SZFYV v Minister for Immigration - [2006] FMCA 1516

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFYV v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1516

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.424

Applicant S256 of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170
Minister for Immigration & Multicultural & Indigenous Affairsv Lat (2006) 151 FCR 214
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
Syan v Refugee Review Tribunal and Anor (1995) 61 FCR 284
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229
VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178

Applicant:

SZFYV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG749 of 2005

Judgment of:

Barnes FM

Hearing date:

5 October 2006

Delivered at:

Sydney

Delivered on:

5 October 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal be joined as a respondent to the proceedings.
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG749 of 2005

SZFYV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 17 March 2005 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of India, arrived in Australia in September 2004 and applied for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
The applicant claimed to fear persecution in India. He claimed to have passed on information from a friend about a meeting of the National Development Front (the NDF), an Islamic terrorist organisation, to the local police. He claimed to fear that he would be killed by the NDF and that after this incident NDF workers had attacked his home and his business on several occasions and that his brother-in-law was injured by the NDF which wished to revenge itself on him.
He claimed that after leaving India for a month in July 2003 he returned to Bombay for six months, but that just before he left Bombay the home of the friend with whom he was staying was searched by NDF members who asked about him. He then travelled to another city in another state of India and lived with a friend there for 4½ to 5 months. He did not claim to experience difficulty in that other city but claimed that the NDF would find him wherever he went in India.
In its reasons for decision the Tribunal detailed the claims made by the applicant in connection with his protection visa application and as elaborated on at the Tribunal hearing. The Tribunal accepted that the applicant was a national of India. It detailed that at the Tribunal hearing it had put to the applicant that protection obligations may not be invoked if it was satisfied he could safely relocate within India and that it was reasonable in all the circumstances to expect him to do so. It detailed his response and other evidence given at the Tribunal hearing.
On the basis of country information referred to in the reasons for decision, the Tribunal found that the NDF were mainly active in Kerala State (the region from which the applicant came). It noted the applicant’s claim that the NDF was “active” throughout India and it accepted for the purposes of the decision that the NDF had membership in a number of random states and cities within India, but found that it was satisfied that the applicant could safely relocate within India and that it was reasonable in all the circumstances for him to do so.
In making such findings the Tribunal had regard to the applicant’s evidence that the only reason he had come to the attention of the NDF in Bombay was that he had the misfortune of having been seen by an NDF person who had independently travelled to Bombay from Kerala and who recognised the applicant, whom he knew from Kerala.

The Tribunal accepted that the applicant may be sought by NDF members in Kerala but was not satisfied he would not have been successfully targeted by them in the almost three months he remained living in his home area in Kerala, after the claimed incidents, if he was of serious interest to them.
Further, the Tribunal found that even if it accepted that the applicant had a real chance of persecution for a Convention reason in or around Calicut City and possibly Bombay, where many persons from Kerala State travelled to seek work, based on the applicant’s evidence and the country information it was not satisfied that the applicant would have a real chance of persecution should he safely relocate to another state in India.
The Tribunal had regard to the applicant’s claim to fear that the NDF operated and were active in most major cities and towns in India but found that the applicant had remained in a city in Tamil Nadu State for almost five months without coming to the adverse attention of anyone and that, on his own claim, he only came to the adverse attention of the NDF in Bombay because he was seen by an NDF person who, by chance, knew him and lived in the same area. The Tribunal was satisfied that there was no more than a remote chance that the applicant would similarly or otherwise come to the adverse attention of the NDF should he safely relocate to an alternate city in an alternate state in India. It was satisfied the applicant could safely relocate in India and that in all the circumstances it was reasonable to expect him to do so.
In considering the reasonableness of relocation, the Tribunal had regard to the applicant’s evidence that he had, after coming to Australia, secured employment in a culture and country significantly different from his own. It addressed his claims that there would be language problems, noting that he had apparently managed to come to Australia and speak English. It considered the applicant’s claim that he could only secure, for example, office work and that that would be difficult, but having regard to his English language skills, his degree in economics and his work experience and the country information, the Tribunal was not satisfied that he could not secure office work.

