MZABC v Minister for Immigration

[2015] FCCA 756

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 756

Catchwords:
MIGRATION – Whether reasonable for applicant to relocate to an area of country – whether Tribunal correctly considered applicant’s particular circumstances – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2B)(a), s.36(20)(aa), s.36(2B)

SZSRO v Minister for Immigration and Border Protection [2014] FCCA 2205
SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3

Applicant: MZABC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 367 of 2014

Judgment of: Judge Jones

Hearing date: 17 February 2015

Date of Last Submission: 17 February 2015

Delivered at: Melbourne

Delivered on: 9 April 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed on 3 March 2014 be dismissed.

2. The Applicant pay the First Respondent’s costs in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 367 of 2014

MZABC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 January 2014 affirming a decision of the Minister’s delegate dated 15 July 2013 not to grant the Applicant a Protection (Class XA) visa (“the visa”).

2. The Applicant is a 28 year old male citizen of India, born in the Adilabad area of Andhra Pradesh. He lived in Hyderabad from August 2006 to February 2009, before departing for Australia (CB39-40)

3. The applicant’s religion is Hindu and he belongs to the ‘Reddy’ ethnic group. He speaks, reads and writes in Telugu, English and Hindi (CB16) and has completed secondary school and acquired tertiary qualifications in India and Australia (CB19).

4. The applicant arrived in Australia as the holder of a student visa on 15 February 2009. He originally applied for the grant of the Protection visa on 17 December 2012 but this application was deemed invalid. A subsequent application was lodged on 19 March 2013 (CB4-14). Whilst in Australia the applicant worked in reception and as a sales person in telecommunications (CB20).

Applicant’s Claims for Protection

1. The applicant’s claims are set out in a statement (CB30-41), the contents of which are accurately summarised at (CB121-122, [9]) of the Tribunal’s decision record. He also gave detailed evidence at the hearing (CB122-124, [10]-[16]).

2. The applicant claims to fear harm arising from his father’s membership of the Telugu Desam Party (TDP). The applicant assisted his father’s local election campaign in the July 2006 elections. The applicant received taunts and threats from the opposition and two days prior to the election, when driving on campaign business, he was stopped by men associated with the opposition party including two men named Sudhakar and Babu Patel. He was assaulted and injured. His father told him to remain at home until after the election. When the applicant’s father lost the election, his family had to leave town for a while and the applicant went to Hyderabad for five days.

3. His father then contested Sarpanch elections held in his village. The applicant assisted the TDP to campaign for his father; he was a key part of his father’s campaign.

4. The applicant encountered further incidents around the time of the other elections; in August 2006 Sudhakar held a knife to the applicant’s face and threatened to kill him if he and his father continued to contest the election and did not leave politics. The applicant’s father lodged an official complaint against Babu Patel and Sudhakar with the police, which resulted in their arrest. However, their party soon intervened and they were released.

5. Following the applicant’s father’s loss of the Sarpanch election, the applicant and his family feared reprisals from Babu Patel and Sudhakar. The applicant’s father ordered a TDP member to drive the applicant to Hyderabad. He was on his was to Hyderabad when he was stopped by Babu Patel and Sudhakar and severely beaten. He was released but was told that if he was ever seen again in the village or made a complaint, he would be killed.

6. The applicant remained in Hyderabad where he undertook further studies. He was too frightened to return to the village. In 2007 he was summoned to give evidence in Court against Babu Patel and Sudhakar but did not give evidence because he was too scared. He received calls from a silent number warning him not to give evidence in Court.

7. When he was in Australia, his parents informed him about the situation in the village. In August 2012, his father told him that the case against Babu Patel and Sudhakar had been dismissed and that it was safe to return. He returned to the village in October 2012. However, after one week back he was told by Babu Patel and Sudhakar to leave the village. They threatened they would kill him if they ever saw him again. He suffered depression and was hospitalised for a week as a consequence of this incident. He filed a complaint against Babu Patel and Sudhakar and left India.

8. The applicant fears that if he goes back to India, he will be harmed by Babu Patel and Sudhakar or their agents. The political situation in Adilabad is corrupt and he could no receive protection from the police as they are dependent on local politicians.

