SZCLL v Minister for Immigration
[2005] FMCA 1474
•29 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1474 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicants are citizens of India – claim of well-founded fear of persecution because husband is a Muslim and wife is a Hindu – relocation issue – whether relocation reasonable. |
Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), ss.475A.
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Multicultural & Indigenous Affairs v Prathapan (1998) 156 ALR 672
Applicant S395 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 71
Jones v Dunkel (1958-1959) 101 CLR 298
Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 31
SZDPE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 626
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
SZFDV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1312
SZDPE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 626
| First Applicant: | SZCLL |
| Second Applicant: | SZCLM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 71 of 2004 |
| Delivered on: | 29 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 27 September2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R.B.Wilson |
| Counsel for the Respondent: | Ms S.A. Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $4,260.00. I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 71 of 2004
| SZCLL |
First Applicant
And
| SZCLM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 21st November 2003 after a hearing that took place on 17th November 2003. The Refugee Review Tribunal handed down its decision on 16th December 2003. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicants.
The Applicants are husband and wife. They arrived in Australia on
20th May 2003. On 18th June 2003 they applied for protection visas which were refused on 26th June 2003. On 21st July 2003 the Applicants sought a review of that decision from the Refugee Review Tribunal.
The First Applicant, the husband, claims to have been threatened and tortured by Hindu fundamentalists and to be the target of the present BJP Government in India and their supporters. This resulted from the fact that he was a Muslim who had married his employer’s daughter, a Hindu. The employer was an influential man in Madras[1] who was a financial contributor to the BJP. The First Applicant eloped with his employer’s daughter. The father in law, as he had now become, had the Applicant charged with kidnapping. The Second Applicant, the wife, had now sworn an affidavit in which she said that she had converted to Islam of her own free will.
[1] Madras is now known as “Chennai”
The First Applicant claimed to have moved around India for some time in order to avoid the malevolent actions of his father in law. He moved to Bombay, now called Mumbai, for a while but his father-in-law managed to locate him there. This came about because the husband telephoned a former work colleague who had informed on him to his father-in-law.
The Applicants left India for Australia. The wife travelled to Australia on a passport in another person’s name in order to avoid being located by her father.
The First Applicant told the Tribunal that he did not believe it would be reasonable for him to relocate within India to avoid any feared harm. He claimed his father-in-law would eventually locate him. He was not able to speak any other language except Tamil, and he did not have any business connections in any other part of India. He said that he and his wife were settled in Australia and he had found work in this country.
Issues:
The Refugee Review Tribunal found that neither Applicant had a well founded fear of persecution for a convention reason should they return to India. What was unclear from the decision is whether the Tribunal found that the Applicants had a well founded fear of persecution in India per se, or that they did have a well founded fear of persecution for a convention reason but were able to avoid that persecution by relocation within India, and it was reasonable for them to do so.
The Applicants’ Submissions:
The Applicants’ counsel, Mr Wilson, submitted that the Tribunal had found that there was a real risk of persecution for a convention reason but had limited this finding by restricting it to Madras, (now Chennai). He also submitted that the Tribunal had found that even though the Applicants may have been subject to harm amounting to persecution in Madras, they could safely relocate so as to avoid harm and that this was a reasonable step for them to take.
The application was argued on the basis that there are four grounds where it is submitted that the Tribunal fell into jurisdictional error.
Ground 1: The internal relocation principle applied by the Tribunal concerns whether adequate protection is available in an applicant's country of nationality, whether by moving to another area or by seeking aid from the police or other government agencies. The Tribunal must enquire whether the protection available is sufficient to remove a real chance of persecution in the Applicant’s home country. (See Randhawa & Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437. MIMA & Prathapan (1998) 156 ALR 672).
The Applicants submit that the Tribunal found that relocation would only provide an effective haven if the First Applicant's father-in-law could not find him. The Tribunal found that the father-in-law would not be able to do so if the Applicants were discreet about revealing their whereabouts. It was submitted however that the Tribunal did not determine whether or not that discreet conduct itself amounted to persecution. Potentially this question was of significant weight and the Tribunal's failure to consider this aspect of the case amounts to jurisdictional error (see Applicant S395 of 2002 v MIMIA [2003] HCA 71).
Ground 2: The Tribunal had to determine whether the Applicants were unwilling or unable to avail themselves of the protection of their country of nationality, in this case, relocation within India. Relocation must remove a real risk of persecution and it must also be a reasonable option.
The Tribunal first considered whether relocation would render the Applicants safe, and found that it would be safe provided that the Applicants acted discreetly.
The Tribunal then considered whether relocation was reasonable. The Applicants submit that the Tribunal put its finding about the need to act discreetly to one side when determining the reasonableness of relocation and that this constitutes a failure to take a relevant consideration into account. As such, the Applicants argue that the Tribunal fell into jurisdictional error.
