SZDCB v Minister for Immigration

[2007] FMCA 417

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDCB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 417

MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – relocation – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.424A

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZDDS v Minister for Immigration & Multicultural Affairs [2006] FCA 1428
NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
SZAGF v Minister for Immigration & Anor [2005] FMCA 1448
Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27
SZHQG v Minister for Immigration & Anor [2006] FMCA 1275
NBKM & Ors v Minister for Immigration & Anor [2007] FMCA 179
SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216

Applicant: SZDCB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3493 of 2006

Judgment of: Scarlett FM

Hearing date: 19 March 2007

Date of last submission: 19 March 2007

Delivered at: Sydney

Delivered on: 19 March 2007

REPRESENTATION

Counsel for the Applicant: Mr Kumar

Solicitor for the Respondent: Ms Blackman

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The title of the First Respondent is changed to Minister for Immigration & Citizenship. 

2. The Application is dismissed.

3. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3493 of 2006

SZDCB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application to review a decision of the Refugee Review Tribunal that was made on 12 October and handed down on 2 November 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa.

2. The Applicant is a citizen of the Republic of India. He hails from the state of Andra Pradesh. He arrived in Australia on 3 April 2002 and applied for a protection visa on 16^th May in that year.  That application was refused on 21 November 2002.  The Applicant then applied for a review of the decision of the delegate to the Refugee Review Tribunal.  The Tribunal, differently constituted from the Tribunal that made this decision, handed down a decision on 9 March 2004 affirming the delegate's decision.  The Applicant then commenced proceedings in the Federal Magistrates Court on 22 March 2004 seeking a review of that decision. 

3. On 3 February 2006 his Honour Raphael FM refused the application for judicial review. On appeal to the Federal Court of Australia orders were made by consent on 31 July 2006 for the application to be remitted to the Refugee Review Tribunal. The Tribunal then invited the Applicant to attend a further hearing. That hearing took place on 9 October 2006 and the Applicant gave evidence. The Tribunal affirmed the delegate's decision and handed its decision down on

   
   

   2 November 2006.  The Applicant then commenced proceedings for judicial review in this Court. 

4. The Applicant's grounds for relief upon which he relies are two in number. First, he complains that the Tribunal breached s.424A of the Migration Act, and second, he claims that the Tribunal fell into error when making a decision about the reasonableness of relocation within the Applicant's home country.

5. Dealing with the first ground, the breach of s.424A of the Migration Act, Counsel for the Applicant, Mr Kumar, noted that no letter was sent to the Applicant by the Tribunal under the provisions of s.424A of the Migration Act. He referred the Court to the Tribunal's remarks at p.192 and 193 of the Court Book where the Tribunal at p.192 had referred the Applicant to his earlier evidence before the previous Tribunal and again on p.193 where the Tribunal referred to the Applicant's earlier evidence. The submission is that the Tribunal has adopted earlier evidence and that this earlier evidence, whatever it may be, constitutes information that ought to have been subject to comment pursuant to the requirements of s.424A of the Migration Act.

6. Counsel for the Applicant submits that the Tribunal adopted the earlier evidence to draw an incompatibility from that information which impacted upon the Applicant's credibility. Therefore, the Applicant's credibility or lack of it is part of the reason for decision.  I am referred to the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 where Allsop J said at [225]:

   If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning, that may well engage s.424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.

7. Thus, it is submitted that the obligation under s.424A was enlivened by the Tribunal's finding of incompatibility which impacts on the credibility of the Applicant's evidence. The Applicant submits that failure to provide the Applicant an opportunity in writing to comment on that incompatibility arising from the earlier evidence is a basis for setting aside the decision for breach of s.424A.

8. Again, the Applicant had not adopted the information that was before the Department or the Tribunal as previously constituted. But the Tribunal certainly adopted the information which was before the previously constituted Tribunal. Thus, the Applicant submits that the earlier evidence, which is the information, should have been put to the Applicant in writing pursuant to s.424A, and as a result, the Applicant was denied the ability to make comments on that.

9. Turning to the question of relocation, counsel for the Applicant submitted that a finding of relocation was an important consideration in the Applicant's circumstances and material and consideration of the Applicant's claim.  In deciding whether or not an applicant is a refugee an assessment must be made as to whether or not the applicant can effectively relocate to another part of his or her country and receive protection there. In making such inquiry reasonableness in all the circumstances is the appropriate criteria in making the decision that an applicant is able to relocate internally within the country. 

10. For the Applicant it is submitted that no such assessment appears to have been made other than inquiries by means of country information (see Court Book 195 and 196).  The Tribunal looked at one aspect of the relocation and whilst country information in relation to the operation of people called the Naxalites has been put to the Applicant, the Tribunal appears to have failed in other aspects. A consideration was given to the ability to speak Hindi as one of many factors in determining whether an applicant is able to relocate to another part of the country, but that in itself it is submitted is not sufficient to make a finding of relocation. 

11. The Applicant further submitted that because there had been a breach of s.424A of the Migration Act the relocation finding itself could not stand on its own and was vitiated by a failure to follow the proceedings. I am referred to the decision of Jessup J in SZDDS v Minister for Immigration & Multicultural Affairs [2006] FCA 1428.

