MZYSP v Minister for Immigration and Citizenship

[2012] FCA 869

FEDERAL COURT OF AUSTRALIA

MZYSP v Minister for Immigration and Citizenship [2012] FCA 869

Citation:		MZYSP v Minister for Immigration and Citizenship [2012] FCA 869
Appeal from:		MZYSP v Minister for Immigration & Anor [2012] FMCA 447
Parties:		MZYSP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 389 of 2012
Judge:		NORTH J
Date of judgment:		7 August 2012
Date of hearing:	7 August 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Ms E Holt
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 389 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYSP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	7 AUGUST 2012
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant to pay the first respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 389 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYSP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	7 AUGUST 2012
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal from orders of the Federal Magistrates Court made on 14 May 2012.  The federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 15 November 2011.  The Tribunal affirmed the decision of the Minister of Immigration and Citizenship, the first respondent, not to grant the appellant a protection visa. 

2. Before the Tribunal, the appellant, who is a Sikh from the Punjab in India, claimed a fear of persecution on the grounds of his political involvement with the Indian National Congress party (INC).  He explained that his family, going back to his grandfather, were active in the party, and that he had joined his father at political meetings and rallies.  He claimed that he was a member of the Punjab Pradesh Youth Congress (PPYC), and in the course of a political rally in 2007, he was beaten and subsequently threatened by supporters of the opposition party Shiromani Akali Dal (SAD).  These political opponents, he said, had physically and verbally abused him and made threats to his life made over the phone and through letters.  He said that he complained to the Indian police force about these actions against him, but that they never took action.  He expressed a particular concern that there would be further violence in the elections then to be held in 2012. 

3. The Tribunal generally accepted the political involvement of the appellant.  It accepted that he had family links to the INC, that he was a member of the PPYC and that he had experienced physical harm at the hands of political opponents in the rally in 2007.  With the appellant’s permission, the Tribunal, following the oral hearing, made contact with the appellant’s father in India.  His father indicated that the appellant’s political opponents maintained an adverse interest in him, and this evidence was accepted by the Tribunal. 

4. There were, however, a number of reservations which the Tribunal expressed about the appellant’s claims.  It found that the appellant did not have an ideological commitment to Congress politics, but rather that his involvement stemmed from a tradition within his family to be involved.  Significantly, the Tribunal said at [95]:

   The Tribunal therefore finds that if the applicant does return to India he will no longer involve himself in politics, a factor which is relevant to the question of relocation discussed below.  Rather than reflecting the forcible repudiation of the fundamental right to freedom of political expression owing to his fear of being persecuted, the Tribunal finds on the basis of the evidence before it that the applicant does not have any significant political commitment, and that he will refrain from future political involvement because that is his father’s wish.

5. The Tribunal also concluded that the evidence did not support that the appellant’s profile was such as to render him of interest or identifiable by opposition supporters elsewhere in India.  It observed that the appellant did not claim to have engaged in activities outside his home area, or to have held any high office within the INC or the PPYC which might have created a profile at a state or national level.

6. Then the Tribunal rejected the conclusion that the Indian police had any adverse interest in the appellant.  It observed that the police did not try to interview the appellant or issue a warrant for his arrest.  These factors stemmed from the appellant’s claim that his opponents were seeking to implicate him in criminal activities.

7. The Tribunal then carefully addressed the legal requirements for the claim to a protection visa and found in the appellant’s favour that there was more than a remote chance that he might face serious harm in the reasonably foreseeable future if he returned to his home region, especially given that there were state elections fixed to take place in the Punjab in 2012 and that the country evidence demonstrated that there was violence at election time in India. 

8. Finally, the Tribunal again found in the appellant’s favour that, on the evidence before it, India was at that time unable to provide the level of protection which its citizens were entitled to expect according to international standards. 

9. The remaining issue considered by the Tribunal was whether it was reasonably open to the appellant to relocate to another part of India where he would not face a real chance of persecution for a convention reason.  On this issue, the Tribunal relied upon the following country information:

   84.The US Library of Congress 2004 country profile on India includes the following demographic information available at is the official language and the most commonly spoken, but not all dialects are mutually comprehensible. English also has official status and is widely used in business and politics, although knowledge of English varies widely from fluency to knowledge of just a few words. The teaching of Hindi and English is compulsory in most states and union territories.

