SZAZX v Minister for Immigration - [2004] FMCA 393

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZX v MINISTER FOR IMMIGRATION

[2004] FMCA 393

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether decision unreasonable – whether failure to take into account relevant considerations.

Migration Act 1958

Udeni Welivita v Minister for Immigration and Ethnic Affairs [1996] 989 FCA 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
SHJB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 303
Abebe v The Commonwealth (1999) 197 CLR 510
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154 (2003) 201 ALR 437
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 124 ALR 265

Applicant:

SZAZX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1424 of 2003

Delivered on:

16 July 2004

Delivered at:

Sydney

Hearing date:

4 May 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr AD Campbell

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms M Allars

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1424 of 2003

SZAZX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 July 2003 affirming a decision of a delegate of the respondent refusing to grant the applicant a Protection Visa. The applicant is a citizen of India who arrived in Australia on 23 December 2001. He lodged an application for a Protection Visa on 18 January 2002. In that application he claimed to fear persecution from members of the Lok Dal Party by reason of his membership of the Haryana Vikas Party. He also claimed that he feared harm from Muslims on account of his religion as a Hindu.

A delegate of the respondent refused to grant the visa on 13 June 2002. On 11 July 2002 the applicant sought review by the Tribunal. The Tribunal held a hearing on 3 June 2003 at which the applicant gave oral evidence and made further claims in support of his application. The Tribunal reasons for decision record that in the course of the hearing the Tribunal put to the applicant information available to it in respect of the situation in his home area of Haryana and invited the applicant’s comments on that information.
The Tribunal found that the applicant did not impress as a reliable witness whose assertions might simply be accepted at face value. Initially the applicant had stated that he was a member of the Haryana Vikas Party and that as such he had experienced threats and mistreatment at the hands of opposing Lok Dal supporters and that he and his relatives had been attacked by Muslims who were terrorising the Hindu population and being helped by the Lok Dal government. At the hearing he reiterated that he had been targeted as a supporter of Haryana Vikas and referred to two specific instances where arguments had degenerated into fights. He claimed that he had been charged by the police in relation to one instance. He was unclear about the nature of the charge but feared that he would be put in prison if he returned to Haryana. He referred to attacks by Muslims on Hindus but was only able to point to one particular instance involving himself when he was robbed on a train while travelling in another State in India.
The Tribunal reasons record that in the course of the hearing the Tribunal specifically asked the applicant if he had any problems other than those associated with opposing Lok Dal (the government in Haryana). Apart from a general claim about Muslim terrorists attacking people, the only specific incidence involving himself had been the incident on the train. The Tribunal also noted that although the applicant had foreshadowed the provision of medical and police reports he did not explain what these were in relation to and they were never submitted.
Despite the Tribunal concerns in relation to the applicant’s credibility it accepted that he was a sympathiser or supporter of the Haryana Vikas Party who had attended public meetings held in the local area and on two occasions engaged in altercations with local supporters of the opposing Lok Dal Party which ended up in fights and that on one occasion in early 2001 he and others were charged in relation to a fight which resulted in injuries to both sides. The Tribunal was not satisfied that the applicant had a significant profile or involvement with the Haryana Vikas Party. It noted that at the hearing he retreated from his claim to be a member and that he was unable to explain to the Tribunal’s satisfaction statements in his original application that he had had difficulties at the time of State elections six months earlier when the elections were in fact some two years earlier and when there were no reports in country information of violence accompanying or following the elections.
The circumstances related by the applicant at the hearing did not satisfy the Tribunal that he had been targeted or persecuted by reason of his political opinion or that he faced persecution for that reason. The Tribunal did not accept that the charges in relation to the 2001 fight (or any difficulties arising because the applicant missed court appearances as claimed) amounted to persecution for a Convention reason. In making this finding the Tribunal apparently proceeded on the basis that it accepted the applicant’s claims that he was fined for a failure to attend court and that if he were to return to India he would face imprisonment in respect of this charge.
The Tribunal accepted that, as discussed in Welivita v Minister for Immigration and Ethnic Affairs [1996] 989 FCA 1 at [21] per Lindgren J: “Clearly, the mere fact that a person will, upon returning to his or her country of nationality, be prosecuted and penalised for a criminal offence does not establish the existence of a well-founded fear of being persecuted for reasons of political opinion … the mere fact that the criminal offence was ‘politically motivated’ makes no difference”. The Tribunal also applied what was said by Brennan CJ in Applicant Aand Anor v MIEA and Anor (1996) 190 CLR 225 at 233 to the effect that punishment of a non-discriminatory kind for contravention of a criminal law of general application is not within the categories of persecution within the Refugees Convention.
