BZAEX v Minister for Immigration
[2014] FCCA 1532
•22 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAEX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1532 |
| Catchwords: MIGRATION – Application for protection visa – relocation within India – where tribunal satisfied that relocation reasonable – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B) |
| Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 Januzi v Secretary of State for the Home Department [2006] 2 AC 426 MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 SZRMA v Minister for Immigration & Anor [2012] FMCA 949 |
| First Applicant: | BZAEX |
| Second Applicant: | BZAEY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 585 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 9 December 2013 |
| Date of Last Submission: | 9 December 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 22 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steele |
| Solicitors for the Applicant: | Fischer Migration |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 18 July, 2013 is dismissed.
The applicants pay the respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 585 of 2013
| BZAEX |
First Applicant
| BZAEY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of the decision of the second respondent, made on 17 June, 2013 affirming a decision of the first respondent’s delegate made on 8 August, 2012 refusing to grant to the first applicant and his wife, the second applicant, protection visas.
The applicants contend that the second respondent’s decision should be set aside on the grounds of jurisdictional error. The first respondent opposes the application. The second respondent enters a submitting appearance.
Background
The following summary is taken from the tribunal’s reasons for decision and the factual summary prepared on behalf of the first respondent. It is not, generally, controversial.
The first applicant claimed to fear serious harm as a result of entering politics as an independent candidate in his local municipal elections. He claimed he was subjected to political pressure from the Congress Party, the Bharitiya Janata Party (BJP), Telulgudesham political party (TDP) and the Telengana Rastra Semiti party (TRS). Those parties wanted him to join their party so that his followers would become their followers and they would secure more votes. He claimed that if he disagreed with them and disobeyed them they would harm him. If he joined with one party and not the others, the other parties would harm him. He claimed that he was under a lot of psychological pressure. If he returned to India he feared that they would physically attack and harm him. However, save for one incident that the tribunal did not accept happened, they had not physically attacked him or harmed him in the past.
The first applicant stood for election at the municipal elections held in September, 2005. He stood as an independent candidate. He was always helping the poor, the labourers and the religious minorities. His policies related to their issues. He claimed that these people asked him to stand for election as an independent.
The first applicant claimed that at that election the Congress Party won by 125 votes, next was the TDP with 72 votes, and he was next as the independent candidate. He claimed that both the TRS and the BJP were far behind him. He was in third place. However, the tribunal did not accept this and, based upon material secured by the tribunal from a source described as “State Election Commission”, it determined that he had in fact come fourth in that election behind candidates from the Congress, TDP and TRS parties.
The applicant claimed that he had support from Catholic and Muslim minorities and from people from the scheduled classes, tribes and labourers. For this reason the Congress party was, he claimed, jealous. The BJP is a religious based Hindu party that supports mainly Hindus, and they were against him. The TRS was fighting for a separate state in Andhra Pradesh and wanted him to join with them in that struggle. He did not agree with the idea of a separate state. However the TRS leadership thought the applicant was influential and his followers would join with their struggle if he supported them.
The first applicant claimed that the constant political pressure led to him and his wife deciding to go overseas. He claimed that his life was threatened and he decided to leave India 2 months after losing the election.
He applied for a passport in December, 2005 and it was issued in February, 2006. He applied to go the United Kingdom as a student. In December, 2006 that visa application was refused.
His wife applied for a passport and it was issued to her in January, 2007. She studied English and sat for an English language test and then applied for a visa to the United Kingdom with him as her dependent. Their application was refused. They then applied for visas to Ireland; however that application was also refused. They appealed against that decision however they were unsuccessful.
In February, 2008 the applicant and his wife applied for student visas to Australia and their visas were granted in July, 2008.
During all their attempts to obtain visas so they could leave India the first applicant claims that he was under constant political pressure to join other parties. He could not complain about this to the police because, he claimed, this would only make things worse for him.
The first applicant and his wife arrived in Australia on student visas on 12 August, 2008. Even after coming to Australia the first applicant claimed that he had been contacted by people involved in the aforementioned political parties and they still pressured him to join with them. He did not want to be involved with any of them because they all played “dirty politics”. He wanted to follow his own agenda and policies but that was not possible.
The first applicant and his wife have one child – a son. When they came to Australia, they left him in the care of his grandparents. After arriving in Australia the first applicant’s wife was distressed because they had left their son in India and, he claimed, the distress was also because of the pressure and threats aimed at the first applicant.
