SZGDN v Minister for Immigration and Citizenship
[2007] FCA 450
•3 April 2007
FEDERAL COURT OF AUSTRALIA
SZGDN v Minister for Immigration & Citizenship [2007] FCA 450
MIGRATION – protection visa – relocation
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437SZGDN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2520 OF 2006BUCHANAN J
3 APRIL 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 2520 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGDN
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
3 APRIL 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Citizenship.
2.The appeal is dismissed with 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 2520 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZGDN
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
3 APRIL 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BUCHANAN J:
The appellant is a citizen of India. He arrived in Australia on 6 September 2004. He applied on 13 October 2004 for a protection (class XA) visa. On 16 November 2004 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa. On 7 December 2004 the appellant applied to the Refugee Review Tribunal (‘the RRT’) for review of the delegate’s decision. On 5 April 2005 the RRT handed down a decision signed on 8 March 2005, affirming the delegate’s decision not to grant a protection visa. The appellant applied for judicial review of the decision of the RRT to the Federal Magistrates Court. On 15 December 2006 Turner FM dismissed the application for judicial review. An appeal against Turner FM’s judgment was filed in this Court on 22 December 2006.
At the hearing of the appeal the appellant was unrepresented. He had filed no written submissions. His only response to my invitation to say anything further about his appeal was that he wished his case to be reconsidered.
The grounds of appeal are very similar to other matters recently before me. They lack any specific identification of error in the judgment appealed against or jurisdictional error in the decision of the RRT. Rather, they advance a confusing miscellany of assertion and references to cases (one of them non-existent so far as I can see – AGDB v Minister for Immigration and Multicultural Affairs). I set them out as written, below:
‘2. The Single judge of the Federal Magistrate Court in his Honours judgment delivered on the 15 December 2006 failed to find error of law, jurisdictional error procedural fairness and relief under section 39B of the judiciary Act 1903.
3. The grounds and relief is very much similar with a recent High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30(8 August 2002)
4. Recent High Court judgment; Plaintiff S 157/2002 Commonwealth of Australia [2003] HCA 1
5 Recent Federal Court of Australia judgment: AGDB v Minister for Immigration and Multicultural Affairs. I will provide more ground after received the judgment.
6. The grounds and relief is very similar with a recent Federal Court judgment –SZCBB v Minister for Immigration and Multicultural and Indigenous Affairs.
7. Tribunal made his decision in bad faith. I was prosecuted because of my religious believe . I had been targeted by Hindu fundamentalist. It was very difficult time for me, Hindu militants would pursue me no matter where else I might go in India.
8. The FM erred in failing to find that the Tribunal erred in law under section 476, section 426 and Migration Act 1958. The FM in his honour judgement delivered on 15December 2006 failed to find the error of law and relief under section 39b of the judiciary Act.
9. My point is that despite having attended the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such in information was required to be sent to me in written to make comments, in order to fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.’
These purported grounds of appeal are inadequate to raise a suitable case for consideration in the absence of some focus upon the decision(s) under challenge. In my view it is not the function of this Court to strive to make sense out of such a generalised series of grounds. One might just as well allege jurisdictional error without further particularisation and leave it to the Court to find for itself a basis for the appeal.
Nevertheless, the appellant is unrepresented, and while such assistance as he and others have received is not of much use to the Court I will endeavour to make some sense of his appeal.
First, I see no error in the statement of the test distilled and stated by the RRT in its discussion of the elements to be established to satisfy the definition of ‘refugee’ under the Refugees Convention and Refugees Protocol and hence be a person to whom Australia has protection obligations. To satisfy the criteria for the grant of a protection visa the appellant must be outside his country, have a well-founded fear of persecution for one of the reasons set out in the Convention definition (race, religion, nationality, membership of a particular social group or political opinion) and be unable, or unwilling because of his fear, to avail himself of the protection of his country.
The RRT recorded the applicant’s written claims in the following terms:
‘In written statements to the Department and to this Tribunal, he claimed to be a devout Moslem, of the “Wahabi caste”, from Triplicane in Chennai, Tamil Nadu [Triplicane is a town about 5km from Chennai (Madras)]. He had married in 1990 and had two children.
