SZJCV v Minister for Immigration

[2008] FMCA 487

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJCV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 487

MIGRATION – Review of decision of Refugee Review Tribunal – relocation finding made by the Tribunal – finding open to the Tribunal – no failure pursuant to s.424A – impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 36(2)(a), 36(2)(b), 424A(3)(a), 425

Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634’ [2007] HCA 40
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99
Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZJCV & ANOR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3256 of 2007

Judgment of: Nicholls FM

Hearing date: 15 April 2008

Date of Last Submission: 15 April 2008

Delivered at: Sydney

Delivered on: 15 April 2008

REPRESENTATION

Counsel for the Applicants: Nil

Solicitors for the Applicants: Nil

Counsel for the Respondents: Dr K Stern

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 19 October 2007, and amended on 19 December 2007, is dismissed.

2. The applicants pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3256 of 2007

SZJCV & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 19 October 2007, and amended on 19 December 2007, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) which was signed on 6 September 2007, and handed down on 27 September 2007, which affirmed the decision of a delegate of the first respondent to refuse protection visas to the applicants.

2. The first respondent has put a bundle of relevant documents before this Court which I will refer to as the Court Book (“CB”).  The following background can be discerned from this material.

3. The applicants before the Court are husband (“the applicant husband” – “SZJCV”) and wife (“the applicant wife” – “SZJCW”).  They are citizens of India.  They arrived in Australia in December 2005 and applied for protection visas in January 2006.  (The applications are reproduced in the Court Book at CB 1 to CB 57.) 

4. What is immediately to be noted is that the applicant husband put forward claims to be a refugee and, in particular, I note his statement reproduced at CB 56 to CB 57.  The applicant wife applied as a member of his family and relied on his claims.  The part of the application relevant to the application wife begins at CB 27.

5. In March 2006, a delegate of the first respondent refused the applications for protection visas.  The decision record is set out at CB 63 to CB 69.)  In April 2006 the applicants filed an application for review with the Tribunal.  I note from what is set out at CB 100 that they were assisted by a registered migration agent when making that application.  This application has been the subject of two decisions by the Tribunal, the first of which was by consent remitted to the Tribunal by orders made by Lloyd-Jones FM.

6. The Tribunal was subsequently reconstituted.  The Tribunal whose decision is the subject of review before this Court invited the applicants to a hearing and ultimately, after some request for an adjournment the applicants did appear before the Tribunal and gave evidence.  The only record of what occurred at that hearing that is before the Court is the Tribunal’s own record set out in its decision record.

7. In all, the applicant husband’s claims to protection initially were set out in a signed statement, to which I have already referred, attached to his application for a protection visa (CB 56 to CB 57).  I note in particular that the applicant wife did not put forward her own claims to be a refugee but relied on the applicant husband’s claims.  He claimed to have been involved in business in a particular area of India and that he was by profession a spare parts dealer in relation to what is described as “two and three wheelers”.  The applicant husband specifically claimed that he was an active member of a leading political party, the Shiv Sena, in his local area, but he claimed however, that his shop was located in an area dominated by a rival political party, “the NCP led Congress”.

8. The applicant husband described his difficulties, or as he said, “his real troubles began”, with the defection of a particular leader of the Shiv Sena to the Congress Party and a consequent shift in power in the local situation away from Shiv Sena to the Congress Party and that he had come under pressure to leave his party and join with the Congress.  The applicant husband claimed that he refused to do that and that he was subjected to harassment, threats and intimidation, and that he had been ultimately subject to action and threats that were of the nature of seeking to eliminate him and his family.  Ultimately, on the advice of colleagues and friends, he and his wife fled India.

9. The Tribunal’s account of what occurred at the hearing reveals that the applicant wife confirmed that she was relying on the applicant husband’s claims (CB 183.5), and that the applicant husband, although he provided some further detail before the Tribunal, asserted that everything he had told the first constituted Tribunal was true.  He also confirmed before the Tribunal that he had not been politically active since his arrival in Australia and that he had no intention of participating in politics if he were to return (CB 183.6).

