      and 144.2), which would be” safe and reasonable”.
    • “the claims provided by the applicant suggest that the matter is of a private nature and is not a Convention based persecution...” (CB p.144.3).
    • “there is no real chance that she will be persecuted for a Convention-related reason if she returns to India” (CB p.144.3).
    • “there is no Convention ground that is the essential and significant reason for the harm feared as required by paragraph 91R(1)(a) of the Migration Act” (CB p.144.4).
20. The delegate was not satisfied that Australia has protection obligations under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol (CB p.144.9).
21. The delegate considered the complimentary protection provisions in s.36(2)(aa) of the Act (CB p.146.3).
22. The delegate was not satisfied that the applicant is a reliable witness of truth (CB p.146.8).
23. In W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703, Tamberlin and R D Nicholson JJ stated at [64]:
    • “The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479 ; [1993] HCA 78; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
      • If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
    • See also Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179; [1990] HCA 47; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.”
24. For the reasons set out in the decision, the delegate found that “there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his (sic “her”) removal there is a real risk that she will suffer significant harm as the applicant can take steps to avail herself of state protection... or even relocate” (CB p.148.2).
25. The delegate was not satisfied that Australia has protection obligations to the applicant under the complementary protection provisions in s.36(2)(aa) of the Act (CB p.148.6). The delegate refused to grant visas to the applicant, her husband and her daughter (CB p.148.10).
26. The applicants then applied for a review by the Tribunal (CB p.152).
27. The Tribunal sent an invitation for the three applicants to appear at the hearing on 19 September 2013 to give evidence and present arguments (CB p.162). The applicant applied for an adjournment as her daughter had to go to the doctors on 19 September 2013. An adjournment was refused and the applicants appeared at the hearing (CB p.173.2).
28. The Tribunal had regard to the proceedings and material before the delegate, and to the materials referred to in Appendix 2 to its decision (CB p.190).
29. The Tribunal summarised the applicant’s claims as follows:
    • “In summary, she states that she was a victim of a family dispute between her father and his uncle, which caused her father to be wrongly imprisoned for the death of their servant who was murdered by the uncle to gain control of the property. Her father was subsequently released, however, his uncle attacked her in the farmhouse and has threatened to kill her and her family.” (CB p.173.10).
30. The Tribunal examined documents from the Supreme Court in India provided to the Tribunal by the applicant, and after questioning her at the hearing concluded that she was “a mostly reliable and credible witness who gave a sincere and honest account of her history in India” (CB p.174.5).
31. The Tribunal found that the applicant’s “family have been in a legal dispute since 1963 over her great grandfather’s estate” (CB p.177.7) which has resulted in “intimidatory actions by Santokh Singh” (CB p.178.3).
32. The Tribunal found that there is a real chance that the applicants would face serious harm in the reasonably foreseeable future if they returned to their home area in the Punjab (CB pp.179.8 and 180.2).
33. The Tribunal discussed with the applicants that the 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 (CB p.180 [26]).
34. The Tribunal did not accept that there was a Convention basis for why the applicant’s family would be singled out for mistreatment (CB p.180.7).
35. The Tribunal found that the reason the applicant’s family may be singled out were “financial” and must be disregarded by reason of s.91S of the Act (CB p.180.7). Similarly, the Court found that revenge is not a ground within the Convention.
36. The Tribunal did not accept that the applicants are members of a particular social group, which is the essential and significant reason they would be targeted for harm (CB 180.9).
37. The Tribunal did not accept that “there is a Convention basis or reason for the applicants being at a real chance of suffering serious harm on return” (CB p.181.1).
38. The Tribunal did not accept that the applicants would be denied state protection by the police because of Convention related reason (CB p.181.3).
39. The Tribunal stated that it did “not accept that the applicants have a well-founded fear of persecution in India” (CB p.181.5).
40. The Tribunal considered the complementary protection provisions in 36(2)(aa) of the Act. The Tribunal found that the applicants would be at a real risk of harm on return to India (CB p.181.8).
41. The Tribunal then considered whether it might be reasonable for the applicants to relocate to another area of the country where there would not be a real risk that they will suffer significant harm (CB p.181.9).
42. The Tribunal found that the risk of the applicants “being located in a part of India outside the Punjab by Santokh Singh or Ram Brij to be remote and far-fetched” and did “not accept that there is a real risk that they will suffer significant harm outside the Punjab” (CB p.182.3).
43. The Tribunal then considered “whether in their particular circumstances it would be reasonable for the applicants to relocate to an area outside the Punjab such as to Delhi, Mumbai or Bangalore” (CB p.182.6).
44. As decided by the Full Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124]- [126]:
    • “The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41SZFDV v Minister for Immigration and Citizenship[2007] ALMD 6401 SZFDV v Minister for Immigration and Citizenship237 ALR 660; [2007] HCA 41; 81 ALJR 1679; 233 CLR 51; 97 ALD 27). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR at 442-443, especially at 443C-D.
    • We do not think that the decision of Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 dictates any different result. In our view, the result in that case turned on its own facts. Of particular importance in that case was the acceptance by the Tribunal that the applicant had been harassed in the past as he had alleged.
    • In the present case, the Tribunal rejected all of the appellant’s claims of past harm and there was no basis for the Tribunal to speculate that the appellant may be harmed if he relocated.”
45. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, Black CJ observed that the focus of the Convention is not upon the protection that the country of nationality might be able to provide in particular regions, but upon a more general notion of protection by the whole of the country. In Randhawa (supra) at p.441, Black CJ considered that the reason for this was that:
    • “If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”