The first applicant claimed that he will not be protected in India because the party in government is against him. General elections are held every five years, however in their district the elections have occurred six times because of “dirty politics”. The TRS want a separate state. The Maoists have become involved with the TDP. The Maoists supported the TRS in the 2004 elections. If he goes back to India he claimed that he will be pressured to join this movement and if he does not he fears that he will be targeted by Maoists.
Because of the distress that his wife experienced, the first applicant’s wife was not able to focus on her studies and could not complete her course. He claims that they did not know about migration law in Australia and so did not apply for protection until their student visas were about to expire.
On 28 February, 2012 the applicants applied to the Minister for protection visas.
On 8 August, 2012 the first respondent (by his delegate) decided to refuse to grant the protection visas. The delegate found significant elements of the first applicant’s evidence to be “vague and lacking in plausibility” and had “serious doubts as to the veracity of his claims” for protection. In particular, the delegate considered that the first applicant had lived at the same residential address in Andhra Pradesh until his departure - some three years after the election - and was of the view that if he actually feared harm he would have moved and applied for protection sooner.
On 10 September, 2012 the applicants applied for review of the delegate’s decision by a refugee review tribunal.
On 18 February, 2013 the applicants’ agent provided a written submission to the tribunal and on 24 May, 2013 the applicants attended a hearing before the second respondent.
The tribunal’s decision
On 17 June, 2013 the tribunal affirmed the decision of the first respondent’s delegate to refuse to grant the visas. Relevantly, the tribunal:
a)accepted that the first applicant had stood as an independent candidate in the 2005 municipal elections but found that he came fourth in this election;
b)accepted that the first applicant may have been pressured to join other political parties but found that the threats he had faced did not amount to serious or significant harm;
c)did not accept as credible that the first applicant had been coerced by the police to join the Congress Party as this claim was only made for the first time at the tribunal hearing;
d)accepted that the first applicant had a subjective fear of returning to India, although noted that this was undermined by his three week delay in departing India after being granted a visa and a four year delay in applying for protection after arriving in Australia;
e)accepted on the basis of independent country information that the first applicant’s past involvement in politics meant that there was more than a remote chance of him suffering serious harm from a group described as the Naxalites for reasons of his political opinion if he returns to his home area in Andhra Pradesh;
f)concluded that there was only a “remote” chance that the first applicant would suffer harm outside of his home town in Andhra Pradesh;
g)did not accept that the Indian government would not protect the first applicant from harm from Naxalites outside of his local area; and
h)concluded that it would be reasonable for the first applicant to relocate to another part of India to avoid harm.
The tribunal was not satisfied that the first applicant had a well-founded fear of persecution or that there was a real risk that he would suffer significant harm if he relocated his residence away from Andhra Pradesh.
This application
On 18 July, 2013 the applicants filed this application. Although the application contains five grounds of review, the applicants’ written submissions in support of the application do not squarely address each ground of review. The first respondent’s submissions did, however, address each of the grounds of review in the applicants’ application.
At the hearing before me, Counsel for the applicants confirmed that of the five grounds of review, only grounds 1 and 4 were pressed. Grounds 2, 3 and 5 were no longer pressed by the applicants.
Grounds 1 and 4 of the application are as follows:
1. The Second Respondent made a jurisdictional error by failing to consider an (sic) claims that were raised squarely on the material, being the applicant’s membership of the following particular social groups;
a. Political Leader in India; and
b. Civil Society Activist in India,
…
4. The Second Respondent made a jurisdictional error in relation to its finding that the Applicant could safely relocate within India by:
a. Identifying a wrong issue, asking the wrong question and applying the wrong test in relation to forming a view that ‘the Government of India is taking steps to protect its citizens against violence perpetrated by the Naxalites’ (paragraph 89);
b. Failing to consider country information that Indian Security Forces had been ‘largely ineffective against the rebels ‘ (paragraph 78);
c. Ignoring relevant country information that ‘According to DFATI Maoist insurgents (Naxalites) are active in Jharkhand, Bihar, Chhattisgarh, West Bengal, Maharashtra, Andhra Pradesh, Karnataka, Uttar Pradsh and Odisha.’ (Refugee Review Tribunal Issues Paper, Sate Protection in India, November 2012);
d. Ignoring further information in ‘Between Two Sets of Guns”: Attacks on Civil Society activists in India’s Maoist Conflict, cited by the Tribunal at paragraphs 90 to 91, that:
i. After Lingaram Kodopi, moved to New Delhi in June 2011, he and his aunt were unlawfully detained by police from 9 September 2011 up until the time of the article, 30 July 2012;
ii. Himansu Kumar had to stop his grassroots work with the predominantly tribal population in the Bas tar region of Chhattisgarh because of stale intimidation;
e. Illogical or irrational decision making such that the conclusion reached by the decision-maker was not reasonably open on the evidence; and
f. Failing to consider the applicant’s claims as made regarding relocating internally in India.
