SZGJE v Minister for Immigration
[2005] FMCA 1882
•8 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGJE v MINISTER FOR IMMIGRATION | [2005] FMCA 1882 |
| MIGRATION – Application summary dismissal – where it is in the interests of justice and the parties to have the case heard substantively than on a summary basis – whether the Tribunal failed to adequately consider the question of relocation. |
| Randhawa v Minister for Immigration (1994) 52 FCR 437 |
| Applicant: | SZGJE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1327 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 8 December 2005 |
| Date of Last Submission: | 8 December 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2005 |
REPRESENTATION
Applicant in Person
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Substantive application dismissed.
Applicant to pay the respondent's costs assessed in the sum of $4,250
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1327 of 2005
| SZGJE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings are the hearing of a substantive application for judicial review of a decision that the Refugee Review Tribunal made on 21 September 2001. The matter came before me today on an application by the respondent Minister for summary dismissal of the application. Whilst there may well have been good grounds for the summary dismissal of the application based upon the applicant's delays and the fact that he had proceeded previously in the High Court and the Federal Court, I came to the conclusion that it would be in the interests of justice and of the parties if the applicant had an opportunity to have his case heard substantively rather than risk further appeals and delay in relation to a judgment on a summary basis. The case had not been heard on this basis before. Both the applicant and respondent agreed to this course of action. The applicant was given time in which to prepare himself for the application. The applicant was assisted by a friend and had the benefit of an interpreter.
The applicant arrived in Australia on 26 November 1999. He is a citizen of India and a Sikh. On 18 April 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs. On 31 May the delegate determined not to grant him a protection visa, and on 24 June 2000 he lodged an application for review. He attended a hearing before the Refugee Review Tribunal on 23 August 2001. On 16 October 2001 the Tribunal handed down a decision which it had made on 21 September 2001 to affirm the decision of the delegate not to grant a protection visa.
The circumstances in which the applicant claimed to have a well-founded fear of persecution are set out in a statement which he made in writing on 18 April 2000 and is found annexed to a letter from his immigration consultant at pages 1 to 8 of the court book. In short, the applicant joined the All India Sikh Students Federation between 1984 and 1988. He and his family were sympathetic to Sikh separatists but he did not claim to be active in the separatist movement. Notwithstanding this, he was detained on three occasions: once for 10 to 12 days in December 1998 again for 20 days in 1993, and finally for approximately two weeks at a later date. On each occasion he had been released and no charges were made against him, but the Tribunal was satisfied that those incidents had taken place, and I think it can be implied that the Tribunal considered that those incidents were evidence of persecution.
The applicant informed the Tribunal that he had relocated out of the Punjab, where his home was, into Delhi, and had taken up a position selling books. His sales area included the State of Rajasthan. It was in Jodhpur that the third incident of detention took place. Thereafter, he was able to persuade his employer to change his sales area to Utter Pradesh. That had two benefits. The first was that it took him away from likely danger of re-arrest and detention. And second, that his wife and family could join him in Delhi. Unfortunately the principal, who had allowed him this indulgence, became ill, and his replacement required the applicant to return to the Rajasthan area. It was sometime following this event that the applicant determined to leave India and went through the lengthy process, which has been described on page 7 of the Tribunal's reasons for decision attached to an affidavit of Catherine Jane Grey dated 16 August 2005.
I have read the Tribunal's decision carefully, and I am satisfied that the integers of that decision were twofold. Firstly, the Tribunal determined that the applicant no longer had a well-founded fear of persecution because events in India, and in particular to relation to Sikhs within the Punjab had so improved that the possibility of him undergoing further persecution was remote. That conclusion was a conclusion of fact based upon a consideration of independent country information that was discussed with the applicant at the hearing, although it was information with which the applicant did not agree. It is the Tribunal's task to satisfy itself, and in order to do so it must weigh up all the evidence available to it. This it did. The fact that the Tribunal preferred the evidence of the independent country information to the assertions of the applicant is not a jurisdictional error. Indeed, it is not an error at all. It is the exercise by the Tribunal of its function.