Tribunal Decision

Refuge Convention Criteria

1. The Tribunal noted that the applicant gave evidence before the Tribunal consistent with the claims he had made in his written statement (CB122-123 [10]) and referred to the detailed account the applicant gave in respect of a number of his claims (CB123 [11]-[13]). The Tribunal found that the applicant gave his evidence in a “direct sincere and responsive manner…mostly based on his direct personal experience and was not a rehearsed or manufactured account of events”. He “did not seek to embellish or exaggerate his evidence” when presented with the opportunity to do so. While there were some minor inconsistences, the Tribunal was prepared to accept that this was caused by the passage of time and not due to fabrication of events (CB126 [23]). The Tribunal also considered the applicant’s responses to questions regarding the possibility of relocation to another area of India to have been “candid and genuine”. 

2. The applicant’s evidence was also independently corroborated by independent information supporting his father’s involvement in local politics and claims of election related violence (CB126-127 [24]). For these reasons, the Tribunal considered the applicant to be a credible and reliable witness (CB127 [25]).

3. Having accepted the applicant’s account (CB127 [26]) the Tribunal at (CB128-129 [29]):

   a)found that the applicant was physically mistreated and threatened in the past, and accepted that that mistreatment amounted to serious harm for the purposes of s. 91R(1)(b) of the Migration Act 1958 (the Act);

   b)accepted that Babu Patel and Sudhakar remain active in the Kirgul B area of the Adilabad, and that if the applicant returned there is the reasonably foreseeable future, there is a real chance they would again threaten him with harm and, if he did not accede to their demands, subject him to serious harm;

   c)accepted that the essential and significant reason for the applicant being at risk of harm is his membership of a particular social group of his family and his real and imputed political opinions in support of the TDP party; and

   d)accepted the evidence that the local police were corruptible and that at the local level the applicant would be unable to avail himself of protection from the harm he fears.

Relocation

1. The Tribunal proceeded to consider whether it would be reasonable for the applicant to relocate to another part of India where there would not be a real risk he would suffer significant harm: s.36(2B)(a).

2. The Tribunal stated ( CB129 [30]:

   “[30] As discussed with the applicant at the hearing, the Tribunal must also consider whether, in his particular circumstances, it would be reasonable for him to relocate to another part of India where there was no appreciable risk of the occurrence of that persecution.”

3. The Tribunal first considered whether the applicant would suffer serious harm from Babu Patel and Sudhakar in the event that he returned to and resided in a large city such as Bangalore or Mumbai, outside Andhra Pradesh.

4. The Tribunal had regard to the applicant’s evidence that he had been able to live in Hyderabad for almost two and a half years before he came to Australia, during which time he did not encounter any problems apart from a few phone calls from silent numbers warning him not to return to the village. The Tribunal noted that when it first raised with the applicant the possibility of relocation to Bangalore and Mumbai, he responded initially that he could go and live in other parts of India but:

   a)it would be difficult for cultural reasons ;

   b)he would have a fear Babu Patel and Sudhakar would locate him; and

   c)his parents would visit him and this might cause Babu Patel and Sudhakar to find him.

5. The Tribunal stated the applicant did not offer an explanation how this might happen (CB129 [30]).

6. The Tribunal noted that, as discussed with the applicant during the hearing, independent country information indicates he could freely move about in India and that there is no registration or national identification system in country with a large population and land mass. In these circumstances it formed the view that it was difficult to understand how he could be located by Babu Patel and Sudhakar. Further, absent an explanation from the applicant, his claims he would be tracked down when his parents visited him was remote and were far-fetched (CB129 [31]).

7. The Tribunal concluded (CB130 [31]) that:

   “[31]…. Having carefully considered the evidence and information before it, the Tribunal does not accept that there is a real chance he would suffer serious harm from Babu Patel and Sudhakar in the event he returned to and resided in a large city such as Bangalore or Mumbai, outside Andhra Pradesh.”