   85.  Indian crime statistics are available at the website of the India’s National Crime Records Bureau, which is located at and the most recent records are set out in the report Crime in India – 2010 Statistics. Table 1.7, at p 202, lists the incidence and rate of total cognizable crimes in 2010, and ranks the 35 Indian states and territories according to criminality from highest to lowest. Punjab is ranked as the 16th most criminal state or territory in India. 

10. The Tribunal set out its reasons on the issue of internal relocation as follows:

    103.The applicant asserts that the persecutors can find track him down elsewhere in India through their political networks and also because if he does relocate the applicant will tell his own relatives and his enemies will somehow learn of his whereabouts. This may also occur because his status as a young Sikh from the Punjab will make people suspicious and cause them to inquire about his background. In addition, the applicant asserts that his limited language skills will make it difficult for him to live elsewhere in India, and his father expressed concern about the applicant relocating on the basis that he has heard that the crime rate is higher in other parts of India.

    104.In response to these assertions the Tribunal makes the following observations.

    105.Firstly, the Tribunal does not accept that that the people who have threatened and harmed him in the Punjab present a threat to the applicant elsewhere in India, given the size and demographic diversity of India, the applicant’s insignificant political profile, and his aversion to further political involvement.  The Tribunal finds on this basis that the real chance of harm the applicant faces in the Punjab does not extend beyond that state.

    106.Indeed, it may be that threat which the applicant faces is so localised that it could be avoided by him simply moving elsewhere within the Punjab. However, even if that were not the case, and safe relocation within the Punjab or even to a neighbouring state would not be a reasonable option for the applicant, there are, in the view of the Tribunal other internal relocation options which are reasonably open to him. India is a very large country both geographically and in terms of population, suggesting that if the applicant were to relocate it would be very difficult for his would-be persecutors to find him even if they did have the capacity and inclination to seek him out.

    107.The applicant states that news of his presence in a new location will filter back to the people who wish to harm him either through his own relatives, if he tells them where he is living, or through Sikhs in the area where he resettles as they will question him about his antecedents. However, it seems to the Tribunal that neither of these eventualities can occur without the applicant voluntarily providing information, and either his family or third parties passing that information on to his opponents in the Punjab. It would be reasonable, in the view of the Tribunal, to expect that the applicant would request his family not to divulge information concerning whereabouts to his enemies, and they would agree to that request, and also that he would not tell strangers about his background without first establishing that they can be trusted with such information. Such discretion would not, in the view of the Tribunal, involve surrender of any fundamental rights of the kind protected by the Convention categories, such as the right to freedom of political expression, given that the Tribunal has found that the applicant does not have any significant political commitment, and that he will refrain from future political involvement because that is his father’s wish.

    108.In addition, information provided by the applicant in his protection visa application indicates that he has a number of qualifications, and that in addition to the Punjabi language he speaks reads and writes in English, which according to the US Library of Congress report referred to above has official status and is widely used in business and politics. Consequently, the Tribunal finds that the applicant’s language skills would not preclude him from relocating. In addition, although the country information reproduced above does suggest that crime rates in India are underreported in general, it does not support the view expressed by the applicant’s father that the crime rate is significantly higher elsewhere in India. On the contrary, the National Crime Records Bureau evidence suggests that the crime rate in the Punjab places it well inside the top half of India’s crime table. The Tribunal therefore does not accept that the crime rate in other parts of India is such as to make it unreasonable to expect the applicant to relocate to avoid the harm he fears in the Punjab.

    109.No economic argument against relocation has been raised, for example that the applicant would not be able to find work or survive with the support, for example, of his family. In this respect the Tribunal notes that the apart from a brief period when he returned to India in late 2009-early 2010, the applicant has been residing apart from his family for more than four years since he first came to Australia in July 2007. Furthermore, in his protection visa application the applicant detailed his educational qualifications, including a Diploma of Hospitality Management attained in 2009, and states that was employed as a driver from February 2009 to December 2010.

    110.The Tribunal therefore finds that the applicant can safely relocate outside of the Punjab, such as in New Delhi, in order to avoid the risk of persecution he faces in the Punjab, and is satisfied that it is reasonable in all the circumstances to expect him to do so.

