SZJDJ v Minister for Immigration
[2008] FMCA 762
•11 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJDJ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 762 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether general acceptance of a relocation test – whether safe to relocate in India – reasonableness of internal relocation – merits review not function of judicial review – whether breach of s.430 of the Act – whether proper consideration of claims, in particular to fear ‘prospective’ persecution on relocation – whether s.91R properly considered – whether breach of s.425 of the Act – sufficiency of Tribunal’s reasons – whether breach of s.424A of the Act. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 420, 423, 424, 424AA, 424A, 424B, 424C, s.425, 425A, 426, 426A, 427, 428, 429, 429A, 430, 474 |
| SZATV v Minister for Immigration & Citizenship [2007] HCA 40 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Januzi v Secretary of State for the Home Department [2006] 2 AC 426 Minister for Immigration & Citizenship v SZHXF [2008] FCAFC 36 A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 Lie v Refugee Review Tribunal (2002) 190 ALR 601 Htun v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1802 |
| First Applicant: | SZJDJ |
| Second Applicant: | SZJDK |
| Third Applicant: | SZJDL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 287 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 24 April 2008 |
| Date of Last Submission: | 24 April 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr M. Cleary |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 8 February 2008, the amended application filed on 31 March 2008 and the further amended application filed on 24 April 2008 are dismissed.
Pursuant to Rule 11.11(2), the First Applicant be appointed the litigation guardian of the Third Applicant.
The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $4,610 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 287 of 2008
| SZJDJ |
First Applicant
| SZJDK |
Second Applicant
| SZJDL |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 28 December 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant Protection (Class XA) visas to the applicants.
Background
The first applicant (the applicant) was born on 9 November 1976.
The second applicant, the wife of the applicant, was born on 16 September 1978. The third applicant, their son, was born on 7 February 2001. The applicant’s wife and son made no independent claims in their own right, but relied on their membership of the applicant's family unit.
The applicants claims to be nationals of India, and of Hindi faith.
The applicants arrived in Australia on 1 December 2005 on Indian passports issued in their own names.
The applicants lodged an application for protection visas on 12 January 2006. In the applicant’s statement accompanying the protection visa application (Court Book (CB) 69-71), he claimed to be a Hindu shopkeeper in a Muslim area and that Muslims threatened him and his family that if he did not close his shop it would be burnt down and they would be killed. The applicant claims he was physically slapped by Muslims on one occasion. He claimed that the police and the mayor would not protect him and that if he were to return to India, “the Muslim people will kill me.”
On 21 March 2006 the delegate refused to grant the applicants protection visas on the basis that they were not persons to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 12 April 2006 the applicant applied to a Tribunal, differently constituted, (the first Tribunal), for review of the delegate’s decision. The first Tribunal affirmed the delegate’s decision on 20 June 2006. By consent orders of the 21 August 2007, the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 18 September 2007 the Tribunal sent a letter to the applicant inviting him to appear before it on 30 October 2007 to give oral evidence and present arguments. The applicant attended the hearing on that day and gave evidence with the assistance of a Hindi interpreter.
The Tribunal’s findings and reasons ((CB) 133-134)
I accept that the first respondent accurately sets out in its written submissions the Tribunal’s findings as follows:
The Tribunal’s decision to affirm the delegate’s decision turned on the finding that the applicant husband could safely relocate within India. The Tribunal was not satisfied the applicant husband would have a well-founded fear of persecution should he relocate in India.
Further, the Tribunal:
a)was not satisfied there was a real chance that the applicant husband’s Muslim opponents would have the capacity to trace him and his family should he relocate;
b)was satisfied the applicant husband would be able to sell his business in Ahmedabad;
c)was not satisfied that the applicant husband would have been prevented from commencing a business in a Hindu area in another city in India;
d)the applicant husband had embellished (if not fabricated) at least some of his material claims.
For these reasons, the Tribunal found the applicants did not have a well founded fear of persecution for a Convention reason in India as a whole.
The proceedings before this Court
The applicants filed the application in this Court on 8 February 2008 setting out 6 grounds of review of the Tribunal’s decision. On 31 March 2008, they filed an amended application setting out 6 grounds of review. On 24 April 2004 they filed a further amended application setting out 2 grounds of review.
The applicant appeared in person before this Court on 24 April 2008 with the assistance of a Hindi interpreter. Mr Cleary appeared for the first respondent.
The applicant confirmed at the hearing that he relied on ground 4 of the application; grounds 1, 2, 3, 5, and 6 of the amended application; and grounds 1 and 2 of the further amended application.