He claimed that Moslems formed a minority in Tamil Nadu, as in India. Triplicane was riot-prone, and Hindu fanatics and fundamentalists, such as the BJP and RSS, constantly threatened the lives of Moslems and Christians. Minorities could not voice their grievances. Anyone with a Moslem appearance was robbed and beaten by thugs. Moslems were particularly at risk on annual Hindu religious days. He claimed to be a typical victim of Hindu fanatics in Chennai.
Hindus wanted to kill him for the main reason that he had helped the poor with the earnings from his business, which was "flourishing and improving a lot". If he had not left India he could have been killed by fanatics in Chennai. As he was good at business, there were also Hindu business rivals who were keen to see his business close "for their upliftment" - these people joined hands with fundamentalists and fanatics to foment trouble in his personal and professional life.
Of incidents in which he had been directly involved, he made various claims (it was unclear from his written statements when, and in what order, most of these events occurred). He claimed that:
· one day a person deliberately bumped into him and picked a quarrel, and the applicant understood from this that “he was a person hired for money to threaten me by a Hindu fanatic”.
· He had been robbed and beaten by hooligans in Mumbai.
· He was drinking tea at a hotel when two strangers sat nearby and ordered coffee. They asked him his name, and questioned him about the quality of his tea and other “irrelevant questions”. He believed that these were coercive methods of Hindu fanatics.
· He was walking with friends on a beach in Chennai when some “rowdies” mocked them. He and his friends left the beach. He told his friends that these were methods used by Hindu fundamentalists to create "fear psychosis" in him.
· During a riot in Chennai in 1991 Moslem shops were attacked. He was injured and robbed of money and jewellery.
· Members of the RSS extorted money from him and other business-owners. Most refused, and complained to the police and sympathetic politicians. The extorters developed a grudge against those who complained, and one day some of his friends were beaten up, and were told that he would be killed if he was caught.
· The above people searched his father's home, so the applicant left his wife at her father's house and fled to Bangalore in Karnataka state, where he was given a job at the Islamic Research Centre. However, his wife was threatened in Chennai. His son became ill but she was too frightened to leave the house and take him to a hospital. His son died. The families blamed the applicant for this tragedy.
· The applicant returned to Bangalore but was unable to attend to his work properly, so moved to Mumbai (Bombay) in Maharashtra state, where he started a business. The Babri mosque was demolished at this time [6 December 1992], and Hindus attacked Moslems everywhere. He was living in a Hindu area so had to flee Mumbai at this point. He then moved to Delhi to find work, without success because of the general tension, then with a friend started a rice export business from Bhuvaneswar in Orissa state. In April 1993 he visited his wife in Chennai as she had given birth to their daughter, then he returned to Orissa, where his business was going very well.
· That business was destroyed as a result of a cyclone, and he returned to Chennai, where he re-started his business and rejoined his social life.
· He heard that the same people wanted to eliminate him so, with his wife and daughter, hid at a different place. However they came there and the family escaped. The applicant reported this to the police, who said they could take no action “as the people involved were not identified properly”. The applicant believed that the assailants and the police were “hand in glove”.
· He and many others formed a self-protection committee, called the Chennai Vazhal Pudur Makkal Nala Sangam. A few days later he and others intervened to protect a Moslem being attacked by a Hindu.
· A few days after this he heard that a person was planning to kill him. A person entered his house and told him that if he disclosed anything to anybody, or to the police, he would be killed.
· During the Hindu Deepavali festival fireworks were thrown into his house. He asked his committee to help but they said they could not, so he wrote many letters to political parties, without success. His business suffered.
· On 13 September 1998 he was rung at home and asked to meet a person about a business deal. As he and a friend approached the shop, an auto-rickshaw struck his scooter. He believed this was pre-planned. The drunken passengers stopped and manhandled them. Members of the public intervened and rescued them both, handing over one of the culprits to the police. The applicant and his friend were admitted to hospital for a day. The hospital authorities told the police, who investigated. The police arrested one of his assailants (Vasu), while the other two, expecting arrest, had got “anticipatory bail”.