It found that the fact that it may be difficult did not satisfy it that it would be unreasonable to expect the applicant to secure such work.
The applicant also claimed that he would have to accommodate cultural problems and had no family or other connections in other areas in India. However the Tribunal had regard to his claims to have had family and friends in at least Bombay and in a city in Tamil Nadu State and also to his prior travel to and residence and work in Bombay and Australia. It was not satisfied that different cultures, languages or a lack of family or other connections would render it unreasonable for this applicant to safely relocate within India.
The Tribunal also found that there was no evidence that there were concerns with respect to matters such as infirmity, health services or education or in the country information to satisfy it that relocation would be unreasonable for the present applicant. The Tribunal concluded that it was reasonable to expect the applicant to safely relocate within India and that he did not have a well-founded fear of persecution for a Convention reason in India as a whole.
The applicant sought review by application filed in this Court on 24 March 2005. He filed an amended application on 20 June 2005 which contains three grounds. However, in written submissions filed on 3 October 2006 the applicant stated that he did not press ground 2 and he confirmed this today in oral submissions.
The first ground relied on in the amended application is that the Tribunal made a conclusion contrary to the facts and available information and refuted the credibility of the applicant. The ground takes issue with the Tribunal statement in its reasons for decision that the Tribunal put to the applicant that country information it had seen did not satisfy it that the NDF was, for example, active in major cities and major town centres in India. The particulars are that the Tribunal did not put the details of this country information to the applicant in the hearing and so denied him procedural fairness and fell into jurisdictional error.
However, in the absence of a transcript of the hearing there is no evidentiary basis for this assertion (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]). Hence it is not necessary to consider the scope of s.422B in relation to the claim of a denial of procedural fairness (but see Minister for Immigration & Multicultural & Indigenous Affairsv Lat (2006) 151 FCR 214 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62). Moreover I note that s.424A would not be applicable as s.424(3)(a) excludes country information such as is referred to under this ground (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 and VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178).
Insofar as reliance is placed by the applicant on the fact that the Tribunal proceeded on the basis that the NDF had membership in a number of random states and cities within India, the Tribunal did have regard to this but also had regard to the fact that the applicant had remained in a city in Tamil Nadu for five months without coming to the adverse attention of anyone and that even in Bombay he had only come to the adverse attention of the NDF due to the misfortune of having been seen by an NDF person who by chance knew him from Kerala and lived in the same area. The Tribunal considered the applicant’s claims in relation to the activity of the NDF and no jurisdictional error has been established in the manner contended for by the applicant.
The second ground (which was Wednesbury unreasonableness) is not pressed. The final ground is a contention that the Tribunal was “manifestly unreasonable” in concluding that it was reasonable for the applicant to relocate or that it was not satisfied that he would have a real chance of persecution should he safely relocate to another state in India. Issue was taken with the Tribunal’s conclusion that, based on the applicant’s own evidence and the country information considered, the Tribunal was not satisfied the applicant would have a real chance of persecution should he safely relocate to another state because (it was said) the Tribunal had already accepted that the applicant would have a real chance of persecution if asked to return to India but decided that such risk would not be there if he relocated to another state outside Kerala and, for that matter, including Bombay.
Reference was made to the fact that the Tribunal had stated that for the purposes of its decision it intended to accept that the NDF had membership in a number of random states and cities within India.

It was contended that the Tribunal had failed to suggest to the applicant what would be the safer cities in which the applicant could settle down without endangering his life. It seems to be contended that there was a contradiction in the Tribunal findings and that the Tribunal erred in not specifying where the applicant could relocate within India. On this basis it is contended that the Tribunal failed to consider properly whether the applicant would suffer serious harm constituting persecution and hence failed to satisfy its statutory obligation.
First, contrary to the assertions in support of this ground, the Tribunal did not accept that the applicant had a well-founded fear of persecution in Kerala or elsewhere in India. Rather, it found that while the applicant may be sought by NDF members in his area in Kerala State, it was not satisfied he would not have been successfully targeted by them in the almost three months he remained living there if he was of serious interest to the NDF. It then considered relocation. It addressed whether relocation was reasonable as a preliminary issue, consistent with the approach in Syan v Refugee Review Tribunal and Anor (1995) 61 FCR 284 and also see Applicant S256 of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 170 at [18], finding that “even if” it accepted that the applicant had a real chance of persecution for a Convention reason in and around his home city in Kerala and, perhaps, Bombay it was not satisfied he would have a real chance of persecution should he safely relocate to another state. It was not necessary for the Tribunal to specify particular cities.

No failure to apply the correct test is established.
The Tribunal had regard to the applicant’s own evidence that he had in fact spent several months in another city in Tamil Nadu in India and had encountered no difficulties. As set out above, it also had regard to the applicant’s claims in relation to the activities of the NDF. It was satisfied that the NDF was “active” in Kerala State where the applicant resided and accepted for the purposes of the decision that the NDF had “membership” in a number of random states and cities within India. However it also had regard, not only to independent evidence, but also to the applicant’s own evidence of his past activities and whereabouts in India, in being satisfied that there was no more than a remote chance that the applicant would come to the adverse attention of the NDF should he relocate to an alternate city in an alternate state in India.

In other words, the Tribunal set out the evidence and findings and reasons for its findings in relation to whether the applicant could safely relocate and also as to whether it was reasonable for him to do so.

It has not been established that the Tribunal was unreasonable in a manner giving rise to a jurisdictional error (as to which see Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 at [22] – [38]).
In effect the applicant takes issue, as he did in oral submissions today, with the merits of the Tribunal decision and its factual findings in relation to the situation in India. Such claims do not establish a jurisdictional error.
In written submissions the applicant submitted that the Tribunal put the onus on the applicant to find a safe place to live in India and that in this way failed to properly consider the test as to whether he would suffer serious harm. However it is apparent from the Tribunal reasons for decision that it properly considered the reasonableness of relocation consistent with the principles considered by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. The Tribunal findings were open to it for the reasons it gave. It is not open to this Court to review the merits of the Tribunal decision.
No jurisdictional error is established on the basis contended for by the applicant. As no jurisdictional error has been established, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. There is nothing in the material before the Court to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the respondent Minister who seeks costs in the sum of $5,000. The applicant seeks a reduction in the amount of costs as he is not in full employment. However, his lack of funds or of full employment is not a reason for not awarding costs in the appropriate amount although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs. I consider that despite his claims the amount sought is appropriate in light of the nature of this and other similar matters.The Tribunal should also be joined as a respondent.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 25 October 2006