Grounds of application
Grounds 1, 2, 3, 5 and 6 of the application
These grounds of application states that:
(1)The Refugee Review Tribunal (the Tribunal) made a jurisdictional error that the Tribunal asked the applicant that why he could not safely relocate to India. This not the requirement to satisfy the Tribunal to get protection in Australia u/s36(2) of the Migration Act 1958 (the Act).
(2)The Tribunal made a jurisdictional error that the Tribunal did not believe that the applicant did not have money to start a business in a new area. And it is an impossible question to sale the business and get money to start a business in a new area.
(3)The Tribunal made a jurisdictional error that the Tribunal made an issue that, ‘Relocation – is it reasonable in the circumstances.’ According to the Migration Act 1958.
(5)The applicant did not understand that why his application was rejected and why the Tribunal wanted him to relocate and why the Tribunal did not allow his application when he applied for review.
(6)That the Tribunal failed to prove that the applicant did not have fear for harm in India under s.91R of the Act.
Grounds 1, 2, 3, 5 and 6 of the application are dealt with under grounds 1, 2, 3, 5 and 6 of the amended application.
Ground 4 of the application
This ground of application states that:
(4)The Tribunal made a jurisdictional error that it did not review the applicant's application for the purpose of the review according to the Act. The Tribunal reviewed the application for protection to discuss how the applicant can relocate another part of India and the Tribunal engaged itself for that purpose, the Tribunal did not act to find out that Australia has a protection obligation or not.
In his written submissions, the applicant submitted that the Tribunal did not review his application for the purpose of the Act, rather “to discuss how the applicant could relocate to another part of India.” He points to Division 4 of Part 7 of the Act (ss.423 to 429A inclusive) to submit that there is no scope under the Division “to show alternative solution and reject the review application.”
To the extent that this submission suggests that there is no relocation test found in the Act and that this was not therefore a proper basis on which the Tribunal could found its decision, these issues are explored very fully under amended ground 3 below in the light of the High Court decision in SZATV v Minister for Immigration & Citizenship [2007] HCA 40. I rely on my reasoning therein in the present context.
The applicant further submitted to the Court that:
The Tribunal didn't give a proper assessment to my case, they were just thinking of the relocation issue and what they were thinking about was how I could relocate somewhere in India.
In this regard, the Tribunal based its decision on its principal findings that it was safe and reasonable for the applicants to relocate to another part of India. I consider that it was entitled to do so on the evidence and material before it and that, as submitted by the first respondent, the Tribunal gave “extensive reasons and analysis for its finding that (a) the relocation would be safe; and (b) that it was reasonable in the circumstances” (see, in particular, at CB 201-204) (transcript, 24/4/08, p 6).
I am also satisfied that the Tribunal clearly identified the determinative “issues arising in relation to the decision under review” and gave the applicant ample opportunity to give evidence and make submissions in relation to those issues before reaching its conclusions. In this regard, I consider that the Tribunal accorded the applicant procedural fairness as required of it pursuant to s.425(1) of the Act: SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]-[48]. I accept the first respondent’s submission in this regard (and see further under ground 3 of the amended application and ground 1 of the further amended application).
Equally I am satisfied that the Tribunal complied with its statutory obligations under s.424A of the Act and I rely on my reasoning under further amended ground 2 below in the present context.
On the evidence and material before it, I consider it was open to the Tribunal to be satisfied that relocation was reasonable in all the circumstances (and see further under ground 3 of the amended application below). I thus detect no breach of its statutory obligations under Division 4 of Part 7 of the Act in this regard. I am satisfied that it performed the task required of it in compliance with the statutory regime.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration and Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24]).
I am satisfied that the applicant is, in effect, inviting the Court to undertake a review of the merits of the Tribunal decision. It is no part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
I am thus satisfied the Tribunal conducted the review for the proper purpose of determining whether Australia had protection obligations to the applicants.
The applicant made the further oral submission under this ground that “it is impossible for me to relocate to another part of India because I haven’t got the money.” This matter is dealt with under amended ground 1 below.
Accordingly, for the reasons stated above, Ground 4 of the application is rejected.
Grounds of amended application
Ground 1 of the amended application
This ground of the amended application states that:
(1)The Refugee Review Tribunal (the Tribunal) made a jurisdictional error under s.36(2) of the Migration Act 1958 (the Act).
Particulars:
(i)That the Tribunal asked the applicant that why he believed he could not safely relocate to India.
(ii)Therefore, assuming the applicant relocated within India, it may be that he would no longer have a well founded fear of persecution.
