SZBLW v Minister for Immigration

[2005] FMCA 792

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBLW v MINISTER FOR IMMIGRATION [2005] FMCA 792

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in India – RRT found that the applicant had a well-founded fear of persecution in his home state but that he could relocate elsewhere in India – no reviewable error in relocation finding – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424A, 425

Randhawa v Minister for Immigration (1994) 52 FCR 437

Applicant: SZBLW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1921 of 2003

Judgment of: Driver FM

Hearing date: 9 June 2005

Delivered at: Sydney

Delivered on: 9 June 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr A McInerney

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1921 of 2003

SZBLW

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 15 August 2003 and handed down on 11 September 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant protection visas to the applicant and two other family members.  Only the primary applicant is a party to the proceedings before this Court.  The applicant is from India and had made claims of religious persecution.  Relevant background facts are set out in paragraphs 2 to 13 of written submissions prepared on behalf of the Minister by Mr McInerney.  I adopt those paragraphs as background for the purposes of this judgment:

   The applicant, a citizen of India, alleged that he had a well-founded fear of persecution from Hindu militants, particularly the RSS, because he had expressed the intention to convert from Hinduism to Christianity, and marry a Christian woman.

   The RRT affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.

   The background to the application is as follows.

   The applicant arrived in Australia on 13 September 2001.

   On 26 October 2001, he lodged an application for a protection visa with the respondent.

   On 30 October 2002, a delegate of the respondent refused to grant a protection visa to the applicant.

   On 25 November 2002, the applicant applied to the RRT for a review of the delegate’s decision.

   On 5 August 2003, the applicant gave oral evidence to the RRT.

   Summary of argument

   The RRT made an adverse finding of fact in respect to the applicant’s claim which was fatal to his application.

   The RRT found that it would be reasonable for the applicant to relocate to another state in India, that is, Uttar Pradesh, Punjab, Uttaranchal, Manipur or Goa and that, if he did so, there was not a real chance he would face persecution for a Convention reason.

   The RRT make the following findings of fact in respect to the applicant’s claims.

   The RRT found that:

   a)it accepted the applicant’s claims of being involved with a Christian woman, of intending to convert to Christianity in order to marry her, and that he had been attacked by RSS members who had come to know of situation through his RSS-associated uncles [court book, pages 74.9-75.1].

   b)it accepted that there were religious tensions in parts of India, and that the RSS was hostile to those Hindus that convert to Christianity [court book, page 75.2].

   c)it accepted that the applicant’s fear of remaining in Kerala was well-founded [court book, page 75.3].

   d)it found that it was reasonable for the applicant to relocate to some other part of India, such as Uttar Pradesh, Punjab, Uttaranchal, Manipur or Goa, where violent religious tension was not present and where he could live safely [court book, page 75.5].

   e)it found as far fetched, and did not accept, the applicant’s claim that the RSS has so penetrated Indian society that they had the ability to tap telephone conversations and would be able to locate the applicant wherever he may be in India [court book, page 75.7].

   f)it found that [sectarian] violence was not present in every state and that other parties control many of the states where a lack of [sectarian] tension made it a reasonable option for the applicant to relocate [court book, page 75.8].

   g)it found that the applicant had a high level of education with highly marketable computer skills, and that he had shown himself to be able to adapt to living beyond his home town in other cities of India, as well as overseas, and that any fears that he may have that he could not live safely anywhere in India were not well‑founded [court book, page 75.9].

   h)it found that there was not a real chance that the applicant would face persecution for any Convention reason should he return to India [court book, page 75.9].

2. The applicant relies upon his amended application filed on 13 April 2005.  The applicant initially sought to rely also upon his original application filed on 13 September 2003.  However, after discussion during the course of argument, he accepted that there was no point in doing so as the original application contained no grounds.  In his amended application the applicant takes issue with the relocation finding made by the RRT.  It is the relocation finding upon which the case turned. 

3. The presiding member accepted the applicant's claims of being involved with a Christian woman, of intending to convert to Christianity in order to marry her and of being attacked by the radical Hindu organisation, the RSS.  The RRT also accepted independent evidence that there are religious tensions in parts of India and that the RSS is hostile to those Hindus who convert to Christianity.

4. On page 75 of the court book the presiding member accepted that the applicant had a well-founded fear of persecution in his home state of Kerala.  However, the presiding member went on to find, on the basis of independent evidence, that either the persecution which the applicant experienced in Kerala was absent in certain other states or that effective state protection was available in certain other states against it.  In the light of that, the RRT made the following finding on page 75 of the court book:

   The Tribunal finds that it is reasonable in the particular circumstances of the applicant's case, for him to relocate to some other part of India, such as one of the states mentioned above, where violent religious tension is not present and where he could live safely.  The Tribunal further notes that the independent evidence indicates that there are parts of India where Christians are either a sizeable minority or even have a majority and one of those areas, such as Goa, which is a southern state and which has one third of the population Christian, would also be an appropriate  place for the  applicant to  relocate.       The Tribunal finds as far fetched, and does not accept, his claim that the RSS has so penetrated Indian society that they have the ability to tap telephone conversations and would be able to locate him wherever he may be in India.  Moreover, while the BJP may well control the national government, it is clear that secular violence is not present in every state and that other parties control many of the states where a lack of secular tension makes it a reasonable option for the applicant to relocate.

