SZCVC v Minister for Immigration - [2006] FMCA 701

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCVC v MINISTER FOR IMMIGRATION

[2006] FMCA 701

MIGRATION − Review of RRT decision − where RRT found applicant did not have well-founded fear of persecution within s.91R Migration Act − whether Tribunal failed to consider integer of applicant’s claim − whether Tribunal failed to properly consider question of relocation − whether Tribunal needs to consider question of relocation once it has concluded no well-founded fear exists.

Migration Act 1958 ss.91R, 91S

Federal Magistrates Court Rules 2001 Part 21, Rule 21.02(2)(a)

Randhawa v The Minister (1994) 124 ALR 265
NAIZ v The Minister [2005] FCAFC 37

Applicant:

SZCVC

Respondent:

MINISTER FOR IMMIGRATION & MUTLICULTURAL & INDIGENOUS AFFAIRS

File number:

SYG 512 of 2004

Judgment of:

Raphael FM

Hearing date:

8 May 2006

Date of last submission:

8 May 2006

Delivered at:

Sydney

Delivered on:

8 May 2006

REPRESENTATION

Counsel for the Applicant:

Roland Anthony

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondent:

Margaret Allars

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 512 of 2004

SZCVC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Nepal. He arrived in Australia on 16 March 2003. On 30 April 2003 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 20 June 2003 a delegate of the Minister refused to grant a protection visa and on 9 July 2003 the applicant applied for review of that decision. The applicant attended a hearing before the Tribunal on 5 November 2003. On 29 January 2004 the Tribunal affirmed the decision not to grant a protection visa and handed down that decision on 19 February 2004.
The applicant’s claim to have a well-founded fear of persecution for the Convention reason of political opinion arose out of his imputed claimed association with the Communist Party of Nepal (CPN) (Maoist). The applicant stated that whilst he had joined the Communist Party of Nepal (United Marxist Leninist) he was approached by friends in the period from 1996 to 1998 who tried to recruit him to the Maoist cause. He said that they came to his village about twice each month and sought food and shelter which he gave them. In 1998 the applicant left his village and went to a town called Pokhara, although he returned to his village from time to time. He said that the Maoists continued to come to his home village and harass his family and also came to him in Pokhara. He claimed that a neighbour had informed upon him to the police as being a Maoist and as a result he was troubled both by the Maoist insurgents and by the police.
The applicant told the Tribunal that he did not himself ever become a Maoist although he did go to a few cultural programs organised by them. He told the Tribunal that he was a Buddhist and that he did not approve of the use of violence. The applicant was a Buddhist monk, and for the last two years that he was in Pokhara he wore the habit of a Buddhist monk, which he said, lessened any interference by the Maoists. Although adopting the dress of Buddhist monk, the applicant worked in a shop that he owned selling what I take to be Buddhist ephemera.
The Tribunal at [68] states:
“Given that his problems were localised in his village and Pokhara, I asked why he could not relocate to a safe area within Nepal such as Kathmandu. He said that used to be possible but now as a businessman there would be questions asked and eventually the Maoists would locate him.”
In its findings and reasons, between CB 73 and 77, the Tribunal states:
“Having considered all the evidence before me, and for the reasons that follow, I am not satisfied that the applicant has a well-founded fear of being persecuted by the authorities in Nepal because he is seen as being a Maoist or a supporter of the Maoists. Nor am I satisfied that there was a well-founded fear of persecution from the Maoists themselves.”
The Tribunal came to the view that the allegations that the applicant had made did not constitute persecution. As the Tribunal states at CB 75:
“On the applicant's own evidence at hearing, he was never a Maoist, and I therefore do not accept his assertion in his application to the effect that as a result of that membership and his leaving Nepal without their permission, Maoists will persecute him if he returns to Nepal. At the hearing the applicant maintained the claim that if he returns to Nepal the Maoists will continue to visit his home and make demands and that they might shoot him. I accept that the Maoists might visit his home in the village or Pokhara and make demands, but I do not accept that such problems themselves amount to persecution and I do not accept his assertion that the Maoists might shoot him. I find this claim to be fanciful and not supported by the applicant's own evidence to the effect that despite their visits and attempts to recruit him over many years, the Maoists did not do him any other harm.”