8. The Tribunal then considered “whether in his particular circumstances, it would be reasonable for the applicant to relocate to an area outside Andhra Pradesh”. The Tribunal stated (CB130-131 [32] – [34]):

   “[32]…When it discussed this issue with him, his clear evidence was that he could relocate but that it would be difficult to do so for cultural reasons, as every state has a different culture, with each one being like a different country; he did not know what the culture was like in other parts of India and it would not be easy for him to settle into a new place. In his post-hearing submission he said that there had been changes to the family registration cards since he left, but did not explain how that would cause him to suffer problems or difficulties if he relocated, and as noted above, the information before the Tribunal indicates that there are no impediments or registration requirements for a person moving to another area of India. He also wrote that he would face very heavy competition from local people in finding employment and that his degree would not allow him to get a job, but did not explain how or why that would be the case. He also said that he does not have family or friends outside his state, but he said his parents would travel to see him if he lived in Bangalore or Mumbai. He said that he is sad living away from his parents but does not want to return to India and wants to be happy and have a good life, free from fear.

   [33] The evidence before the Tribunal is that the applicant can speak three languages, Telugu, Hindi and English, has completed 16 years of education and worked for over 4.5 years in Australia in various service roles, including at a reception centre, at a marketing centre selling SIM cards and at a postal centre, all of which required him to be fluent in English and to deal face to face with customers. In addition, he comes from a relatively wealthy family who own property and an agricultural and farming business, and are involved in the construction industry, and that he has a close relationship with them and they financed his travel to and study in Australia, as well as his return trip to India in 2012.

   [34] The Tribunal has carefully considered the evidence and information before it, including information which indicates that unemployment in India is relatively low and that the economy is expected to continue to grow in the next few years. It notes that the applicant agreed with that information and that the prospects of him finding work outside Andhra Pradesh were good; it notes his post-hearing claim that he would face heavy competition form locals and that his degree would not allow him to get a job, however, in the absence of a credible explanation as to how or why that would be the case, the Tribunal does not accept that his degree from Andhra Pradesh would not be recognised in other parts of India and, while it accepts he would face competition from local residents in his place of relocation, it does not accept that it would be a barrier to him obtaining employment outside Andhra Pradesh. It accepts his evidence that India is collection of many individual states (sic), each with its own culture, and that he would encounter some difficulties in moving to an area outside Andhra Pradesh, where the culture was foreign to that which he is familiar. However, as noted above, he can speak, read and write in the national languages, Hindi, and in English, which is also widely spoken in large cities such as Bangalore and Mumbai, and he has shown through his residence in Australia, that he was resourceful and adaptable to a new environment in which he did not know anyone before he arrived, which indicates he has the necessary skills and resilience to relocate, including in finding employment in a competitive labour market. The Tribunal accepts that he feels sad because he lives away from his family, but notes that that situation would exist if he is in India but outside Andhra Pradesh or in Australia, and, as discussed with him, if he lived in Bangalore or Mumbai or some other place outside Andhra Pradesh, it would be possible for his family to visit him, which would alleviate to a degree his sadness from being separated from his parents.”          

9. The Tribunal concluded that in the applicant’s particular circumstances, it would be reasonable for him to relocate outside of Andhra Pradesh if he returned to India.

Complementary Protection criteria

1. The Tribunal considered the evidence against the criteria under s.36(20)(aa) and s.36(2B) as follows (CB131 [38] to [39]):

   “[38] In light of its earlier reasons with regard to there being a real chance that if he returns to his home area he would be seriously harmed by Babu Patel and Sudhakar or their agents, the Tribunal considers there are substantial grounds for believing there is a real risk he will suffer significant harm in that way in the Andhra Pradesh region. However, in light of its earlier reasons with regard to there not being a real chance of him being seriously harmed for those reasons outside Andhra Pradesh, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm outside Andhra Pradesh.

   [39] In relation to the issue of relocation, in light of its earlier reasons set out above in paragraphs 32 to 34, including with regard to him being a highly educated Hindu who has a number of years of work experience, which he gained in a foreign, competitive job market, who has been able to adapt to life in a foreign country such as Australia, who comes from a relatively wealthy family who are supportive of him and his situation, who can speak, read and write in three languages, including Hindi and English, in these circumstances, although it acknowledges that due to the cultural differences it would not be an easy transition to settle into a new environment in Bangalore or Mumbai or some other place outside Andhra Pradesh, having carefully considered the evidence and information before it, for all of the above reasons, the Tribunal considers that, in his particular circumstances , it would be reasonable for the applicant to relocate to one of the larger towns or cities outside Andhra Pradesh if he returned to India.”