The Tribunal went on to find that to the extent that the applicant had incurred personal animosities in his local area which may resurface on return, he may reasonably avoid these by living elsewhere either within his own State or another State in India. The Tribunal referred to the applicant’s standard of education, the fact that he spoke the national language of Hindi, that he had at least some familiarity with English, that he had an independent income from property and that he had previously shown a willingness to live away from his home area by coming to Australia. It did not accept that local activists from Haryana would be motivated or able to pursue the applicant throughout India. It concluded that protection from his home country was available to the applicant, that there was no ground based on a well-founded fear for refusing it and that it was reasonable for the applicant to avoid perceived difficulties in his own district by relocating within India.
The Tribunal also considered the applicant’s claims to fear persecution by reason of his religion noting that his original sweeping claims had been modified at the hearing. Based on independent evidence it did not accept that the applicant faced a real chance of persecution by Muslims as a Hindu or that, if he did encounter such difficulties, he would be denied reasonably available protection by the authorities.
The applicant filed an application for review by this Court on 24 July 2003. However Counsel for the applicant indicated in written and oral submissions that he sought leave to amend the grounds of the application and that the only grounds on which he wished to rely were as follows:
i)The Tribunal’s decision was so unreasonable that no reasonable decision-maker could have made it.
ii)In making its decision, the Tribunal failed to take into account relevant considerations.
iii)The Tribunal decision was affected by jurisdictional error.
Leave was granted to amend the application.
It was submitted that the Tribunal failed to take into account relevant considerations being the fact that the applicant had an outstanding workers compensation claim in Australia in relation to a workplace injury at the time of the Tribunal decision. It was also submitted that because of the applicant’s particular medical condition he would have difficulties returning to and assimilating in India outside his local community. Counsel for the applicant relied on the fact that the applicant had undergone surgery on 16 February 2004 (as a consequence of which this hearing was adjourned from 3 March 2004 to 4 May 2004). It was contended that the decompressive lumbar spine surgery undertaken in February 2004 was incapacitating surgery and that the applicant would have difficulty in obtaining work and that the degree and extent of the injury he had suffered was relevant to matters before the Tribunal.
In the course of the Tribunal hearing the applicant had asked for more time on the basis that he had a case going on in Australia. The Tribunal stated in its reasons that it had observed, and the applicant had acknowledged, that papers tabled by the applicant during the hearing indicated that this was a compensation claim in relation to a workplace injury said to have been sustained in March 2003 which was not relevant to his refugee claims. It considered his claims at the time of the hearing. It is also relevant to note that the applicant had indicated in January 2002 that he would be providing “medical and police reports” without explaining to what these related. No such reports were submitted to the Tribunal apart from the papers about his compensation claim. The Tribunal put to the applicant in the course of the hearing that it would be open to him to relocate within India and there is nothing to suggest that the applicant raised with the Tribunal his state of health or the degree or extent of his injury as an obstacle to relocation. Nor is there anything in the material before the Court to indicate that the applicant claimed that he would face any greater difficulties because of the workplace injury. The fact that he has subsequently undergone surgery where there is no evidence to establish that the possibility of surgery was made known to the Tribunal, does not establish that the Tribunal failed to take into account relevant considerations.
As pointed out by Black CJ in Randhawa v MILGEA (1994) 124 ALR 265 the extent of the decision-maker’s task considering a relocation possibility will be determined largely by the case sought to be made out by the applicant. In this case there is nothing before the Court to suggest that the applicant raised his workplace injury or claim as an impediment to relocation or as otherwise relevant to his claim to be a refugee or that the fact or impact of the workplace injury was relevant to the Tribunal’s consideration of relocation (see Randhawa at [17] per Blake CJ and see Whitlam J to the same effect). The applicant did raise the issue of finding employment in Delhi or another large city. This was addressed by the Tribunal observation that the applicant had previously lived on rents without being employed. The Tribunal properly considered relevant factors and the issues raised by the applicant. Furthermore, evidence from the bar table as to what has occurred to the applicant’s health since the Tribunal decision (such as the operation of February 2004), does not assist the Court in determining whether or not the Tribunal made a jurisdictional error at the time of the decision in its consideration of the papers tabled by the applicant indicating that at the time of the Tribunal hearing he had a compensation claim in relation to a workplace injury. It is apparent from the Tribunal reasons for decision that the only issue raised by the applicant in relation to such claim was that he had a case going on in Australia and should be given more time in Australia. There is nothing in the material before the Court to suggest that the material before the Tribunal was such that the applicant’s health had to be addressed as a bar to relocation – particularly in circumstances where the Tribunal addressed employment issues. No jurisdictional error is apparent in the Tribunal consideration of the applicant’s workplace injury and outstanding compensation claims. It addressed this aspect of the applicant’s claims but found it not relevant to his refugee claims.