· After the applicant's release-from hospital, he received several telephone calls at night from people “threatening me with dire consequences to my personal life and family members” if he gave evidence against Vasu. People knocked on his door. He believed they intended to murder him. Fearing for the children's safety, his wife could not take them to school. He was warned to tell the neighbours or the police about anything. As a result, when he gave evidence in court he told the magistrate he knew nothing. He did not identify his assailant.
· To avoid these problems, he moved from state to state within India. However “wherever I went there was also some kind of disturbance or other” so he could not stay there.
· Within a few months a general election was called. The BJP formed an alliance with the state-based AIADMK, the Congress Party allied with the state-based DMK. He and his friends supported the DMK. The Congress and DMK won nationally and at state level respectively [on 13 May 2004], as a result of which he received threatening phone calls.
· The DMK said they would help with this problem. As he and others left the DMK office a gang in an auto-rickshaw followed them. The police said they could do nothing about this.
· The applicant contemplated suicide. He borrowed money and moved from one place to another, leaving his wife and two daughters behind. He was advised to come to Australia and did so.
· As a result of all these problems he had incurred large debts.’
There was then, in the RRT decision, a detailed summary of the applicant’s oral evidence, including the substance of questions posed by the RRT and his responses. The RRT also spent some time summarising independent country information about religious tensions in India as a whole and in Tamil Nadu, the state where the appellant lived.
The RRT obviously detected that the appellant had difficulty giving his evidence. It recorded:
Having taken oral evidence from him during a hearing of some three hours, I observed that some of his evidence appeared to be somewhat disordered and illogical.’
However, the RRT concluded that professional assistance would not help to throw light on the appellant’s circumstances in India. It said:
‘I have considered whether a report by a qualified doctor or psychiatrist about the applicant might prove of assistance in this case. However, as such a report cannot assist in establishing precisely what difficulties the applicant has actually faced in India and the reason for them, and as these are key issues on which the Tribunal must make findings, I do not consider that such a report might offer any practical advantage to the Tribunal in performing this task.’
The RRT found that merely being a Moslem in India or in the cities of Chennai and Triplicane, was not sufficient to give rise to a well-founded fear of persecution. These findings were based upon independent country information.
Attention then turned to some more specific claims. One concerned an assault in 1998. The RRT said:
‘I accept that while back in Triplicane the applicant was assaulted in 1998, although his evidence was that his assailants, travelling in an auto-rickshaw, were drunk and that their vehicle struck his bicycle as he rode it along a road, after which they assaulted him. His evidence about the circumstances in which the incident occurred has varied, but in my view it has the hallmarks of an ordinary accident leading to an assault by the inebriated passengers of the vehicle. I cannot be satisfied that it was anything more than that, and therefore am not satisfied that it was a pre-planned attack on him by Hindu extremists, whether connected with a political party or not, for any of the reasons set out in the Convention. I accept that the police charged his assailants and that, because they had threatened him after the incident, he chose not to give evidence against them. However, I accept that the applicant found this incident very distressing and that he may have interpreted it in the way he has claimed.’
The next matter dealt with was the appellant’s claim that Hindu families wanted to kill him because of his charitable work or support of a political party in Tamil Nadu. The RRT said:
‘The applicant claimed in writing that Hindu fanatics in Chennai wanted to kill him mainly because of his charitable work. His explanation was that Hindu nationalists did not want him to become popular. While I am satisfied that he did use part of his income to assist poor people in Triplicane, it is unclear from his account why this might have led to his being targeted by Hindu extremists, particularly as he was giving what little money he had to Hindus as well as Moslems, was not involved in proselytising and was rarely in Triplicane after 1992. Further, there is evidence of several well organised Moslem groups involved in bombings and other terrorist activities in this period in Tamil Nadu, and one would expect their members to be the target of Hindu extremist retaliation, rather than the applicant. In any case, although at one point he gave evidence that he had been giving away his savings until he left India for Australia, he also said at another stage at the Tribunal hearing that he had not done any charitable activities at all since 1998. It appears to me that he was being more precise in his latter response, and I propose to rely on it. Taking all the above factors into account, it appears highly unlikely, and I am not satisfied, that anyone might have wished to harm him in subsequent years for a reason arising from his having been involved in charitable activities in the past.
