SZJDJ v Minister for Immigration and Citizenship

[2008] FCA 1308

FEDERAL COURT OF AUSTRALIA

SZJDJ v Minister for Immigration and Citizenship [2008] FCA 1308

SZJDJ, SZJDK and SZJDL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 947 OF 2008

COWDROY J
29 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 947 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJDJ
First Appellant

SZJDK
Second Appellant

SZJDL
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	29 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellants pay the costs of the First Respondent in the amount of $2,674 pursuant to O 62 r 4(2)(c) of the Federal Court Rules (Cth).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 947 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJDJ
First Appellant

SZJDK
Second Appellant

SZJDL
Third Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	29 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants appeal from the decision of Federal Magistrate Orchiston delivered on 11 June 2008. Such decision dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 17 January 2008. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant Protection (Class XA) visas to the appellants.

   BACKGROUND

2. The appellants, namely a husband, his wife and their infant son (‘the family’), are citizens of India who arrived in Australia on 1 December 2005. On 12 January 2006 the appellant husband (‘the appellant’) lodged an application for the protection visas with the Department of Immigration and Citizenship. The appellant wife and the appellant son made no independent claims for protection but relied on the claims of the appellant as members of his family unit. A delegate of the Minister refused the application for the protection visas on 21 March 2006. On 12 April 2006 the appellant applied to the Tribunal for a review of that decision. On 20 June 2006 the Tribunal affirmed the delegate’s decision. On 21 August 2007 the Tribunal’s decision was set aside by an order of the Federal Magistrates Court of Australia. A further hearing was held before a differently constituted Tribunal on 30 October 2007.

3. The appellant claimed to fear persecution in India resulting from his religion. The appellant, a Hindu, claimed that he owned and operated a fireworks shop in the Muslim area of Ahmedabad. The appellant claimed that riots broke out between Muslims and Hindus in Ahmedabad in 2002. The appellant claimed that Muslims said to him that if he did not close his shop and leave the area they would burn his shop down and kill him and his family. The appellant claimed that the authorities would not protect him and that if he returned to India the Muslim people would kill him.

   THE TRIBUNAL DECISION

4. The reconstituted Tribunal considered whether the appellant could safely relocate within India. The Tribunal observed that the appellant had remained in Ahmedabad for lengthy periods after the 2002 riots. If the appellant had feared that he or his family had a real chance of being persecuted in Ahmedabad the Tribunal considered that the appellant would have fled Ahmedabad earlier rather than only take his family away in December 2005.

5. The Tribunal also noted that the appellant had been able to safely relocate to Bombay in mid 2005. The Tribunal observed that the appellant was still using the same mobile telephone number at such time, despite claiming to have been harassed on that number by his Muslim opponents. The Tribunal considered that the appellant could have changed his mobile telephone number to avoid contact from those Hindus whom he claimed might cause him harm.

6. Further, as the appellant had travelled overseas on three separate occasions since 2003 and was employed in Australia, the Tribunal was satisfied that the appellant would have access to sufficient funds to establish a new business in India should he relocate.

7. The Tribunal was satisfied that the appellant would be able to sell his business in Ahmedabad and commence a new business in a Hindu area of another city in India. The Tribunal was not satisfied that there was a real chance that the appellant would be traced by his alleged Muslim assailants. Accordingly, the Tribunal was satisfied that the appellant could safely relocate in India.

8. If the appellant were to relocate in India, the Tribunal did not consider that the appellant would have a well-founded fear of persecution for a reason under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (‘the Convention’). The Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention.

   APPLICATION IN THE FEDERAL MAGISTRATES COURT

9. By application filed in the Federal Magistrates Court on 8 February 2008, by amended application filed on 31 March 2008 and by further amended application filed in Court on 24 April 2008 the appellant sought judicial review of the Tribunal’s decision.

10. Before Federal Magistrate Orchiston the appellant claimed that the Tribunal, by asking him questions relating to relocation within India, made an inquiry that it was not required to make. The appellant submitted that the Tribunal incorrectly found that it was reasonable in all the circumstances for him to relocate. The appellant also submitted that in accepting his claims relating to past persecution, but also in making a finding that it was possible for him to relocate, the Tribunal failed to consider whether he was a member of a particular social group and therefore it applied the wrong test. The appellant submitted that the Tribunal failed to consider whether or not the appellant held a well-founded fear of persecution for a Convention reason.

11. The appellant further submitted that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’), insofar as it failed to put information to him about the experience of the Tribunal member with applicants who claimed to rent accommodation in India.

12. The appellant raised other issues, namely that the appellant’s application had not been properly considered by the Tribunal and that ‘the Tribunal failed to prove that the applicant did not have fear for harm in India u/s 91R [sic] of the Act’.

13. Orchiston FM found that the Tribunal was entitled to inquire into the reasonableness of relocation and that its findings on that issue were open to it (see SZATV v Minister for Immigration and Citizenship and Another (2007) 237 ALR 634), and that the appellant’s contention that the Convention did not require such an inquiry was misplaced. Moreover, her Honour was satisfied that the Tribunal had correctly addressed all of the contingent factors which might affect the appellant’s ability to relocate within India and had concluded that the appellant was capable of relocating. Her Honour also found that the appellant’s attack on the Tribunal’s relocation finding was tantamount to a request for an impermissible merits review.

