FEDERAL COURT OF AUSTRALIA

MZYMQ v Minister for Immigration and Citizenship [2012] FCA 170

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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.

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an appeal from a judgment of a Federal Magistrate (MZYMQ v Minister for Immigration and Citizenship [2011] FMCA 817) in which the Federal Magistrate dismissed the appellant’s application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) visa (“Protection visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3     The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

4     For the reasons that follow, I am satisfied that no error on the part of the Federal Magistrate has been demonstrated and that the appeal should be dismissed.

BACKGROUND

5    The appellant is a citizen of India who arrived in Australia on 1 January 2009. On 31 August 2010 the appellant lodged an application for a Protection visa with the Department of Immigration and Citizenship on the grounds that he feared serious harm from his wife and father-in-law arising from his matrimonial problems with his wife. The appellant claimed that he had entered into an arranged marriage in 1991 and that domestic disputes began shortly after his marriage, as a result of his wife’s “nature” changing. The appellant said he had come to Australia with his wife and son in the hope of making a “clean start” with his wife. For the sake of his son, he was hoping his “wife’s nature would improve”. However, the appellant claims his wife then abandoned him and returned to India without telling him. It is alleged that the wife agreed to a divorce but only on the condition that the appellant pay her 10 million rupees, otherwise she and her father would kill the appellant’s (and her own) son.

6    On 15 November 2010, a delegate of the Minister refused the appellant’s application for a Protection visa. The appellant filed an application in the Tribunal for review of the delegate’s decision which was heard and dismissed by the Tribunal’s decision of 18 April 2011.

The Tribunal’s Decision

7    The Tribunal accepted many of the appellant’s claims in relation to his matrimonial problems in India and Australia. The Tribunal accepted that confrontations between the appellant and his wife occasionally involved minor levels of physical violence and threats of violence but none that amounted to serious harm. The Tribunal accepted that significant divorce payments had been sought from the appellant. The Tribunal also accepted that the appellant’s father-in-law made generalised threats to the appellant in the heat of anger. However, the Tribunal found these were essentially isolated and hollow threats which never resulted in serious harm.

8    In relation to the claimed threats against the appellant’s son, the Tribunal did not accept that the appellant’s wife had ever made threats that she intended to kill their son, neither in connection with the divorce payments nor for any other reason. The Tribunal also did not accept that the appellant’s wife had seriously harmed the appellant’s son.

9    The Tribunal relied upon three separate grounds in concluding that the appellant did not satisfy the definition of a refugee contained in the 1951 Convention. The Convention to which the Tribunal referred is the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”). The first ground was that based upon the appellant’s past experience, and taking into account the requirements of s 91R(1)(b) of the Migration Act, the Tribunal was not satisfied that the appellant faced a real chance of “serious harm” if returned to India. As a result the Tribunal was not satisfied that the appellant had a well-founded fear of persecution.

10    Secondly, and in any event, the Tribunal was not satisfied that any fear of harm held by the appellant was for a Convention reason. Thirdly, the Tribunal was satisfied that even if the requisite well-founded fear was established in relation to the appellant returning to his home region, the appellant could reasonably relocate to another region in India where there would be no appreciable risk of the occurrence of the feared persecution.

THE FEDERAL MAGISTRATE’S DECISION

11    On 11 May 2011 the appellant lodged an application in the Federal Magistrates Court agitating the following grounds:

1.    That the Tribunal’s decision was in breach of s 424A of the Migration Act.

2.    That the Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error.

3.    That the Tribunal made error of natural justice because it failed to provide further opportunity to appeal hearing before the Tribunal.

12    The Federal Magistrate found that the appellant had failed to raise any meaningful grounds related to his particular circumstances that identified jurisdictional error. In relation to ground one, the Magistrate found that the Tribunal was under no obligation to comply with s 424A(1) of the Migration Act as there was no information falling within the scope of that provision which the Tribunal was obliged to inform the appellant of.

