WZAVU v Minister for Immigration and Border Protection [2016] FCA 176

FEDERAL COURT OF AUSTRALIA

WZAVU v Minister for Immigration and Border Protection [2016] FCA 176 Appeal from: WZAVU v Minister for Immigration and Border Protection & Anor [2015] FCCA 2580

File number: WAD 580 of 2015

Judge: NORTH J

Date of judgment: 23 February 2016

Date of hearing: 23 February 2016

Registry: Western Australia

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 17

Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent: Mr P R Macliver

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS WAD 580 of 2015

BETWEEN: WZAVU Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: NORTH J DATE OF ORDER: 23 FEBRUARY 2016

THE COURT ORDERS THAT:

1. The appeal is 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 1 Before the Court is an appeal from orders made by Judge Street in the Federal Circuit Court on 17 September 2015. His Honour dismissed an application for review of a decision of the then Refugee Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, dated 17 December 2014 to affirm a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa. 2 The appellant is a Sikh born in Punjab and a citizen of India. He claimed he would be killed by his former wife's family in an honour killing because he and his former wife were divorced. At the time of the Tribunal's decision, his former wife lived in Brisbane with her brother. The appellant's former wife had another brother who lived in Delhi as well as an aunt, uncle and cousins in Melbourne. 3 There were inconsistencies in the evidence given to the delegate and to the Tribunal. Further, in the Tribunal, the appellant could not recall important elements of the account he had given of events central to his claim. At the hearing before the Tribunal, the appellant said that he suffered memory loss and that this arose from the effects of medication taken in immigration detention. The Tribunal accepted the appellant may have memory problems and did not rely on these inconsistencies or lack of recall in making its decision. 4 The appellant and his former wife had married in March 2007. The marriage was a contract arrangement for the purpose of the appellant obtaining a visa to Australia. He travelled to Australia in March 2008 as a dependent on his former wife's student visa. After arriving in Australia, they lived apart from 2008 and separated in 2009. The wife applied for a divorce in 2009 and it was granted in 2010. 5 The Tribunal made the following findings: 27. The Tribunal accepts that the applicant may have had a fight with his former wife's brother and cousins in 2010 and 2011. The Tribunal accepts that the fights may have been related to the marriage and/or the divorce. The Tribunal accepts that physical assault can amount to serious harm but these fights appear to have been two physical altercations, in public and with other people present and in these circumstances, do not, in the Tribunal's view, amount to serious harm. The Tribunal notes that the applicant has had no further approach from his former wife's brother or cousins since then and that his former wife's uncle has been friendly towards him on the few occasions he has seen him since 2010. … 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 [sic] 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. 6 Then the Tribunal provided a separate basis for its decision as follows: 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 Fatahergah Sahib 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. [Footnotes omitted.] 7 The appellant applied to the Federal Circuit Court for review of the Tribunal decision on the following grounds: 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. 8 The primary judge rejected each of these grounds for the reason that the appellant did not identify any jurisdictional error. The rejection by the primary judge was made without any elaboration. 9 On 6 October 2015, the appellant filed a notice of appeal in this Court. The grounds of appeal were as follows: 1. Failure to consider relevant Information and paying regards to irrelevant information. 2. There are some jurisdictional errors in R.R.T decision. 3. The R.R.T member did not assess my complementary Protection Properly. 4. The R.R.T deprived me of natural Justice. 5. Trying to send me back home will result in jeopardising my life, pushing me into life threatening situations being physically harmed, mentally tortured and emotionally unstable for the rest of my life. 6. The R.R.T member made an error of law since the Decision the R.R.T member made regarding my case is wrong. 7. The situation had I had to go back home would be very critical and life threatening to myself; also I will be tortured for rest of my life. 8. Unreasonableness and Unfairness of Procedures and Unwillingness and disregard to further investigate its veracity. 9. Failure to acknowledge that the Applicant was a genuine candidate as a Refugee under Subsection 36(2) of the Migration Act 1958, at Federal Circuit Court. 10 As with the grounds of review in the Federal Circuit Court, the complaints made in the notice of appeal were expressed with such generality that they did not disclose any jurisdictional or indeed any other error. 11 The appellant appeared on the hearing of the appeal by video-link from Darwin with the help of a Punjabi interpreter who was located in Perth. When asked to explain the basis of his appeal, the appellant said that the primary judge made the wrong decision. The appellant said that he did not remember things, presumably in the Tribunal hearing. He repeated his assertion that he was told by his wife's family that if he came back to India, they would kill him. He said that he wished to work and to operate his own farm in Australia. He pleaded to be taken out of detention and said he did not want to go back to India. 12 The role of the Court in judicial review was then explained to the appellant, and when asked to identify the mistake made in the proceedings, he replied that they did not do anything about what he had written to them. 13 The appellant does not speak English and when asked who drew the grounds of appeal which were in English, he said that they had been drawn by a friend. He said his friend was not a lawyer. He concluded his submissions again by asking to be removed from detention and said that he was going mad there. 14 The Tribunal found on the facts that the fights with his former wife's family in Australia in 2010 and 2011 did not amount to serious harm which would qualify the appellant for the grant of a protection visa. The Tribunal also found that such incidents had not recurred since then. The Tribunal did not accept that the wife's family in India had threatened the appellant. In his oral submissions, the appellant, in effect, submitted that these fact findings were wrong. 15 The Tribunal, as a separate basis for its decision, also found that the appellant could return to India and reside in a different part of the province of Punjab without his wife's family knowing of his return or his whereabouts. 16 Each of these conclusions of fact was open to the Tribunal. By his oral submissions and in grounds five and seven of the grounds of appeal, the appellant contests the findings of fact made by the Tribunal. In so doing, the appellant, in effect, seeks a merits review, a function which this Court is unable to undertake. 17 Consequently, the appeal is dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.