In his written submissions, the applicant asserted that the function of the Tribunal is to assess whether there is a well-founded fear [of persecution], but rather than so doing:
[the Tribunal was] functioning to find out that ‘Relocation – is it safe’ which is an error of law. The essential task of the Tribunal to determine whether the applicant’s fear for persecution is well-founded in the Convention sense and for the purpose of s.36(2) of the Act. The Refugee Convention does not contain any such provision of relocation.
To the extent that this submission suggests that there is no relocation test found in the Act and that this was not therefore a proper basis on which the Tribunal could found its decision, as stated earlier, these issues are explored very fully under amended ground 3 below in the light of the High Court decision in SZATV. I rely on my reasoning therein in the present context.
In his oral submissions the applicant submitted that:
Relocation is actually impossible in my case because I have those Muslim peoples who have political supporters and these supporters are quite influential. If I relocated somewhere else in India they could find me easily.
The Tribunal made specific findings on this matter, for instance, (at CB 202), it stated that:
I am satisfied that if the applicant, for instance, changed his mobile phone number, he would not continue to be harassed by his Muslim opponents in Ahmedabad. That is, I am not satisfied there is a real chance his Muslim (or other) opponents would have the capacity (or possibly even the will), to trace him and his family should he relocate within India …
… Based on the claims he made and the country information considered … I am not satisfied his Muslim opponents in Ahmedabad would be capable (or possibly) even willing to trace him and his family should they relocate within India.
Again, it is not for this Court to engage in impermissible merits review where these findings were open to the Tribunal on the evidence and country information before it.
Contrary to the applicant’s assertion, a fair reading of the Tribunal decision discloses that the Tribunal made a careful and detailed analysis of whether the applicant’s fear of persecution was well founded in a Convention–sense; that it provided clear and well articulated reasons for making a contrary finding; and that it reached its conclusions based on those findings: see CB 202-203. In this regard the Tribunal provided the following three specific reasons for finding that “the applicant (and his family) could safely relocate within India, and by so doing avoid a well-founded fear of persecution for any Convention reason” (CB 202):
·the applicant (and his family) were able to reside in his usual home in Ahmedabad for lengthy periods after the riots in 2002; he was able to travel to England on two occasions’, to Japan once (with his family), and to Bombay once:
If he feared he or his family had a real chance of being persecuted in Ahmedabad, I would expect him to have ‘fled’ earlier; rather than only take his family away in December 2005 (at which time they travelled to Japan) (CB 202);
·the applicant was able to safely relocate to Bombay in mid 2005 and thus:
I am satisfied that if the applicant, for instance, changed his mobile phone number, he would not continue to be harassed by his Muslim opponents in Ahmedabad. That is, I am not satisfied there is a real chance his Muslim (or other) opponents would have the capacity (or possibly even the will), to trace him and his family should he relocate within India (CB 202);
·the third reason stated by the Tribunal was that:
The applicant has no political or other connections that may satisfy me he had any kind of profile that would make him of continuing adverse interest to his Muslim opponents in Ahmedabad.
… Based on the claims he made and the country information considered … I am not satisfied his Muslim opponents in Ahmedabad would be capable (or possibly) even willing to trace him and his family should they relocate within India.
… Based on the evidence in the present case, I presume it is not controversial to find neither the applicant’s or his family’s relocation, would give rise to an unacceptable fetter of their human rights (including any political convictions) such that refugee protection obligations arise in Australia. The reason for this includes the Hindu applicant told the Tribunal he had no eg political connections or affiliations. His principal, if not sole, reason for fearing harm was that he owned business premises in a Muslim area in Ahmedbad. I am not therefore satisfied the applicant would be prevented (at least for any Convention reason), from eg commencing a business in a Hindu area in another city in India (CB 202).
In conclusion, based on the above three reasons, the Tribunal found that:
Accordingly for the above three reasons, I am satisfied the applicant (and his family) could safely relocate within India, and by so doing avoid a well-founded fear of persecution for any Convention reason (CB 202).
… For the reasons set out above, I am not satisfied the applicant would have a well founded fear of persecution for a Refugee’s Convention reason should he relocate in India (CB 204).
The Tribunal ultimately concluded that:
Accordingly, I find the applicants do not have a well-founded fear of persecution for a Convention reason in India as a whole.
Having considered the evidence as a whole, the Tribunal is not satisfied that the first-named applicant is a person to whom Australia has protection obligations under the Refugee’s Convention. Therefore the first-named applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa (CB 204-205).
Accordingly, I detect no jurisdictional error on these bases.
The applicant made the further oral submission that “without any money you cannot relocate to any other place in any country” (transcript, p 7).