The second integer of the Tribunal's decision was that the applicant could re-locate as that term is described and defined in the seminal case of Randhawa v Minister fro Immigration (1994) 52 FCR 437. The Tribunal found as a fact that the applicant had safely relocated to Delhi and the only reason that he felt unable to remain there was what it described as a private reason, namely the refusal of the employer to allow the applicant to change his area of representation from Rajasthan to Uttar Pradesh. The applicant provided the Tribunal with no evidence that other employment in Delhi was not open to him nor did he suggest that living in Delhi was in any way likely to cause him to have a well founded fear of persecution by virtue of his being re-arrested in that city. A decision upon the matter of relocation is also a decision in relation to a matter of fact that is firmly within the jurisdiction of the Tribunal.
On 25 July 2005 a solicitor on behalf of the applicant filed an amended application arguing that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction in three ways. The first way was that the Tribunal did not consider whether there would be a real chance that the applicant's life would be in danger if asked to return to his country of origin. It was suggested that this had to be decided before the Tribunal determined to uphold the decision made by the delegate of the respondent. I am satisfied that the Tribunal did consider this matter and it came to the view, which I have already referred to, that things had so changed that the applicant's life would not be in danger and that he would not face anything more than a remote chance of persecution in the reasonably foreseeable future if he returned to the Punjab, let alone any other area of his country of origin, India.
The second matter raised in the amended application was whether the relocation order made by the Tribunal was "in keeping with the principles enunciated in Randhawa's case." It was suggested that the Tribunal did not consider the utmost difficulty and extreme economic hardship the applicant and his family would undergo by way of trying to relocate to unfamiliar and geographically and culturally hostile locations in India. I am satisfied that the Tribunal did take into account these matters. Page 8 of the decision attached to Ms Gray's affidavit, the Tribunal sates:
“The Tribunal put it to the applicant that he could live somewhere other than the Punjab....
…The Tribunal cited independent information about the reasonableness of relocation to Sikhs, noting that there were some four million Sikhs outside the Punjab, in some very sizeable communities in major Indian cities. It also noted that if the applicant had educational and employment skills (including the trade he had learned from the request of the agent). The applicant said that it was unreasonable to expect him to move as his parents cannot cope with the move, being elderly, and speaking only Punjabi. The Tribunal put it to the applicant that he had, in fact, lived apart from his parents for many years and in any case his elder brother was still with them. The Tribunal was suggesting that the applicant move, not necessarily his whole extended family. The applicant then said he believed his wife and child had left him after him, after his spending all the family's money to get to Australia and being unable to send them any back. They had returned to his wife's parents and the applicant has not phoned them for the last few months.”
On page 10 of the same decision the Tribunal says:
“The applicant married in the mid 1990’s and with the assistance of his supervisor was able to take his wife to live with him in City B. He made no claims of hearing about any difficulties he experienced in living in City B; that is, no difficulties as a Sikh. He left his job in the mid 1990’s, not willingly, but on his own volition because he was being sent back to an insupportable work situation. From that time on his heart seems to have been set on looking for a better life abroad. ... There were no reasons advanced at the hearing why ... he could not take his wife back to City B again and re-establish himself there.”
It seems to me that in the light of these remarks by the Tribunal it cannot be said that the Tribunal did not consider the matter properly on the basis of such evidence as the applicant submitted to it.
The third matter is that the Tribunal failed to consider whether the applicant's claims had satisfied the criteria laid down in article 1(A)(2) of the United Nations Convention on Refugees. In the particulars of this claim the applicant suggests that the Tribunal did not consider this matter before making a decision on relocation. This is the same complaint as that in paragraph 1(a) of the grounds of the application so far as I can see. It is clear to me that whilst the Tribunal felt that the applicant had suffered some persecution in the past it was its conclusion that this would not recur and therefore he did not have a well-founded fear of being persecuted in the future for reasons of his race or religion. The Tribunal therefore did carry out the task which it was mandated by the legislation and there can be no suggestion of a jurisdictional error in this regard.
For these reasons I am unable to find any grounds upon which I can review the decision of the Tribunal. I dismiss the substantive application and I order that the applicant pay the respondent's costs, which I assess in the sum of $4250.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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