SZDTV v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1780

FEDERAL COURT OF AUSTRALIA

SZDTV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1780

SZDTV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 1668 OF 2005

GRAHAM J

1 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1668 OF 2005

BETWEEN:

SZDTV
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

GRAHAM J

DATE OF ORDER:

1 DECEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The Appellant pay the First Respondent’s costs.

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 1668 OF 2005

BETWEEN:

SZDTV
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	1 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant, who is identified for the purposes of these proceedings as SZDTV, was born in India on 1 December 1952.  He is a Hindu and also an ardent follower of his Holiness Sree Narayana Guru, a renowned saint from his area of Varkala in the state of Kerala.  His evidence before the Refugee Review Tribunal (“the Tribunal”), which was accepted, was that 99 per cent of his home town were Hindu and that his area was 90 per cent Hindu, all of whom are living peacefully. 

2. On 18 March 2003 the Applicant obtained an Indian passport.  He then says that an incident occurred in August 2003 which led to his departure from India.  It is unnecessary to go into the precise detail of what occurred but a short summary is as follows.  The Appellant and his sister would appear to have purchased two adjacent parcels of land in Varkala with a view to building homes on them, one for the Appellant's family and one for his sister's family.  The Appellant's brother in law was not working at the time in Varkala.  He was located elsewhere and as I understand the position, his brother in law lost his job and suffered some financial difficulties which were the occasion for him suggesting that the site which had been acquired for the sister's home should be sold. 

3. The Appellant said that he decided to help out his brother in law and to endeavour to find a purchaser for the spare block of land.  Ultimately, the Appellant found a buyer from the United Arab Emirates who was a Muslim.  Thereafter there was some friction between members of the Hindu community in the Varkala area and the Muslim community as to whether or not the spare parcel of land should be acquired by a Muslim.

4. It is not clear whether the vendor of the land to the Muslim was the Appellant, the Appellant's sister or the Appellant's brother in law.  In some respects it would seem that the Appellant was part of the “meat in the sandwich” and that his religious persuasion was irrelevant in relation to what later transpired.  A group of Hindus, led by Mr Sudharsan Moorthy, wanted the Appellant to cause the land to be sold to him as a Hindu rather than to the Muslim purchaser, Mr Mohammad Ali.  The Muslim community would appear to have sided with Mr Mohammad Ali who wished to proceed with his purchase. 

5. Evidence was given of a police visit to the Appellant on 8 September 2003 and of the murder of Mohammad Ali on 11 October 2003.  On 13 October 2003, the Appellant was apparently arrested on suspicion of Mr Ali's murder, however the police did not accept that the allegations against the Appellant were genuine in this regard. 

6. On 15 October 2003, the Appellant secured a visa to enter Australia.  Thereafter on 27 October 2003, the Appellant's brother-in-law went to the police station and was not seen again. 

7. In the course of his argument before me, the Appellant indicated that subsequent to the hearing of his matter before the Tribunal, he learned that his brother-in-law had gone to Nepal and later to Canada but that of course, is not a matter which can be taken into account by the Court in the present circumstances. 

8. The Appellant arrived in Australia on 12 November 2003 travelling on his Indian passport and utilising his Australian visa.  No attempt was made to detain him on his departure from India because of any question of his involvement in the murder of Mr Ali.  On 11 December 2003 he applied for a Protection (Class XA) Visa.  He supported his application with a lengthy handwritten document described as a “Statutory Declaration” which recorded his story and his expressions of concern.

9. His application for a protection visa was refused by the Minister's delegate on 16 December 2003.  The Appellant then applied for a review of the decision in an application to the Tribunal, which was filed on 9 January 2004.  When invited to do so, he indicated that he would like to be heard by the Tribunal, and on 19 April 2004 a hearing took place at which the Appellant was provided with an opportunity to present his case.  On 13 May 2004, the Tribunal handed down its reasons affirming the decision of the Minister's delegate not to grant the Appellant a protection visa.

10. The Appellant then filed an application seeking the issue of constitutional writs in respect of the decision of the Tribunal in the Federal Magistrates Court.  An amended application was filed in the Federal Magistrates Court on 5 November 2004 and a further amended application was filed on 26 May 2005.  It was the amended application of 26 May 2005 which came before the Federal Magistrates Court for its consideration at a hearing on 14 June 2005.  The Federal Magistrate's decision on the application was to dismiss the application and order the Appellant to pay the First Respondent's costs fixed in the sum of $3500.  From that decision, the Appellant has appealed to this court by a notice of appeal filed 13 September 2005.  On 28 October 2005, an amended notice of appeal was filed in this court and that is the notice of appeal upon which the Appellant now relies.  The amended notice of appeal in terms reproduces the further amended application filed in the Federal Magistrates Court on 26 May 2005. 

11. Some passages in the reasons for decision of the Tribunal are inelegantly expressed.  On a number of occasions the Tribunal used words to the effect that the Tribunal was not satisfied that the Appellant had a “well-founded fear of serious harm amounting to persecution for a Convention reason”.  Where this expression has been used, it is not entirely clear whether the finding made by the Tribunal was that it was not satisfied that the Appellant had a well founded fear of being persecuted at all or if he did it was not a well founded fear of being persecuted for a Convention reason, being for reason of religion. 

