SZDCG v Minister for Immigration
[2006] FMCA 148
•7 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDCG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 148 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India on the basis of political opinion and homosexuality – RRT found that the applicant could avoid persecution through relocation – RRT erred in failing to consider whether the applicant’s Australian fiancé would return to India with the applicant. |
| Applicant 1174 of 2002 v RRT [2004] FCA 289 Randhawa v Minister for Immigration (1994) 52 FCR 437 |
| Applicant: | SZDCG |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG844 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 7 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Mr C Jayawardena Chandra Jayawardena, Solicitor |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal handed down on 18 April 2000.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to reconsider the matter before it according to law.
The first respondent shall pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG844 of 2004
| SZDCG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 18 April 2000. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had made claims of persecution in India on the basis of imputed political opinion and also on the basis of his homosexuality. The background facts are adequately set out in the Minister’s written submissions. I adopt for the purposes of this judgment paragraphs 4 and 9-14 of those written submissions as background:
The applicant is a national of India. He arrived in Australia on 28 January 1998. He lodged a protection visa application on 25 February 1998 and that application was refused by a delegate on 27 April 1998. On 14 May 1998, the applicant then made application to the RRT to review the delegate’s decision. … the RRT’s decision was handed down on 18 April 2000. The RRT affirmed the decision of the delegate.
The applicant has claimed to fear persecution in India by reason of his membership of a particular social group – homosexuals in India – and his political opinion (court book, page 95.3).
The claim based on political opinion was dealt with by the RRT at court book, pages 97-98. The applicant claimed to be at risk because the police in his local area, Phagwara, suspect him of being involved with ULFA (a banned, armed, militant, Marxist , separatist group operating in Assam) since he was visited by some ULFA members who initially came to visit their contact, the applicant’s father (court book, page 97.7). The RRT found that the applicant faced no real chance of being persecuted upon the basis of his imputed political opinion (court book, page 98.2) for the following reasons:
a)whereas there has been two prior detentions of the applicant, the RRT found it “implausible that if the authorities still wanted the applicant after his second detention in November 1997 they would have released him after a brief period, without charge, and not detained him again, given that he remained until late January 1998 in his usual home area” (court book, pages 97.9-98.1);
b)the applicant left India legally in January 1998, which indicated to the RRT that the authorities were not interested in the applicant for militant activities (court book, pages 98.2) .
The RRT also rejected as fabricated the applicant’s father’s letter and documents sent by the father, which purported to show police interest in the applicant after he left India (court book, pages 98.3; 95.5-96.6). The RRT’s description of this material being discussed with the applicant at the hearing occurs at court book, pages82.5-83.2 and includes reference to irregularities noted by the RRT with respect to that evidence. There is no transcript. (More may have been said by the RRT.)
The RRT then dealt with the claims based on homosexuality, the RRT accepting that homosexuals in India are a “particular social group” (court book, page 98.9) and examining whether there is a real chance that the applicant will be persecuted in India by reason of his membership of that “particular social group” (court book, page 98.2). The RRT ultimately found that, if the applicant “returns to India, to a large city, any chance of persecution within the Convention he may face is remote” (court book, page 101.7) and gave a number of reasons (court book, pages 101.7-102.3). The essential point was that the RRT found that the applicant had no “well-founded fear of persecution within the Convention if he relocates from his former home in Phagwara to a large city such as Calcutta, Bombay or Delhi”.
At court book, pages 102-6-103.5, the RRT specifically considered whether it would be reasonable for the applicant to so relocate, finding that it was and referring to a number of the applicant’s features or circumstances that supported that conclusion.
The RRT also addressed the applicant’s cumulative grounds and found that even if the police had previously detained the applicant because of his imputed political opinion and/or homosexuality, and might be inclined to do so in the future, the applicant had no well-founded fear if he relocated from his former home to a large city such as Calcutta, Bombay or Delhi (court book, pages 102.3-102.5).
The applicant relies upon his amended application filed on 9 March 2005. Both parties also filed submissions through their respective legal representatives. I received as evidence the book of relevant documents filed on 10 June 2004. That is the only evidence that I have before me.
The amended application advances five grounds. Grounds 2 through to 5, in my view, have no substance for the reasons advanced on behalf of the Minister by Mr Johnson with whose submissions I respectively agree. In addition, Mr Jayawardena, for the applicant, conceded that ground 3 in the application was not pressed in any event. Mr Jayawardena also conceded that the applicant has no real quarrel with the RRT’s decision insofar as it relates to the claim of political persecution. The applicant's concern centres upon the treatment of his claim of persecution as a homosexual.