Grounds for Judicial Review

1. The applicant has specified his grounds for judicial review in his Application filed on 3 March 2014:

   “The Tribunal denied me procedural fairness because they didn’t give me a fair hearing and failed to properly consider all of my claims.”

Applicant’s Submissions

1. The Applicant was self- represented and assisted by an interpreter in the Telugu and English language. The applicant did not require all which was said during the hearing to be interpreted from English to Telugu. I observed that he was able to listen to the whole of the Minister’s oral submissions without requiring interpretation into the Telugu language.

2. As the applicant was self-represented I attempted to explain to the applicant the nature of the Court’s function in judicial review proceedings. I explained the Court could not determine the merits of his application. Rather it was required to focus on the Tribunal decision and decide whether the Tribunal had made a serious legal mistake.

3. I asked the applicant to explain to me why he submitted that the Tribunal failed to accord him procedural fairness and failed to consider all his claims.

4. The applicant’s responded by setting out his particular circumstances he would face on returning to another part of India. He said the following:

   · The main problem is the language barrier. The national language is Hindi but each state has its local language. His main spoken language is Telugu (the mother tongue). He only studied Hindi and English as part of passing his higher education. He can’t speak or communicate in these languages;

   · There are cultural differences in each state. The lifestyle will be different. In Australia there is a lot of help available but in India, there is no unity, people don’t help each other;

   · He completed his degree six to seven years ago and if he goes back to employment he may not be able to get some work;

   · He is 28 years old and now single but if he marries, he has to start his life over again. His parents will support him financially but he does not want to rely on them. If he has a family and can’t get employment he will struggle.

5. The applicant said that the Tribunal did not consider these problems he will face in the future in its decision on relocation.

6. It is apparent from the applicant’s oral submissions that his grounds for review are that the Tribunal failed to consider his claims that, in his particular circumstances, it would not be reasonable for him to relocate. Before turning to a consideration of this ground, I will however, first deal with the procedural fairness ground which was not relied on in the applicant’s oral submissions but which was specified as a ground for review.

Minister’s Submissions

1. The minister’s written submissions were:

   “[25] The Tribunal has fulfilled its hearing obligations under Division 4, Part 7 of the Act. The Applicant attended the Tribunal hearing to give evidence and make submissions in support of his claims on 13 November 2013. He was provided with a further opportunity to provide written submissions following the hearing and did so on 6 December 2013 which were taken into account at (CB126, [22]) of the decision record.

   [26] The Tribunal complied with its obligation under s 425 of the Act. In particular, the Tribunal put to the Applicant information relevant to the Applicant’s relocation and indicated that in all the circumstances, it might appear reasonable to the Tribunal for the Applicant to relocate to another part of India outside Andhra Pradesh (CB125-126, [19]-[21]) such as Bangalore or Mumbai. In response, the Applicant said that he could live in other parts of India but said it would be difficult as all states have different cultures (CB125, [19]). When independent information was put to him which indicated that the Applicant could move about India freely, the Applicant agreed that he could safely live in another part of the country (CB125,[20]).

   [27] The Tribunal considered the circumstances particular to the Applicant in respect of whether it would be reasonable for him to relocate to an area outside Andhra Pradesh in considerable detail and explained why it was satisfied that it would be reasonable for the Applicant to relocate outside Andhra Pradesh (see generally, CB129-131. [30] – [35]).

   [28] The findings of the Tribunal as to the relocation being reasonably practicable for the Applicant were open on the material before it. The Tribunal correctly applied the law in accordance with the established principles in respect of relocation: Randhawa v MILGEA (1994) 52 FCR 437; SZATV v MIAC (2007) 233 CLR 18.”

1. At the hearing, counsel for the Minister submitted additionally that the Tribunal was only required to consider the particular circumstances the applicant raised before it. The Minister submits that the matters regarding his language skills and cultural differences in his oral submission were dealt with by the Tribunal. It was argued that the Tribunal was not required to speculate on matters (such as the circumstances which may apply in the event the applicant married).

