SZHPD v Minister for Immigration
[2006] FMCA 1279
•18 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHPD v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1279 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of India claiming to have been discriminated against as a member of a scheduled caste – relocation – where Tribunal accepted that the applicant may have suffered discrimination as a scheduled caste member – Tribunal found that it would be reasonable to relocate to an urban area – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424, 424A |
| NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 499 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 followed SYLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 942 VUAN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1638 |
| Applicant: | SZHPD |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3338 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 18 August 2006 |
| Date of Last Submission: | 18 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Izzo |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,800.00 and I allow (8) eight months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3338 of 2005
| SZHPD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 10th October and handed down on 27th October 2005. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant asks the Court for unspecified relief in his application but agreed at the hearing that he would ask for orders in the nature of certiorari and mandamus, quashing the decision of the Tribunal and remitting his application for a protection visa to the Tribunal for hearing according to law.
The applicant is a citizen of India who arrived in Australia on
23rd December 2004. He applied for a protection (class XA) visa on 2nd February 2005 but it was refused on 12th May 2005. On 13th June 2005 the applicant applied to the Refugee Review Tribunal for a review of that decision. The applicant attended a hearing of the Tribunal on
5th October 2005. He told the Tribunal that he was a resident of Chuhar Majra, which is a colony of Harijans, in other words, untouchables, and that Chuhar means “the cleaners”. If scheduled caste members fight for their rights they are attacked and called derogatory names. This had been his experience in India and that was why he left India.
The Tribunal put to the applicant – and it is referred to at p.59 of the Court Book – that the Indian government had taken active steps to better the situation of scheduled caste members and to protect their rights as citizens and protect them from harm. The applicant told the Tribunal that despite his high school education he had faced discrimination, having been refused employment in the police. He had been humiliated for even applying.
The Tribunal put to the applicant that he could relocate to a larger town or city or even New Delhi where with his high school education he could gain the benefits of national affirmative action programs and avoid the discrimination present in rural India. The applicant replied that without money it would be hard for him to settle elsewhere such as in New Delhi. The Tribunal referred to independent evidence which is set out at pp.60 to 62 of the Court Book. The Tribunal’s findings and reasons are set out on p.63 of the Court Book.
The Tribunal noted that the applicant was claiming to have suffered discrimination as a scheduled caste member and fears harm from upper caste Hindus for reason of his membership of a particular social group, that is, because he is a lower caste Hindu. The Tribunal went on to note that the independent evidence referred to in the body of the decision indicates that the caste system still operates in India, particularly in rural areas, and that scheduled caste members suffer a degree of discrimination and occasional oppression. The Tribunal also noted that the independent evidence also indicate that the central government has taken active measures to try to address the discrimination long suffered by lower caste Hindus.
But the Tribunal also acknowledged that the independent evidence indicates that in India caste oppression regularly occurs and that there is ample evidence of a sporadic inter-caste violence. The Tribunal went on to say at p.63:
The Tribunal accepts that the applicant may have suffered discrimination as a scheduled caste member and that he is a supporter of the rights of scheduled caste members and that because of that he has been targeted for harm by local higher-class people.
The Tribunal went on to find, however, that the applicant had gained a high school education despite the discrimination that he had suffered and found that in the particular circumstances of his case it would be reasonable for him to relocate to an urban area where he could avoid the caste conservatism of rural areas and avail himself of the affirmative action programs and, if necessary, governmental protection.
It is for that reason that in the light of the evidence the Tribunal was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention. Therefore, the Tribunal found that his fear was not well-founded.
The applicant seeks a review of that decision by this Court. He filed an application on 15th November 2005 and an amended application on
3rd February 2006. The amended application is expressed to be under s.39B of the Judiciary Act 1903 and also refers to s.475A of the Migration Act 1958. In his amended application the applicant claims as follows:
(1) I have been persecuted by the Indian majority community and the Department of Immigration and RRT has failed to recognise this factor. I have suffered a serious harm and have a genuine fear to suffer a serious harm. Please see my statement attached.
(2) RRT has considered some independent evidence which goes in its favour. It did not reveal any such information to me prior to making my decision. Moreover, it has not considered the other facts which are happening every day in India against the untouchables.