Black CJ also held that given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether he or she could “reasonable (sic “reasonably”) be expected to do so.” His Honour stated at p.442:

“... a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.”

Beaumont J agreed that relocation must be a reasonable option, stating at p.451:

“That is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution.”

46. As stated by Hayne J in Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23 at [21]- [22]:
    • “Consideration may be given to the possibility of a claimant for protection relocating in the country of origin if relocation is a reasonable (in the sense of practicable) response to the fear of persecution^[1]. As three members of this Court pointed out in SZATV v Minister for Immigration and Citizenship^[2], “[w]hat is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person...
    • ... it is evident that the particular circumstances of the plaintiff were not considered by the delegate... By not correctly identifying the relevant question, the delegate made a jurisdictional error.”
47. In the present case, the Tribunal considered the particular circumstances of the first and second applicants (CB p.182 [34]) and found that it would be reasonable for the applicants to relocate to an area outside the Punjab (CB p.182.6).
48. That finding of fact was upon to the Tribunal on the material before it and is not amenable to review.
49. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:
    • “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
50. The Court refers to the following decisions:
    • So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at pp.558 to 559 and W148/00A (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.
    • The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at p.272.
51. In Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 RD Nicholson J stated at [24]:
    • “It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”
52. The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26]:
    • “Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
53. The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.
54. The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 303; (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance where his Honour had said at [16]:
    • “I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146]:
      • A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”
55. The Tribunal found that “there are no substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to India, there is a real risk that they will suffer significant harm” (CB p.183.5). That finding of fact was open to the Tribunal and is not amenable to review.
56. The Tribunal found that the applicants do not satisfy the criterion in s.36(2)(a) or (aa) for a protection visa, and affirmed the decision of the delegate (CB p.183.6).
57. The applicant’s grounds for judicial review are set out in the application filed on 13 January 2014 as follows:
    • “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.”
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.
60. At the hearing before the Court, the applicants were represented by the first named applicant. The first respondent was represented by Mr Brown.
61. The first respondent filed and served Contentions of Fact and Law on
    22 July 2014. The Court accepts the submissions therein that the applicants have not identified a jurisdictional error by the Tribunal, and are seeking a merits 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.
63. The application for judicial review by the first named applicant is dismissed.
64. The applications by the second and third applicants depend on the result of the first applicant’s application. Therefore, the applications for judicial review by the second and third applicants are also dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 28 August 2014

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^[1] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.

^[2] [2007] HCA 40; (2007) 233 CLR 18 at 27 [24] per Gummow, Hayne and Crennan JJ; [2007] HCA 40. See also at 48-49 [100]-[102] per Kirby J, 49 [105] per Callinan J.