SZHEP v Minister for Immigration
[2007] FMCA 636
•12 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHEP & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 636 |
| MIGRATION – RRT decision – Indians persecuted in West Bengal as perceived illegal Bangladeshi migrants – finding of safe haven elsewhere in India – whether open on the evidence before the Tribunal – whether misconceived relocation principles – no jurisdictional error shown – application dismissed. |
| Migration Act 1958 (Cth), ss.474, 483A Judiciary Act 1903 (Cth), s.39B Migration Litigation Reform Act 2005 (Cth), sch.1 cl.41 Acts Interpretation Act 1901 (Cth), s.8 |
A v Minister for Immigration & Multicultural Affairs(1999) 53 ALD 545
Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
NAIZ v Minister for Immigration [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
SZAIX v Minister for Immigration (2006) 150 FCR 448
| First Applicant: | SZHEP |
| Second Applicant: | SZHEQ |
| Third Applicant: | SZHER |
| Fourth Applicant: | SZHES |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2700 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 12 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 April 2007 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Eyeson-Annan |
| Counsel for the First Respondent: | Mr J Mitchell |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2700 of 2005
| SZHEP |
First Applicant
| SZHEQ |
Second Applicant
| SZHER |
Third Applicant
| SZHES |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 23 September 2005, in which the applicants seek relief by way of judicial review under s.483A of the Migration Act 1958 (Cth), (“the Migration Act”), in respect of a decision of the Refugee Review Tribunal dated 8 August 2005 and handed down on 30 August 2005. The Tribunal affirmed a decision of a delegate made on 8 April 2005 refusing to grant protection visas to the applicants. The applicants are a husband and wife and their two children, a son and a daughter, who were aged 19 and 17 at the time of the Tribunal's decision.
The Court's jurisdiction under s.483A was repealed in December 2005, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and Acts Interpretation Act 1901 (Cth) s.8). Under that jurisdiction, the Court has the powers of the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but these are limited by s.474 so that I do not have power to set aside the Tribunal's decision and send the matter back to the Tribunal unless I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to determine whether the applicants are entitled to protection visas. Nor can I consider whether they should be given any other permission to stay in Australia.
As I shall explain, the applicants presented a history to the Tribunal, which it essentially accepted, showing that they are nationals of India who had spent most of their lives in Bangladesh. Facing religious harassment in that country, they returned to India in late 2001 or 2002 to live in the area of Kolkata, just over the border in West Bengal. The Tribunal accepted that they had been perceived as possible illegal Bangladeshi migrants, and for that reason were harassed to such an extent that they left India to come to Australia. The Tribunal accepted that the persecution they had encountered was for a reason covered by the Refugee Convention, but held that the persecution had been “localised in nature”, and that they would not face a real chance of the same persecution occurring in other parts of India. It found that it was reasonable for them to relocate to other parts of India, and therefore they did not have a well founded fear of Convention-related persecution from which they could not obtain protection in their country of nationality, India.
The applicants have today been represented by counsel who has presented arguments challenging whether the Tribunal's findings in relation to relocation were open to it on the evidence, and whether it addressed legally essential considerations. Unfortunately, although I agree that the Tribunal's reasoning is somewhat brief in relation to the issues of relocation, I consider that the applicants have failed in proving that findings of fact were made which were not open to the Tribunal and that it did not address necessary considerations. My conclusions very much turn upon the evidence which has been presented by the parties to the Court, which is not as extensive as it might have been. In particular, neither party has presented to the Court the sources of the general country information from which the Tribunal made extracts, nor to any other background information to inform the Court or to assist it to understand the Tribunal's reasoning. Nor has a transcript of the Tribunal's hearing, attended by the applicants, been presented to the Court. However, the matter has been before the Court since October 2005, and the Court has given directions permitting that evidence to be presented. In these circumstances, the Court can do no more than address the material presented to it by the parties.