When I put this to him he belatedly claimed that in fact people now wanted to harm him because of his support for the DMK party in Tamil Nadu, and they had increased their threats to him after the ADMK party recently lost power in an election. He claimed to have travelled around Tamil Nadu for some three months with DMK supporters in the lead up to the election (which I am satisfied was held in May 2004). 1 have considerable difficulty believing this claim, for a number of reasons - firstly because he did not mention it early in the hearing when listing where he was residing over the years in India (instead claiming to have been in hiding in other parts of the country), secondly because his participation in this campaigning activity had not been mentioned in his written account, and thirdly because it sits uncomfortably with his evidence that he was not a member of any political party in India. However, he has stated that he had difficulties with his longer term memory and it may be that he has had some involvement with this party, which is now the ruling party in Tamil Nadu. As to whether he was being threatened in the lead up to his departure from India in 2004 as a result of these political activities, that is inconsistent with his evidence that he was "small fry", and it is also very difficult to accept that anyone from Chennai could have located him in order to make such threats, given his evidence that he was moving from one city to another, or indeed that they might have bothered to do so. Therefore, while I am satisfied that the applicant was fearful of being harmed by Hindu extremists or Hindu supporters of another political party, I do not consider that that fear was well-founded before his departure from India.’
The foregoing analysis led the RRT to say the following:
‘I have considerable difficulty accepting that the applicant was at risk on any Convention-related harm in the Chennai area at the time he left India for Australia in 2004. However, if I am wrong on this point, I am satisfied for the following reasons that the chance of his being harmed for a Convention reason elsewhere in India is remote.’
The RRT then went on to deal with the appellant’s claims on a further basis. It said:
‘The applicant gave evidence that for some years he had he moved around India “all the time”, sometimes spending just 10-20 days in one lodging place. He considered himself to be in hiding, and was prompted to move whenever he “felt fear” or saw “suspicious persons”. However he does not claim to have been threatened or harmed by Hindu extremists or anyone else outside the Chennai area of Tamil Nadu during the ten years prior to his departure for Australia. That is consistent with his evidence that he was “small fry” in terms of his political profile even in Chennai. Local Hindu extremists in his district in Tamil Nadu would appear to have neither the means nor the desire to locate him elsewhere. I am not satisfied that he was at risk of politically-motivated harm outside the Chennai area in the lead up to his departure from India in 2004. Despite incidents of violence and discrimination during 2003/4, relations between various religious groups in India generally were amicable last year among the substantial majority of citizens. Therefore, while I am satisfied that he was fearful of being harmed anywhere in India by Hindu extremists or Hindu supporters of another political party, I find that that fear was not well-founded.’
and:
‘I consider that the applicant could reasonably be expected to relocate within India. It is a large and populous country. As to whether it would be reasonable to expect him to relocate, I rely on the following. Firstly, according to his own claims he has traveled extensively around India, speaks some English and Hindi (both of which are spoken widely) and is confident that there are Tamil-speaking communities in other parts of India. Secondly, there are no official restrictions on moving from one state to another there (U.K. Home Office, Country Assessment: India, October 2001), and no local police checks on new arrivals (U.K. Home Office 2001). Thirdly, there are large Moslem communities in several states in India. Fourthly, he appears to have the qualities necessary to enable him to relocate. He willingly moved to Australia, a country in which he neither spoke the language fluently nor had any friends or relatives.’
Despite the earlier finding, that any fears the appellant held before his departure were not well-founded, in the end it appears to be the alternative conclusion about relocation that provides the operative and conclusive foundation for the rejection of his claims by the RRT which said finally:
‘The applicant has clearly suffered some serious personal difficulties and hardships in India, and I feel considerable sympathy for him. However for the above reasons I am satisfied, and find, that it would be reasonable for the applicant to relocate within India and that, if he did so, his fear of Convention-related persecution would not be well-founded.’
In these circumstances the appellant is entitled, in my view, to consideration of his appeal upon the footing that the decision to affirm the refusal of his application for a protection visa is based upon a finding that it is reasonable for him to relocate within India and that the RRT’s final statement of its conclusions entitle the appellant to focus on the relocation issue as containing the potential jurisdictional error in the RRT decision.
