SZDSC v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 217

FEDERAL COURT OF AUSTRALIA

SZDSC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 217

SZDSC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 607 of 2005

ALLSOP J
17 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 607 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:

SZDSC
APPELLANT

  AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

17 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal (the “Tribunal”) be joined to the appeal as the second respondent.

2.The appeal be allowed.

3.The orders made by the Federal Magistrate Court on 31 March 2005 be set aside and in lieu thereof it be ordered that:

(a)The Tribunal be joined to the application as second respondent.

(b)The decision of the Tribunal made on 7 April 2004 and handed down on 4 May 2004 be quashed.

(c)There be an order in the nature of mandamus requiring the Tribunal to rehear the review of the decision of the delegate of the first respondent (Minister).

(d)The first respondent pay the applicant’s costs of the application.

4.The first respondent pay the appellant’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 607 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:

SZDSC
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	17 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by the Federal Magistrates Court on 31 March 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal made on 7 April 2004 and handed down on 4 May 2004 in which the Tribunal affirmed a decision of the delegate of the Minister not to grant a protection visa. The Chief Justice has directed pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that this appeal be heard by a single Judge.

2. I have come to the view that the appeal should be allowed.  I have done so for the reason that in my view the Tribunal did not direct itself to one fundamental aspect or incident of the claims of the appellant.

3. The claims of the appellant were set out on pages 4 and 5 of the decision of the Tribunal in the following terms:

   ·    He had to leave India because his life was in danger

   ·    He has been persecuted by Hindu militants and the local police

   ·    He has been severely beaten

   ·    His father owns land in Usman Pur about 3 kms from Pehowa.  On their land, is the tomb of a Muslim Peer Allabudin also known as Peer Baba.  He is a Moslem saint who died about 300 years ago.

   ·    The applicant’s family made a tomb and protect and maintain it, and even though they are not Moslems pray there every Friday.

   ·    The applicant’s family believe in Peer Baba and there are about 500 followers in Pehhowa. (sic)

   ·    On every Bakr Eid they sacrifice a goat and distribute the food among the followers.

   ·    In 2000 the applicant’s family were approached by members of the RSS, who asked the applicant’s family to destroy the tomb and stop worshipping.

   ·    Because the applicant’s family had been worshipping at the tomb for centuries, they chased the RSS members away.

   ·    In February 2002 they were planning the Eid festival (for three days)

   ·    On 15^th February Hindu militants came and destroyed their tents and beat up the worshippers.

   ·    They reported the attack to the police but they did not listen.

   ·    The Eid festival began on 22^nd of February, attended by about 400 people.

   ·    On 24^th February some jeeps came to the site with RSS members holding metal and wooden bars.

   ·    They attacked the worshippers.

   ·    The applicant and his father were both badly wounded.

   ·    They tried to report the incident to the police but the police would not accept the report and told them to leave.

   ·    The applicant was then detained and accused of staring [sic] a racial riot. He was held for three days and paid bribes to be released.

   ·    The applicant was threatened “wherever he went”, and started receiving threatening letters.

   ·    In November 2002 the police came to the applicant’s family farm and told them they had reports they were carrying out illegal activities.  They searched the farm but could find nothing.

   ·    In January 2003 the tomb was attacked and partly blown up.

   ·    The applicant was beaten on his way to work.

   ·    The threats against the applicant increased and he started living in Ambala.  He visited his home at nights and whenever anyone saw him in Pehowa they started shouting.  He was told that wherever he went he would be harmed.

   ·    In February 2003 the applicant’s family repaired the tomb.

   ·    The applicant fears for his life if he returned to India.

4. The approach of the Tribunal can be seen as directed to an examination of the claims of the appellant and, secondly, to the question of relocation.

5. It is fair to say that in relation to the first aspect of its findings the Tribunal found the applicant’s evidence less than persuasive and less than fully credible.  The findings in relation to the credibility of the appellant were as follows:

   The applicant’s claims and evidence are to the effect that he fears harm in India from militant Hindus of the RSS, because he and his family, although Hindus themselves, also worship at the tomb of a Moslem Saint who happens to be buried on the applicant’s family’s land.  The applicant’s evidence at hearing was unpersuasive and lacking in credibility.

   There were a number of claims and issues which the applicant omitted to inform the Tribunal prior to his hearing, and which gravely undermine from his believability.  For example, the applicant failed to provide the fact that prior to coming to Australia in August 2003, he travelled to South Africa in February of the same year.  The applicant’s claims and evidence were to the effect that he feared for his life before travelling to South Africa and immediately before his travel to South Africa, he claims to have been so badly beaten as to have been hospitalised.  The Tribunal asked the applicant his reason for his travel to South Africa, to which the applicant gave evidence that he travelled there to be a spectator for the Cricket World Cup and in the nearly two weeks he spent in South Africa he made no efforts whatsoever to seek protection, and in fact returned to his home town at the end of the trip.  The Tribunal finds the applicant’s travel to South Africa as a spectator for a sporting event whilst in the middle of treatment he claims was life threatening suggests that the applicant was not genuinely fearful. His failure to make an application for protection while in South Afric (sic), and voluntarily return to his home town in India further suggests a lack of genuine lack of fear (sic).  The applicant also raised new claims that he was “in hiding” at different locations between February 2003 and August 2003, and that even when he was in hiding he had “problems” – the fact that the applicant has waited until the very end of the refugee determination to raise this claim suggest that it is fabricated for the purposes of enhancing his claim.

