SZFFL v Minister for Immigration - [2005] FMCA 1978

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFFL v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1978

MIGRATION – Refugee – country information – relocation – no reviewable error – application dismissed.

Migration Act 1958, ss.418, 418(3), 424A, 424A(1), 424A(2), 424A(3)(a), 424(3)(b), 422B
Federal Magistrates Court Rules 2001, rr.21.02(2)(a), 16.05

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Hehar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 620
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:

SZFFL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3617 of 2004

Judgment of:

Nicholls FM

Hearing date:

2 December 2005

Date of Last Submission:

14 November 2005

Delivered at:

Sydney

Delivered on:

2 December 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. F. Kerr

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application filed in this Court on 14 November 2005 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3617 of 2004

SZFFL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

This matter has come before me today by way of application to set aside orders that I made on 27 October 2005 dismissing an application filed in this Court on 13 December 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 November 2004 and handed down on 2 December 2004 to affirm the decision of a delegate of the first respondent Minister to refuse a protection visa to the applicant.
The applicant is a citizen of India who arrived in Australia on 16 May 2004. He lodged an application for a protection visa on 3 June 2004 with the first respondent's Department. On 9 June 2004 a delegate of the respondent Minister refused to grant a protection visa, and on
2 July 2004 the applicant applied for review of that decision. The applicant's claims are set out in his application for a protection visa made to the first respondent's Department (Court Book (“CB”) 1 to CB 24) and in particular in an attached statement at CB 25 to CB 28. The application to the Tribunal (CB 44 to CB 47) adds nothing other than
“I am not happy with D.I.M.I.A decision”. The Tribunal’s decision record under the heading “Claims and Evidence” (CB 67.5 to CB 72.9) contains the Tribunal’s record of the oral evidence the applicant gave to the Tribunal at the hearing before it on 5 October 2004.
The applicant claimed that he feared persecution in India for reasons of his political activities. The applicant claimed to have been born into a lower caste in India, and to have lived in Trichy in the state of Tamil Nadu in India. In particular he claimed:
1)That while at school he was teased verbally and physically for reasons arising out of his low caste.
2)That he joined a political party, the Puthiya Tamilagam (PT) in his home town and had worked for the PT for several years and was involved in promoting the work of the party and spreading its message. He claimed to, on occasion, have been attacked by activists of rival parties and to have been detained and mistreated by authorities.
3)He claimed specifically to have been detained in 1996 in “connection with Naxalite” (a group which independent evidence before the Tribunal described as ultra-leftist rebels who believed in violence).
4)He also claimed to have been involved in protests against the Tamil Nadu Chief Minister and to have been attacked by “rowdies” from the Bharatiya Janata Party (BJP) and other parties: the DMK and the ADMK or AIHDMK.
5)He further claimed to have been detained by the police for burning an effigy of a BJP leader and to have been tortured by police and to have suffered “inhuman treatment in gaol.” These incidents all occurred in Trichy.
The Tribunal's “Findings and Reasons” are set out in its decision record at CB 73 to CB 78. In particular:
1)The Tribunal considered the claims by the applicant that he had suffered harm at school because of his caste membership, and accepted that while this may have occurred, it did not constitute persecution for the purposes of the Refugees Convention (CB 73.9).
2)While the Tribunal had some reservations about the applicant’s claims concerning his political activities (for example, in relation to his original claim relating to the “Naxalites”, a left a wing group advocating violence, and in relation to the applicant's level of knowledge about the ideology of the PT) it nonetheless was satisfied that there was more than a remote chance that the applicant may be persecuted for reasons of his political opinion should he return to the city of Trichy in the state of Tamil Nadu in India (CB 75.7).
3)However, the Tribunal ultimately found that it was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention, as it was satisfied it was reasonable for the applicant to safely relocate within India, away from his home town in the state of Tamil Nadu.