2. The Minster submitted that the applicant in reality was seeking to engage in merits review.

Procedural Fairness

1. Division 4 Part 7 of the Act sets out the statutory requirements for procedural fairness.

2. In SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 the Full Court stated:

   THE STATUTORY PROVISIONS

   3. The relevant provisions of Div 4 of Pt 7 of the Act include s 422B as follows:

   (1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

   (2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

   (3)In applying this Division, the Tribunal must act in a way that is fair and just.

   4.  By s.424(1):

   In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   5.  Section 425(1) provides that:

   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   6.  Section 424A provides that:

   (1)    Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in   the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)  invite the applicant to comment on or respond to it.

   (2)The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or

   (b)  if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.

   (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)    This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application for review; or

   (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c) that is non-disclosable information.

   7.  By operation of s. 424A(2A), as set out above, s. 424AA functions as an exception to the requirements in s.424A(2) for the giving of information to an applicant which otherwise would apply (namely, compliance with s 441A which sets out the permitted methods for information to be given to an applicant or, for a person in immigration detention, compliance with the method prescribed for the purposes of giving documents to such a person).  Section 424AA, the exception, provides that:

   If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)  if the Tribunal does so--the Tribunal must:

   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   8.  Breach of s.424A(1), as all parties acknowledged, constitutes jurisdictional error and invalidates the Tribunal’s decision (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24 at [77], [173] and [208]).

   9.  To determine whether there has been any breach of s.424A(1) of the Act it is necessary to answer the following questions:

   (a)Is there information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review within the meaning of s.424A(1)(a)?

   If the answer to question (1) is “No”, s.424A(1) does not apply.

   If the answer to question (1) is “Yes”, s. 424A(1) may or may not apply depending on the answer to question (2).

   (b)If the answer to question (1) is “Yes”, then is that information excluded from s.424A(1) by s. 424A(3), in particular for the purpose of the three present matters, by s. 424A(3)(b), being information that the applicant gave for the purpose of the application for review?

   If the answer to question (2) is “Yes”, s. 424A(1) does not apply.

   If the answer to question (2) is “No”, s. 424A(1) may apply depending on the answers to questions (3) and (4).

   (c)Did the Tribunal comply with s. 424AA(a) in respect of the information, by giving to the applicant orally clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review?

   If the answer to question (3) is “No”, s.424A(1) applies.

   If the answer to question (3) is “Yes”, s.424A(1) may or may not apply depending on the answer to question (4).

   (d)If the Tribunal complied with s. 424AA(a) in respect of the information, by giving to the applicant orally clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, did the Tribunal comply with each of s. 424AA(b)(i) – (iv)?

   If the answer to question (4) is “No, s. 424A(1) applies.

   If the answer to question (4) is “Yes”, s. 424A(1) does not apply.

   (e)If s.424A(1) applies and  .424AA does not apply, did the Tribunal give the applicant the information in accordance with s.424A(2)?

   If the answer to question (5) is “No”, the Tribunal has breached s.424A.

   If the answer to question (5) is “Yes”, the Tribunal has not breached s. 424A.

3. By correspondence dated 4 September 2103, the applicant was invited by the Tribunal to attend a hearing and give evidence (CB90-91). In the circumstances of this matter, the particulars, of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, are those relating to the Tribunal’s consideration of s.36(2B). Specifically, that information which related to the applicant’s particular circumstances.

4. The Tribunal set out in its decision record (commencing CB122 [10]), the evidence the applicant gave to the hearing together and the matters the Tribunal put to the applicant and his response to those matters.

5. The Tribunal noted it discussed with the applicant the possibility of the applicant living outside Adilabad and the reasons it was raising this possibility as follows (at CB125 [19]):

   [19] The Tribunal noted that in the past he had been able to live in Hyderabad for almost two and half years without problems; it discussed with him the possibility of going back to India and living away from Adilabad, in a place far away from Babu Patel and Sudhakar and the local politics, such as Bangalore or Mumbai. He said he came to Australia for education and refuge and is sad from being separated from his family; he has been confused about life. He went back to India in 2012 to check on the situation to see if it would be safe for him, but it was not and it would never be safe while Babu Patel and Sudhakar are there. The Tribunal noted that it had to consider whether there was a place outside of his home area in Andhra Pradesh where he might be able to live where there was not a real chance of him suffering, serious harm; it put to him that his problems with Babu Patel and Sudhakar appeared to be confined to Kirgul B and Adilabad. In response the applicant said that he could go and live in other parts of India but he said it would be difficult; all states have different cultures and it I like going to a different country. He could stay in Hyderabad but with all the issues going on about separatism, there is a lot of trouble and it might not be safe for him. He would be in fear if he lived there because it was possible Babu Patel and Sudhakar could get to him once they found out he was back.    

