Applicant A78 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 220

FEDERAL COURT OF AUSTRALIA

Applicant A78 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 220

APPLICANT A78 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 649 of 2003

MANSFIELD J
27 FEBRUARY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 649 OF 2003

BETWEEN:	APPLICANT A78 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	27 FEBRUARY 2004
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay to the respondent costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 649 OF 2003

BETWEEN:	APPLICANT A78 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	27 FEBRUARY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a young man from India, who is of the Hindu religion.  He arrived in Australian on a student visa on 7 June 1999.  Some time later, on 8 January 2001, he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). To be eligible to be granted the visa it was necessary that the applicant satisfy the delegate of the respondent who considered his application, and on review the Refugee Review Tribunal (the Tribunal), that he is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention). In practical terms that means that the decision-maker had to be satisfied that he is a refugee, as defined in Art 1A(2) of the Convention.

2. His application for a protection visa was refused by a delegate of the respondent on 1 March 2001.  On 26 June 2002 the Tribunal affirmed the decision not to grant him a protection visa.  He was subsequently notified of that decision.  By application to the High Court, on 14 February 2003, the applicant sought prerogative orders, essentially to quash the decision of the Tribunal on the ground that it involved jurisdictional error:  see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. By order of 11 June 2003 the matter was remitted to this Court for further hearing and determination. At the time the applicant was represented.

3. On 10 November 2003 directions were given providing him with the opportunity to amend his application and requiring him to file and serve an outline of submissions and other material in support of his application so that it might be listed for hearing promptly.  He did not comply with those directions.  In fact on 28 January 2004, he filed notice of acting in person.  The matter was listed for further directions on 20 February 2004.  The applicant did not attend. 

4. The matter then was listed for hearing today.  The applicant was notified by letter of 20 February 2004 of the hearing and invited to indicate whether he intended to appear in person or in some other manner.  He indicated to the Court yesterday that he proposed to appear by telephone today.  He has done so.  Although he indicated that he is a little unwell, suffering from a cold, he informed the Court that he was in a position to present his contentions on the application today.  The application has therefore proceeded.

   THE ASSERTED JURISDICTIONAL ERRORS

5. The initial application to the High Court did not, in any precise way, identify any error on the part of the Tribunal which is said to amount to jurisdictional error. The grounds of complaint appear to be extracted from, or to bear some analogy with, those available under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It is difficult to understand how they relate directly to the decision of the Tribunal. There is no amended application.

6. The applicant, today, notwithstanding that it has been explained to him the need to demonstrate jurisdictional error on the part of the Tribunal, has simply asserted factual error on the part of the Tribunal in its conclusion.  To understand the nature of the error asserted and to determine whether it amounts to jurisdictional error it is necessary to refer, briefly, to the Tribunal's reasons in relation to the claims made by the applicant to be a refugee.

   THE APPLICANT’S CLAIMS AND THE TRIBUNAL’S REASONS

7. The applicant claimed before the Tribunal that he feared that, if he returned to India, he would be assaulted or otherwise harmed by enemies he has developed during his time as a successful student politician.  He also claimed to fear harm from a person who recruited him into the Church of Scientology, when he desired to leave that church.  He claimed that person threatened him with some serious consequence if he did not reconsider his decision.

8. He told the Tribunal that in May 1999 he was accosted by some unknown persons and subsequently received threatening phone calls and mail.  He said he reported those threats to the police but no action was taken in respect of them.  He also reported to the police in India, on 15 May 2000, an incident where he claimed that he had narrowly avoided being hit by a vehicle.  He again said to the Tribunal that the police had not pursued investigations into that complaint in a proper manner.

9. The Tribunal raised with the applicant, even accepting his claims, whether he could safely relocate to another part of India.  He said that he could not do so safely.  He said that if he moved to somewhere else in India and he telephoned his parents, those who were pursuing him to harm him would tap the telephone and would therefore find out his whereabouts.  He also said in submissions today that the Tribunal had failed to have regard to the difficulty confronting him in relocation.  He does not know other people, or in other parts of India away from his local area.

10. The Tribunal noted the applicant's claims.  It was satisfied that he may have made enemies in his days as a student politician and that he may have been threatened by a disgruntled former friend as a member of the Church of Scientology.  It did not then proceed to determine whether those claims amounted to a well-founded fear of persecution in the particular area where he lived.  That is because the Tribunal applied the principle of relocation as explained in Randhawa v Minister for Immigration & Multicultural Affairs (1994) 52 FCR 437 (Randhawa). 

11. The Tribunal said:

    ‘The applicant claims he could not safely relocate as his parent’s telephone would be tapped and those who would harm him would learn of his whereabouts when he called his parents.  I am not satisfied that there is any real chance that this would occur.  I am satisfied that if the applicant relocated within India there is no real chance that he would suffer the persecution that he fears.

    The applicant, when asked if there was any other reason why he could not relocate, said, ‘No’. 

    I note that Indian citizens are guaranteed freedom of movement throughout India, by the Constitution, except in certain border areas such as Kashmir. (References omitted.)

    The applicant is 22 years old, well educated and speaks, reads and writes Hindi and English.  I am satisfied that it would not be unreasonable for him to relocate within India.’

12. The Tribunal was therefore satisfied that the applicant does not have a well-founded fear of persecution in India, despite the fears which it accepted he had by reason of his past personal history.  It apparently regarded those fears as well-founded only in respect of his local area.

    CONSIDERATION

13. In my judgment the Tribunal has not committed jurisdictional error in approaching the applicant's claim in that way.  It is plain that to demonstrate that Australia owes him protection obligations under the Convention he must have a well-founded fear of persecution if he were to return to India.  It is not sufficient that he has such a fear if he were to return to a particular part of India.  In Randhawa, Black CJ (with whom Whitlam J agreed) said at 442:

    ‘In the present case the delegate correctly asked whether the appellant’s fear was well-founded in relation to his country of nationality, not simply the region in which he lived.  Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went onto ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.

    This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, 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.  In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.’

    Beaumont J at 450-451 expressed a similar view.

14. The Tribunal properly understood that before it could determine whether the applicant could relocate to other parts of India, where it was safe for him to go, it was necessary to consider whether it was unreasonable to expect him to relocate.  It has properly addressed that issue.  It has made a finding of fact on that issue.  I appreciate that the applicant does not agree with that finding of fact.  However, its finding of fact is one which, in my judgment, was reasonably open to it and does not involve jurisdictional error on its part. 

15. Consequently, in my view, no jurisdictional error on the part of the Tribunal is made out on the basis upon which jurisdictional error has been asserted.  The consequence is that the application must be dismissed.  I so order.

16. I order that the applicant pay to the respondent costs of the application.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             11 March 2004

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	J van Lingen
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 February 2004
Date of Judgment:	27 February 2004