The real issues in this case relate to the first ground of review which asserts that the RRT did not apply or apply properly the necessary test of relocation on the basis of the decision of the Full Federal Court in Randhawa v Minister for Immigration (1994) 52 FCR 437. There is no doubt that the RRT understood what it was required to do, the RRT refers to the Randhawa principles on page 28 of its decision at page 102 of the court book. The question is whether the correct principles were applied. The RRT decision recites the applicant's claims and some discussion about them that occurred at a hearing conducted before the RRT. The presiding member asked the applicant about his homosexual experiences and what he had done in Australia. The presiding member put to the applicant country information about the existence of gay groups in big cities such as Mumbai and Calcutta (court book, page 83). The presiding member put to the applicant specifically that, although homosexuality was an offence under the Indian Penal Code, section 377 had been applied only twice by prosecution since 1947. The applicant contended that the police still beat people up as homosexuals in India. In response, the presiding member noted that the applicant planned to marry and that the risks from the police would not appear to be a problem for him should he return to India. The presiding member also noted country information which indicated that in the big cities there was more tolerance of a gay lifestyle. On page 84 of the court book, the presiding member records that she put to the applicant that he would be able to live as a homosexual in big cities in India if he was discreet. The applicant responded that he was a proud gay and he did not want to be discreet. The presiding member then put to the applicant that it appeared that he had adjusted to life well in Australia and would be able to relocate from Punjab (where he had been living) to somewhere else in India.
The presiding member then referred to country information which appeared to be somewhat equivocal. The country information noted that section 377 of the Indian Penal Code still proscribes homosexuality, although there had been only one prosecution in the last 45 years (court book, page 86). On the other hand, the country information indicated that policemen arbitrarily harass men in public parks who are presumed to be gay (court book, page 87) and also referred to police action in a park in New Delhi in 1992. The country information on page 89 of the court book also indicated efforts by police in New Delhi to clean up parks. There were also reports of police raids in Mumbai (court book, page 93).
Under the heading of “Findings and Reasons” (commencing on court book, page 95) the presiding member dealt with the applicant's claims. The consideration of his claims based upon his homosexuality commences on page 98 of the court book. The presiding member accepted that homosexuals constituted an identifiable social group in India and took note of section 377 of the Indian Penal Code. On the other hand, the presiding member noted (court book, page 99) that the Hindu religion does not forbid homosexuality and noted the existence of a gay movement emerging in India (court book, page 100). In the last paragraph on that page the presiding member noted country information that there are gay activists in India and that the biggest taboo is being unmarried. She noted also (court book, page 101) that there was great pressure to marry and repeated that the biggest taboo is being unmarried.
The crux of the presiding member's reasoning is contained in the paragraph beginning on page 101 of the court book and continuing over the page. The presiding member states:
After considering all the country information, the Tribunal accepts that there is discrimination against homosexuals in India, and that if the applicant is a homosexual, he may face a chance of persecution because his membership of a particular social group, “homosexual men in India”. However, after considering all the evidence, the Tribunal finds that if he returns to India, to a large city, any chance of persecution within the Convention he may face is remote for the following reasons. The Tribunal notes that the above referred to country information indicates that though homosexuality is technically proscribed by Section 377 of the Indian Penal Code, prosecution of homosexuals under this law has only occurred twice since 1947. The country information indicates that while Indian society is homophobic, open homosexual conduct is not accepted in India, and the police have been reported to harass homosexuals, homosexuality is more tolerated in large cities, than in small towns. The above referred to country information also indicates that homosexuality is not uncommon in India, there is an emerging gay movement, there are established gay support groups in India, there are gay‑friendly venues reported to exist in Delhi, Bombay and Calcutta, and there are gay web sites and other gay publications which list gay venues in India. While there is a strong pressure to marry, which can be difficult for homosexuals, nevertheless, the applicant is planning to marry so this should not be a problem for him. There is evidence that married homosexuals may be blackmailed, but given the applicant's evidence that since his family know of his homosexuality and his wife to be accepts that he is bi-sexual, the chance of blackmail (which claim was not made by the applicant) appears to be remote. The Tribunal finds that if the applicant returns to India to a large city, he will not face a real chance of persecution because of his membership of the particular social group “homosexuals in India” and/or “married men who are homosexual in India”. The Tribunal finds that the applicant's claims do not give rise to a well-founded fear of persecution within the Convention if he relocates from his former home in Phagwara, Punjab to a large city such as Calcutta, Bombay or Delhi.