6. It will be seen from this paragraph that the Tribunal raised with the applicant the possibility of him relocating to another city such as Bangalore or Mumbai and that the applicant raised the problem of different cultures in different states and that Babu Patel and Sudhakar could still locate him.

7. The Tribunal then put to the applicant that, given he could freely move about in a large continent with a large population and no national identification system, it was difficult for the Tribunal to understand how he could be located by Babu Patel and Sudhakar. The Tribunal records that the applicant “agreed that he could go anywhere and they would not even ever know that he was back” (CB125 [20]).

8. The Tribunal records it discussed the applicants linguistic, educational attainment and employment history as follows (CB125 [21]:

   “[21] The Tribunal noted that his circumstances indicated that he could speak three languages, Hindi, English and Telugu, and that he was highly educated and had worked in a number of different capacities, and appeared to have the attributes and skills necessary to relocate to a big city and settle into a new life; the available information indicated that unemployment was relatively low in India and the economy was projected to grow in coming years, which suggested that his prospects of finding work outside Andhra Pradesh was good. In response he agreed that that was all correct but he does not know what the culture was like in other parts of the country and it would not be easy for him to settle into a new place. The Tribunal noted that he had shown through his residence in Australia, that he was resourceful and adaptable to a new environment in which he did not know anyone before he arrived, which indicated he had the necessary skills and resilience to relocate. He said he is sad and depressed and if he went back and lived away from his family it would be sad for him. After a recess in the hearing, he said he wants to be happy and have a good life, free from fear. He does not want to go back to India. He has no family or friends outside his state. The Tribunal asked if he thought his parents would travel to see him if he returned and lived in Bangalore or Mumbai. He said that they would and that if they did it might cause Babu Patel and Sudhakar to find him. When asked, he was unable to explain how that would happen, but said it was a possibility…” 

9. It will be seen from this paragraph that the applicant is recorded as responding that he agreed with the Tribunal regarding his skill, qualification and employment attributes as well as the predicted growth in the Indian economy. However, he raised the issue of different cultures and his sadness about being away from his family.

10. The Tribunal records the applicant provided a post hearing statement (CB116-117). It is not clear whether the Tribunal allowed the applicant to do this during the hearing or simply accepted it as part of the hearing. In either event there is no doubt the Tribunal had regard to it. It relevantly  stated of this statement (CB126 [22]):

    “[22] Following the hearing, on 6 December 2013, the applicant submitted a typed, unsigned statement, in which he states that as the eldest son in his family it was his family’s original plan that he would take over his family’s business, which was why he got himself involved in politics…

    …There have been changes to family registration cards since he left and his degree will not allow him to get a job. If he went to a different state, the culture and language is different to his and it would not be easy to mingle with people. He does not know anyone outside his home state. He would face heavy competition with local people to get work. If his parents visited him it could lead his enemies to locate him.”   

11. The applicant does not assert that he was not given an opportunity to comment on or respond to the particular information. He has not provided the Court with a copy of transcript of the proceedings before the Tribunal. Consequently, on the information before me, I am satisfied that the Tribunal met its obligations under s.424AA.

12. I find that the Tribunal met the procedural fairness requirements under Division 4 Part 7 of the Act. Accordingly the applicant’s ground for review that the Tribunal denied in procedural fairness is dismissed.