The Tribunal's findings, in relation to the issue of relocation, are set out in its decision record reproduced at CB 75.7 to CB 78.7. It is, of course, trite to state that the purpose of refugee status being determined in relation to an applicant for a protection visa is to provide protection in circumstances where such protection is not available in the applicant’s country of nationality. Where an applicant for protection is in fear of harm for a Convention reason, then the signatories to the Refugees Convention have pledged to provide that protection. But also clearly, an applicant is not in need of international protection if protection is available in another part of their country of nationality. This underpins the concept of relocation, and where a Tribunal finds that a fear of localised persecution is well founded the availability of protection in the remainder of the applicant's country must be considered. In the case before me the Tribunal did make a finding that there was more than a remote chance that the applicant may be persecuted for reasons of his political opinion should he return to the city of Trichy in his home state of Tamil Nadu.
In these circumstances it was necessary for the Tribunal to then consider whether the applicant could relocate to another part of India. In the Full Federal Court decision of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”), the Full Court held that the question that the Tribunal needed to address was not merely whether an applicant could relocate to another area but whether the applicant could reasonably be expected to do so. At 442 Black CJ. stated:
“…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.”
Clearly what is reasonable will depend on the circumstances arising in each individual case, and it may often be necessary to have regard to a broad range of issues. The Court in Randhawa did not determine what would be reasonable in all cases but clearly financial, logistical barriers, and the genuineness of domestic protection are relevant considerations. In Hehar v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 620 at 623 the Court held that an inquiry about relocation must be addressed in a practical and commonsense way. In NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 Branson J. with whom North J. concurred in applying the principles laid down in Randhawa said at [22]:
“…the Tribunal was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji.” [The country of claimed persecution in that case]
In the case before me the Tribunal clearly considered the issue of whether the applicant could safely relocate within India and found that he could safely relocate to Madras, the capital city of the state of Tamil Nadu, which was approximately 350 kilometres north of the city of Trichy. In particular it found, dealing with the applicant’s subjective fear that he would be “traced” should he return to India (CB 76.5), that his opponents would not trace, or pursue him, if he were to move to Madras or to a neighbouring state. The Tribunal then went on (CB 77.3) to consider whether it would be reasonable in all the circumstances to expect the applicant to relocate, and took into account such issues as communication problems, employment, the applicant's skills in securing work, and his family. The Tribunal noted that no evidence had been provided that there were concerns with respect to issues such as infirmity and health services. The Tribunal accordingly found that it was not unreasonable to expect the applicant to move to some other location away from Trichy. It is clear that the Tribunal's consideration of this issue was based on the information provided by the applicant himself, particularly at the hearing conducted with the Tribunal. In this regard it is clear that the Tribunal, according to its unchallenged record of what occurred at the hearing, specifically raised the issue of relocation, and the reasonableness of relocation, with the applicant. At CB 71.5:
“At the Tribunal hearing I stated to the applicant that part of the Tribunal's function is to determine whether the applicant has a prospective well founded fear of persecution on return to his country of origin as a whole. Further, that an applicant would not be in need of international protection, if protection is available in another part of their country of origin, and if it could be reasonably expected that the applicant could relocate there.”
The Tribunal's decision record then reveals an extensive discussion ranging over relevant factors (CB 71.6 to CB 72.10).
I have gone at some length into the relevant Court Book material before me (even though this is an application pursuant to rule 16.05 of the Federal Magistrate Court Rules 2001 (“the Rules”) to set aside orders that I made already dismissing the application) essentially for two reasons. The first is that I have before me an unrepresented applicant. Second, I also have before me an applicant from a non-English speaking background who should leave this Court with a better understanding of why his application to set aside orders already made did not succeed, and why his originating application would not succeed even if I was to reinstate the application.