The presiding member then proceeded to consider the impact of the claims of persecution cumulatively and the principles of relocation derived from the decision of the Full Federal Court in Randhawa. The presiding member concluded, after considering all the applicant's claims:
… the Tribunal finds that even if the applicant does face a real chance of persecution if he returns to Punjab because of his homosexuality and/or imputed political opinion, if the applicant relocates from his former home in Punjab, he can genuinely access domestic protection, the reality of protection is meaningful for him, and relocation from Punjab is a reasonable option in the particular circumstances of the applicant.
As I put to Mr Jayawardena and Mr Johnson during the course of oral argument, there are two issues that need to be resolved in determining the validity of the RRT decision. The first is whether the RRT gave any or any real consideration to the availability of State protection in the larger Indian cities, if indeed it needed to, and, secondly, whether the RRT gave any or any real consideration to the practical difficulties of the applicant relocating in India with his fiancé, if that was an assumption contained within the presiding member's reasoning.
This is one of a number of RRT decisions that deals with relocation on a somewhat different basis than was the case in Randhawa. As the presiding member notes (court book, page 102) the principle to be derived from Randhawa is that Australian protection is not required by an applicant who can genuinely access domestic protection and for whom the reality of protection is meaningful. It is necessary in that connection to consider if relocation is a reasonable option in the particular circumstances of the applicant. In this, and in a number of other RRT decisions, while the RRT purports to make a finding on the availability of state protection, I struggle to find in the decision any consideration of the availability of state protection in the places to which relocation is expected.
There is a reason for this. That is because the RRT in this and other cases approaches the problem not so much from the standpoint of the availability of state protection but from the standpoint of the risk of persecution in certain localities. Logically, one can accept that if there is no, or only a minimal risk of, persecution in a particular location then access to state protection is not required in that location and hence relocation is at least a hypothetical option. It seems to me that that is a gloss on the reasoning in Randhawa but nevertheless a rational and necessary gloss. It is not apparent to me that the proposition has been explicitly stated before.
In many cases it is possible to draw a link between the absence of a risk of persecution and the availability of effective state protection in a particular location. In Randhawa, for example, the Court gave as an example the existence of a civil conflict in a particular part of a country which was confined to only a part of the country. In such a circumstance one can reason that State protection confines the conflict to a particular location and therefore effective State protection from the conflict is available in other locations. Likewise, if an applicant fears persecution in one locality from certain individuals it may be reasonable for an applicant to relocate to another location where those individuals have no influence. In such a case there is also a logical link to the effectiveness of State protection in the location to which the applicant is expected to relocate.
In a case such as this where the issue of relocation is addressed on the basis of the presiding member's assessment of the risk of persecution in the larger cities based on country information indicating a degree of tolerance the question is less clear. There was evidence and the RRT accepted that the police themselves were responsible for some harassment of homosexuals in India, including in the larger cities. The presiding member's reasoning appeared to rest upon the emerging gay lifestyle and gay support groups in the larger cities. There is no indication apparent to me that any clear link can be drawn to the availability of state protection to homosexuals in the larger cities. It may be that State protection can be assumed through tolerance. It may be that it can be assumed that in the larger cities the degree of tolerance of homosexuals carries with it a degree of state acceptance and that that degree of state acceptance satisfies the requirement for real State protection to be available.
If the only challenge to the RRT decision was the misapplication of the Randhawa principles by reference to the toleration, or lack of toleration of homosexuals in the large cities then I would hesitate to make a finding of jurisdictional error, even though the position is to my mind unclear. In this case, however, there is an additional factor and that is the question of the applicant's intention to marry. The presiding member recognised that the biggest taboo facing homosexuals in India was being unmarried. The presiding member recognised that homosexuals face pressure to marry in India and also recognised that there was a risk of harassment and blackmail. The presiding member also recognised that the risk of blackmail extended to married homosexuals.
The reasoning of the presiding member set out in particular on page 102 of the court book appears to me to have been that the applicant could derive immunisation against that risk because he planned to marry his then fiancé and she accepted his lifestyle. The question is whether the RRT’s reasoning assumed the presence of the applicant's spouse to be in India as part of the anticipated relocation. I think it did. The presiding member, as I have said, recognised that homosexuals in India face a risk of blackmail even if married. In these circumstances, while the marriage of the applicant would be important, the degree of protection provided by it would be at best incomplete if the applicant were in India and his spouse was in Australia. In my view, the presiding member assumed, as part of her reasoning, that the applicant would derive more complete protection from his marriage because of the presence of his spouse with him in a larger city in India.