The applicants arrived in Australia in February 2005, and presented an application for a protection visa assisted by a person who was then a registered agent, Mr Mollar. It set out their reasons for seeking protection in Australia in a most cursory fashion. Statements of evidence, which were promised, were never provided to the Department. The claim was presented as a claim to fear persecution by reason of the applicants’ religion alone. It is unnecessary for me to consider the exact language used in the protection visa application and the reasons given by the delegate for not being satisfied that the applicants had suffered harm in India for the Convention related reason presented, since on appeal before the Tribunal the applicants presented more details at a hearing and in documents, and the Tribunal accepted their evidence. The Tribunal noted the subsequent de-registration of Mr Mollar, and took no adverse inferences from the inadequacy of the original presentation of their case.
The applicant father told the Tribunal that he had been born in Kolkata, but had no close relatives in India. He had been taken to Bangladesh when he was aged five, and had lived there until the end of 2001. He described religiously motivated discrimination that had been faced by the family, and gave other evidence indicating that the son, in particular, had encountered religiously based harms because they were Christians.
The applicant father told the Tribunal that after returning to India, he had worked for two years “as a food production person” in Kolkata. His wife had stayed home, and the children had gone to school. They had received support from a local Catholic congregation, but had received harassment from supporters of local members of the Community Party of India (Marxist) ("CPIM"). He said that this was “partly because of his religion, but mainly because he came from Bangladesh”. He claimed that these people had demanded money from him, and complaints to the police had not been acted upon. He claimed that CPIM people kidnapped his daughter from school in 2003, and had used her abduction for the purpose of demanding money. He also claimed that the son:
Had been involved in an accident in 2003 in which he was injured intentionally. He played cricket at school, and locally, and people were jealous of this newcomer. He was struck by a motorcycle just before an important match.
As I shall indicate, the Tribunal had country information giving support for such attacks being motivated locally by policies of the CPIM and other parties when in government in West Bengal, which were directed at people perceived as being illegal Bangladeshi migrants. The country information suggested that during 2004 the police did not prevent CPIM members engaging in the harassment of perceived Bangladeshis.
The Tribunal, in its description of the hearing, referred only at one place to questioning the applicant husband about relocation:
I asked him why he and his family could not move elsewhere in India, as the independent evidence indicated that there were Christian communities in many places. He responded that he was scared to go somewhere else in case the same thing happened again. I suggested to him that he had a “portable” skill as a chef, so it seemed he could find employment in some other part of West Bengal, particularly as this area’s population was Bengali-speaking, as he was. He responded that he was afraid.
The applicants presented a corroborative statement from the applicants' former landlady in Kolkata, and evidence was also given corroborating their history by the applicant wife and children.
Over several pages of its reasons, the Tribunal summarised “Evidence from other sources”, concerning Bangladeshi migrants in India, the activities of the CPIM in States in which it had political power, its policies towards perceived illegal immigrants from Bangladesh, the absence of police protection of minorities in West Bengal, and the position of Christians in India generally. The country information indicated that mistreatment of perceived Bangladeshi migrants had occurred in some States bordering Bangladesh, namely Assam and West Bengal, and referred to the difficulties of differentiating Bangladeshis from lawful residents of these States. The Tribunal made one reference to the attitude of the Central government of India:
An article of May 2005 reports that the Union Home Minister was concerned that the campaign against illegal Bangladeshi migrants may also hurt Bangla-speaking Indians, "particularly in West Bengal". (2005, ‘Central Govt wants no hype over drive against immigrants’, The Economic Times, 25 May).)
The Tribunal also referred to information concerning relocation in India generally:
Relocation
According to the US State Department:
The Constitution provides for freedom of movement, and the Government generally respected this in practice. Movement generally was unhindered for citizens outside certain border areas where, for security reasons, special permits were required (US Department of State 2004, ‘Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation’ in Country Reports on Human Rights Practices for 2003 – India , 25 February).