Consideration
Perhaps the reason why the applicants chose to address the issues as a whole, rather than by reference to the particular grounds in the application, is that they are closely related.
The applicants contend that the tribunal failed to consider properly the first applicant’s membership of the particular social groups articulated in ground 1 of the grounds of review. Consequently, the applicant submits that the tribunal did not consider the risks to the applicant from political and other opponents wherever it may be that he chose to relocate. The applicants submit that the tribunal ought to have considered those risks instead of restricting its enquiry to whether any harm to the applicants on relocation would come from opponents in Andhra Pradesh, rather than opponents generally.
The applicants now claim that opposition from local opponents (that is, opponents not from Andhra Pradesh but other parts of India where the applicants might relocate) was always a part of the first applicant’s case before the tribunal. They point to paragraphs 57 and 88 of the tribunal’s reasons as an indication that the tribunal was aware of this. Those paragraphs are in the following terms:
57. The Tribunal put to the second-named applicant that she and her husband could relocate to another part of India and live safely away from the people who have threatened them in the past. The second-named applicant responded that they could not relocate and live safely anywhere in India. This is because the Congress Party is all over the country. If the Congress Party loses the election in their home city and they come to know that her husband is somewhere else in India they may think that he was influencing people's voting by telephone or other means. If they lived anywhere in India they would have to live locked away like criminals for their own safety and they cannot do that.
…
88. In response to the Tribunal raising the issue of relocation at the hearing, the applicant also claimed he would not be protected from harm perpetrated by the Naxalites anywhere in India to which he might relocate. He claims that they have contacted him and asked his whereabouts from his family and attended his father's funeral. Country reports indicate that both state and federal governments in India invest significantly in countering Naxalite/Maoist insurgents. Human Rights Watch (HRW) reports that state and federal governments train and fund a number of paramilitary units specifically to target Maoist guerrillas, including the Central Reserve Police Force (CRPF), the Border Security Force (BSF), and the Commando Battalions for Resolute Action (COBRA). According to HRW, COBRA “consists of 10 battalions (approximately 10,000 troops) of special forces trained and equipped for counterinsurgency and jungle-warfare operations. It operates as part of the CRPF” News reports indicate that counterinsurgency operations by these units and police are routine, with regular reports of arrests, surrenders and killings of guerrillas.
Those paragraphs indeed record the case put by the first applicant to the tribunal – that he was at risk of harm from the Congress Party and the Naxalites anywhere in India as articulated by him during the tribunal hearing. However, his claims before the first respondent’s delegate and the tribunal did not extend to a fear of harm from local political opponents not from Andhra Pradesh or opponents to his other social activist activities. His claims were never put in the terms now suggested, namely that he was a member of the following particular social groups:
a)a Political Leader in India; and
b)a Civil Society Activist in India:
In support of his application to the tribunal, the applicants’ agents made a detailed written submission to the tribunal. That document concluded:
109. The Applicant has put forward claims for protection in relation to India based on the risk of harm created by his political opinions and the ongoing pressure he has been receiving from major political parties. This claim is framed in circumstances where the operative reason asserted for the harm feared is convention based.
110. It is submitted that the Applicant has demonstrated that he has a well-founded fear of persecution based on his political opinion and on his work as an active social and community worker for the disadvantaged people. It is contended that this creates a risk of serious harm from which the Indian government offers no protection. Indeed, it has been submitted that up to certain extent the state itself is an agent persecution.
The claims put by the first applicant related to his political opinion and his work as an active social and community worker. His express claims were not that as a member of the particular social groups identified by him he held a well-founded fear of persecution.