11. In the paragraphs extracted above, the Tribunal examined the question of internal relocation, and concluded that the appellant could safely relocate outside the Punjab.  Consequently, the decision not to grant the appellant a protection visa was affirmed.  The appellant subsequently sought review of this decision in the Federal Magistrates Court.  The appellant alleged that the Tribunal’s decision was affected by jurisdictional error for reasons which included:

    (c)The tribunal has failed to consider adequately the applicant’s personal circumstances as to whether it was or was not reasonable for him to relocate to a place within his country of origin other than the Punjab and in so doing failed to properly consider matters stipulated by the High Court in SZATV v Minister for Immigration & Anor.

    (d)The tribunal has failed to consider the objective impact of the possible relocation on the applicant.

    (e)The tribunal has failed to take into account his family, language, culture, ancestral links, cuisine, tradition, friends, employment and other links which are peculiar to the Punjab.

    (f)It is an irrelevant consideration that he will refrain from future political involvement because that is his father’s wish.  If he decides to become politically active in the future, the tribunal is asking the applicant to sacrifice his entitlements to freedom of political expression.

12. The appellant’s application for review was heard on 14 May 2012.  The federal magistrate made orders that day dismissing the application. 

13. In his reasons for judgment, the federal magistrate referred to the appellant’s contention that the Tribunal had failed to consider his personal circumstances, including ‘family, language, culture, ancestral links, cuisine, tradition, friends, employment and other links which are peculiar to the Punjab’. The federal magistrate said that the Tribunal was only required to take into account matters raised by the appellant.  However, he acknowledged that some latitude is allowed as the appellant had been unrepresented and may not have known how to articulate a claim. The federal magistrate indicated that he would take that into account. 

14. The federal magistrate then examined the decision of the Tribunal and concluded that the Tribunal had taken into account the issue of the appellant’s family, language, culture, and employment, and noted that no economic issue was raised.  The federal magistrate also noted that the Tribunal had referred to the question of whether the appellant was able to live without the support of his family.  It noted that the appellant had been living away from his family for more than four years since first coming to Australia.  The federal magistrate then concluded that the other issues listed by the appellant in his grounds of review had not been previously raised by him and were therefore not required to be considered by the Tribunal. 

15. On 28 May 2012, the appellant filed a Notice of Appeal in this Court.  The grounds of appeal precisely mirrored the grounds raised in the Federal Magistrates Court.  The appellant filed a written submission in support of his appeal.  It referred to and extracted relevant parts of a number of authorities relating to the question of internal relocation.  The legal test is not in doubt.  So far as the facts were concerned, the written submission stated at [17]:

    … The Applicant was a person from a very volatile area in India with its own identity and who stand out from the majority of Indians and was someone who does not have any family or community support elsewhere in India.  That is the person who the Tribunal and the court had to consider could reasonably be expected to relocate. 

16. At [18]. the appellant added:

    It is also an irrelevant consideration that the applicant will refrain from future political involvement because that is his father’s wish.  If he decided to become politically active in the future, the tribunal and the court is asking the applicant to sacrifice his entitlement to freedom of political expression.

17. In oral submissions to the Court, the appellant, who competently speaks and understands English, referred to a letter from a member of the Indian Parliament, Mohinder Singh Kaypee which he had provided to the Tribunal after the oral hearing.  That letter included the view that:

    As a member of PYC, it will not be safe for him to come back to India and resettle here in the present circumstances. 

18. It seems that the purpose of the appellant in pointing to this letter was simply to emphasise the factual argument which he made before the Tribunal.  It cannot be said that the Tribunal overlooked this item of evidence, because it is specifically referred to in [76] of its decision. 

19. The federal magistrate was correct to find that the matters relating to reasonable relocation which were raised by the appellant were considered by the Tribunal.  Whether the facts upon which the appellant relied on this issue were to be accepted or not was a matter entirely for the Tribunal.  As explained to the appellant, it is not the role of either the Federal Magistrates Court or this Court to revisit the factual inquiry concerning the reasonableness of relocation.  The Tribunal made no error of principle in approaching the subject of reasonable location.  It applied the law as prescribed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253, and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40. The federal magistrate was also correct in determining that the Tribunal in the circumstances of this case had no obligation to investigate further any elements in support or against the capacity for the appellant to relocate within India, apart from those matters which the appellant himself raised.

20. It follows from these reasons that the appeal must be dismissed. 

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        16 August 2012