The applicant sets out what he describes as two grounds for his application:
(1) RRT has made incorrect statement that my claims are unfounded because I have been able to obtain high school education. There have been a recent case in Harijana where several houses of untouchables have been burnt. Neither the government gave any protection, nor anybody else.
(2) RRT has suggested that I can settle elsewhere in India, but it is a fact that the caste system is widely prevalent in all over India.
The applicant did not file a written outline of submissions but attended Court and made oral submissions.
The first respondent Minister filed an outline of submissions on
8th August 2006.
The applicant told the Court that the main point is the issue of relocation. He said that the Tribunal said that he could relocate but it is not that easy. He said anywhere in India they would find out about his whereabouts and he told the Tribunal that. For the respondent Minister, Mr Izzo of counsel submits there is no basis for any contention that the Tribunal committed a jurisdictional error. It cannot be said that the Tribunal failed to deal with the applicant’s specific claims, and I am referred to NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 499. Counsel submits that consistently with the applicant’s claims the Tribunal accepted that there was discrimination against scheduled caste members in India, particularly in rural areas, and that the applicant may have suffered such discrimination and that he was targeted because he was a supporter of the rights of the scheduled caste members.
The respondent submits, however, that the Tribunal held that it was reasonable for the applicant to relocate to an urban area to avoid the discrimination which he claimed. The Tribunal considered personal circumstances particular to the applicant. I am referred to the decision of SYLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 942 at [18] to [22]. The Tribunal suggested to the applicant that notwithstanding the difficulty he claimed he would encounter in relocating without money, in the light of the applicant’s skills and education he would be in a much better situation to do so than many others (see p.59 of the Court Book).
It is further submitted that the Tribunal’s ultimate finding that the applicant has gained a high school education and that in the particular circumstances of his case it would be reasonable for him to relocate must be understood in the light of this suggestion. It is further submitted that the applicant cannot contend that he was not given an opportunity to deal with the particular considerations relied on by the Tribunal. I am referred to VUAN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1638 at [10].
The submission is that the Tribunal did not err when it found that it was that it was reasonable for the applicant to relocate.
The Tribunal’s finding that it was reasonable for the applicant to relocate to an urban area where he could avoid persecution was determinative of the applicant’s claim meant that the applicant’s fear of persecution in relation to his country of nationality was not
well-founded (see Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at [442]).
As to the applicant’s second ground, namely:
RRT has suggested that I can settle elsewhere in India, but it is a fact that the caste system is widely prevalent in all over India.
This amounts to a challenge to the Tribunal’s finding that the applicant can avoid persecution by reason of his caste by relocating.
The submission is that that finding was clearly open to the Tribunal and was supported by the independent country information to which the Tribunal referred. Again there was evidence that affirmative action programs existed in urban areas and thus the applicant could avoid the discrimination that was more prevalent in rural India. This was put to the applicant at p.59 of the Court Book. The decision shows that the applicant’s only response was that it would be hard for him to settle elsewhere without money. It is put that this is entirely consistent with the applicant’s claim that people wish to harm him because of his activities in his local area. It was not part of his claim that he would suffer similar harm elsewhere in India.
The applicant’s case clearly relies on the relocation finding.
The Tribunal has found that in the particular circumstances of the applicant’s case that it would be reasonable for him to relocate to another part of India, particularly an urban area where he could avoid persecution or be able to access affirmative action programs.
The applicant has told the Court that it would be difficult for him to relocate to anywhere in India because he said, “Anywhere in India they would find about my whereabouts.” He said that he told the Tribunal that.
The evidence before me, being the record of the Tribunal’s decision, indicates that the reason he gave for not being able to relocate was a financial one. It was not part of his claim to the Tribunal that he would suffer persecution other than in his local area. As such, it does not appear that the Tribunal can be criticised for not considering an aspect of the applicant’s claim that was not put to it. Whilst the Tribunal certainly considered the applicant’s claim that he could not effectively relocate for financial reasons, that he did not have the money, that is different to a claim of the discrimination which he feared was not locally based or not just locally based but was universal across India.
The Tribunal has already considered independent evidence that whilst the caste system is prevalent in India, it is more rigidly applied in rural areas and far less so in the larger urban areas, particularly in New Delhi, which was a matter that the Tribunal specifically put to the applicant.