14. As to the appellant’s contention that the Tribunal had breached s 424A(1) of the Act, Orchiston FM found that the information in question did not relate specifically to the appellant but rather to a class of persons. The Tribunal was accordingly excused from providing particulars of such information to the appellant pursuant to s 424A(3)(a) of the Act.

15. Orchiston FM was satisfied that the Tribunal had understood the nature of the appellant’s claims and, having given the appellant sufficient opportunity to provide evidence and make submissions, the Tribunal’s findings were open to it on the evidence and material before it. Her Honour accordingly dismissed the appellant’s applications.

    APPEAL TO THIS COURT

16. By notice of appeal filed on 25 June 2008 the appellant appeals from the decision of Orchiston FM. The notice of appeal raises the following grounds:

    1.   The Honorable [sic] Federal Magistrate erred in not considering that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error that the Tribunal did not consider properly that the financial problem would make impossible the relocation and the Tribunal did not give any answer of how the essential financial support would be assured.

    2.   The Honorable [sic] Federal Magistrate erred in not finding that the Tribunal made a procedural error that the Tribunal mentioned that the applicant spent money for travelling different parts of the world before coming to Australia and the amount of money he is earning in Australia currently, so he would not have any financial problem for relocation. But the Tribunal did not show the way that how the applicant will have access required fund for the basic needs of life at the time of relocation for his family and where he will get money for his child education other expenses. The Tribunal also did not communicate any of this information with the applicant that the applicant could give a satisfactory answer to the Tribunal of its required financial support.

    SUBMISSIONS OF THE APPELLANT

17. On 13 August 2008 the appellant filed written submissions alleging that the Tribunal made a jurisdictional error when it referred to the fact that although riots had occurred between Hindus and Muslims in 2002 the appellant had not fled from India with his family until 2005. The appellant submits that he was not afforded an opportunity to explain why he had not fled earlier. The appellant further submits that the Tribunal’s finding that he could have changed his mobile telephone number to avoid harassment was an ‘excessive use’ of the Tribunal’s jurisdiction.

18. The appellant submits that the Tribunal ‘did not communicate any of the relocation information’ to the appellant and accordingly did not afford an opportunity to the appellant to provide a satisfactory response to the Tribunal in relation to such information. The appellant also submits that the Tribunal did not take into consideration the financial expenditure required to relocate and failed to consider the appellant’s circumstances, namely that he was ‘anxious’ about the safety and security of his child.

    FINDINGS

19. The appellant’s principal claim relates to the financial means which he would require to relocate to another part of India and commence a new business. A claim to the same effect was made by the appellant before the Tribunal and again before the Federal Magistrate.

20. The Tribunal was satisfied that the appellant had the means to establish a new business in India if he were to relocate in that country. Orchiston FM concluded that the findings of the Tribunal, being findings of fact, were open to the Tribunal on the evidence before it and that it was not the function of the Federal Magistrates Court to review findings of fact made by the Tribunal. In making this finding her Honour was clearly correct: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 391-392; and Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42.

21. The second ground of appeal claims that the Tribunal made a procedural error by referring to the fact that the applicant had spent money travelling to different parts of the world before coming to Australia and that he was earning money in Australia such that he would be financially able to relocate. The appellant submits that the Tribunal did not provide the appellant with information relating to ‘how the applicant will have access required fund for the basic needs of life at the time of relocation for his family and where he will get money for his child education other expenses’.

22. The finding of the Tribunal was factual and this Court cannot interfere with such a finding. There was no obligation on the Tribunal to explain to the appellant the means by which he could relocate. Further, s 424A(1) of the Act does not require the Tribunal to put its thought processes to the appellant prior to reaching its decision: see SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [18]. The Court rejects the appellant’s second ground of appeal.

23. In considering the appellant’s claim that the Tribunal exceeded its jurisdiction in finding that the appellant could have changed his telephone number, the Court observes that such claim seeks an impermissible merits review of the Tribunal decision. The Court accordingly rejects such submission.

24. The appellant appears to generally challenge the Tribunal’s finding that the appellant could relocate within India. In answer to such claim, the Court observes that in SZATV the High Court of Australia considered whether it would be appropriate and consistent with the requirements of the Convention to require relocation within another part of the country in which the persecution was claimed. The High Court found that provided the place of relocation could be found within the claimant’s own country where he could have no well-founded fear of persecution, the protection of his own country would be available to him. In Januzi v Secretary of State for the Home Department [2006] 2 AC 426 Lord Bingham of Cornhill observed at 440 that if such a place existed, ‘it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason’ (see also SZFDV v Minister for Immigration and Citizenship and Another (2007) 237 ALR 660). It follows from such authority that there was no error in the Tribunal considering whether relocation was reasonable in the circumstances.

25. For the above reasons the Court is satisfied that the appellant has not established any jurisdictional error on the part of the Federal Magistrate in his upholding of the Tribunal’s decision. It follows that the appeal must be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        29 August 2008

Counsel for the Appellants:	The Appellant appeared in person.
Counsel for the First Respondent:	Patrick Reynolds
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	21 August 2008
Date of Judgment:	29 August 2008