Failed to Consider Claims

1. Before I consider the applicant’s claims I shall refer to a recent decision of her Honour, Riley J in SZSRO v Minister for Immigration and Border Protection [2014] FCCA 2205. In this decision, her Honour reviewed in detail the authorities with respect to relocation and proceeded to identify the approach a Tribunal is obliged by s.36(2B) to follow. Respectfully I concur with the approach so identified. Her Honour Stated at [35]:

   “…………… The authorities to which I have referred make it clear that, when considering the relocation principle, the decision-maker must address two distinct questions. These are:

   a)      Having accepted that the claimant has a well-founded fear of being persecuted for a Convention reason if he or she returned to a particular region of the country of his or her nationality, is there a different region in that country where, objectively, there is no appreciable risk of the occurrence of the feared persecution?

   b)  If (a) is answered in the affirmative, is it reasonable, in the sense of practicable, to expect the claimant to be sent to that other region having regard to:

   i)the particular circumstances of the claimant,

   ii)the circumstances the claimant would reasonably be expected to face in the place of relocation, and

   iii)the impact on the claimant of being sent to the place of relocation?”

2. I should state that I am satisfied the Tribunal considered the practical realities asserted by the applicant that, if he relocated to another city in India, he would nevertheless would suffer physical harm by reason of Babu Patel and Sadhukar being able to locate him (CB130 [31]). The question the Tribunal was also required to address was whether it was reasonable, in the sense of practicable, to expect the applicant to relocate to another big city such as Mumbai or Bangalore having regard to the fact that the circumstances the applicant would reasonably be expected to face in cities such as Mumbai or Bangalore which would include the asserted practical realities. In circumstances where a Tribunal failed to ask itself this question, the Tribunal’s conclusion that it was reasonable for the applicant to relocate to another big city such as Mumbai or Bangalore would be arrived at as a result of jurisdictional error.

3. The applicant’s claims about his particular circumstances which he identified during the Tribunal proceedings (as identified in the decision record) and in his post hearing statement were:

   a)Cultural differences and the difficulties for him settling in a new place (CB125[21]);

   b)Absence of family and friends and the effect on his wellbeing (CB125[21]);

   c)Preference in employment for local workers (CB116);

   d)Failure to register his university degree means it is invalid for the purpose of obtaining a job (CB116)

   e)Poor language and knowledge (CB116).

4. At the Court hearing the applicant identified:

   a)Language barriers;

   b)Cultural difference;

   c)His degree being outdated;

   d)His capacity to settle and obtain employment, particularly in circumstances where he marries in India.

5. It is to be noted that in its decision record the Tribunal states that the applicant agreed with its proposition that he could speak three languages (Hindi, Telugu and English), that he was highly educated and worked in different capacities and appeared to have the attributes and skills necessary to relocate. The applicant’s later post hearing statement qualified this by reference to preference in employment for locals and his limited language capacities. At the Court hearing the applicant argued that his Hindi and English language skills were limited. There is of course a difference in what the Tribunal records as the applicant’s evidence regarding his language skills and the applicant’s post hearing statement and his submissions to this Court.

6. In the absence of the production of a transcript of the Tribunal proceedings, I have no basis upon which to make findings regarding the record of the applicant’s evidence to the Tribunal. I further note that there were two considerations which were raised by the applicant in his oral submissions which I am satisfied were not raised by the applicant in the proceedings before the Tribunal. These were that his degree was out of date (as compared to his claims it was not valid) and his circumstances were he to marry. In relation to the claim his degree would be out of date for the purpose of obtaining employment, as this claim was not before the Tribunal; the Tribunal was obliged to turn its mind to this particular circumstance. As to the impact on the Tribunal if he were to marry, I agree with the Minister’s submission that the Tribunal was not required to speculate on these circumstances. On the material before me, this was not a practical reality raised by the applicant before the Tribunal.

7. The Tribunal’s consideration of the applicant’s particular circumstances is continued in paragraphs [33] and [34] of its decision record (see [23] above).

8. I am satisfied to that the Tribunal had regard to the particular circumstances of the applicant, the circumstances the applicant might reasonably be expected to face in the places of relocation and the impact on the claimant of him relocating to another big city such as Bangalore or Mumbai.

9. Consequently, I find that the Tribunal considered all his claims regarding his particular circumstances and the impact on him of relocating. Accordingly, no jurisdictional error is disclosed in the Tribunal arriving at its ultimate conclusion that it would be safe and reasonable for the applicant to relocate to one of the large towns or cities outside of Andhra Pradesh (CB131 [36] and 132 [39]).

Conclusion

1. For the reasons set out in this judgment the application for judicial review will be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 9 April 2015