The application to this Court was made on 13 December 2004. An amended application was filed 22 March 2005. This matter had ultimately been set down for final hearing on 27 October 2005. I was satisfied on that day that the applicant had had appropriate, proper and reasonable notice of the date of the hearing. I dismissed the application due to the applicant’s non-appearance without explanation or notice, pursuant to rule 13.03A(c) of the Rules. Indeed, the applicant before me today does not challenge that issue, but presses his “case” against the Tribunal. Without any explanation at the time to the Court or to the respondent the applicant did not appear. On that basis I proceeded to dismiss the application for want of appearance. I also made an order that the respondent’s solicitors write to the applicant and amongst other matters notify the applicant of the existence of rule 16.05 of the Rules.
The applicant appeared before me today in support of his application to have the original application reinstated. He had the assistance of an interpreter in the Tamil language. Ms. Kerr appeared for the respondents. The applicant stated that he was sick on the day of the hearing, and that was the reason why he was unable to attend. The applicant filed an affidavit on 14 November 2005, sworn on the same day, in the following terms:
“On the date of 27^th at my hearing held I am seek [sic: “sick”]
I am unable to attend the hearing. Please give another date for my hearing.”
I note relevantly, however, that the applicant has provided no evidence, for example, by way of medical certificate of any illness, and nor has he provided any explanation for the failure, either acting on his own behalf, or someone else acting on his behalf, to notify the Court, or the respondent’s solicitors of the inability to attend on that day. On his own evidence he knew of the hearing scheduled for that day yet did nothing to advise the Court of any inability to attend, until after he received the respondent’s solicitor’s letter advising him of the dismissal of his application and of rule 16.05 of the Rules.
I should note for the applicant's benefit in particular, that there are many applicants before this Court from non-English speaking backgrounds and from time to time applicants are ill when hearings are scheduled. It has been this Court's experience that such applicants generally find a way to notify the Court on the day, if not the respondent, of any difficulty that they may have in attending.
On the basis that he has provided no evidence to support his assertion that he was sick, and on the basis that the failure to contact the Court or the respondent on the day is still unexplained, I do not accept the applicant's presentation today as being a reasonable excuse for his failure to attend and would refuse the application pursuant to rule 16.05 on that basis. However, I note, as I have said earlier, that I do have an unrepresented applicant from a non-English speaking background before me and also refuse his application pursuant to rule 16.05, on the basis that I can see no jurisdictional error in the Tribunal's decision in any event. To reinstate his application in these circumstances would serve no real purpose, and the futility of such a cause of action is derived from the lack of any jurisdictional error in the Tribunal’s decision.
In that regard I have looked at the grounds raised in the applicant's amended application filed on 22 March 2005 and note that the applicant sets out three grounds and provides a number of particulars purportedly in support of those grounds. Some of these particulars I will now look at as additional complaints made by the applicant because they actually do not appear to relate to the three stated grounds.
In this regard, I note that the originating application only asserts:
“I said the problems in RRT but they did not consider and rejected my application so I kindly request you to consider in the Federal.”
In the absence of anything else whatsoever this does not appear to rise above a request for impermissible merits review (Minister for Immigration & Multicultural & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259). I also note that the applicant did access the Court’s Legal Advice Scheme and on 12 February 2005 was given advice by a lawyer on the panel of that scheme. In any event, the applicant’s amended application filed in this Court on 22 March 2005 asserts:
“1) That the tribunal failed to follow procedural fairness as required under section 424A(1) and section 418 (3) of the Migration Act 1958.
2) That the decision led to the omission of principles of natural justice while making a decision.
3) That an irrelevant notion taken into consideration leaving behind real aspects of the issues thus failed to take into account relevant issues.”
The applicant then sets out three particulars which, with one exception, do not appear to go to the grounds, but which I will treat as additional complaints made by the applicant:
“Particulars: 1
The tribunal relies heavily on the Department of Foreign Affairs advice and general country information in setting out its position on social conditions in Indian law and order situation and access to judicial remedies which formed the reason of the tribunal's decision.
Particulars: 2
Refugee Review Tribunal failed to consider the fact whether or not the Indian government is willing to provide adequate protection to me upon my return to India.
Particulars: 3