The grounds of his application for judicial review before the Federal Magistrates Court, were expressed, although differently, with no greater particularity than the grounds in his Notice of Appeal. An amendment to those grounds for judicial review did little to improve the position but the following does appear:
‘I was persecuted by the authority & Hindu extremists, RSS. I was attack by RSS & BJP in India. Now BJP & RSS ACTIVISTS are very strong.
If I persecuted by the authority it is not possible for me to relocate any other place in India.’
This rather oblique and inconclusive assertion provides the only foundation for a suggestion the relocation question was put in issue in the Federal Magistrates Court.
Turner FM had no difficulty rejecting the grounds in the application for judicial review. They largely alleged a lack of procedural fairness or a failure to give proper consideration to the case and were without any apparent substance.
The matters raised by the amended application were also rejected. None of them was developed further by the appellant. It does not appear that any particular focus was placed on the relocation issue.
Examination of the question whether relocation would be reasonable is related to the broader question of whether a fear of persecution is well-founded. The latter question must be assessed by reference to the protective capacity of the country of nationality as a whole and not merely a part, or parts, of it.
The principle was stated authoritatively in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 by Black CJ (with whom Whitlam J agreed) at 440-441:
‘Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.’
and at 442:
‘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.’
and at 443:
‘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. I should add that this seems to me to be a better way of looking at the matter than to say, as the first and last sentences of par 91 of the Handbook suggest, that the fear of persecution need not extend to the whole territory of the refugee’s country of nationality if under all the circumstances it would not have been reasonable to expect a person to relocate.’
Black CJ went on to consider, in the circumstances of the particular case, whether the inquiry about the reasonable possibility of relocation had been properly carried out. He said (at 443):
‘In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant's Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.’
In a more recent case (NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37) a majority of a Full Court of this Court found that a summary rejection of concerns about relocating was inadequate to meet the obligations on the RRT to properly consider whether relocation would, or would not be, unreasonable.
In the present case the RRT gave a number of reasons for its conclusion that it was not unreasonable for the appellant to relocate. I set them out earlier in para [15]. The appellant indicated in his written and oral evidence that he moved from place to place, and in answer to questioning from the RRT indicated that he speaks some English and Hindi, and there were Tamil speaking communities in the north of India.
These were legitimate matters for the RRT to take into account. In addition, the RRT put to him directly the proposition that he could relocate. The decision records:
‘I told him that, if he was having problems with RSS people in Triplicane, it appeared reasonable for him to relocate within India. He was never harmed outside the Chennai area. He responded that there had been incidents all over but nothing had affected him because he kept moving around. If he stayed in one place he would have problems.
I invited him to comment on the following evidence from various independent sources. Firstly, there were no restrictions on moving from one state to another in India (U.K. Home Office, Country Assessment: India, October 2001). The applicant agreed that that was correct, so long a one was not being pursued. Secondly, there were no local police checks on new arrivals (U.K. Home Office 2001). The applicant responded that police would have them under surveillance. Thirdly, I put to him that India was a huge country and it appeared local RSS members in Tamil Nadu would have no means of locating him in other states. The applicant disagreed. Fourthly, he had shown adaptability by moving to a country, Australia, where he knew no one and did not speak the language. He responded that they would be after him as soon as he landed at the airport.’
Although the appellant resisted some elements of the proposition it cannot be said they were not squarely put to him for his comment. The RRT was not bound by his responses. Provided the relevant issues were considered by the RRT, the test suggested by Black CJ in Randhawa is met.
It follows that I am unable to discern any jurisdictional error in the decision of the RRT nor any failure to discern such an error on the part of Turner FM. My exploration of the issue in this case is not an indication that it is the task of this court to take up the case of even unrepresented litigants where no cogent basis is advanced for suggesting error on the part of the Federal Magistrates Court or jurisdictional error on the part of the RRT.
I will dismiss the appeal with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 3 April 2007
The Appellant was self represented: Counsel for the Respondent: Mr T Brennan Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 27 February 2007 Date of Judgment: 3 April 2007
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