It is clear that where the claim of feared persecution relates to membership of a particular social group it is necessary that the particular social group be identified with specificity: Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36]. However, it is also clear that the tribunal is required to deal with the case raised by the material or evidence before it. The tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] the Full Court of the Federal Court of Australia said:
By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
The claim based upon membership of a particular social group must emerge clearly from the materials before the tribunal and the mere recitation of a list of attributes relevant to a visa-claimant does not mean that the tribunal was obliged to consider whether the visa claimant had claimed membership of a particular “social group” defined by reference to those attributes: SZRMA v Minister for Immigration & Anor [2012] FMCA 949 at [32].
Here, it was unnecessary for the tribunal to consider whether the applicant’s claimed fear of persecution was because of his membership of any particular social group. That is because the tribunal was satisfied that the first applicant did have a well-founded fear of persecution if he was to return to Andhra Pradesh. At paragraph 62 of its reasons, the tribunal identified the issues for its attention in the following way:
62. The issues in this case are: has the applicant suffered persecution in the past in India; does the applicant face a real chance of serious harm for a Convention reason in the reasonably foreseeable future in India: and if not, are there substantial grounds for believing there is a real risk that the applicant will suffer significant harm if removed from Australia and returned to India. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicants take no issue with that formulation.
The tribunal later said at paragraph 81:
81. After assessing all the evidence including the country information regarding the recent political violence perpetrated by the Naxalites, the Tribunal is prepared to accept that there is more than a remote chance that the applicant may face serious harm for reasons of his political opinion if he returns to his home area in Andhra Pradesh.
(my emphasis)
The serious harm referred to in that paragraph was serious harm perpetrated by the Naxalites/Maoists. In the immediately preceding paragraph the tribunal said:
80. After assessing all the evidence, the Tribunal accepts that active involvement in politics in the applicant's home area in Andhra Pradesh, may place the applicant at risk of serious harm. In particular, the country information indicates that the Naxalites are prone to using violent means to achieve their political goals. It is noted that the applicant has stated that he does not want to continue an involvement in politics and that his only involvement in politics occurred when he stood as an independent candidate in September 2005, more than seven years ago. It is also noted that the applicant stated that if he had to return to India he could re-open his business or he could go back to teaching rather than to stand again as an independent election candidate. However the applicant has also claimed that he would have to pursue his passion for community work and helping people and this would lead to him being perceived to be acting politically and to influencing people's vote. The Tribunal notes the applicant's claim that he does not support the Naxalites/Maoists and the movement for a separate state and his claim that Naxalites and those who support an independent state have continued to contact him and maintain contact with his family. He fears serious harm from the Naxalites in particular as they use violence to obtain their political goals.
However, the tribunal’s reasons for decision, when read as a whole, reveal that the tribunal was not satisfied that the pressure and threats from other political parties to which the first applicant claimed he had been subjected could be regarded as persecution (esp. paragraph 65 of the reasons for decision). The tribunal expressly rejected the first applicant’s claim that he had been picked up by the local police and taken to a park late at night and told that he must join the Congress party or there would be “consequences for the future”.
Having determined that the first applicant did not have a well-founded fear of persecution by reason of the pressure and threats received by the first applicant from his political opponents, it was unnecessary, even if it was open on the material before the tribunal, for it to consider the first applicant’s membership of the now particularised social groups: MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29]; SZJRU v Minister for Immigration and Citizenship [2009] FCA 315 at [49]-[50] and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]-[25].
Moreover, once the tribunal found that there was more than a remote chance that the first applicant would suffer serious harm for reasons of his political opinion if he returns to his home area in Andhra Pradesh it was also unnecessary for the tribunal to consider the first applicant’s membership of the now particularised social groups: SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78].
The claims made by the first applicant were not that the persecution which he feared arose because of his membership of the particular social groups that he now identifies, but rather his claim was that wherever it was that he lived in India, there was a real risk that he would be subject to persecution because of his political opinions and his passion for community work.
As I have indicated above, the tribunal accepted that there was more than a remote chance that the first applicant may face serious harm for reasons of his political opinion from the Naxalites if he returns to his home area in Andhra Pradesh.
It is in this context that the tribunal then moved to consider the question of relocation within India. That question arose because, by dint of the definition of refugee in the Convention relating to the Status of Refugees and s.36(2) of the Migration Act, a person will be excluded from refugee status if in all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country: SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 approving Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and applying Januzi v Secretary of State for the Home Department [2006] 2 AC 426.