It is also noteworthy that the applicant complains that the Tribunal had considered independent evidence but did not reveal that information to him prior to making his decision. If that is a challenge to the Tribunal’s finding on the basis of a breach of sub-s.424A(1) of the Migration Act, it cannot succeed. It is not incumbent upon the Tribunal to specifically put independent country information to the applicant in the manner prescribed by sub-s.424A(1).
Independent country information falls within the exceptions in
sub-s.424A (3)(a) because it is information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. It is also noteworthy that there does not appear to be a breach of procedural fairness because matters relating to independent country information were in fact specifically put to the applicant by the Tribunal during the hearing.
This is not a case where the applicant can be heard to say that the Tribunal did not consider the relevant aspects of his claim.
The Tribunal did consider the fact that he was a member of a scheduled caste and did, in my view correctly, consider a scheduled caste as being a particular social group. The Tribunal was prepared to accept that the applicant has suffered discrimination and harassment in his local area as a member of a scheduled caste and that certainly as one who acted to protect the rights of others that he could expect bad treatment on that basis if he were to return to that part of India where he had suffered trouble before.
What the Tribunal did not accept, however, is that it would not be reasonable for the applicant in all the circumstances to relocate to another part of India to avoid that persecution. The Tribunal considered the financial aspects of it which was put to the applicant. The Tribunal did not have before it a claim that the people who persecuted the applicant in his local area would be able to find in India anywhere and continue that persecution. That is a matter that the applicant tells the Court that he put to the Tribunal, but there is no evidence that he did.
In my view, the Tribunal did not fall into jurisdictional error.
The Tribunal gave favourable consideration to the applicant’s claims that he had suffered persecution in the area from which he came on behalf of his membership of a particular social group, but saw on the evidence before it that this persecution and the likely repetition of persecution as being localised. It is for that reason that the Tribunal found that the applicant could escape that persecution by relocating and found that the applicant therefore did not have a well-founded fear of persecution within the meaning of the Convention.
It should be made clear that this did not mean that the Tribunal was not satisfied that the applicant did not have a well-founded fear of persecution at all. The Tribunal was quite prepared to accept that in the applicant’s local area he had a fear of persecution and that it was
well-founded. But what the Tribunal had to consider was whether there was a well-founded fear of persecution in the applicant’s country of nationality as a whole and because of the Tribunal’s finding that it would be appropriate or reasonable in the particular circumstances of the case for him to relocate to another part of India, especially an urban area, the Tribunal therefore found that the applicant did not have a well-founded fear of persecution within the meaning of the Refugees Convention. In my view, no jurisdictional error has been shown in this decision.
I am mindful of the fact that the applicant was not legally represented during these proceedings. I have read through the material myself in order to ascertain whether there may be an arguable case for any other jurisdictional error to which the applicant has not referred. I am not able to discern any. In my view, there is no reviewable error and I am satisfied that the Tribunal decision is therefore a privative clause decision as defined by s.474(2) of the Migration Act. Under
sub-s.474(1) of the Act a privative clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any Court and is not subject to prohibition, mandamus, injunction, declaration, certiorari in any Court on any account. It follows then that the application must be dismissed.
There is an application for costs on behalf of the first respondent Minister. The amount sought is $4,800.00, which is inclusive of counsel’s fees. What the Court must decide is whether it is appropriate to make an order for costs in favour of the respondent, and if so, what that amount should be.
The applicant has been unsuccessful in his claim. He has told the Court that he is not in employment and it follows that he does not have funds to meet the claim. Whilst I do not cavil with that, it is not of itself a ground for not making a costs order. It is a matter, however, that can be taken into account when deciding whether or not time to pay should be ordered.
In my view, as the applicant has been unsuccessful and the Minister has been successful it is appropriate to make a costs order in favour of the Minister. As to the sum of $4,800.00, it is an appropriate figure; it is within the scale provided by the Federal Magistrates Court Rules.
I take into account the applicant’s financial circumstances. For a person who is not employed the sum of $4,800.00 would indeed be a crippling figure. It is not an amount that he could expect to produce very quickly. I am of the view that there should be some allowance made in favour of time to pay and I propose to allow eight months.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 30 August 2006
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