DFAT Country Information Report No. 83/ 00 of 25 February 2000 states that well educated and readily employable applicants, putting to one side family or financial considerations, could relocate to another part of India. There were no controls on movement within the country (Danish Immigration Service and the Danish Refugee Council 2000, Section 8.7.1). DFAT continued on relocation:
Indian citizens have the freedom to relocate from one area of India to another, with two exceptions: in the state of Jammu and Kashmir, Indian citizens from other states are not allowed to buy property, but can stay in any part of the state without seeking official permission. Indian citizens who are not residents of the particular area are required to obtain a permit to visit some border areas of Jammu and Kashmir, and border areas in the north-eastern states of India. The permits are valid for six months. Indian citizens who have been arrested and released on bail are required to report regularly to local police authorities. In these instances judicial permission is required to relocate to another part of the country (DFAT 2003, E-mail to RRT, RRT Information Request: IND16042, 13 October).
Under the heading “Finding and Reasons” the Tribunal made further reference to country information. The sources of these references are not in evidence before me, and it is not clear to me whether they are only references to the previously extracted sources.
The Tribunal's findings, which accepted the history given by the applicants as to their experiences in Kolkata, commenced with the following paragraphs:
It is clear that the number of migrants from neighbouring Bangladesh in Kolkata, and West Bengal generally, is very high, and that many reside legally there. However I also accept that a number of them, perceived to be residing in India illegally, have borne the brunt of a backlash because they have been recently perceived to threaten the economic interests of Indians in West Bengal and neighbouring states. Having considered the independent evidence, I am satisfied that a small minority of people of Bangladeshi background have been so targeted, and thus do not accept that all individuals perceived to be migrants from Bangladesh face a real chance of some serious harm in these states.
I accept that it would have been apparent to most Indians in Kolkata that the family had a Bangladeshi background. Having regard to the independent evidence (ABC 2003), which reflects a growing campaign against, and deportations of, people regarded as Bangladeshis living illegally in West Bengal in precisely the period in which (the first applicant) and his family were trying to settle in that state (AFP 2003), I consider his claim on this point to be consistent with the independent evidence. I also accept that the BJP-led government of the day fuelled societal ill-will by referring to Bangladeshis as “illegal” and a possible threat to security (ABC 2003). Of the CPIM, I note that it had traditionally been on the side of migrants from Bangladesh but in response to public opinion changed its policy in 2003, as a result of which some Bangladeshis were deported from West Bengal (Chakravarty 2003).
(The first applicant) has claimed that it was members of the CPIM which targeted his family, that they did so with the backing of the CPIM, and that the police told his harassers that (the first applicant)t had sought police protection from their harassment. Of all the members of the family, I accept that it was (the first applicant) who had repeated contact with these people in Kolkata, and it is only he who has referred to them consistently as having links with the CPIM. His landlady, Ms G, referred to them merely as Hindu youths. His wife and children, who had fewer contacts with them, knew only that they were Hindu. However I note that Rev. B referred to their being unable to settle in Kolkata for “political” reasons, from which I infer he did not see their problems as merely the result of criminal activity, for example. I do not consider it implausible, and accept, that, in the climate existing in Kolkata in 2003, Hindu members or supporters of the CPIM set out to threaten, harass and extort money from (the first applicant) for the reason of his imputed membership of a particular social group – that group being “illegal migrants from Bangladesh”.
I do not consider it implausible that the police failed to protect (the first applicant), and indeed that they co-operated with the CPIM supporters who had been threatening him. That claim is entirely consistent with the evidence that political interference in policing is prevalent in West Bengal and that the police wield inordinate power and work within an environment which allows abuse of the system in that state (AHRC 2004). It is also entirely consistent with evidence that in West Bengal there have been instances where the police worked “hand in glove” with the CPIM, and stood by while CPIM members assaulted people (Revolutionary Democracy 2004, The Statesman 2005, FIDH 2005).