The secretary of the Department of Immigration and Multicultural and Indigenous Affairs did not comply with s 418(3) of the Migration Act by failing to provide the Registrar of the RRT part B documents in their possession which was a failure by the Secretary to comply with the requirements of s 418(3) of the Act as per Gaudron J and Gummow J in Muin Vs Refugee Review Tribunal.”
I should also note that the applicant filed, on 4 October 2005, under cover of letter, copies of various documents which appear to go to his claims before the Tribunal. He describes the reason for sending the documents as:
“I send the details with this letter how a human is affecting against human rights in Tamilnadu, India.
In India my family is affected by tsunami with this letter I have sent proof of my Family affected by tsunami.
With this letter I send the proof of my party leader krishnaswamy arrested against human rights.”
His complaint (beyond seeking impermissible merits review) is that the Tribunal affirmed the delegate’s decision without “proper inquiries and investigations of the facts concerned that led to the consequences of leaving India.” I can see no basis for this complaint. The Tribunal fully examined the applicant’s claims as put by him. He attended a hearing with the Tribunal and was given the opportunity to present his case. There is nothing to show that he sought any further investigation or enquiry. Nor do the circumstances before me suggest the need for any further investigation or enquiry by the Tribunal. In the end the Tribunal did not accept the applicant’s claims that in some respects (for example employment) that he could not relocate. The Tribunal’s findings in relation to relocation (a separate and independent basis) where open to it on the material before it.
In relation to the applicant’s stated complaints in the amended application:
1)That there was a breach of s.424A of the Migration Act 1958 (“the Act”).
The applicant was unable to be specific as to what breach of s.424A had occurred. The Tribunal's decision to a large part relied on information that the applicant himself put before the Tribunal, and in particular information that was provided to the Tribunal at the hearing that it conducted with the applicant. In this regard any such information is excluded from the requirement to put such information to the applicant pursuant to s.424A(1) of Act in the manner set out in s.424A(2) (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24) by the operation of s.424A(3)(b) of the Act. In relation to independent country information to which the Tribunal had regard in making its decision, it is clear that all such information was exempted from the requirements set out in s.424A(1) by the operation of s.424A(3)(a) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). At CB 75.3 in its “Findings and Reasons” the Tribunal made reference to a publication by G.C Shekhar, based on information in The Hindustan Times, 18 July 2000. This appears to be information about the party of which the applicant claimed to be a member and its purposes. There is nothing before me to show that any of this information was personal to the applicant. In any event, in relation to the issue of persecution for reasons of his political opinion in which this general information was relevant the Tribunal found in favour of the applicant and that he may be subject to persecution for reasons of his political opinion. The other documents referred to by the Tribunal are reproduced at CB 82 to CB 90 and do not reveal that they are personal to the applicant or that they do not fall within the exemption set out in s.424A(3)(a). The Tribunal’s separate and independent basis for rejecting the application, that of the reasonableness of relocation to another part of India, was based to a large extent on what the applicant himself put to the Tribunal and on independent country information not specifically about the applicant. As such, it fell within the exceptions contained in s.424A(3)(b) and s.424A(3)(a) from the Tribunal’s obligation to put such information to the applicant pursuant to s.424A(1).
2)The applicant also complains that there was a failure by the Tribunal to comply with s.418 of the Act, and a failure by the Secretary of the first respondent’s Department to comply with s.418(3) of the Act by failing to provide the Tribunal with “Part B” documents in his possession.
The applicant has put no evidence before me, nor is there anything apparent in the material before me, to support the assertion that the “Secretary” of the “Department” did not provide the “Part B” documents to the Tribunal. In any event, I note that what appears to be the “Part B” documents are reproduced at CB 15 to CB 24, being Part B of the applicant's application to the first respondent’s Department for a protection visa. The Tribunal clearly states that it had before it the “Department's file” which included the protection visa application (CB 67.5). Further, the applicant's passport, which is listed as the only document (CB 21) in connection with Part B of his application form was cited at CB 73.1 by the Tribunal as having been “seen” by the Tribunal. There is nothing before me to show that the applicant was misled by the Tribunal in any manner in connection to “Part B” documents, or that there was