At the commencement of the Tribunal's decision at CB 61 it sets out its requirement to consider ss.91R and 91S of the Migration Act 1958 (the “Act”). It describes what is considered to be serious harm. Although the paragraphs there set out are seen in many of these decisions and therefore have something of a "boilerplate" appearance, it has not been asserted that the Tribunal did not take these matters into consideration, nor that the Tribunal was not aware of the way in which it should test persecution for the purposes of the Act. I am satisfied that the Tribunal did put the applicant's evidence to the test and came to the conclusion, a factual one with which this court cannot interfere, that the applicant's story, so far as it was believed, did not constitute persecution within the meaning of s.91R of the Act.
Mr Anthony, who appears on behalf of the applicant, argues that the Tribunal fell into jurisdictional error in the way it came to this conclusion because it did not consider the applicant's claim of fear of persecution by the Maoists. He says that the claims as made were not fully dealt with because the Tribunal did not speculate on the possibility of some middle ground between the extreme of the applicant being shot by the Maoists and the finding by the Tribunal that he would not be harmed.
I accept the submissions made by Ms Allars on behalf of the respondent that this is not the Tribunal's job. The Tribunal must deal with the case that is put to it and not some other case that might be more favourable to the applicant. The case that was put was that certain activities had occurred which the Tribunal accepted and then there was a submission, not based upon any evidence, that if the applicant returned to Nepal the Maoists would act in a particular way, which did not seem to follow from the evidence previously given. In those circumstances, I am quite satisfied that the Tribunal in making its decision about the substance of the applicant's alleged persecution did not fall into jurisdictional error.
The applicant then complains that the Tribunal fell into jurisdictional error when at CB 68 it says this:
“Given that his problems were localised in his village and Pokhara, I asked why he could not relocate to a safe area within Nepal such as Kathmandu. He said that used to be possible but now as a businessman there would be questions asked and eventually the Maoists would locate him.”
At CB 75-76 the Tribunal says:
“Moreover, the applicant's problems with the Maoists centred on his home in the village and later in Pokhara, and to the extent that he faces such problems in the future, I find that he could avoid such problems by relocating to a large city such as Kathmandu, and I do not find his reasons why this would not be possible to be convincing.”
Mr Anthony argues that the Tribunal fell into jurisdictional error in the manner in which it considered the possibility of relocation. Mr Anthony refers the court, as is proper, to the seminal cases of Randhawa v The Minister (1994) 124 ALR 265 and its consideration by a Full Bench of the Federal Court in NAIZ v The Minister [2005] FCAFC 37. Those cases make it clear that in considering the question of relocation a tribunal is required to take into account:
“…if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to the person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered. Moreover, the range of the realities that may need to be considered on the issue of reasonableness of location extends beyond physical or financial barriers, preventing an applicant for refugee status from reaching safety within the country of nationality, and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal; ex parte Jonah [1985 IMM AR7].” [As per Black CJ in Randhawa at p.270]
Although Ms Allars argues that the Tribunal did take into account the matters referred to in Randhawa and considered by the Full Bench in NAIZ. I do not think that is the case. I think there was a very short discussion about relocation which was started by the Tribunal. It seems to me that if the Tribunal of its own volition raises the question of relocation, then the Tribunal is obliged to ensure that the scope of its investigations allow it to be satisfied in the manner which Randhawa and NAIZ make clear. A failure to do this seems to me to be a failure which constitutes jurisdictional error.
But this is not the end of the matter for this particular applicant. The question of relocation should only be considered where a Tribunal has come to the conclusion that a particular applicant is likely to suffer some harm if he returns to his home country and that such harm could possibly constitute persecution. There is absolutely no point in considering the question of relocation if that does not apply. It is unfortunate that tribunals, in an understandable attempt to cover every base, make findings that are not necessary and do not follow from previous findings made in the same matter. In this case, the Tribunal has made it quite clear that it does not believe that this particular applicant has suffered persecution. That is enough. It needs do no more. It certainly does not need to make some findings on the question of relocation. If this applicant is not being persecuted, he can return from whence he came. There is no necessity to make findings as to where he might return within that country.
As I am satisfied that the Tribunal came to its conclusions about persecution without falling into jurisdictional error, the fact that it may well have fallen into jurisdictional error when it made the otiose findings in regard to relocation will not assist.
I must dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $5000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: