SBHF v Minister for Immigration - [2007] FMCA 771

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBHF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 771

MIGRATION – Review by Indian national of Refugee Review Tribunal decision refusing to grant applicant a protection visa – Tribunal found that applicant at risk of persecution for Convention-related reasons in state of Andhra Pradesh – Tribunal found that re-location by applicant to New Delhi reasonable – whether that decision vitiated by jurisdictional error – application dismissed.

Migration Act 1958, ss.474 and 476
The Constitution, paragraph 75(v)

Craig v The State of South Australia (1995) 184 CLR 163
Plaintiff S157 v The Commonwealth (2003) 195 ALR 24
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant:

SBHF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

ADG222 of 2006

Judgment of:

Lindsay FM

Hearing date:

12 December 2006

Date of Last Submission:

12 December 2006

Delivered at:

Adelaide

Delivered on:

25 May 2007

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondents:

Mr Tredrea

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application filed on 9 August 2006 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG222 of 2006

SBHF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (the “Act”). Pursuant to that section this Court has the same original jurisdiction in relation to migration matters as the High Court has under paragraph 75(v) of the Constitution. Pursuant to s.474 of the Act, the decision the subject of the review is to be regarded as a privative clause decision and therefore final and conclusive unless the decision can be shown to have been vitiated by jurisdictional error as that concept has been explained by the High Court in decisions such as Craig v The State of South Australia (1995) 184 CLR 163 and specifically in relation to migration decisions such decisions as Plaintiff S157 v The Commonwealth (2003) 195 ALR 24.
The review sought is of a decision of the Refugee Review Tribunal (the “Tribunal”) handed down on 27 July 2006.
That decision was itself a refusal to allow a review of a decision of a delegate of the Minister to refuse the applicant a protection visa made on 25 January 2006.
The application to this Court alleges jurisdictional error only in the most general of terms. However, the applicant has filed written submissions. The applicant filed submissions on 29 November 2006, which include a document described as “Errors in the Decision made by the RRT”. The applicant appeared on his own behalf before me at the hearing and made further submissions.
The applicant is a citizen of India born in Hyderabad in the state of Andhra Pradesh. He was educated in that state. He travelled to Australia to study a Masters of Engineering at the University of South Australia in 1999. He met an American woman in Adelaide whom he married in July 2001. His wife returned to the United States in 2003. He had intended to join her but ultimately did not travel to the United States because of difficulties associated with his Indian passport.
He says that he is entitled to protection as a refugee pursuant to the Refugee’s Convention and Refugee’s Protocol because he has a well-founded fear of persecution on account of his having married a Christian woman, associated with his failure to adhere to the requirements of the Muslim religion adhered to by his family in Andhra Pradesh. He says that he has been warned that should he return to India his family will kill him or will arrange for him to be killed. He takes these claims seriously because he has an uncle who has close ties with the dominant political party in Andhra Pradesh, which is a Muslim party called AIMIM (All India Majlis-e-Ittehadul Muslimen).
It is unnecessary for me to traverse in detail the basis of the applicant’s fears because the Tribunal found that his fears as far as persecution in Andhra Pradesh were concerned were well-founded and Convention-related. At CB page 289 the Tribunal said:
The Tribunal therefore accepts the harm the applicant claims he fears from his extended family and their friends is Convention related. The Tribunal has to consider whether if the applicant returned to India he would fact a real chance of persecution because he essentially does not hold particular religious beliefs. The Tribunal refers to the decision in Prashar v MIMA [2001] FCA 57 (Madgwick J, 7 February 2001) where Justice Madgwick found a well-founded fear of being persecuted for reasons of religion was not limited to people holding a religious belief but extended also to those persecuted because they do not hold a religious belief. On the basis of the applicant’s marriage to a non-Muslim and his rejection of the religious and cultural norms he would be expected to adhere to such as praying 5 times a day and attending the mosque, the Tribunal accepts there is more than a remote chance the applicant’s strict Muslim family, in particular his uncles, and the people associated with them such as members of the AIMIM, may harm the applicant because he was no longer a practising Muslim and married a non-Muslim.
The Tribunal notes although the applicant would be at risk from non-state actors, that is his uncles, he would also be at risk from members of AIMIM. The Tribunal finds the applicant’s ability to access adequate state protection in Hyderabad may be affected by the applicant’s family connection with the AIMIM and close association with many of the leaders of this party. The Tribunal notes the country information cited above which states the stronghold of AIMIM was in the old city of Hyderabad in Andhra Pradesh and that the AIMIM holds 36 seat [sic] out of 100 in the Municipal Corporation of Hyderabad. It also has taken into account information from the US Department of State, Country Report on Human Rights Practices – India 2005, released on 8 March 2006 that corruption in the police force in India was commonplace and severely diminished its effectiveness. On the basis of the independent country information and the applicant’s family’s long relationship with the most influential Muslim party in Hyderabad, the Tribunal can not be satisfied the applicant would be afforded protection if he returned to Andhra Pradesh. Accordingly, the Tribunal accepts the applicant holds a well-founded fear of persecution for reasons of religion in Andhra Pradesh.