The Tribunal clearly considered this issue and made the following specific findings in this regard:
When asked, the applicant claimed he would be unable to relocate in India as he did not have any money to feed his family … He claimed he had no money left … I am satisfied that given his ability to travel overseas on three separate occasions since 2003, and given his work in Australia, I do not believe he does not have access to funds overseas sufficient for him to establish a new business in India (should he relocate). When put to him the applicant repeated that he had no funds to commence any business should he relocate in India. However, as is apparent from my findings and reasons herein, I believe the applicant has embellished (if not fabricated) at least some of his material claims. With respect to the present claim, I am not therefore prepared to give him the benefit of the doubt and accept that he would not be able to access funds to for instance, establish a new business in India should he relocate (CB 203).
I consider these findings were open to the Tribunal on the evidence before it. As stated above, it is not the function of this Court to interfere with the findings of the Tribunal in these circumstances.
Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
This ground of the amended application states that:
(2)The Tribunal made a jurisdictional error that the Tribunal rejected the applicant's claim on the basis of wrong observations.
Particulars:
(i) That the Tribunal did not believe that the applicant did not have money to start a new business in a new area in India. And it is an impossible question to sale business and get money to start a business in a new area.
(ii) I (the Tribunal) put to him that given the dispute was about a Hindu man owning business premises in a Muslim area, a Muslim businessman may be interested in purchasing the premises.
The applicant submitted that the Tribunal was not allowed to pursue the two allegedly wrong observations set out under particulars (i) and (ii) above and that “it is not the task of the Tribunal, so the Tribunal made a jurisdictional error on the basis of wrong observations.”
In his oral submissions, the applicant further submitted that:
·it is “actually impossible that a Muslim would actually pay some money to buy my business.”
·the Tribunal did not agree “I did not have any money to relocate.”
In regard to the first dot point, the Tribunal made the following specific factual finding:
Notwithstanding his claims to the contrary, I am satisfied the applicant would be able to safely sell his business premises in Ahmedabad, should he wish to do so, I am not satisfied that his refusal to do so would make it unreasonable to expect him and his family to relocate within India (CB203).
I accept the submission by the first respondent that the applicant is seeking to make “a direct challenge to a factual finding” which it is not the function of this Court to entertain. I consider that this finding was clearly open to the Tribunal to so find on the evidence and material before it. Again the applicant is seeking impermissible merits review.
In regard to the second dot point above, this has already been dealt with under amended ground 1 above.
Accordingly, Ground 2 of the amended application is rejected.
Ground 3 of the amended application
This ground of the amended application states that:
(3)The Tribunal made a jurisdictional error that the Tribunal made an issue that, “Relocation – is it reasonable in the circumstances” according to the Migration Act 1958.
Particulars:
The applicant claimed he may still be harmed. But the Tribunal mentioned that it is reasonable to relocate within India on the basis of the applicant successfully operated a business in India, he understand English good, he had found work in Australia, India’s economic growth, a fast growing economy has reduced the numbers of the very poor.
It is difficult to discern exactly what the applicant is asserting under this ground.
To the extent that he seeks to recanvass the findings of fact made by the Tribunal, including in regard to his access to funds to establish a new business; that he could sell his business; and (in the words of the applicant paraphrasing CB 204) that he “successfully operated a business in India, he understands English good, he had found work in Australia, India’s economic growth, a fast growing economy has reduced the numbers of the very poor,” as stated above, it is not the function of this Court to engage in impermissible merits review (and see above under ground 4 of the application; and, in particular, grounds 1 and 2, of the amended application).
To the extent that the applicant asserts that the Tribunal failed to communicate to him the issues concerning potential relocation in India, the applicant has not sought to put the transcript of the Tribunal hearing before the Court in this regard.
A fair reading of the Tribunal decision, however, indicates to the contrary. The Tribunal clearly identified the determinative issues both as to whether it was safe and whether it was reasonable for the applicant and his family to relocate to another part of India. The Tribunal gave the applicant sufficient opportunity to respond to these issues, and indeed indicated to the applicant at the close of the Tribunal hearing that:
… for the reasons discussed at hearing, I might be satisfied he could safely relocate within India and that it would be reasonable for him to do so. I then put to him that I could ensure that my decision would not be handed down till at least four weeks from the 30 October 2007 hearing (being 27 November 2007), and that I would consider any further evidence or submissions he lodged with the Tribunal prior to his decision being handed down. That said, as at the date of signing the decision, no further relevant evidence or submission/s has been brought to my attention (CB 204).
The applicant thus had the opportunity to put any further evidence or submissions before the Tribunal. He chose not to do so.
I thus detect no breach of s.425(1) of the Act in this regard.