Ground 3: The Tribunal held that the fact that First Applicant had obtained work in Australia established that he was capable of relocating within a foreign culture and language and therefore it was reasonable to expect him and his wife to relocate within India. The submission is that the true issue is not whether the First Applicant was able to obtain employment in Australia, nor whether he had displayed some personal capacity or resiliency, but whether he would be able to relocate in India, given his knowledge of no other language than Tamil and his lack of contacts in safe areas in India.
The Applicants submit that obtaining employment in Australia would only be relevant if there were shown to be some parity of circumstances between Australia and India in this regard. The Applicants say that on a decisive issue the Tribunal took an irrelevant consideration into account and reached a decision that was unreasonable in the "Wednesbury" sense. They also submit that in making the determination that relocation was reasonable on that basis the Tribunal failed to determine the issue it was required to consider. This constituted jurisdictional error.
Ground 4: Whilst the Tribunal accepted the First Applicant’s father-in-law may have complained to the authorities about the alleged kidnapping of his daughter, and that this could lead to false prosecutions, the Tribunal held that any prosecution would fail because the wife could give evidence rebutting the prosecution case. The Applicants submit that this finding ignores the threat of persecution arising from the initiation of those proceedings and the need to defend them. This, it is submitted, is entirely speculative.
The Tribunal found in the alternative that the father-in-law's influence was limited to the Madras area in India and that he would be either unwilling or unable to have the First Applicant falsely prosecuted under the anti-conversion or anti-terrorism laws outside Madras. The Applicants claim that this is a conclusion made without evidence and is purely speculative, rather than a permissible inference on the balance of probabilities. The Applicants claim that the evidence is circumstantial and to decide which is the proper and correct inference requires evidence that such inference is the more probable when compared to the others. Such speculation is not permitted as a matter of law when considering a past fact (see Jones v Dunkel (1958-1959) 101 CLR 298).
The Applicants submit that the Tribunal erred in law and therefore exceeded its lawful powers.
The Respondent's Submissions:
For the Respondent Minister, Ms Mason of counsel, submitted that the Tribunal had not made a specific finding that the Applicants had a well founded fear of persecution for a convention reason albeit limited to the Madras area. All the Tribunal member was doing was applying the "what if I am wrong?" test without specifically saying so.
In relation to the Applicants’ four grounds, Ms Mason submitted the following:
a)The Tribunal correctly applied the relocation test as set out in Randhawa (supra).
b)The decision in S395 can be distinguished on its facts, since that case examined error constituted by the Tribunal distinguishing between the social group of homosexual men in Bangladesh and homosexual men living discreetly in Bangladesh. The error in S395 turned upon a purported restriction on the applicants in relation to being discreet so as to conceal their membership of a particular social group;
c)In this case the Tribunal considered that, having relocated, the Applicants would be discreet about making their whereabouts known to people from their place of origin. This is an inherent feature of relocation as a principal and does not require the Applicants to modify their behaviour so as to conceal their religion or mixed marriage. It is implicit that in relocation a person avoids the persons or situations originally giving rise to the persecution;
d)In the alternative, even if S395 is applicable to the relocation principal, Ms Mason submits that no jurisdictional error arises. The Tribunal found that the applicants would act discreetly, not that they should. This is a valid exercise (see S395 at [34] and [70]). These principles were discussed by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VWBA [2005] FCAFC 175 at [6].
e)This was not a case where the Tribunal took into consideration irrelevant matters in relation to the First Applicant’s language and employment skills. The Tribunal did not fail to consider the practical realities when assessing the reasonableness of relocation (see NAIZ v MIMIA [2005] FCAFC 31).
f) The factual findings about the First Applicant’s ability to obtain work within India were open to the Tribunal on the evidence.
g) It is not unreasonable in a 'Wednesbury' sense or at all to consider whether relocation from the perspective of language or other factors is reasonable by contrasting the position of relocation to Australia against relocation within the country of origin (see SZDPE v MIMIA [2005] FCA 626).
h) There was, Ms Mason submitted, evidence to suggest that the father in law had limited influence or will, to inflict harm. The Applicants claim the father in law was an influential man in Madras, but not elsewhere.
i) It is not a matter for the Tribunal to make out the Applicants’ case for them (see Dranichnikov & MIMIA (2003) 197 ALR 389 at [98]) It was open to the Tribunal to rely on the Applicants’ evidence about the father-in-law's influence to infer that he did not have either the capacity or the will to persecute them in Bombay or other parts of India.
Conclusions:
In my view the Tribunal decision when taking into account the findings at page 140.9, 141.4 and 141.10 of the Court Book, that the proper interpretation of the decision is that the Tribunal did find that the Applicants faced a well founded fear of persecution for a convention reason, even though limited to the Madras area. Whilst this may appear to be a generous finding, bearing in mind that the source of the persecution came from an enraged father-in-law, in my view the wording of the decision leaves no other conclusion. At CB 140.9 the Tribunal decision says:
However I am satisfied the Applicant may have a well founded fear of harm amounting to persecution in Madras.