However, the Tribunal rejected his application because it found that it was reasonable for him to re-locate to another part of India. The Tribunal’s reasons for so finding are set out in a very lengthy paragraph of the decision which begins at CB page 289.5 and continues to CB 290.9.
In summary the Tribunal found that it would be reasonable for the applicant to re-locate to another part of India and instanced New Delhi. The Tribunal’s reasons for doing so can be summarised as follows:
a)the applicant is well-educated, can speak English, has work-experience in Australia and has shown flexibility by adapting to life in Australia;
b)that treatment in relation to the applicant’s mental health conditions was available in a city such as New Delhi;
c)AIMIM did not have the reach outside of the city of Hyderabad, which the applicant claimed, and in particular had no involvement in the applicant’s difficulties relating to the extension of his Indian passport (which difficulties I will refer to hereunder);
d)India is a secular state with no official religion and is essentially subject to the rule of law;
e)the applicant had not experienced any problems on account of his religion in India prior to his departure; and
f)there was no impediment to re-location of Indian citizens within India (this was not specifically referred to in the findings but appears at CB pages 283-284).
Reliance was based by the Tribunal on the country information in reaching the conclusions summarised at (b), (c), (d) and (e) above. New Delhi is cited as an example of alternative locations within India. There was no country information directed specifically to the exigencies of the Muslim or Muslim Party presence in New Delhi. Rather, New Delhi is instanced by the Tribunal as a part of India in which conditions are relevantly dissimilar to the situation in Andhra Pradesh as far as the impact of AIMIM and the scope provided for the activities of persons adhering and promulgating their faith, such as the applicant’s Muslim uncles.
Much of the applicant’s oral submissions to me and of his documentary and oral submissions to the Tribunal were taken up of a description of his difficulties relating to the extension of his Indian passport. The applicant applied to the Indian Consulate in Sydney for a new passport in June 2005. He says that he was advised approximately six months later that it was being sent to him. The telephone advice he received from the Indian Consulate advising of this was followed by his receiving threatening telephone calls from India. He says that when he attended to collect his passport the next day and when he made further contacts with the Department of Immigration (the “Department”) with respect to his bridging visa he was advised of numerous calls that had been made to the Department by a woman claiming to be his sister. He was advised of many subsequent calls of this nature received by the Department. Furthermore, when he received his passport it had been extended for only one year instead of the usual ten years and included a condition that it could only be extended by a further clearance from Hyderabad or the Consulate in Sydney.
The request for a new passport arose because the applicant had lost his old one.
These difficulties led the authorities in the United States, where he wanted to travel to join his wife, to insist on his re-submitting his application for a visa over again. By the time he sorted these difficulties out he said that the Australian authorities were refusing to extend his bridging visa until the time of his departure to the United States. It was at this time that he decided to lodge his application for a protection visa.
It was the applicant’s contention that the difficulties relating to his new passport and the explanation for the threatening calls and the number of the calls made by the person representing herself as his sister related to the reach that AIMIM had beyond Hyderabad and beyond the borders of Andhra Pradesh. This submission was pursued with some vigour before the Tribunal and before this Court.
It was the subject of detailed discussion by the Tribunal in its reasons (see CB pages 285.8 to 288.5). The ultimate conclusion of the Tribunal in relation to this issue is set out at CB page 290.2:
As stated above, the Tribunal is not satisfied the AIMIM has had any involvement in either the release of the applicant’s details by the Indian Consulate or the issuance of his passport valid for a period of only 1 year. The Tribunal therefore does not accept the applicant’s assertions he would be detained on his arrival in any part of India because of the political influence of the AIMIM.
I accept that this issue is promoted by the applicant as one which has a significance extending beyond the issue of the applicant’s fear of persecution within the state of Andhra Pradesh. In other words, he is contending that his passport difficulties and the release of his telephone number by the Consulate to persons who have used that information to threaten him and the repeated phone calls made by the person claiming to be his sister to the Department, all evidence the extent to which AIMIM, the party with which his uncle and his family are so closely related, has influence in the state of India and not just the state of Andhra Pradesh.
The applicant contended before me that the Tribunal could have, by conducting further internet research, established that the organisation which runs the religious shrines in Hyderabad and, especially in the old part of the city, also ran religious shrines in New Delhi. He accepted that he did not put that contention to the Tribunal or anything that would have demonstrated the existence of these shrines outside the city of Hyderabad, and that causes obvious difficulties where jurisdictional error is sought to be established. It is unlikely in itself to have vitiated the conclusion that the Tribunal reached about the reasonableness of the re-location.
He also contended before me that AIMIM had links with the Congress Party, which was in power in India or, as the applicant put it, “had power all over India”. He wanted me to infer that the unspecified association between the parties accounted for its ability to influence the fate of his passport application and the other matters referred to above. He also contended before me that the Tribunal should have found that the person who controlled the shrines in Hyderabad was a person specifically referred to in a letter written to the Department by the person claiming to be his sister. The name of the person is Pasha Myia Saeb Quiba and a handwritten endorsement to a typed letter dated