To the extent that the applicant is asserting that the Tribunal incorrectly applied the law regarding relocation principles by failing to follow what he describes as “the High Court Rule” in SZATV at [48]-[49], the applicant relies on the following passage from that judgment:
The Refugees Convention contains no express exception from the stated protection obligations for a case where a refugee applicant might reasonably relocate to a safe district or place within the country of nationality or habitual residence. Nor is there any such provision in the Act. Neither is there any regional directive or regional treaty applicable to Australia's protection obligations under the Refugees Convention.
The travaux préparatoires which describe the drafting history of the Refugees Convention do not suggest that the attention of the drafters was at any stage directed to a relocation test. It does not appear that specific consideration was given to an exception for the possibility of safe relocation within the country of nationality or habitual residence ("country of nationality"). The premise upon which, at first, it was assumed that the Refugees Convention would operate was that, if a serious risk of harm to the refugee applicant was established anywhere in the country of nationality, that meant that a failure of protection had occurred, justifying the departure from that country to claim surrogate protection from another country and a continuing well-founded fear of return.
The above quoted passage must however be read in context within the decision as a whole. Quoted in isolation, it may provide the misleading impression, as the applicant appears to be saying, that there is no relocation principle which can or should be applied in the context of the Convention and in the context of the Act, there being no express provision to this effect in either.
It is pertinent that in the joint judgment of Gummow, Hayne and Crennan JJ from which the above passage is taken, that, notwithstanding the lack of an express reference to a relocation test in the Convention and Act, such a test now has general acceptance in Australia:
But, as indicated above, in Australia any "principle" respecting "internal relocation" must be distilled from the text of the Convention definition, which is applied by s.36(2) of the Act as a criterion for the grant of a protection visa … (at [15])
With these propositions in mind, it will be seen that the matter of "relocation" finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department, (at [19]).
The joint judgment then proceeded to consider very closely the “reasonableness” element of relocation, coming to the conclusion that, after further citing with approval Lord Bingham in Januzi [2006] 2 AC 426 at 440, that:
His Lordship, significantly both for Januzi and the present appeal to this Court, added:
The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country (at [22]) …
What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality (at [24]).
Kirby J, after looking at the matter of relocation in its historical context, equally considered in SZATV that a relocation test now has general acceptance in Australia:
it cannot now be doubted that, both in widespread State practice and in the understanding of the office of UNHCR, formulations of the relocation test have come to be generally accepted (at [68]).
Against the background of this strong, largely consistent national and international practice and the qualified acceptance of its legitimacy by UNHCR itself, it would be impossible and undesirable for this Court to deny this development in Australia alone (at [76]).
The overwhelming evidence of State practice, international opinion and expert statements, concerned with the issue of internal relocation, supports the acceptability of taking that possibility into account in judging a claim to refugee status (at [96]).
Kirby J then proceeded to set out what he considered to be “the operation of the internal relocation rule”, with again emphasis on the reasonableness element, as follows:
The postulated capacity to relocate is only relevant insofar as it casts light on the question whether the reason for being outside the country of nationality is a "well-founded" fear of the risk of persecution. A propounded "fear" might not be classified as "well-founded" if, instead of seeking protection from Australia, it would be reasonable for the applicant to rely on his or her country of nationality to afford the protection at home by the simple expedient of moving to another part of the country, free of the risk of persecution (at [78]).
Most such opinion and State practice gives consideration to the reasonable possibility of relocation as relevant to whether the "fear of being persecuted" for Refugees Convention reasons, propounded by the refugee applicant, is "well-founded". This approach is consistent both with the holdings of this Court on the meaning of "the protection" of the country of nationality to which the Refugees Convention definition is addressed and the decision requiring that such claims be judged by reference to what the individual applicant fears and how the individual applicant may be treated if, in fact, he or she were returned to the country of nationality.
To consider what it is reasonable for the refugee applicant to do by way of internal relocation is not to hypothesise supposedly reasonable conduct such as "living discreetly". This was rejected in S395. The supposed possibility of relocation will not detract from a "well-founded fear of persecution", if otherwise established, where any such relocation would, in all the circumstances, be unreasonable. It will be unreasonable where to propound it amounts to an affront to any of the specified Refugees Convention-based grounds of persecution, which it is the object of the Refugees Convention to prevent, discourage and redress (at [96]-[97]).
When these principles are applied to the present case, I consider that the Tribunal correctly approached the application of the relocation test. It considered on the evidence and material before it, first, whether it would be safe for the applicant and his family to relocate elsewhere in India and concluded that they could safely so relocate “and by so doing avoid a well-founded of persecution for any Convention reason.”
