SZEZW v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 521

FEDERAL COURT OF AUSTRALIA

SZEZW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 521

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

NSD 1576 OF 2005

RARES J
18 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1576 OF 2005

BETWEEN:

SZEZW
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

18 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed. 

2.The appellant to pay the first respondent's costs assessed in the sum of $4000. 

3.I grant liberty to the applicant to apply on seven days' notice for an order to pay by instalments.

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 1576 OF 2005

BETWEEN:

SZEZW
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	RARES J
DATE:	18 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court of Australia, SZEZW v Minister for Immigration [2005] FMCA 1184. When the appeal was called on for hearing today, the appellant, who appeared in person, advanced only one argument as to why the decision of the Refugee Review Tribunal was wrong, namely, that it erred in finding he could relocate in India and therefore avoid any real chance of being persecuted for reasons surrounding the events of his detention in January 2003. This is a hard case because the appellant was found by the Tribunal actually to have suffered an arrest in late January 2003 at a police checkpoint, in company with persons who were members of a terrorist group and who had with them, in his car, implements, including bombs, for potential use in terrorist acts.

2. The Tribunal also found that as a consequence of his being found in company with these terrorists, although he was completely dissociated from their activities and had merely offered them a lift out of kindness, which he showed them as guests in his hotel, the appellant had been detained and mistreated for almost a month by the police; he had been released only after his identity had been established and the police holding him had been furnished with a bribe.  The Tribunal also accepted that he underwent hospital treatment for a month immediately following his release from detention, in February 2003, and that he remained in New Delhi for one further month after his release from hospital in mid-March 2003, until he sold his home and business.  And the Tribunal further found that he relocated to other parts of India. 

3. However, the Tribunal then considered, as was its obligation, whether or not the appellant could safely relocate within his own country, and so avoid any real chance of being persecuted by members of the terrorist group by reason of a perception, as he claimed, that he was an informer.  That was a factual matter which the Tribunal considered.  It formed the view that the appellant was of no continuing interest to the police in India following the events of January 2003, and that he would not have a well-founded fear of persecution by the Indian authorities for this reason should he be returned to India.

4. It then said:

   ‘The applicant never claimed to be questioned about the events surrounding his detention in January 2003; he made no claim to have come to the adverse attention of the Indian authorities for any reason prior to January 2003; he never claimed to be asked more than ‘what was he doing there’ in some of the places he relocated; and the applicant’s parents have never been questioned, harassed or otherwise approached by anyone seeking information on the applicant.  Therefore, even if members of the named terrorist group continue to be interested in targeting the applicant [of which I am not satisfied], I do not accept there is more than a remote chance they would be able to do so by obtaining information as to the applicant’s whereabouts from corrupt police, or due to any other reason.  Accordingly, I am satisfied that applicant could safely relocate within India and by so doing avoid any real chance of being persecuted for reasons surrounding the events of this detention in January 2003.

   With respect to relocation, I need also to consider whether it is reasonable in all the circumstances, to expect the applicant to relocate within India.  As discussed with the applicant at the Tribunal hearing, he claimed to have 22 years education [culminating in his obtaining tertiary qualifications], he has skills including in the running of his own business, and he has shown himself capable of relocating, settling into, and finding employment in a country [Australia], that is very different with respect to his own language and culture.  When asked at hearing, the applicant confirmed that he would have no particular problem relocating within India but that his reason for not wishing to do so was his subjective fear of being persecuted by members of the named terrorist group.  As is discussed above, I am satisfied the applicant’s subjective fear is not objectively well founded.

   Accordingly, I am not satisfied the applicant has a well founded fear of persecution for a Convention reason.’

5. The learned trial judge considered this claim in her judgment [2005] FMCA 1148 at [35]-[38]. She followed the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, holding that the Tribunal had followed that decision in considering whether it was reasonable, in all the circumstances, to expect the appellant to relocate within India. Her Honour considered that the finding made by the Tribunal on the facts was open to it, and that it was plain the Tribunal understood the appellant's concern about relocation and gave appropriate consideration to his submissions on the issue.

6. I agree, for the reasons given by her Honour, that this ground of appeal must be rejected.  It amounts to an attempt to have a merits review in this court, which has no jurisdiction to entertain such an appeal.  The appellant advanced no other ground on which I should consider the appeal.  I have, however, reviewed the matters to which her Honour the trial judge gave consideration, and I can see no error at all in her reasoning.  For these reasons, the appeal must be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:             10 May 2006

Applicant:	In person
Counsel for the Respondent:	RM Henderson
Solicitor for the First and Second Respondents:	Blake Dawson Waldron
Date of Hearing:	18 April 2006
Date of Judgment:	18 April 2006