I also accept that the Left Front, led by the CPIM, has recently won the West Bengal civic elections and won the Kolkata Municipal Corporation (Hindustan Times 2005).
I have regard to more recent evidence of harassment of Indian citizens who have been mistaken for illegal Bangladeshi nationals (IRNA 2005) and accept that the applicants fell into this category. There are many millions of Bangladeshi nationals residing, whether legally or illegally, in India (ABC 2003). There is no evidence that merely falling into this category leads to a real chance of persecution. However, I do accept that the applicants were the target of a very vicious campaign of harassment. I think it likely that the people who threatened and extorted money from (the first applicant) were connected with the abduction of (first applicants daughter).
I note that, notwithstanding the Tribunal’s acceptance of the applicants’ personal experiences, it accepted only that “a small minority of people of Bangladeshi backgrounds have been so targeted”, and said in at least two places that “there is no evidence that merely falling into this category leads to a real chance of persecution”. That is, the category of perceived Bangladeshis residing legally or illegally in India.
However, having accepted their personal history of harassment for the reason of their perceived Bangladeshi derivation, the Tribunal made a finding that the harassment was for a Convention reason:
As to the reasons behind the targeting of the applicants, I have considered the incidents given in (the applicant father’s) account, and am satisfied that the “essential and significant” reason for the targeting of the family was their (imputed) membership of a particular social group “Bangladeshis illegally in India”
For the above reasons I am satisfied that the essential and significant reason for the incidents affecting the applicants in Kolkata was one of those enumerated in the Convention.
The Tribunal then addressed the situation of the applicants if they returned to their place of previous residence. It noted that:
Kolkata is a huge, populous, city and in my view it is likely that, if the applicants return there, their previous harasser would remain unaware of their presence.
However, it said that it was unable to find the chance remote that they would be again targeted by “violent members of the CPIM in West Bengal”. It concluded therefore:
I find that they have a well founded of Convention related persecution in West Bengal.
The Tribunal then addressed the question whether that fear was well-founded in relation to the whole of their country of nationality, India. Its entire discussion of this issue is found in the following paragraphs:
However 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. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-1.
I am satisfied that it is reasonable for the applicants to relocate to a different part of India. Their fear of harm is localised in nature. I do not accept that the men who threatened and assaulted them, or people associated with them, would be able to find them anywhere in a densely populated country like India, or would be motivated to do so. I am satisfied that the CPIM is not the ruling party in the majority of India’s states, and that societal or official discrimination against “migrants” from Bangladesh does not occur in much of the country. As to whether it would be reasonable for the applicants to relocate, I appreciate that the family have suffered considerable hardship in recent years and that to again have to re-establish themselves in another unfamiliar area will pose further challenges. However I am satisfied that (the applicant father’s) employment experience as a chef is one which would enable him to find appropriate employment in many parts of India. I also rely on evidence that while Hindi is the national language and primary language for 30% of Indians, Bengali (which is spoken by all the applicants) is another of the official languages, and English (which is spoken well by three of the applicants, including the applicant father) is the most important language for national, political and commercial communication (2005, “IND: The World Factbook”, Central Intelligence Agency, 10 February, CX118780). For these reasons I find it reasonable for the applicants to relocate internally in India.
For the above reasons I find that the applicants do not have a well-founded fear of Convention related persecution in India.
The amended application, which is before the Court, is uninformative as to the arguments upon which the Tribunal's finding of reasonable relocation is attacked. However, counsel for the applicants in his oral submissions made essentially two submissions today.