25 January 2006
purportedly from the applicant’s sister suggests that this man was personally seeking that the applicant return to India as soon as possible. The applicant contended that this letter had only been brought to his attention after the Tribunal had made its decision but he acknowledged before me that such could not have been the case because the letter was in fact included in material forwarded on his behalf to the Tribunal by the Australian Refugee Association. Mr Quiba apparently holds some authority in relation to the shrines. Once again, these matters were not elucidated before the Tribunal. The letter (including the endorsement) was apparently before the Tribunal. Once again, even if the identity of the person referred to by the author of the endorsement had been emphasised by the applicant, it would not have had any significant impact upon the key issue of the reasonableness of the re-location within India.
I permitted the applicant to tender a copy of a page of the transcript of the hearing before the Tribunal which establishes that he referred to being advised by the Department that “millions” of phone calls had been received by the Department from India and the Indian Consulate rather than the “hundreds” referred by the Tribunal in summarising his evidence at CB page 287.5. The Tribunal had received information from the Department indicating that the most phone calls received by it over the relevant period of time from either the Consulate or the Indian High Commission or the woman claiming to be his sister, was a total of 24 (see CB page 288.1). I think that the point that the applicant is making is that he was not attempting to be specific in describing the number of calls which were brought to his attention but was using a number meant to indicate that there was a large number. To that extent he has a complaint in relation to the credibility finding in relation to this issue. But the credibility finding did not prevent the Tribunal from accepting the existence of the applicant’s well-founded fear of persecution were he obliged to return to Andhra Pradesh. It is difficult to see how the credibility finding, limited in scope as it was (after all, the Tribunal accepted that the applicant’s sister was not in fact responsible for these communications) could have affected the key issue of the reasonableness of re-location within India.
The Tribunal’s findings that persons seeking to harm the applicant, whether family or AIMIM-related, did not have a role in his passport difficulties or in the communications to the Department (or at least that there was insufficient evidence to establish their role) was clearly open to the Tribunal. The more general finding that the Muslim Party has principle operations in Hyderabad or Andhra Pradesh was also a finding plainly open when regard was had to the country information. So, too, on the other side of the coin, was the Tribunal’s finding on all of the material before it of the applicant being at risk of persecution for a Convention related reason if he were to return to Andhra Pradesh.
The key issue is whether the Tribunal’s finding about the reasonableness of the re-location was a decision vitiated by jurisdictional error.
The correct approach to evaluation of the re-location principle (also described as the “internal protection principle” or the “internal flight alternative”) is summarised by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442:
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
At further at page 443:
If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to re-locate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.
His Honour went on to determine in that case whether the Tribunal was obliged once this issue had been raised to address a series of specific matters, including the area, city or region to which it was contemplated that an appellant could re-locate. The appellant in that case was contending that the decision-maker did not make any proper assessment of the re-location option. His Honour deals with that contention at page 443 as follows:
In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant’s Sikh culture prevented him from re-locating in India. Once the question of re-location had been raised for the delegate’s consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a re-location possibility to take the general approach that there must be a safe haven somewhere with out giving the issue more specific attention, but the extent of the decision-maker’s task would be largely determined by case sought to be made out by an applicant. In the present case the applicant raised several issues all of which were dealt with by the decision-maker. If the appellant had raised other impediments to re-location the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of re-location she was entitled to come to the conclusion that the appellant could reasonably by expected to re-locate elsewhere in India.
Such a discussion provides very useful basis for the analysis of the way in which the Tribunal approached its task in this matter.
I begin by noting that the Tribunal put to the applicant specifically the issue of the reasonableness of his re-location to another part of India, such as New Delhi, during the course of the oral hearing (see CB page 271.9 – 272.1).