The RRT had evidence both from the applicant himself and his fiancé that the fiancé is an Australian citizen who had resided in Australia for about 10 years and had formed a de facto relationship with the applicant in about January 1999. There was also evidence from the applicant that his fiancé did not want to live in India. However, there is nothing in the court book to indicate whether or not the applicant's fiancé would refuse to go to India with the applicant if he were to be refouled there. Nevertheless, that issue was one that needed to be resolved.
In my view, the consideration of the practicality of relocation in this case miscarried because there is no consideration in the presiding member's reasons of the likelihood of the applicant's relationship with his fiancé surviving his return to India and of the likelihood and the practicality of her relocating with him. As the presiding member noted, if relocation is not a reasonable option in the particular circumstances of the applicant it may be said that in the relevant sense a person's fear of persecution in relation to that country as a whole is well-founded.
Both the applicant's marriage to his intended spouse and her presence with him were necessary elements in the RRT’s analysis of the remote risk of persecution confronting the applicant in a larger Indian city. Neither could be assumed. Although the applicant and his intended spouse confirmed that they intended to marry it could not be assumed that that intention would continue if the applicant were required to return to India. Neither could it be assumed that an unwilling spouse would travel with the applicant to any particular location in India. The presiding member needed to give consideration to the practicalities of those circumstances and neglected to do so. I find that the presiding member did not apply correctly the test of relocation derived from the decision in Randhawa and that the error constitutes a jurisdictional error.
I have considered whether relief should be refused on account of delay on the part of the applicant in bringing these present proceedings. The RRT decision was handed down on 18 April 2000 and these present proceedings were not instituted until 22 March 2004. Mr Johnson deals with this issue in paragraphs 5-7 of his written submissions:
The applicant became a party to the Muin / Lie class action on 7 September 2000 and his subsequent individual application was one of those dismissed by Emmett J on 20 February 2004 in Applicant 1174 of 2002 v RRT [2004] FCA 289. An undertaking was given to Emmett J to the effect that the respondent would not rely upon any delay between the time that the applicant became a party to the class action and his Honour’s dismissal of the individual proceeding. He commenced his application in this Court on 22 March 2004.
It follows that, if consideration was to be given to the dismissal of the application, or the denial of relief on grounds of unwarrantable delay, the only periods that would be relevant would be the gap between the notification of the RRT’s decision and the applicant joining the representative proceeding (about 4 months) and that between the orders of Emmett J and the commencement of these proceedings (about one month).
It is a matter for the Court whether the application should be dismissed, or any relief withheld[1], on the basis of that delay. The delay is not terribly great (given the period covered by the undertaking). On the other hand, the delay exceeds what was the strict 28 day time limit prevailing at the time in respect of applications to the Federal Court and there is no affidavit giving any explanation for the delay.
[1] In the event that the applicant (as is not conceded) would otherwise be entitled to relief
In the light of those submissions, properly viewed, the delay on the part of the applicant is quite brief and the delay does not warrant a refusal of relief by the court in the exercise of discretion.
I will order that a writ of certiorari issue quashing the decision of the Refugee Review Tribunal handed down on 18 April 2000 and that a writ of mandamus issue requiring the Refugee Review Tribunal to reconsider the matter before it according to law.
On the question of costs, Mr Jayawardena, on behalf of the applicant, seeks an order for costs fixed in the sum of $2,500. At this stage he was not able to estimate what actual legal costs have been incurred. It seems that they may in fact be quite modest, although as Mr Jayawardena notes costs of $5,000 are commonly awarded in circumstances similar to the present. For his part, Mr Johnson, on behalf of the Minister, opposes any order as to costs. He notes that the applicant has been substantially unsuccessful in terms of the number of grounds which have failed and that even on the ground which succeeded the applicant succeeded on particulars that were not pleaded.
In my view, the Court should recognise the significant lack of success on behalf of the applicant but should also recognise the success overall that the applicant has attained on a ground that was advanced, albeit not precisely in the terms on which the applicant ultimately succeeded. It is true that in many circumstances the Court would order costs of $5,000 to a successful party after a final hearing. Indeed in respect of applications filed after 1 December 2005, costs of $5,000 are prescribed subject to any order of the Court. That scale does not apply to this application which was filed well before that. Balancing the costs which were in effect thrown away by the Minister and the ultimate success of the applicant, I conclude that Mr Jayawardena's application for costs in the sum $2,500 is quite close to the mark. I will order that the Minister pay the applicant's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 February 2006
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