13    In relation to grounds two and three, the Federal Magistrate found that the Tribunal had afforded the appellant procedural fairness by inviting him to attend a hearing before it at which it put to him the proposition that the harm feared may not constitute serious harm, that his claims did not have a Convention nexus, and that it might be reasonable for him to relocate within India. The appellant was given a reasonable opportunity to respond. The Federal Magistrate was satisfied that the Tribunal had complied with s 425(1) of the Migration Act in the manner outlined by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 by ensuring that the appellant was alerted to the dispositive issues arising on review and had a reasonable opportunity to respond to them.

GROUNDS OF APPEAL IN THIS COURT

14    On 10 November 2011, the appellant filed a Notice of Appeal in this Court which contained the following stated grounds of appeal:

1.    The FM 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 s 91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The FM dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

15    The appellant’s grounds of appeal were not supported by any particulars. Despite orders permitting the appellant to file written submissions ten clear working days before the hearing date, nothing was filed and served.

16    At the hearing on 27 February 2012, the appellant was self-represented and assisted by an interpreter. The appellant made submissions which repeated some of the claims made by him to the Tribunal. He said that his life would be in danger if he were returned to India and that he would not be able to seek protection from either the government or the police in India. The appellant further said that he needs more time in Australia in order to sort out the situation with his wife in India.

Ground One

17    The first ground is a new ground not raised before the Federal Magistrate and therefore requires leave to be raised on this appeal. The relevant principles regarding the raising of new grounds of appeal were the subject of detailed consideration in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11] (Flick J). Leave should only be granted to raise new grounds on appeal where it is expedient in the interests of justice. For a ground to be argued and determined for the first time on appeal, it must at least be shown that the ground has a reasonable prospect of success.

18    Ground one sets out an allegation that the Tribunal’s decision was manifestly unreasonable because, in terms of what s 91R of the Migration Act requires, the Tribunal ignored the appellant’s claims of fearing persecution and harm. Section 91R deals with the degree of harm and the nature of the persecution required for the Convention to have a protective application.

19     In determining whether the appellant had a well founded fear of persecution, the Tribunal considered all of the appellant’s claims founded upon his alleged marital problems and the attendant threats of violence against him, from his wife and father-in-law. The Tribunal then considered the nature of the previous harm suffered by the appellant and the nature of the harm that may be experienced by the appellant if returned to India. In doing so, the Tribunal took into account the requirements of s 91R of the Migration Act and considered whether the appellant’s fear for persecution involved a fear of “serious harm”. The “aspects of persecution and harm in terms of s 91R” were not “ignored”. The appellant has not identified and it is not apparent that s 91R was misapplied.

20    I am satisfied that the first ground has neither merit nor any reasonable prospect of success. It is not expedient in the interests of justice that leave to raise it should be granted.

Ground Two

21    The second ground is a broad and unparticularised claim that fails to identify any specific error on the part of the Federal Magistrate. Doing the best I can I am unable to identify any error on the part of the Federal Magistrate in failing to identify jurisdictional error by the Tribunal. For completeness I will reconsider the grounds agitated in the court below.

22    In terms of the ground that the Tribunal breached s 424A of the Migration Act, I agree with the Federal Magistrates reasons at [18]. Section 424A obliges the Tribunal to put to an applicant certain information upon which it might base the determination of its decision. It is a provision going to procedural fairness. However, the only information upon which the Tribunal relied was the appellant’s oral evidence given at the hearing. No error is apparent in the reasoning of the Federal Magistrate.

23    In relation to the second and third grounds before the Federal Magistrate, it seems to me that the Federal Magistrate correctly identified that the essence of what the appellant was alleging was a breach of s 425(1) of the Migration Act. Furthermore, I agree with the Federal Magistrate’s observations at [19] that the Tribunal sufficiently alerted the appellant to the dispositive issues which arose on the review and thereby fulfilled its s 425(1) obligations. Further, there was no obligation upon the Tribunal to invite the appellant to a further hearing.

24    As no error on the part of the Federal Magistrate in relation to ground two has been demonstrated, this ground must also be dismissed.

DISPOSITION

25    For those reasons the appeal must be dismissed. The appellant should pay the first respondent’s costs of the appeal. I will make orders to that effect.

Associate:

Dated:    2 March 2012