It also arose because the tribunal was obliged to consider the complementary protection provisions of the Migration Act (s.36(2)(aa). In that respect, s.36(2B) is relevant. It provides:
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
The tribunal considered the question of relocation, and whether the applicant was excluded from refugee status because it was reasonable to expect him to seek refuge in another part of the same country, in paragraphs 82 to 94 of its reasons for decision.
At paragraph [87] the tribunal recorded:
However, in the tribunal’s view, the chance that the people who have threatened and pressured the applicant in the past will attempt to find him and persecute him anywhere in India that he should choose to relocate to, is remote.
Whilst the tribunal does not examine whether harm to the first applicant might arise from local opponents upon relocation, the first applicant never claimed to fear harm from political opponents who were based outside of Andhra Pradesh. Moreover, apart from the Naxalites/Maoists, the tribunal determined that the first applicant had not suffered persecution in the past from his political opponents from the Congress party, the TRS, the TDS or anyone else. Having determined that the first applicant had not suffered persecution from those opponents and that he did not hold a well-founded fear of persecution from them in the future, it could hardly then be determined that he held a well-founded fear of persecution form other political opponents when he had not advanced such a claim.
The first applicant did claim to have a well-founded fear of persecution from the political opponents he identified. That fear extended to persecution should he live outside of his home area of Andhra Pradesh and in other parts of India. Insofar as such persecution might arise from Naxalites, the tribunal was alive to the argument. So much appears from paragraph 88 of the tribunal’s reasons:
... the applicant also claimed he would not be protected from harm perpetrated by the Naxalites anywhere in India to which he might relocate.
The tribunal determined that:
a)there was no legal impediment to the first applicant relocating to India;
b)the first applicant could work as a teacher or open a business and money was not a problem for the applicants;
c)the system of national identity registration established in India probably meant that the first applicant could be found by persons looking for him;
d)but the chance that the people who have threatened and pressured the first applicant in the past will attempt to find him and persecute him anywhere in India that he should choose to relocate was remote;
e)with specific reference to Naxalites/Maoists, the government of India was taking steps to protect its citizens against violence perpetrated by the Naxalites; and
f)there was evidence contained in country information considered by the tribunal that others at risk of harm from Naxalites and Moaists had successfully relocated to other areas within India.
Consequently, the tribunal considered that it was reasonable for the first applicant to relocate away from his home area to another part of the country. The tribunal was also satisfied that the circumstances for the first applicant and his wife were such that they could do so without undue difficulty. The tribunal considered that there was not a real chance that the first applicant would face serious harm in India outside his home area in Andhra Pradesh and accordingly, the applicant's fear of persecution in India was not well-founded. He was not a person to whom Australia owed protection obligations.
The tribunal then moved to determine whether, in the context of s.36(2)(aa) of the Migration Act it would be reasonable for the first applicant to relocate to an area of India where there would not be a real risk that he would suffer significant harm.
The tribunal concluded its findings about this aspect of the matter in paragraphs 100 and 101of its reasons for decision:
100. The tribunal considered the country information in paragraphs 71-79 above and notes that there is a level of political violence in Andhra Pradesh, including in the applicant’s home area. In particular violence has been perpetrated by Naxalites. The tribunal accepts that the applicant faces a real risk in his home area in Andhra Pradesh of being arbitrarily deprived of his life as he may be perceived by the Naxalites as a person opposed to them and as a person who would influence people not to support them and their cause. However the tribunal finds, after assessing all the evidence, that the risk of harm is localised to the applicant’s home area in Andhra Pradesh. This is where he has lived all his life, this is where he is known, this is where he has built a community base of supporters, this is where he stood for election in the local municipal elections in September 2005 and this is where his family live.
101. However, the tribunal has to assess the applicant’s claims against the country of India as a whole. For the reasons set out in paragraphs 82 to 91 above, the tribunal finds that it is reasonable for the applicant to relocate away from his home area in Andhra Pradesh to another part of India such as Delhi or Mumbai. Given the applicant’s skills, qualifications, experience and financial means he would be able to re-establish himself and his family in another part of India without undue difficulty. In the tribunal’s view, there is not a real risk that the politicians and political activists, including the Naxalites, who pressured and threatened the applicant in the past, would pursue him and cause him significant harm if he relocated away from his home area in India. Therefore, the tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
The applicants contend that the tribunal did not consider the proper issue in this case. That is, the tribunal did not consider, in relation to relocation, whether the place to which the applicant might relocate would be a safe place specifically from local political or activist opponents. But as I have set out above, the first applicant did not put his case on that basis. He did not suggest that local political or social activist opponents were the issue, but rather opponents from Andhra Pradesh who would find him and continue their efforts to have him join their cause.