10. Importantly, this is not a case where the Tribunal rejected the applicants’ claims because of any adverse credibility finding.  The Tribunal accepted that the applicant husband was indeed a member of the Shiv Sena party and that he had been politically active in his local area.  The Tribunal accepted that he had been the subject of intimidation and pressure to persuade him to change his political allegiance.  The Tribunal, in short, accepted the applicant’s claims that he had been subjected to serious harm for reasons of his political opinion and that he had a well-founded fear of persecution as it related to his local area.  Critically for the applicants however, the Tribunal found that, although the applicant husband had been subjected to serious harm, and indeed there was a risk that he would be so subjected in the future if he were to return to his local area, such a finding was restricted to his local area.  The Tribunal found that the applicant would avoid further harm if he were to relocate to a different part of India, and it considered it would be reasonable for the applicant husband to do so.

11. The Tribunal’s reasoning, as expressed in its decision record, was that the applicant husband’s political activities had been localised to the extent that such activities were significant only in his local area, and it further noted that he had stated that he had no intention of participating in politics in India if he were to return.  In that regard, the Tribunal found that even if he were to engage in political activity at the same level as he had in the past there was no real chance that he would face harm by Congress Party members or officials elsewhere in India.

12. In part, the Tribunal was informed by independent country information which was available to it and which variously related to a number of other States of India which were, as it said, ruled by, in effect, allies of the applicant’s party.  In relation to the applicant’s claims articulated particularly at the hearing, that the people who had attacked him at the direction of his political opponents were Muslims, and to the extent that introduced a religious ground into the consideration, that those other States were States where Hindus were in the majority.

13. The Tribunal also considered more broadly the issue of the reasonableness of the applicant husband relocating and looked at issues that the applicants had put before the Tribunal relating to business and other related issues.  It looked at the applicant husband’s employment history, his language proficiency and, ultimately, said that it was satisfied that it was not unreasonable, nor impracticable, for the applicant husband to relocate to a different part of India where he would not be at risk of persecution.

14. Given that the applicant wife’s claims were dependant on the applicant husband’s, and indeed were not claims to be a refugee in her own right but a member of the applicant husband’s family unit, the Tribunal affirmed the delegate’s decisions in relation to the first applicant, the applicant husband. The Tribunal found that he did not satisfy the criteria relevantly set out in s.36(2)(a) of the Act, and that the applicant wife could not satisfy the alternative criteria set out in s.36(2)(b) of the Act, which I note was the relevant criteria given the way she had framed her application.

15. The amended application puts forward (with particulars) three grounds:

    [“1.  The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error by finding reasons against itself.

    Particulars

    i)When the Tribunal mentioned that, ‘In the Tribunal’s view, the applicant’s experiences in the past amount to serious harm for the reasons of his political opinion.  Accordingly, the Tribunal accepts he has a well founded fear of persecution for his political opinion if he returns to Mulund and the neighbouring are of Kalwa’ (CB-185, para-2).

    ii)Then the Tribunal mentioned (CB-186, para-4) that, ‘Overall, based on the evidence before it the Tribunal is not satisfied that the applicant as a well founded fear of persecution in India for reason of his political opinion’.

    2.The Tribunal made a jurisdictional eroor that the Tribunal did not give adverse iformation to the applicant which is the requirement under s424A of the Migration Act 1958 (the Act) when it made its decision.

    Particulars

    i)The Tribunal made a private investigation related to the applicant’s claim where Hindi speaking Hindus are a majority for the relocation purpose of the applicant but those information was not communicated with the applicant which are the reason or part of the reason to reject the applicant’s claim for protection (CB-186, para 2).

    ii)The information regarding ‘earning a living in India’ was a result of private investigation done by the Tribunal was not inform to the applicant for comment.

    3.The Tribunal made an error of law u/s 91R of the Act when the Tribunal wrongly rejected the applicant’s claim which fulfil the requirement of the law, that the Tribunal accepted the following:-

    (i)the applicant’s claims are based on the convention grounds of political opinion and religion,

    (ii)the applicant was an ordinary member of the Shiv Sena party,

    (iii)    the activities of the applicant in the party,

    (iv)    political enemities from his activites,

    (v)serious harm suffered by the applicant and his family and brother and also financial loss suffered by the applicant,

    (vi)    his righ for business was stopped,

    (vii)the Tribunal also accepted that the applicant has a well founded fear of persecution for his political opinion in India,

    (viii)the applicant was assaulted by Muslim supportes of the Congress party.”