Having so found, the Tribunal then proceeded to consider whether relocation was reasonable in the circumstances in the light of the evidence and material, including country information, before it, before concluding that “ I am not satisfied the applicant would have a well-founded fear of persecution for a Refugees Convention reason should he relocate in India.”
I consider that a fair reading of the Tribunal decision demonstrates that in assessing what was “reasonable”, the Tribunal’s focus remained on the particular circumstances of the applicant, the impact upon him personally, and what in fact might occur if he were to relocate within India: (SZATV per Gummow Hayne and CrennanJJ at [24]; and per Kirby J at [96], [99]). Indeed the Tribunal stated, inter alia that:
No evidence was provided that there were concerns with respect to infirmity, language or other matters, and neither did the country information in the sources cited herein, satisfy me that relocation on these grounds, for the present applicants, would be unreasonable. Consequently, I find it reasonable to expect the applicant to safely relocate within India (CB 204).
Contrary also to the factual situation in SZATV, this is not a case where relocation internally would put the applicant in the position of “sacrificing one of the fundamental attributes of human existence [being his political opinions] which the specified grounds in the Refugees Convention are intended to protect and uphold”: SZATV Kirby J at [102]. Indeed, in the present case, the Tribunal specifically found in this regard that:
The applicant has no political or other connections that may satisfy me he had any kind of profile that would make him of continuing adverse interest to his Muslim opponents in Ahmedabad …
The reason for this includes the Hindu applicant told the Tribunal he had no eg political connections or affiliations. His principal, if not sole, reason for fearing harm was that he owned business premises in a Muslim area in Ahmedbad. I am not therefore satisfied the applicant would be prevented (at least for any Convention reason), from eg commencing a business in a Hindu area in another city in India (CB 202).
Equally, there was no other Convention based reason found by the Tribunal which would militate against such a finding. I thus detect no jurisdictional error on these bases.
In his oral submissions, the applicant referred to the following passage from the Tribunal decision:
The Tribunal says here I have a good command of English, that is the first thing and number two, I already operated my business in India successfully. So given these two reasons it doesn't mean that I could relocate somewhere else without money (transcript p 9).
This matter has already been dealt with under amended ground 1 above, and as the first respondent correctly submits, must be considered against the Tribunal finding (at CB 203) that:
the applicant has embellished (if not fabricated) at least some of his material claims. With respect to the present claim, I am not therefore prepared to give him the benefit of the doubt and accept that he would not be able to access funds to for instance, establish a new business in India should he relocate (CB203).
Accordingly, Ground 3 of the amended application is rejected.
Ground 4 of the amended application
This ground of the amended application states that:
(4)The Tribunal did not give the information to the applicant to explain which are the reason of part or the reason to reject the applicant's claim for protection according to s.424A of the Act.
Particulars:
(i)I then put to him that based on my own experience as a Tribunal member, many Indian refugee applicants claim to rent accommodation in India and I therefore may not accept his claim to fear he would be unable to do so.
This amended ground has been dealt with under ground 2 of the further amended application.
Ground 5 of the amended application
This ground of the amended application states that:
(5)The Tribunal made a jurisdictional error that it did not review the applicant's application for the purpose of the review according to the Act. The Tribunal reviewed the application for protection to discuss how the applicant can relocate another part of India and the Tribunal engaged itself for that purpose, the Tribunal did not act to find out that Australia has a protection obligation or not.
This amended ground repeats ground 4 of the application and has been dealt with in that context.
Ground 6 of the amended application
This ground of the amended application states that:
(6)That the Tribunal failed to prove that the applicant did not have fear for harm in India under s.91R of the Act. And the applicant did not understand that why his application was rejected and why the Tribunal did not allow his application when he applied for review.
Contrary to the applicant’s assertion, and as dealt with above, the Tribunal made very clear findings in this regard that it was safe and reasonable for the applicant and his family to relocate internally and that they would not thereby suffer persecution in India. I consider that these findings were open to the Tribunal on the evidence and material before it. It is not the function of this Court, as stated above, to interfere with findings of fact made by the Tribunal where they were reasonably open to it, as here.
The applicant further submits that:
The Tribunal accepted that the applicants have fear for harm back in his country and to sidestepped that harm the Tribunal is trying to find out alternative solution to stop the harm to the applicants but s.430 of the Act does not allow to mention alternate solution.
To the extent to which the applicant contends that the Tribunal has breached its statutory obligations under s.430 of the Act, the applicant has not provided any proper particulars to support such a contention.