12. Counsel for the respondent Minister, Ms Pepper, submitted that first, there is no breach of s.424A of the Act. She submits at paragraph 9 of her written submissions that it is clear upon a fair reading of the Tribunal decision that the earlier evidence that the Tribunal refers to appears to be evidence that the Applicant gave to the earlier Tribunal differently constituted in support of his application for review, or likewise, evidence to the currently constituted Tribunal. She refers to p.124 of the Court Book, which is clearly evidence given at the hearing, also p.123 and pp.191 and 197 of the Court Book. Either way, she submits it is clearly information that falls within the exception provided by s.424A(3)(b) of the Act.

13. Ms Pepper for the Respondent Minister also submits that, in any event, the decision of the Tribunal is supportable on another wholly independent basis, namely the relocation finding. It will be recalled that Mr Kumar for the Applicant submitted that the relocation finding is not sufficient for the decision to stand alone. For the Respondent Minister Ms Pepper submitted that the Tribunal did ask the Applicant why he could not move to another part of India. The Tribunal did in fact note the independent country information and informed the Applicant that contrary to what he asserted, that his opponents only had pockets of operation within India. 

14. The Tribunal noted that the Applicant spoke three languages, Telugu, English and Hindi, and found employment in Australia as a full-time machine operator, had organised rental accommodation without too many difficulties and was 49 years of age. He also socialised with his workmates. The Tribunal was satisfied on the Applicant's own evidence and that of the independent evidence that the Applicant would be out of reach of his problem in other parts of India outside his home state. 

15. I am referred to the decision of the Full Court of the Federal Court in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [10] to [22] where the Court held that the correct test in determining whether relocation was a viable option was whether it was reasonably practical. In that decision it was held that it was not because there was insufficient probative evidence before the Tribunal that it failed to explore in reaching the requisite satisfaction. Those then are the issues.

16. First of all, in dealing with the s.424A issue, my reading of the decision is the earlier evidence to which the Tribunal referred was indeed the evidence given by the Applicant to the previous Tribunal differently constituted. I am unable to discern any reference to material given to the Department that was not otherwise adopted and did not otherwise form part of the Applicant's case. The question that I see is whether the Applicant's evidence to an earlier Tribunal is information which attracts an obligation under s.424A(1) of the Act or whether it is protected under s.424A(3)(b) of the Act, being evidence given by the Applicant for the purpose of the application to the Tribunal.

17. In my view, the evidence to an earlier Tribunal hearing does attract the protection under s.424A(3)(b). I refer to an earlier decision in SZAGF v Minister for Immigration & Anor [2005] FMCA 1448 where I held that in a similar case a Tribunal Member was entitled to take into account information and claims that the Applicant had made to the first Tribunal in assessing the Applicant's credit. It was not correct to say that the exception in s.424A(3) does not apply to information given by the Applicant at the first Tribunal hearing. The word "application" referred to in s.424A(3) is the application for review to the Tribunal, not a particular hearing of that application by a particular Tribunal member (see Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27 and [33]-[34] and [38]-[39]). Information provided to the Applicant at the earlier Tribunal was plainly caught by s.424A(3)(b) so that s.424A(1) does not apply.

18. In the case before me it was the decision of the first Tribunal that was set aside by the Federal Court by consent and not the hearing itself. It was not the information or evidence given to the Tribunal that the Federal Court's ruling made inapplicable, but the decision reached by the first Tribunal Member on the basis of that evidence and information. In my view, therefore, it was open to the Tribunal to consider the evidence and other information given at the earlier Tribunal hearing and there is no breach of s.424A (see also SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 and NBKM & Ors v Minister for Immigration & Anor [2007] FMCA 179 at [44]-[45]).

19. Turning to the second point, the relocation point, I have read the decision of Jessup J in SZDDS v Minister for Immigration & Multicultural Affairs [2006] FCA 1428. At [16] of that decision his Honour referred to the question of relocation saying, relevantly, to the matter of relocation the question before the Tribunal was whether the appellant's fear, assuming she had one, was well-founded. The appellant's case in this regard relied substantially upon her own fervently expressed apprehensions which were she claimed in effect informed by her own experience.

20. In my view, the situation in SZDDS is not on all fours with the situation in the matter before me.  I am also referred to the decision of Allsop J in SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216. In that case his Honour referred to the practicality and reasonableness in all the circumstances of the appellant relocating in another part of his home country for the foreseeable future at [21]. His Honour saw a failure to address an essential element of the question of avoidance of possible future persecution by relocation.

21. In the matter before me I am satisfied that the Tribunal has considered the reasonableness and the practicality of relocation not only in considering independent country information, but also in considering the situation of the Applicant in respect of his linguistic skills, his age, his work skills and his ability to socialise with other people. This of course is based on what he has done since he has arrived in Australia.  In my view, the Tribunal has assessed the practicality and the reasonableness of relocation within India in accordance with the principles set out in the well-known decision in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 and, in my view, has not fallen into jurisdictional error. As I am satisfied there is no jurisdictional error, it follows that the application must be dismissed.

22. There is an application for costs on behalf of the First Respondent.  The Applicant has not been successful today. The amount sought is $5,000.00. Mr Kumar of Counsel has submitted that the amount sought is of the upper limit set by the Rules. Against this, in my view, this really was a matter where it was appropriate for the Minister to brief Counsel. The Applicant was represented by Counsel who is experienced in this field. The Applicant's Counsel had submitted detailed and well-argued submissions.  Whilst it is true that he had, quite properly, confined the arguments to two discrete points, nevertheless, it was appropriate that Counsel of some experience should be briefed on behalf of the Minister to meet the Applicant's case.  In my view, the amount of $5,000.00 is a not unreasonable amount. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  27 March 2007