    (Errors in original)]

16. In relation to the third ground, I assume “u/s” means “pursuant to” s.91R of the Act.

17. Before the Court today the applicant husband and applicant wife appeared in person.  The applicant wife exhibited a proficiency in English and made submissions in that language to the Court, but I note that an interpreter in the Hindi language was available in Court and provided interpreting services where necessary and, in particular, in relation to the applicant husband.  Dr K Stern of Counsel appeared for the first respondent. 

18. In all, apart from the application and amended application, I also have from the applicants the affidavit of the applicant husband of 19 October 2007, but there is nothing of relevance in this affidavit other than it was the formal vehicle by which the Tribunal’s decision was put before the Court.  I also have written submissions by the applicants and they are, essentially, in the same terms as set out in the amended application.  For the first respondent I have, in addition to the Court Book to which I have already referred, a response and written submissions filed on behalf of the first respondent. 

19. The applicant wife made oral submissions to the Court and was quite clear in articulating her complaint and dissatisfaction about the Tribunal’s decision.  First, she expressed her concern and disappointment that, as she understood it, it was the basic function of the Tribunal to help applicants and that she was taken aback (which was expressed as “the result of the Tribunal was upside down”) when the Tribunal found against the applications.  As I explained to the applicants, the basic function of the Tribunal is to address the question, in essence, of whether the applicants before it can satisfy the Tribunal that they met the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention and, further, is obliged in addressing that question, to provide the applicants with an opportunity to be heard and to properly consider each aspect of their claims.  I could not see any error on the part of the Tribunal in the sense as expressed by the applicant wife; the Tribunal was not obliged to assist them in the sense put forward by the applicant wife.

20. The first ground, and the ground in relation to which the applicant wife predominantly addressed the Court, and indeed the ground the applicant husband subsequently sought to focus the Court on, is variously expressed by them both in their written material and orally, but essentially comes down to the following issue: that the Tribunal was in error in having found that there was a well-founded fear of persecution but to then go on to find that the applicants could relocate elsewhere.  The first iteration of that complaint is that the Tribunal made a jurisdictional error by “finding reasons against itself”.

21. The complaint, expressed in that way is, with respect, misconceived.  The Tribunal’s finding was clearly focussed on the harm that the applicant husband said that he feared firstly in his local area.  In that regard, the Tribunal accepted the claims put forward by the applicants, but, as I sought to explain to the applicants today, having found that it is not inconsistent for the Tribunal to then find that the applicant could reasonably and safely relocate to other parts of India.

22. The finding by the Tribunal that a fear of localised persecution is well-founded still requires the Tribunal to consider the availability of protection in another part of the country of claimed persecution.  There are a number of authorities for the proposition, and I refer to Black CJ in the matter of Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”), that the focus of the Refugees Convention is not upon protection in particular regions of the country of claimed persecution, but more particularly concerns the general notion of protection by the whole of the country. I quote from a part of that case at 441 where the Chief Justice said:

    “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.”

23. The other aspect of the complaint put before the Court is to take issue with the Tribunal’s relocation finding in itself.  In this regard, I note in particular, and thank Dr Stern for, her written submissions.  The principle of relocation was recently considered by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634’ [2007] HCA 40. I agree with the summary of what was found relevantly in that case set out in paragraph 15 of the first respondent’s written submissions noting, in essence, that the Court, subject to consistency of approach with what the High Court also said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 which endorsed what had already been the understood position relevant to the issue of relocation as set out in such cases as Randhawa.

24. Ultimately, the issue for this Court is did the Tribunal properly address this question bearing in mind relevant authorities.  I cannot see error in what the Tribunal has done in this regard.  The Tribunal gave the applicants the opportunity to put before it their reasons as to why they said it was not reasonable to relocate internally.  I note in particular it was submitted by Dr Stern that the Tribunal at CB 186.5, after having looked at a number of factors and, in particular, the political disposition in other States of India and the religious disposition of Hindus and Muslims, said:

    “Accordingly, the Tribunal is satisfied that if the applicant relocated outside of the Mulund/Kalwa area to anywhere including the above-mentioned States where Hindi speaking Hindus are a majority and even if he continued to engage in political activity at the same level as he has in the past there is no real chance that he would face harm by Congress Party members or officials.”

    In context I saw this, when read fairly, as including those persons of Muslim background whom the applicant husband had said had been used by his political opponents to harass, intimidate and threaten him in his local area. 

25. The Tribunal did not stop there.  The Tribunal also looked at a number of personal factors relevant to the applicants: his work, his business and employment background, his linguistic capacity and ultimately found that it was satisfied that it was not unreasonable nor impracticable, bearing in mind all of those factors, for him to relocate to a different part of India where he would not be at risk of persecution.

26. I also saw ground three in the amended application as in a sense being another aspect of this same complaint. Again this was a part of the application that the applicant husband in particular took the Court to today. The complaint there is expressed as the Tribunal made an error of law under s.91R of the Act “when the Tribunal wrongly rejected the applicant’s claim which (sic: would) fulfil the requirement of the law”.

27. I saw this as a complaint that, having accepted that the applicant had a well-founded fear of persecution, that it was then in error to then ultimately to have found against the applicants.  Again I did not see this as being anything other than an expression of the same complaint that the Tribunal was in error in finding that they could safely and reasonably relocate to another part of India once it had found that there was a well-founded fear of persecution, albeit in their local area.

28. Again for the reasons I have already stated, I cannot see any error in the Tribunal’s approach in this regard. It is not an error for the Tribunal to make a relocation finding. I cannot see that the Tribunal breached or acted contrary to what is set out in s.91R of the Act.

1. The amended application also raises a complaint pursuant to s.424A of the Act. As the applicant wife explained to the Court today, the complaint really is in relation to information that the Tribunal relied on relating to the disposition of Hindus and Hindi speaking persons in India as part of the relocation finding that the Tribunal made. It was put to the Court that the applicants had received some assistance in the drafting of this application and had sought to characterise this reliance by the Tribunal as a “private investigation”. Whichever way it is described, the applicant’s complaint is of a breach of a requirement under s.424A of the Act.

2. Section 424A of the Act requires that information which would be the reason, or part of the reason, for the Tribunal’s decision be put to the applicant in writing so that the applicant could be given the opportunity of comment. Unfortunately for the applicants, whoever advised them seems to have overlooked that there are exceptions to this obligation and, as Dr Stern correctly, in my view, submits, the information relating to the disposition of Hindi speakers and those States in India in which they are located, is information that squarely falls within the exceptions set out in s.424A(3)(a) of the Act. Dr Stern submits that this information 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 another person is a member.

3. The Court has been referred to a number of authorities (NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99 at [17], and Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36 at [19]) for the proposition that there is no obligation on the Tribunal to put such information to an applicant for comment. I note also, and agree with Dr Stern, that to the extent the Tribunal concluded that the applicants could safely and reasonably relocate that is a reason of the Tribunal and not “information”, as that term is understood, in relation to s.424A as recently explained by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”). In those circumstances, s.424A(1) is not enlivened in relation to the Tribunal’s reasoning. I cannot see, therefore, that the applicant’s complaint relating to s.424A is made out.

4. I should note that the applicants also complain by way of particulars, and describe at particular 2 under ground 2, that the information regarding earning a living in India was the result of a “private investigation” done by the Tribunal and was not given, I understand, to the applicant for comment. Again the Tribunal’s assessment about the applicant’s capacities is clearly the Tribunal’s reasoning process which, as I said, for the purposes of s.424A is not “information”. I note in particular this appears to be a reference to what is set out at CB 186.8:

   “[T]he Tribunal is not satisfied, given his considerable work experience, that he would not be able to, or he would be prevented from, earning a living in India.”

5. What is described as the “private investigation” by the Tribunal is clearly the Tribunal’s reasoning processes, and reasoning based on information provided by the applicant husband himself to the Tribunal.  To that extent, if it was to be said (and I am putting to one side SZBYR as to the nature of information) to be “information”, it was “information” provided by the applicant husband himself to the Tribunal.

6. I note during the course of the hearing today the applicant wife complained that the applicants were not put on notice that relocation was to be an issue before the Tribunal. Given that the applicants appeared unrepresented before me, I did consider whether the Tribunal was in breach of any of its procedural fairness obligations, particularly in the context as has been described relating to s.425 of the Act, and as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).  

7. To the extent that relocation and the Tribunal’s finding in relation to relocation can be said to be the determinative, or even one of the determinative, issues (although I would characterise it on the plain reading of the Tribunal’s decision record as the reason on which the delegate’s decision was affirmed), that the issue of relocation was, as Dr Stern correctly, in my view, submitted, a “live” issue following the delegate’s decision. 

8. At CB 68.5 the delegate said:

   “I consider that relocation on return to India is a viable option for the applicant.”

9. As I understand what the High Court said in SZBEL, the obligation on the Tribunal is to raise with the applicants at the hearing the determinative and dispositive issues on the application for review, being issues that could not have been known to the applicants as a result of the delegate’s decision.

10. In this case it is claimed the delegate had raised that as a live issue but, in any event, I note that the issue was raised at the hearing before the Tribunal when the Tribunal said to the applicant husband at CB 183.8:

    “When it was put to him all of the issues he had raised were localised to the Mulund area, he stated Mulund and the ueighbouring area of Kalwa. 

    He stated he could not go and live outside that area because Congress had influence in different places and if he relocated it would be a problem.”

11. That discussion appears to have continued for some little while at the hearing and the Tribunal squarely asked the applicant whether he could relocate to another State in which the BJP held power at State parliament level and where there was a majority of Hindi speaking Hindus.  He stated it was a problem, that it was not that easy.  He had given up his shop and he had had a good business.  Other issues relevant to relocation were also discussed. 

12. The applicants have not put before the Court any evidence to contradict the Tribunal’s account of what occurred at the hearing, for example, by way of a transcript of the hearing.  Based on the Tribunal’s own account, the issue of relocation was discussed and the applicants were given the opportunity to give evidence and make submissions in relation to that issue.

13. The applicant wife complained that they were not put on notice by the Tribunal prior to the hearing of this issue but I cannot see that there is any obligation on the Tribunal to do so.  Relevantly, the obligation arises at the hearing and in circumstances where the determinative issue, the issue that was dispositive of the review, would not have been known to the applicants as a result of what the delegate found. 

14. This complaint also does not succeed, and with the greatest of respect to the applicants, I could not see that their complaint, in this regard, rose above a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). As I explained to the applicants, even if the Court were to disagree relevantly with the Tribunal’s finding on relocation in circumstances where, in this case, the Tribunal’s finding was open to it on what was before it and for which it gave reasons, that would not be sufficient. The mere fact that the applicants disagree with this finding is not sufficient to reveal jurisdictional error on the part of the Tribunal. This complaint also does not succeed.

15. In all, the applicant husband claimed to fear harm for political and religious reasons.  The applicant wife applied as a member of the applicant husband’s family unit, that is, she did not make claims to be a refugee in her own right.  The Tribunal invited the applicants to a hearing, the determinative issues were discussed at that hearing and while the Tribunal accepted that the applicant husband did face harm in his local area, it also found that it was reasonable and practicable for the applicant husband to relocate to another part of India.  On that basis it affirmed the delegate’s decision in relation to him, and as the applicant wife’s application was dependant on the outcome of the applicant husband’s claims, it also found that she could not satisfy the relevant criteria such that a protection visa should be granted to her or must be granted to her.

16. In all, I cannot see jurisdictional error as it is said to arise from the applicants’ amended application before this Court nor by way of submissions made by the applicants today or in writing, nor otherwise.  For this reason this application is dismissed.

17. It is appropriate that a costs order be made in this matter.  The applicants’ understandable complaint that the amount sought is “too much” is not in itself a reason for not making the order, and I cannot see any other reason for not making such an order.  I will make an order for costs.

18. As to the amount, as I already have said, I take the view that I am not bound by what is set out in the Schedule to the Rules of this Court and regard it as a guide, I note that the amount sought by the first respondent does not exceed what is set out in what I say is a guide.  But, more particularly, I note that in the manner in which this case progressed before this Court, and as a consequence of the way in which the applicants put their case (and I do not mean that in any critical way of them), did require certain work to be done in response, and in particular with reference to a number of appearances by a solicitor on behalf of the Minister before this Court, multiple copies of the Court Book that were prepared and filed and served, the briefing of counsel, the written submissions prepared by counsel and attendance by counsel at Court today.  Taking all of those factors into account, I am satisfied that the amount sought is a reasonable amount.  I note in particular that the applicants’, again, understandable, complaint that it is too much, is not an issue in itself that would cause the Court to reduce the amount of $5,000.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  21 April 2008