The applicants submit that the tribunal did not expressly consider harm from Congress party affiliates, confining any enquiry in this regard to Naxalites. The first applicant suggests that his concern about the Congress party if he was to relocate is expressed in paragraph 57 of the reasons for decision, but is not dealt with in the tribunal’s reasoning about that issue. I have set out paragraph 57 of the tribunal’s reasons above. For the reasons I have set out above, it is clear that the tribunal did consider this aspect of the claim, within the context in which the applicants made that claim.
The applicants suggest that the tribunal framed its consideration of this aspect of the matter, in part at least, on whether the first applicant could relocate to another part of India and refrain from political or social activism. The applicants point out that the tribunal noted at paragraph 84 of its reasons:
The tribunal put to the applicant at the hearing that, given his qualifications, his language skills, and his wife’s qualifications, language skills and financial means, it would be reasonable to expect them to relocate to another part of India where they could live safely, without the fear of political pressure and threats. The applicant acknowledged that he could open a business or find employment as a teacher. The second-named applicant stated that money was not a problem as her father had left her with financial means. Given the particular circumstances of the applicant and his family, the tribunal finds that it is not unreasonable to expect them to relocate to another part of India if it is safe for them to do so.
That is, the applicants argue, the tribunal took the approach that the applicants could relocate by pursuing some other occupation than politics or social activism and by doing so and confining its consideration to former political opponents, rather than possible new opponents on relocation, the tribunal erred in its approach. However, it was always the first applicant’s position that he was not going to re-enter politics. He claimed to the tribunal that he had no desire to do that, although if he lived in India he could probably not refrain from his social activism.
The applicants point out that in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 the High Court considered the general law test relating to relocation. In the joint judgment of Gummow, Hayne and Crennan JJ their Honours noted:
[29] In the present case, public expression of political opinion was of particular significance for the appellant by reason of his activities in Chernovtsy as a journalist. The tribunal appears to have approached his situation on the footing that he might not be able to work as a journalist elsewhere in Ukraine because to do so would be expected to bring upon him further persecution by reason of his political opinions, but this did not make it “unreasonable” for him to “relocate” within Ukraine. This was because as things stood he did not have an antigovernment profile generally in Ukraine and might be able to obtain other work not involving the expression to the public of his political opinions.
…
[32] The effect of the tribunal’s stance was that the appellant was expected to move elsewhere in Ukraine, and live discreetly so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his “relocation” in Ukraine. It presents an error of law, going to an essential task of the tribunal. This was determination of whether the appellant’s fear of persecution was “well-founded” in the Convention sense and thus for the purposes of s 36(2) of the Act.
In my view, the tribunal did not make the error that the applicants now assert. In considering the issue of relocation, the tribunal was required to consider the reasonableness of relocation by reference to the objections to relocation raised by the first applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442-443; SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [124].
The tribunal considered the case put to it by the applicants. It did not make its determination based upon an idea that the first applicant could relocate and refrain from his political activities because his own material demonstrated that he intended to refrain from those activities for the reasons that he gave. It considered the first applicant’s objections to relocation and discounted them on the facts and materials as found by the tribunal.
The applicants argue that insofar as the tribunal made findings about the risk of harm on relocation, the evidence relied upon by the tribunal (in paragraphs 90 and 91 of its reasons for decision), does not support the findings of the tribunal. Two examples are given.
The first appears from page 26 of the report Between Two Sets of Guns, referred to in paragraph 90 of the tribunal’s reasons. The second appears from paragraph 78 of the tribunal’s reasons for decision where the tribunal notes that a recent government offensive against Maoists had been “largely ineffective”.
However, the choice of, and the weight to be placed upon, items of country information is a matter for the tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13]. In my view no error is demonstrated in this regard.
Conclusion
The applicants do not establish that the tribunal’s decision is affected by jurisdictional error. Accordingly, the application must be dismissed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 22 July 2014
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