any breach of procedural fairness arising from this issue. Further, as submitted by Mr. Kennett and with reference to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 at [25] per Gleeson C.J., [46]-[56] per Gaudron J., [173]-[181] per Gummow J. and [251] per Hayne J., compliance by the secretary with s.418(3) is not a precondition to the validity of the Tribunal's decision and even if the applicant's assertion in this regard were to be made out, and as I have said there is nothing before me to show that it is made out, it would not in any event lead to a grant of the relief which he seeks. Further, in the context of s.424A(1) of the Act, and any possible breach, the passport (the only issue relevant to any possible “Part B” complaint) does not appear to affect in any way the Tribunal’s separate and independent finding in relation to relocation as the basis for refusing the applicant’s application.
3)The applicant also complains that there has been an “omission of principles of natural justice”, which I took to be a complaint that there has been a breach of these principles.
The applicant was unable to explain what he meant by this. In any event no such breach is apparent from the material before me.
I note further, as Mr. Kennett also submits, that s.422B of the Act limits the requirements of the natural justice hearing rule in respect of the matters dealt with by Division 4 of Part 7 of the Act to complying with the specific provisions of that Division. The applicant was also unable to explain what was meant by the allegation that the Tribunal took into account an irrelevant notion and failed to consider relevant issues. Again nothing is apparent in the material before me which would show that the Tribunal took into account irrelevant considerations, or failed to consider any relevant issues. The Tribunal looked at the applicant's claims as put by the applicant, gave the applicant the opportunity at the hearing it conducted with him to comment on issues relevant to his claims and in particular put him on notice at the hearing of the critical issue of relocation to another part of India. I cannot see that this complaint can be made out.
4)The applicant also complains that there was an excessive reliance on “DFAT” advice and country information.
I cannot see on the material before me that the Tribunal relied on any DFAT (Department of Foreign Affairs and Trade) advice. In relation to country information, I have already dealt with this issue above. To the extent that the applicant also complains that there was an “excessive” reliance on this country information, the Tribunal's decision on relocation turned to a large extent on information provided by the applicant himself. The Tribunal’s reference to the publication, “Urdu in Andhra Pradesh” Language in India by Andhra Pradesh Fathihi, A. R. 2003 (CB 72.3) and reproduced at CB 83 can hardly be deemed to be “excessive” in the circumstances of the Tribunal's findings, even if a ground of review described as excessive reliance was available to the applicant.
5)The applicant also complains that the Tribunal failed to consider whether the Indian government was willing to provide adequate protection to the applicant upon his return to India.
The Tribunal accepted that in his home city of Trichy there was more than a remote chance that the applicant would be persecuted because of his political opinion. The Tribunal's finding in this regard was clearly in the applicant’s favour on the important issue of whether he faced a real chance of persecution. It found that there was a more than a remote chance of persecution for the Convention reason of political opinion if he were to return to Trichy. The Tribunal subsequently found however, that the applicant could safely and reasonably relocate to other parts of India, away from his home city of Trichy, and as I have set out elsewhere, this was a finding that was open to it on the material before it, sufficient to base its ultimate conclusion that it was not satisfied that the applicant had a real chance of persecution for a Convention reason in India as a whole. In these circumstances it was not necessary for the Tribunal to then specifically and separately go on to consider the issue of state protection. The Tribunal’s finding that he was able to live somewhere else in India and that it was reasonable for him to relocate are findings which exclude any need to consider further whether the state was willing and able to protect him from his persecutors beyond the circumstances relevant to a proper consideration of safe relocation (CB 77.2).

In all the circumstances of this case, and on the material before me, I can see no jurisdictional error on the part of the Tribunal in the making of its decision. On the basis that the applicant has provided no reasonable excuse for his non-attendance at the hearing, but even more, and in addition, on the basis that the Tribunal’s decision does not disclose jurisdictional error in any event, the application to set aside orders dismissing the applicant’s originating and amended application challenging the Tribunal’s decision is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Sybilla Waring-Lambert

Date: 24 January 2006