SZACO v Minister for Immigration - [2003] FMCA 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACO v MINISTER FOR IMMIGRATION

[2003] FMCA 311

MIGRATION – Review of RRT decision – application for a protection visa – whether the applicant has a well-founded fear of persecution for reasons of his religion – where the applicant claims to be in danger because he is a man of serious “religious calling” – whether the Tribunal applied the correct test as to whether it would be reasonable for the applicant to relocate – whether the applicant would have linguistic and cultural difficulties – whether the Tribunal failed to take into account any relevant consideration and neither did he take into account any irrelevant consideration – whether there was any jurisdictional error in the decision of the RRT.

Migration Act 1958 (Cth), s.474

Randhawa v Minister for Immigration (1994) 124 ALR 265

Applicant:

SZACO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1322 of 2002

Delivered on:

26 June 2003

Delivered at:

Sydney

Hearing date:

26 June 2003

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Michael Jones Solicitors

Counsel for the Respondent:

Mr Stephen Lloyd

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1322 of 2002

SZACO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application to review a decision of the Refugee Review Tribunal (RRT) made on 30 October 2002 and handed down on 21 November 2002. The RRT affirmed a decision of a delegate of the respondent minister not to grant the applicant a protection visa. The applicant is a citizen of India who comes from the district of Nizamabad in the State of Andhara Pradesh in South India. He is a Christian and made claims of persecution based on his work as an active preacher to non Christians.
The application for review seeks a declaration and an order in the nature of prerogative relief and costs; no grounds for the application were set out, however, written submissions were filed on 20 June 2003 by Mr Jones who appeared on behalf of the applicant. In those written submissions, which Mr Jones elaborated on orally today, he takes issue with the decision of the RRT in relation to what is termed the internal flight or relocation principle. It appears from the decision of the RRT that the presiding member accepted that the applicant was exposed to a real risk of persecution in his home state because of his work as a Christian preacher and that he had been a victim of incidents which might well amount to persecution in the past.
The applicant's evidence was that his preaching work had brought him into conflict with Naxalit Communists and with Hindu fundamentalists, particularly in remote rural areas in which the applicant spread the Christian Gospel. Mr Jones submits that while the presiding member correctly identified the test of the reasonableness of internal flight set out in Randhawa v Minister for Immigration (1994) 124 ALR 265 she did not correctly apply that test.
The RRT found that it would be reasonable for the applicant to relocate within India and hence avoid the risk of persecution to which he was subjected in his home State. The presiding member clearly set out the relevant principles which appear on pages 198 and 199 of the court book. The presiding member made express reference to the judgment of Black CJ in Randhawa. In that case his Honour said this, page 16 of the internet print of the decision:
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.
His Honour went on:
I agree that it would be ordinarily be quite wrong for a decision maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere, without giving the issue more specific attention, but the extent of the decision maker's task will be largely determined by the case sought to be made out by an applicant.
The further question referred to by the Chief Justice was the question whether relocation within the State was reasonable. In this case the presiding member did ask the applicant whether there were any particular matters that he considered would prevent relocation to parts of India where Christians formed a majority or at least a substantial minority of the population. The presiding member referred, in particular, to the north-eastern Indian States of Manipur, Nagaland, Mizoram and Meghalaya. The applicant raised concerns about linguistic issues, noting that he did not speak Hindi and also what he described as differences of culture, food and style.
The presiding member noted that while the language issue was a specific issue, the issue of culture, food and style was a very general one which the applicant was not able to particularise. The presiding member, by reference to country information, considered, in some detail, the religious make up of the four States she had identified and also dealt with the linguistic issue. She found that the applicant should not face difficulty on a language basis because English was widely spoken in those states and noted that the applicant does speak English.
An issue raised in Mr Jones’ written submissions and elaborated upon today is whether the presiding member dealt adequately with the religious issue. The presiding member, by reference to country information, identified parts of India where there was a sizeable Christian population and also satisfied herself that Christians, including Christian preachers, were not exposed to any significant risk of violence in those states. Mr Jones pointed out that the overall population in the north-eastern Indian States identified was quite small and he also drew attention to cultural differences.
About thirty minutes research by my associate before court today, identified that Manipur, Nagaland, Mizoram and Meghalaya are States in north-eastern India populated substantially by ethnic minorities, although there is a significant non-indigenous population in those states, made up of settlers from elsewhere in India. That research also indicated that the resettlement of outsiders in those states is a sensitive political issue in India, although there appears to be no legal impediment to outsiders resettling in those states.
The country information available to the presiding member appearing in volume 2 of the court book does make reference to some ethnic conflict in the north-eastern Indian states and the decision of the presiding member would certainly have been improved if the presiding member had referred to the issue of whether relocation into the north eastern States was practicable, having regard to the situation of indigenous minorities in those States and their opposition to resettlement of non indigenous people.
The issue however, was not raised by the applicant and having regard to the significant investigation already carried out by the presiding member, in my view, the issue goes more to the merits of the RRT decision than its legality. In addition, the presiding member did not restrict her examination to the north-eastern States of India. She also investigated the circumstances in the southern Indian States of Kerala, Tamil Nadu, and Goa and found that relocation to those states should also be practicable.
Those States do not suffer from the same limitations as the north-eastern States in terms of the small population and sensitive issues of indigenous local populations. They are also southern Indian states which the applicant seemed to regard as important, having regard to his background.
Mr Jones also drew attention to the fact that the applicant was a man of a sincere religious calling and that that religious calling had taken him into dangerous situations in his home State. In essence, he was called to preach the Christian Gospel and in responding to that calling he was led, at times, into dangerous situations. The implication of this submission is that it would not be reasonable for the applicant to turn his back on his calling by relocating to a safe area within India. The difficulty with that submission, is however, that the applicant has, by coming to Australia and seeking the protection of the Refugees Convention, moderated his approach to his religious calling. In my view, an applicant for a protection visa cannot on the one hand seek a safe haven in this country and at the same time maintain that he or she should not be expected to seek a safe haven in his or her home country.
Overall, in my view, the presiding member has dealt adequately with the question of whether it was reasonable for the applicant to relocate within India. She gave the applicant ample opportunity to raise any issues of concern to him and dealt adequately with the issues that he did raise. Further inquiries might usefully have been made by the presiding member but any defect in the merits of the decision is not so great as to lead to any adverse conclusion as to its legality. In my view, the presiding member did not fail to take into account any relevant consideration and neither did she take into account any irrelevant consideration.
The elements or incidents of the applicant's claim were properly addressed in the decision and reasons of the RRT. I do not understand any other attack on the decision of the RRT as being made in these proceedings and from my own reading of the court book, it does not appear to me that there is any other possible jurisdictional error in the decision of the RRT. The Hickman provisos to the privative clause in s.474 of the Migration Act 1958 (Cth) are satisfied. Accordingly, the decision of the RRT is a privative clause decision and the application will be dismissed.
I will dismiss the application with costs fixed in the sum of $3,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: