SZGEO v Minister for Immigration and Citizenship

[2008] FCA 1831

FEDERAL COURT OF AUSTRALIA

SZGEO v Minister for Immigration and Citizenship [2008] FCA 1831

SZGEO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1079 of 2008

TAMBERLIN J
10 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1079 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGEO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1079 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGEO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	10 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrate Scarlett FM, made on 1 July 2008. His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal, which affirmed a decision of a delegate of the Minister to refuse a protection visa.  The sole ground of this appeal is that there was adverse information used by the Tribunal to affirm the decision under review by it, and the Tribunal did not disclose the information as required by s 424A of the Migration Act (Cth) 1958 (“the Act”).

2. The Tribunal decision under review found that if the appellant were returned to India, there was a chance, which was not too remote, that in the reasonably foreseeable future he may face mistreatment, serious enough to amount to persecution. However, the gravamen of the decision against the appellant’s case was that the appellant and his family would be able to relocate to another part of India in which there was no prospect or likely prospect of persecution.  Accordingly, the Tribunal found that the claim for a protection visa was not made out.

3. The appellant contended that he had limited financial means and would have to establish a whole new life for himself, if moved to another state in India, and establish a new business there and that it would be expensive and unreasonable for such relocation to be expected of him and his family. However the Tribunal considered that, taking into account that the appellant was literate, had been a successful businessman in India and had been working in Australia since his arrival, and securing a reasonable income sufficient to assist his family financially and to make some savings, and to assist him to meet financial commitments associated with relocation, the relocation was practical and available.

4. In reaching its conclusion as to relocation, the Tribunal relied on general country information provided by the Department of Foreign Affairs and Trade, in a report dated 13 October 2003, concerning the freedom of Indian citizens to relocate.  In identifying the subjective and objective fears of the appellant, the Tribunal made a factual finding that his fears were confined to his locality in India, and noted that his wife and sons have successfully relocated to the Gujarat Province or State, where he agreed they were safe. The appellant also mentioned that threatening phone calls stopped after such a relocation.

5. For these reasons, the Tribunal was not persuaded that he would be unable to join and live with his family in a suitable relocation.  In forming its view on the suitability and availability of relocation, the Tribunal did not reach s 424A of the Act, because the general country information and the evidence of the appellant on which the Tribunal relied in reaching its conclusion on this aspect of the case did not enliven that section.  This is not a case where there was a finding of non-persecution, coupled with a relocation finding, but it is a case where the Tribunal expressly found that the danger which existed, of persecution, but that it was local in character, and could be met by suitable relocation.

6. For these reasons, the Federal Magistrate’s Court dismissed the relevant submissions of the appellant on this point. I agree with the conclusion and reasoning of the Federal Magistrate, that there had been no breach of s 424A and I am not persuaded that there are any other grounds or reasons on the basis of which the decision of the Federal Magistrate should be disturbed.

7. Accordingly, this appeal must be dismissed. I order that the appeal is dismissed with costs. I note in this case there is no fixed amount, so the matter can either proceed to resolution on the question of costs by way of agreement or by way of taxation.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:       2 December 2008

Counsel for the Appellants:	Self Represented
Counsel for the Respondents:	Ms Hooper

Date of Hearing:	10 November 2008
Date of Judgment:	10 November 2008