The applicant also submitted that the Tribunal erred in concluding that the applicant could live in India in an isolated geographic location and not across the whole of the country. In written submissions it was claimed that the Tribunal erred in finding that it should deny refugee status to the applicant on the basis that he could return and live elsewhere in India. It was submitted that fear of persecution pursuant to the Refugees Convention could not be obviated by geographical placement in a person’s country of origin and that if the applicant has a fear of persecution in his local area which is well-founded then he cannot avail himself of the full protection of his country of nationality.
The principles applicable in relation to relocation are those determined by the Full Court of the Federal Court in Randhawa v MILGEA (1994) 124 ALR 265. As Black CJ stated at [13] the question is whether the applicant’s fear is well founded in relation to his country of nationality, not simply the region in which he lived. The question is not to be approached in a narrow way. It is necessary to ask the further question of whether the applicant could relocate to another area of the country and whether he could reasonably be expected to do so on the basis that “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”. (at [14]) Further, “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 the country from which he or she has fled to relocate to another part of the country of the 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” (at [16]).
In this instance the Tribunal did not find that the applicant could live in India in an isolated geographical location. Rather the finding was that “to the extent that the applicant has incurred personal animosities in his local area which may resurface on return, he may reasonably avoid these by living elsewhere, either within his own State or in another State”. The Tribunal gave reasons for its findings in relation to relocation based on the applicant’s education, language ability, independent income and previous willingness to live away from home. It is relevant that the Tribunal had put to the applicant the possibility of relocation and discussed with him the obstacles to relocation which he raised, in particular his claim about the difficulties of finding employment in Delhi or another large city in relation to which the Tribunal had regard to the fact that the applicant had previously lived on rental income without being employed. It is apparent from the Tribunal reasons for decision that it properly considered the questions of well-founded fear of persecution and the issue of the reasonableness of relocation. No error is established in its treatment of these issues.
The applicant also submitted that the Tribunal failed to consider his claim to fear persecution in India because the criminal justice system in India was controlled by his opponents in another political party. This is a claim made to the Court based on what the applicant now contends is the situation in India. Such a claim was not made to the Tribunal despite the fact that the applicant was given the opportunity in the hearing to indicate if he had any problems other than those of opposing Lok Dal. Counsel for the applicant submitted that the issues the applicant now raises about his concerns about the criminal justice system in India were not put to the Tribunal because he was not asked about the effect of criminal charges and the political motivation behind them and because he was not legally represented.
It was submitted in this context that as the Tribunal found that the applicant had incurred personal animosities in his local area, it should have inferred from the evidence before it that because of the politically motivated nature of the charges the applicant had faced and the fact that he had fled the country before dealing with the charges he had an issue with the procedure or system from which he was charged. It was submitted that the principle established in Welivita and Applicant A (that the mere fact that a person will upon return be prosecuted and penalised for a criminal offence does not establish the existence of a well-founded fear of being persecuted for reasons of political opinion) was only applicable if such criminal prosecution was carried out in a justice system that conformed to notions of procedural and criminal fairness ‘as we know it’. It was submitted that the Tribunal erred in dealing with an unrepresented applicant as it did not inquire of the applicant as to whether he saw anything untoward in the criminal justice system.
The reference in the Tribunal reasons for decision to ‘personal animosities’ occurs in the context of the Tribunal consideration of the reasonableness of relocation. As indicated above there is no error apparent in the Tribunal reasoning in relation to relocation. The evidence before the Court and the Tribunal findings in this respect do not compel an inference that the applicant may have had an issue with the Indian criminal justice system which should have been considered by the Tribunal.
Counsel for the applicant sought to rely on what he said were three documents relating to the charging, bail hearing and incarceration of the applicant in India which were tendered to the Court. However no failure to take into account relevant considerations is established in relation to these documents. The documents purport to be in relation to the charges faced by the applicant in India. They were not before the Tribunal. There is no affidavit or other evidence identifying such documents. The fact that the applicant now produces such documents does not assist the Court in determining whether the Tribunal fell into jurisdictional error in dealing with his claims at the time of its decision. Counsel for the applicant conceded that the applicant had not sought to tender such documents to the Tribunal. Moreover there is nothing in the documents tendered that establishes any jurisdictional error on the part of the Tribunal.
There is nothing in the material before the Court to suggest that the Tribunal failed to take into account relevant considerations, or denied the applicant procedural fairness by not specifically raising the question of whether he had any problems with the Indian criminal justice system.