   Even if the Tribunal accepted the applicant’s claims and evidence – about which it has grave credibility concerns, the Tribunal notes that any problems he encountered in India were local ones centred on his home town of Pohewa (sic) and in locations around the state of Haryana.  The Tribunal has considered therefore, the matter of relocation of the applicant to another part of India.
   [emphasis in original]

6. As can be seen from the terms of the above paragraphs the Tribunal stopped short of dealing with the matter on the basis of the claims.  An examination of the reasons of the Tribunal makes it clear that the reason for the affirmation of the decision by the Tribunal was the view that the appellant could relocate.  This can be seen from the paragraphs above and from what was said on page 11 of the Tribunal’s reasons as follows:

   As noted above, the Tribunal has grave doubts about the credibility of the applicant’s claims and evidence – and actually has some difficulty believing he had been truthful with the Tribunal.  However, even if the Tribunal accepts that the applicant did have problems arising from his family’s guardianship of a Moslem tomb, it is located in Pehowa in Haryana state – suggesting therefore, that the applicant’s claims are localised to that state.  The Tribunal is satisfied on the evidence before it, that the applicant does not have any profile that would place him at risk outside Haryana (the applicant suggested that he had problems in Delhi because he was “recognised” by a member of the RSS, however given that the greater-Delhi has a population of 12 – 14 million (see:  newdelhinews.net/), the Tribunal finds this claim to be so far fetched as to be ludicrous).  The Tribunal is satisfied on the applicant’s claims and the independent evidence, that the applicant can live in other parts of India other than Haryana, where he claims to fear harm, and that he will obtain a meaningful remedy against risk of any persecution he may face in Haryana.  The Tribunal is satisfied that he applicant would be out of the reach of his problems in other parts of India outside Haryana.
   [emphasis in original]

7. The Tribunal referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. However, one when analyses the considerations given to relocation one sees that the analysis was predicated upon the claims of the appellant being locally based in his area of Haryana. The analysis of the Tribunal was in the following terms:

   The applicant is young [24 years old] completed his High School Education, and had no difficulties finding employment in India [he was a salesman].  He is fluent in Punjabi and Hindi, and also speaks some English.  In light of his age, and language and employability, and bearing in mind the fact that the applicant has successfully moved to Australia where he has found accommodation and employment with relative ease, it would seem that he applicant’s employment prospects upon return to India appear to be positive.  The independent evidence suggests that persons are able to move freely throughout the territory of India and to reside and settle in any part of the territory of India, and further to practice any profession, or to carry  on any occupation, trade or business.  The applicant has provided no practical or sound reason as to why he would not be able to re-establish himself outside Haryana. Under these circumstances, the Tribunal is satisfied that relocation is a reasonable and feasible option for the applicant.  The Tribunal does not accept that he applicant is at risk in every part of India nor does it accept [based on the applicant’s own evidence and country information referred to above] that the applicant will face persecution for a Convention reason should he relocate.  In light of the applicant’s own evidence and independent evidence, the Tribunal is not satisfied that the applicant is a refugee within the meaning of the Convention.
   [emphasis in original]

8. The difficulty with this approach is that it ignored one fundamental element of the claims of the appellant.  Not only were the appellant’s claims based on the particular difficulties experienced at Haryana, but they were also based upon the appellant and his family being believers in Peer Baba.  What is not analysed is the position of the appellant as a Hindu adherent to this practice, in particular should he relocate.  It may be that the answer is simply that there is a lack of likelihood of persecution in other parts of India or the availability of state protection.  However, these issues were not addressed because of the disposition of the claims by reference to relocation on a limited and incomplete hypothesis.

9. In my view the Federal Magistrate was in error in failing to identify the fact that the Tribunal did not direct itself to the whole of the claims of the appellant:  Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244.

10. It is unnecessary, therefore, to deal with the issues that may be seen to arise in relation to the application of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

11. For these reasons in my view the Tribunal failed to direct itself to all the questions required of it and in that respect did not complete its jurisdictional task.  For these reasons orders will be made setting aside the Tribunal’s decision and remitting the matter to the Tribunal for rehearing.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             17 March 2006

The Appellant appeared in person.
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 December 2005
Date of Judgment:	17 March 2006