At CB 141.4 the Tribunal says:
As indicated in this decision I accept the Applicant may be subject to harm amounting to persecution in Madras at the instigation of his father in law. However I also indicated to the Applicant at hearing that irrespective of whether I was satisfied he had a well founded of persecution for a refugee convention reason in Madras, I may still determine that protection obligations were not owed in Australia if I was satisfied he could safely relocate within India.
At CB 141.9 the Tribunal decision says:
Accordingly, I am satisfied the Applicant could safely relocate within India and by so doing avoid a well founded fear of persecution for a refugee convention reason.
In my view, as I said, the wording of the decision, taking those three passages into account and noting that there are no other parts of the decision referring to that finding, the conclusion I must come to is that the Tribunal did find that the Applicants faced a well founded fear of persecution for a convention reason although limited to the Madras area.
In my view then, this matter is about relocation. It appears to me that the decision in Randhawa has been properly applied by the Tribunal.
I note certain comments made by Madgwick J in SZFDV & Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1312. SZFDV is a decision of Madgwick J sitting on an appeal from the Federal Magistrates Court and his Honour says at [6], [7] and [8]:
In so doing the Tribunal member was applying the test sanctioned by the Full Court of this Court in Randhawa & Minister for Immigration, Local Government and Ethnic Affairs (1994) FCR 437 (Randhawa) before Black CJ at 443 and Beaumont J at 451. I have myself wondered in NALZ & Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 270 whether the Randhawa test remains appropriately framed in the light of Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs (2004) 216 CLR 437. However I am bound by Randhawa and on the authority of that case the Tribunal proceeded in a legally unexceptionable way.
I note his Honour's comments, but as his Honour says the Federal Court is bound by Randhawa, and so with respect is the Federal Magistrates Court. In my view Randhawa is binding upon this Court and in my view, the Tribunal appears to have complied with its obligations in applying that decision.
I have also been referred to the decision of Edmonds J in SZDPE & Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 626, which was a decision on appeal from a decision of the Federal Magistrates Court. Indeed the decision of the Court was one which I myself handed down.
In my view the fact situation in SZDPE (supra) is analogous to that in the case before me. In SZDPE I note the finding at first instance that it was appropriate to consider a situation where a party who only spoke, in that case, Bengali and who did not speak either English or Hindi could relocate within India when it was noted that the parties had in fact relocated to Australia.
The decision in SZDPE was upheld on appeal by Edmonds J. In my view it is appropriate where a party claims that he cannot relocate within India because he does not speak another Indian language to have brought to his notice he has successfully, at least in the short run, relocated to Australia and obtained employment there.
In my view, the decision of the Refugee Review Tribunal was correct in that it was reasonable and safe for the Applicants to relocate to another part of India, noting that the First Applicant had relocated to Bombay at one stage and even though it appears that the father in law became aware of that no harm befell the Applicants.
Turning finally to the point made about the applicability of the decision in Jones v Dunkel (supra), it was put by Ms Mason of counsel, that Jones v Dunkel does not apply and she referred me to the provisions of s.420 of the Migration Act1958. Section 420 says:
1) The Tribunal in carrying out its functions under this Act is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
2) The Tribunal in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice in the merits of the case.
In my view the provisions of s.420 of the Migration Act are an answer to the submission that the Tribunal did not act in accordance with the ruling in Jones v Dunkel.
It appears to me that notwithstanding the fact that the Tribunal did make a finding that the Applicants suffered a well founded fear of persecution for a convention reason limited to the Madras area of India, the Tribunal appropriately applied the relocation test set out in Randhawa, which is a decision that is binding upon this Court.
I intend to dismiss the application.
This is a matter where an order for costs is sought on behalf of the First Respondent. It is submitted that in the light of the findings the Court may decide to exercise its discretion not to make an order for costs. Whilst I note the terms of the finding and the circumstances, in my view this is a matter where a successful party could expect a costs order from the Court.
In my view the lump sum sought of $4,260.00 inclusive of counsel's fees is an appropriate figure in that it comes within the scale of lump sum costs envisaged by the Federal Magistrates Courts Rules 2001 and I propose to make an order that the Applicants pay the First Respondent's costs fixed in the sum of $4,260.00. I am mindful however of the submissions made by Mr Wilson of counsel, in respect of his clients’ financial circumstances including the fact that they have a young child. I am also mindful of the fact that they have their own legal costs to consider and that they have engaged experienced counsel to present, what, if I may say so with respect, was a well argued and interesting case.
These considerations, whilst not relevant to whether or not costs should be ordered, are certainly relevant to whether the Court should allow time to pay, and if so the length of time. I will allow time to pay.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 7 October 2005
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