5. I think that the presiding member was at that point intending to refer to sectarian tension rather than secular tension.  The presiding member went on:

   The Tribunal in finding that it is reasonable for him to relocate to one of the above mentioned states, notes that he has a high level of education with highly marketable computer skills, and that he has shown himself able to adapt to living beyond his home town in other cities of India, as well as overseas.  This being so the Tribunal finds that any fears that the applicant may have that he could not live safely anywhere in India are not well founded.

6. In his amended application, the applicant takes issue with this reasoning by the presiding member.  Substantially, he reiterates his concern that the RSS is an organisation with a nationwide reach and that he would not be safe.  To that extent the applicant is contesting the merits of the RRT decision.  As I pointed out to the applicant, I must restrict myself to asserted jurisdictional error.  The applicant also takes issue with the RRT’s use of so-called independent country information.  There again, he is contesting the merits of the RRT decision and no jurisdictional issue arises. 

7. In paragraph 7 of his amended application, the applicant raises the issue of language and culture.  He says that he does not know any other language than Tamil and English and that it is easier for the applicant to be in Australia, an English speaking country, rather than suffer in any other part of India without knowing their language.  The applicant says that the RRT has not considered the matter as it should have and hastily dismissed his application.  I take this to be an assertion that the RRT constructively failed to consider the issue of relocation either because the consideration of that issue was wholly inadequate or because the RRT did not understand or apply the correct test applicable in relocation cases.  The applicant continues in this theme, in particular in paragraph 11 and 12 of his amended application. 

8. The principles guiding decision makers in dealing with the issue of relocation are set out in the well known decision of the Full Federal Court in Randhawa v Minister for Immigration (1994) 52 FCR 437, in particular, on pages 442 and 443. The ratio of that case is adequately summarised in the reported headnote.  It is, first, that although the Refugees Convention definition of a “refugee” does not refer to parts or regions of the country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection in their country of nationality elsewhere within that country.  Secondly, if it is not reasonable in the circumstances to expect a person who has a well founded-fear of persecution in relation to that 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. 

9. On my reading of the decision and reasons of the RRT there was an adequate consideration of the issues relevant to determination of the question of relocation.  The presiding member had regard to country information which guided him in considering the relative safety of various parts of India.  The presiding member also had regard to information from the applicant himself which led to the presiding member coming to the view that it was reasonable for the applicant to relocate.

10. It is clear that there was some discussion between the presiding member and the applicant at the hearing about the relocation issue[1].   The applicant put before the presiding member his concerns about the remoteness of far eastern border states with Christian majorities and language difficulties in those states.  It appears that the applicant may have had some impact on the presiding member’s reasoning because, in his reasoning, the presiding member restricted himself to north-central and southern states which he either regarded as safe or which had significant Christian minorities.

    [1] See, in particular, court book, pages 68 and 69

11. The presiding member did not specifically consider the issue of language in relation to relocation to the nominated states.  However, the applicant is incorrect in his amended application in saying that he only understands English and Tamil.  His first language is Malayalam which he nominated in his original protection visa application[2].  The applicant is assisted by a Malayalam interpreter today.  Both Malayalam and Tamil are Dravidian languages spoken in the south of India.  The presiding member noted that one possible relocation destination for the applicant was Goa, which is also in the south of India.

    [2] court book, page 2

12. In the circumstances, it may be implicit in the presiding member's reasoning that he had regard to the possibility of the applicant using his existing languages in Goa.  Even if that were not so, I accept Mr McInerney's oral submission that language in itself in this case did not render it unreasonable for the applicant to relocate.  The applicant had shown adaptability in travelling abroad and he is well educated and qualified.  In the circumstances, it would not have been an unreasonable burden upon the applicant for him to learn a new language to add to the three he is already conversant with.

13. I am satisfied, and I find that there was no jurisdictional error in the presiding member's consideration of the relocation issue.  The presiding member understood sufficiently the task that he had to perform and the considerations relevant to the issue of relocation.  The presiding member satisfied himself adequately that certain parts of India were safe or that effective state protection was available and that it was a practical reality for the applicant to relocate to those states.

14. The only other question in my mind is whether any issue of statutory procedural fairness arises in this case. I note that s.422B of the Migration Act 1958 (Cth) (“the Migration Act”) applies in this matter. In my view, no procedural fairness issue arises from s.425 of the Migration Act. To the extent that the fair hearing rules under the general law are imported by that section, they appear to have been met on the face of the evidence before me. While the decision and reasons of the RRT do not necessarily set out comprehensively what was discussed between the presiding member and the applicant at the hearing, it is clear that the issue of relocation was raised at the hearing and discussed. Neither do I think any procedural fairness issue arises from s.424A of the Migration Act. In dealing with the issue of relocation, the presiding member relied upon independent country information and information from the applicant himself. Neither of those classes of information required disclosure to the applicant pursuant to s.424A.

15. I find that the decision of the RRT is free from jurisdictional error.  In the circumstances, the decision is a privative clause decision.  I must dismiss the application and I do so.

16. On the question of costs, the application having been dismissed, Mr McInerney seeks an order for costs fixed in the sum of $4,000.  I am satisfied that in this matter, costs of at least that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.  The applicant referred to his impecuniosity, but that is not a reason for the Court to refrain from making a costs order.

17. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 June 2005