The first challenged the Tribunal's finding of fact that societal or official discrimination against “migrants” from Bangladesh does not occur in much of the country of India. Counsel accepted that its finding had correctly addressed the situation of the applicants as perceived Bangladeshi migrants notwithstanding their actual Indian nationality, and I think that concession was correctly made. However, he referred to some statements in the country information extracted in the Tribunal’s reasons concerning harassment of actual or perceived Bangladeshi migrants, and submitted that the evidence before the Tribunal did not allow, as a matter of law, the finding of the Tribunal that there were safe parts of India for people who might be perceived as ‘migrants from Bangladesh’. Although no authority was cited, he relied on the jurisdictional error constituted by the making of a material finding of fact in the total absence of any evidence to support the finding (cf. Minister for Immigration and Multicultural and Indigenous Affairs v VOAO [2005] FCAFC 50 at [5] and [13], and SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19] and [28]).
However, I am not satisfied that there was no evidence before the Tribunal which allowed it to make its finding of fact that there were safe parts of India for Indian nationals who might be perceived to be migrants from Bangladesh. Essentially, the submission fails because it is impossible for the applicants now to make out that proposition relying on the absence of evidence. Not only has the Court not been provided with the body of material specifically cited by the Tribunal in the course of its judgment, but the Tribunal can be expected to bring to its judgment on such questions a broad experience and knowledge of country circumstances (cf. A v Minister for Immigration & Multicultural Affairs(1999) 53 ALD 545 at 555, Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [32], and Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 at [263]). I am not persuaded that the particular parts of the evidence to which I was taken by the applicant’s counsel excluded the making of the finding arrived at by the Tribunal, and I was taken to no evidence directly inconsistent with the Tribunal’s finding. I am therefore not persuaded that it was not open to the Tribunal to make its adverse finding about the existence of safe haven within India for Indian nationals who might be perceived to be Bangladeshis.
Counsel for the applicant’s further submission was that the Tribunal failed to address matters made essential, where a finding of internal safe refuge was relied upon by a refugee decision maker. He referred me to the well known discussion of Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 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.
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, 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. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm AR 7. Professor Hathaway, op cit at p 134, expresses the position thus:
"The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized." [Original emphasis.]
Counsel also cited Beaumont's J judgment in Randhawa at page 451-452.
The need under the Randhawa principles to address whether relocation is reasonable ‘in a practical sense’ in the circumstances of the particular applicants, has recently been affirmed in NAIZ v Minister for Immigration [2005] FCAFC 37, particularly by Branson J at [22]-[23], and in a judgment of Madgwick J in SZAIX v Minister for Immigration (2006) 150 FCR 448 at [55]-[64]. In those cases, the Court was ready to infer, from cursory reasons given by a Tribunal on the issue of relocation, that the Tribunal had misunderstood the requirements of the Randhawa principles. In both of those cases, there were obvious difficulties facing the particular applicants if they returned to their country of nationality and were expected to live at a place which was not their previous home, and these were not addressed by the Tribunal.
The present case did not pose the same situation in relation to the present applicants. The present Tribunal made no statements indicating that it has not properly informed itself as to the Randhawa principles. Rather, it cited that case, and purported to make specific findings “as to whether it would be reasonable for the applicants to relocate”. It indicated that it had considered the hardships facing the family in having to “re-establish themselves in another unfamiliar area”.
Although the Tribunal’s discussion did not enter into the consideration of all the details relating to the lives of each of the applicants, which they would face in re-establishing themselves in India in a State away from West Bengal, I am not persuaded that the Tribunal failed to consider all the evidence concerning their personal situation which was relevant to that issue. I am not prepared to infer in this case that there was any relevant evidence concerning the issue of relocation which was not addressed by the Tribunal, nor that it addressed the issue upon a misconception as to legal principle. I therefore do not accept the second submission presented by the applicants’ counsel.
Looking at the evidence which is before me I am not persuaded that the Tribunal arrived at a conclusion that the applicants “do not have a well founded fear of Convention related persecution in India” which was not available on all the material that was before the Tribunal. I therefore am not persuaded that the Tribunal's decision was affected by jurisdictional error. The decision is therefore a privative clause decision, and I must dismiss the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 11 May 2007
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