In any event, I am satisfied that the Tribunal decision record discloses that it:
a. set out its decision on the review; and
b. set out clear and well articulated reasons for its decision; and
c. set out its findings on the material questions of fact; and
d. referred to the evidence and material before it on which its findings of fact were based,
in compliance with its statutory obligations under s.430.
To the extent to which this amended ground is a complaint that the Tribunal has failed to carry out its function, I accept the submission by the first respondent that the following passage from the Tribunal decision provides to the contrary:
… I am satisfied the applicant (and his family) could safely relocate within India, and by so doing avoid a well-founded fear of persecution for any Convention reason (CB 202).
I thus detect no jurisdictional error on the above bases.
Accordingly, Ground 6 of the amended application is rejected.
Grounds of the further amended application
Ground 1 of further amended application
This ground of the further amended application state that:
(1)The Decision of the Second Respondent dated 28 December 2007 (“the Decision”) is void for jurisdictional error for the reason that the Tribunal applied the wrong test in determining to affirm the decision of the First Respondent or, alternatively said, failed to consider an essential integer of the Applicant's application.
Particulars
(a)The Applicant claimed that owing to a well founded fear of persecution for the reason of his religion (as Hindu), and membership of a particular social group (as a Hindu businessman of the Ahmedbad community), he was outside the country of his nationality and unable, or owing to such fear, unwilling to avail himself of the protection of that country;
(b)The Applicant claimed that he had such fears based upon his and his family’s past experience in Ahmedbad when Muslims in the Ahmedbad community forced him to close his business and to hand over his shop;
(c)The Applicant's claim to have a well founded fear of persecution was prospective, and supported by evidence of past persecution;
(d)The Tribunal accepted the Applicant's evidence of past persecution;
(e)Accordingly, the Tribunal was required to consider whether the Applicant's claim to fear of prospective persecution was ‘well founded’;
(f)The Tribunal purported to dispose of the Applicant's claims by a finding that ‘local Muslim opponents’ would not continue to harass the Applicant of his family if they relocated to an area other than Ahmedbad;
(g)The Tribunal failed to consider whether the Applicant had a well founded fear of persecution arising from his past experience as a member of a particular social group, being a Hindu businessman in a Muslim community;
(h)The Tribunal failed to consider whether the Applicant had a well founded fear of persecution by Muslims other than ‘local Muslim opponents’.
Contrary to the applicant’s assertions on these matters, I consider that a fair reading of the Tribunal decision demonstrates that it accurately summarised and considered each integer of the applicant’s claims, including whether he had a well-founded fear of persecution because of his Hindu religion and because of his past experience as a member of a particular social group, namely being a Hindu business man in Ahmedabad, a Muslim community (see CB 197-200).
I accept the following submission by the first respondent in this regard that the Tribunal (at CB 200-201) set out a summary of the applicant’s claims which it properly considered:
A fair reading of the Tribunal’s decision confirms the Tribunal dealt with the claims made by the applicant husband: cf. Htun v MIMIA [2001] FCA 1802.
At [CB]197-200, the Tribunal carefully summarised the applicant husband’s claim based on the contention the applicant husband was a Hindu businessman with a business in a Muslim area. In particular, the Tribunal summarised the riots that had taken place in the Gujarat state, and the tensions that existed in Ahmedabad (the commercial capital of Gujarat) as a consequence of those riots between the Hindus and the Muslims in the area (referred to by the applicant husband as a ‘war’).
At [CB] 200-201 the Tribunal set out correctly the claim made by the applicant husband, namely a claim for persecution based on the riots in Gujarat between Hindus and Muslims and his inability to operate his business as a Hindu due to the on-going violence caused by Muslims there. The Tribunal then went on to summarise the claims regarding his shop and the threats made to his wife.
There is no basis for the contention that the Tribunal did not consider an essential integer of the applicant husband’s claims. The Tribunal was not satisfied that the applicant husband had a well-founded fear of persecution for a Convention reason as the Tribunal was satisfied that it was safe (and reasonable) for the applicant husband to avoid the well-founded fear of persecution by relocating within India. This was a finding open to the Tribunal on the material before it.
Indeed, it should not be forgotten in this regard that the Tribunal found that the applicant had “embellished (if not fabricated) at least some of his material claims” (CB 203).
I am equally satisfied, contrary to the applicant’s contention, that the Tribunal considered in this regard:
·whether the applicant’s claim to fear “prospective” persecution was well-founded.
Indeed the Tribunal clearly considered past persecution and country information in determining the reasonableness of the applicant and his family relocating elsewhere in India, in the future.
·whether the applicant had a well-founded fear of persecution from “Muslims other than local Muslim opponents”.