The way in which the Tribunal evaluated the issue was to firstly identify those matters which placed the applicant at risk of Convention-related harm in Andhra Pradesh. That analysis, including as it did the evaluation of country information, pointed to that particular state and the city of Hyderabad as being a strong-hold of the political party whose influences, together with their close association with the applicant’s family in that region, gave rise to the risk of persecution. That same analysis pointed to the absence of such factors in India generally. The country information pointed to India as a unitary state being one in which citizens were guaranteed freedom of religion, that was officially secular, that had a democratically elected government, was subject to the rule of law generally speaking and had an independent judiciary. Against the background of that analysis, New Delhi was instanced as a location where the factors giving risk to the fear of persecution were absent.
The Tribunal also evaluated those matters which were personal to the applicant in assessing the reasonableness of alternatives available within India. Specific consideration was given to the fact, accepted by the Tribunal, that the applicant was suffering from two significant psychiatric disorders and had subjective fears and uncertainties which were exacerbated by those medical conditions. The Tribunal found that the Indian government made appropriate resources available for the treatment of mental health in addition to there being non-governmental organisations providing such services. It also took into account the applicant’s proficiency in English and the fact that he was well-educated with work-experience in Australia that the Tribunal inferred would provide him with opportunities when he returned to India. The Tribunal considered the applicant’s own assessment of the risks presented to him outside of Andhra Pradesh on account of his own assessment of the corruption of Indian officials. Ultimately, the Tribunal found the submission that the Muslim Party discussed in its reasons would wield any influence over authorities outside the particular area which forms its strong-hold, to be far-fetched. It was fortified in that decision by its specific finding that the passport difficulties and plethora of communications to the Department afore-discussed were not on account of the involvement of AIMIM. These conclusions were all conclusions that were open to the Tribunal and demonstrate in my view that the Tribunal correctly apprehended its task in considering the reasonableness of re-location to an alternative area in India, such as New Delhi.
No jurisdictional error is apparent in the way in which the Tribunal dealt with the applicant’s review.
The Application filed on 9 August 2006 will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 25 May 2007