The Tribunal accepted that the applicant was arrested and charged. The circumstances of the fight and the subsequent charges described by the applicant (that he engaged in altercations with supporters of the opposing political party and in 2001 was charged in relation to a fight which resulted in injuries to both sides) were accepted by the Tribunal. However the Tribunal concluded that such circumstances did not satisfy it that the applicant had been targeted or persecuted by reason of his political opinion or that he faced persecution for that reason. The Tribunal did not accept that the charges in relation to the 2001 fight (or any difficulties arising because the applicant missed Court appearances) amounted to persecution for a Convention reason. Such charges and difficulties were regarded by the Tribunal as punishment of a non-discriminatory kind for contravention of a criminal law of general application and not as persecution for reason of political opinion or otherwise within the Convention. The Tribunal properly applied the principles in Welivita and Applicant A and no error is established as contended for the applicant.
There is nothing in the material before the Court to suggest that the applicant put to the Tribunal the complaints that he now makes through his Counsel that he fears discrimination from the police and the justice system in his local area or his present allegation that the local police are corrupt and controlled by the ruling political party. Merits review is not available in the Court. Nor do fresh grounds for a claim for refugee status demonstrate jurisdictional error on the part of the Tribunal. It is for the applicant to present his case and ensure that primary evidence is before the Tribunal (Abebe v The Commonwealth (1999) 197 CLR 510 and Re Minister for Immigration & Multicultural Affairs, Ex parte Applicant S154 (2003) 201 ALR 437). The fact that he had no legal representation before the Tribunal does not establish a lack of procedural fairness or oblige the Tribunal to inquire as to whether the applicant saw anything untoward in the criminal justice system in India. The Tribunal did not accept that the charges or any difficulties from missed court appearances amounted to persecution for Convention reason. It gave reasons which were open to it on the material before it. There was no claim of discriminatory punishment. The Tribunal was not under an obligation to raise with the applicant the question of any concerns about the Indian criminal justice system especially as it did ask him if he had any problems other than those with opposing Lok Dal.
The applicant also alleged unreasonableness but the argument was not developed by the applicant’s Counsel in submissions. There was no indication of how the high threshold applicable to such a ground would be met and I am not satisfied that it has been established. This is not a situation in which the decision could be regarded as “not authorised” by the Migration Act 1958 on the bases that it involves an exercise of power so unreasonable that no reasonable person could have so exercised the power (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [72] per McHugh and Gummow JJ and SHJB v MIMIA [2003] FCAFC 303 at [28]). Nor can it be said that the Tribunal’s reasons disclose an irrational, illogical or perverse process of reasoning to the extent that it may be concluded that its decision did not conform with the requirements of the Act (SHJB at [32]). No jurisdictional error is established. Accordingly the application must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 16 July 2004