The applicant does not appear to have made other than a very general claim in this regard. Rather, the focus of his claim before the Tribunal was upon his Muslim opponents from Ahmedabad, and their continued harassment of him in Bombay as demonstrated from the following exchange at the hearing:
I then asked the applicant why he believed he could not safely relocate in India. The applicant claimed his Muslim opponents from Ahmedabad had harassed him in Bombay. I put to him that given his claims thus far, I may not be satisfied his opponents would have the interest or capacity to trace him should he and his family relocate within India. For instance, the Hindu applicant confirmed that he was not associated with any eg political organisation. He confirmed he had been principally interested in developing his business. He had remained in Ahmedabad for lengthy periods after the riots, and though he claimed his father passed away from the pressure put on the applicant (by his Muslim opponents), he had not for instance gone into hiding, or taken steps to ensure his or his family’s safety there. Therefore, assuming the applicant relocated within India, it may be that he would no longer have a well founded fear of persecution (CB 201).
The Tribunal made clear and specific findings on this matter (which have already been referred to above) at CB 202.
However, to the extent that the applicant has made a more general allegation that he had a well founded fear of persecution from Muslims outside of Ahmedabad, the Tribunal found that:
…the applicant claimed his Muslim opponents had ‘strong political connections’. There was no evidence of this beyond the applicant’s mere assertion (CB 202).
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the applicant's claims; explored those claims with him at the hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing; and closely noted the applicant's responses. The Tribunal then made findings based on all the evidence and material before it.
I consider that its findings of fact, were open to it on the evidence and material before it; that it provided well-articulated and sufficient reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, as stated above, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, Ground 1 of the further amended application is rejected.
Ground 2 of further amended application
This ground of the further amended application state that:
(2)The Decision of the Second Respondent dated 28 December 2007 was void for jurisdictional error in that the Tribunal failed to comply with s.424A of the Act.
Particulars:
(a) The Tribunal was required to give the Applicant particulars of any information that the Tribunal considered would be part of the reason for affirming the decision under review under s.424A(1)(a) of the Act;
(b) The Tribunal was required to ensure that the Applicant understood why the particulars of that information was relevant to the review under s.424A(1)(b) of the Act;
(c) The Tribunal was required to invite the Applicant to comment on the particulars of that information under s.424A(1)(c) of the Act;
(d) The reason for the Tribunal affirming the decision under review was that the Tribunal was satisfied that the Applicant could safely relocate within India;
(e) Information that the Tribunal considered as part of the reason for affirming the decision under review was the experience of the Tribunal member in dealing with many Indian refugee applicants who claim to rent accommodation in India (“the Information”);
(f) The information was not information that was ‘not specifically about the applicant or another person’ and was not ‘just about a class of persons of which the applicant or another person is a member’;
(g) The information was not information that the Applicant gave for the purpose of the application;
(h) The information was non-disclosable information;
(i) The information was required to be given to the Applicant in writing;
(j) The information was required to be given to the Applicant in writing and the Applicant was not invited in writing to comment upon the Information.
The applicant asserts at particular (e) that the Tribunal was obliged to put to him in writing for his comment, the Tribunal member’s own experience in dealing with many Indian refugee applicants who claimed to rent accommodation in India (“the information”).
The relevant passage from the Tribunal decision record states that:
The applicant then claimed (words to the effect), he could more readily find employment in Australia; and that he would have difficulty finding rental accommodation elsewhere in India. I then put to him that based on my own experience as a Tribunal member, many Indian refugee applicants claim to rent accommodation in India and I therefore may not accept his claim to fear he would be unable to do so (CB 204).
I consider that the Tribunal was not obliged in this case to put this “information” in writing to the applicant pursuant to s.424A of the Act for his comment or response, since this “information” was not specifically about the applicant and hence fell within the statutory exception to s.424A(1) under s.424A(3)(a): Minister for Immigration & Citizenship v SZHXF [2008] FCAFC 36. Rather, it was information about the ability of Indian refugees to rent accommodation in India which came from the Tribunal member’s own experience in Indian refugee claims.
Furthermore, in conducting the review, the Tribunal is not bound by the rules of evidence: s.420(2)(a) of the Act, and is entitled to get any information that it considers relevant: s.424(1) of the Act. I further accept the submission by the first respondent that it is well settled that:
… the Tribunal is entitled to draw upon its broad experience in refugee matters: see A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at 555, Re Minister for Immigration and 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 therefore detect no breach of s.424A on this account and am satisfied that the Tribunal accorded the applicant procedural fairness in this regard in compliance with the statutory regime.
Accordingly, Ground 2 of the further amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application, amended application and further amended application before this Court are dismissed.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 11 June 2008
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