12. Mr Reilly of counsel, who appears for the First Respondent, argued the matter in the Tribunal as well as in this Court.  He successfully persuaded the Federal Magistrate that, read in context, the critical finding of the Tribunal was that the Appellant did not have a well founded fear of serious harm amounting to persecution regardless of reason.

13. Mr Reilly submits that the Federal Magistrate correctly understood the issues that were tendered for his decision and correctly decided the matters which he was called upon to consider.  He submits that were there to be an element of uncertainty as to what precisely the Tribunal meant when it made its ultimate findings it held, in any event, that the Appellant was able to go elsewhere in the state of Kerala or anywhere else in India in safety.

14. While the Appellant disputes this finding, it seems to me that it is one which was properly available to the Tribunal and one which the Court cannot now disturb, despite the inelegancy of the expression as used by the Tribunal in its reasons. Under s 65 of the Migration Act 1958 (Cth) (“the Act”) the Minister must grant a visa if, amongst other things, the criteria for it prescribed by the Act or the Regulations have been satisfied. In s 36(2) of the Act a criterion for a protection visa is that:

    “36(2)     … the applicant for the visa is:

    a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Convention...”

15. Under the Convention a person in the position of the appellant will only qualify as a refugee if, owing to a well-founded fear of being persecuted for reasons of, relevantly, religion, he is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of India.

16. In its reasons for its decision the Tribunal said:

    “… when asked at the hearing whether he had heard from his brother-in-law since October 2003, he (referring to the Appellant) replied that he has not come back yet.  Asked if he knew where he is the Applicant replied that he had no idea.  Accordingly, while accepting that the Applicant's brother-in-law (who the Applicant made very clear at the hearing has been working in a number of different parts of India while his wife, the Applicant's sister, remained in Varkala due to her asthma) has not returned to Varkala, from the claims made by the Applicant the Tribunal has not been able to satisfy itself that he [had] come to harm or that, on this basis the Applicant himself has a well-founded fear of serious harm amounting to persecution for a Convention reason.

    ...The Tribunal also accepts that the Applicant left India legally on 11 November 2003 on a passport issued in his own name and showing his date of birth without experiencing any difficulty whatsoever, and is satisfied that this would not have been the case if he was wanted by the police on the serious charge of murder …

    …

    [The appellant] does not claim that he was ever attacked, physically abused or tortured by the RSS, Muslim League or by Sudharsan Moorthy's supporters.  Accordingly, given all the above and from the claims made by the Applicant, the Tribunal has not been able to satisfy itself the essential and significant reason for the difficulties that the Applicant has experienced in regard to his involvement in the sale of his brother-in-laws property were serious harm amounting to persecution for a Convention reason.  Moreover the Tribunal is also satisfied that if for any subjective reason he does not wish to return to Varkala, he would be able to go elsewhere in Kerala or indeed anywhere else in India in safety ...

    … the Tribunal is satisfied that the Applicant does not have a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis ...

    The Applicant claims that he received a "trashing" by an unknown mob on 29 October 2003 but did not elaborate on this claim at the hearing despite being given the opportunity of doing so.  But be that as it may, he does not claim that he knows who or why he was attacked and, from the claims made by the Applicant, the Tribunal has not been able to satisfy itself that this "thrashing" was for a Convention related reason.

    ... the Tribunal has not been able to satisfy itself that any subjective fear the Applicant may have on this basis is a well-founded fear of serious harm amounting to persecution for a Convention reason.”

17. In my opinion, the Federal Magistrate correctly decided the issues which were tendered for his consideration and there is no reason to make any finding that anything done by the Tribunal involved jurisdictional error on its behalf. 

18. In relation to the question of relocation within the State of Kerala or India as a whole, the Appellant drew attention to a passage from the judgment of Black CJ in Randhawa v The Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 442. That passage forms part of a more expansive part of his Honour's reasons for judgment dealing with relocation issues as follows.

    “In the present case the delegate correctly asked whether the appellant’s fear was well-founded in relation to his country of nationality, not simply the region in which he lived.  Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.

    This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that 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 the reasonableness of relocation 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 AR 7. Professor Hathaway, op cit at p 134, expresses the position thus:

    ‘The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad.  It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful.  In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.’ [Original emphasis.]

    If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded.”

19. In the light of the findings by the Tribunal that the Appellant came from a township where 99 per cent of the people were Hindu and that in the Appellant's area Hindus lived peacefully, and in light of the fact that the appellant never suggested that he or his immediate family had been attacked physically, abused or tortured by any religious group or by the supporters of Sudharshan Moorthy it seems to me to have been well open to the Tribunal to conclude that it was not satisfied that the Appellant had a well-founded fear of serious harm amounting to persecution.

20. As I read the Tribunal's reasons for its decision the question of whether the Appellant had a well-founded fear of being persecuted for a Convention reason did not enter into its consideration of the matter because it was not satisfied that he had a well‑founded fear of serious harm amounting to persecution at all.  I agree with Mr Reilly's submission that it was open to the Tribunal to find as it did that the Appellant was able to go elsewhere in Kerala or anywhere else in India in safety.  In the circumstances, it was open to the Tribunal to find that it could not be satisfied that Australia had protection obligations under the Convention to the Appellant as a non-citizen in Australia.  Accordingly, the appeal should be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham J.

Associate:

Dated:            8 December 2005

The Appellant appeared in person.

Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 December 2005
Date of Judgment:	1 December 2005