SZJJL v Minister for Immigration - [2007] FMCA 254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJJL v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 254

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of India and claims fear of persecution from Islamic militants – credibility – no jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 474

NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration Local government and Ethnic Affairs (1994) 52 FCR 437
SZBGC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 961
SZFCB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 961

Applicant:

SZJJL

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2633 of 2006

Judgment of:

Scarlett FM

Hearing date:

16 February 2007

Date of Last Submission:

16 February 2007

Delivered at:

Sydney

Delivered on:

16 February 2007

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr Meltz

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The title of the first Respondent is changed to Minister for Immigration and Citizenship;
The application is dismissed;
The Applicant is to pay the first Respondent's costs fixed in the sum of $4,000.00 and I will allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2633 of 2006

SZJJL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal. The decision was signed on 2 August 2006 and handed down on 22 August. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.
The background to this matter is that the Applicant is a citizen of India. He arrived in Australia on 13 March 2006 and applied for a Protection Visa on 11 April 2006. On 19^th May his application was refused.
The Applicant then applied to the Refugee Review Tribunal for review of the delegate's decision. That application was made on 15 June 2006.
The Tribunal invited the Applicant to attend a hearing. The Applicant did attend a hearing and his migration advisor supplied a statement, or a submission, to the Tribunal on 26 July 2006 containing a number of documents.
The Applicant gave oral evidence to the Tribunal in which he stated that he was the local block president of his political party, which is the National Conference of Jammu and Kashmir. He said that a ransom had been demanded from him by an unidentified group, presumably from across the Pakistan border which is near to where he lives. Whilst he reported this to the police, he said that the police did not give him any protection. He told the Tribunal that after the ransom was demanded he went to New Delhi and applied for a visa to enter Australia.
He stayed in New Delhi with friends who told him it would be dangerous to stay and urged him to go to Australia. The Applicant told the Tribunal it would be dangerous to stay anywhere in India, whether it was New Delhi or in Jammu, because he was political. When asked by the Tribunal in what way it was dangerous, he said it was because he was known as a political and so it would be dangerous for him throughout the whole of India.
The Tribunal specifically asked the Applicant as to why he could not safely relocate to New Delhi. The Tribunal reported the Applicant as replying that he been a political person and no place in India was safe for him. The Tribunal suggested that if he were to move to New Delhi, or even further to Calcutta, would he not be safe there. The Applicant replied that there are terrorists all over India. And when the Tribunal put to him that he was only a local politician in just one part of India, the applicant said that he was a political person and he was well-known and there are photographs of him available everywhere.
The Applicant's migration advisor made oral submissions to the Court. The advisor said that the Applicant was a member of the National Conference Party of Jammu and Kashmir, that the Applicant had a role as a block president and had received a threatening telephone call in November 2005, and this call was from militants across the border. The advisor told the Tribunal that two of the Applicant's colleagues were abducted and murdered for not paying a ransom and that that incident gave the Applicant a well-founded fear of persecution due to his role in educating people against terrorists.
The Tribunal's findings and reasons are set out on pages 99 and 100 of the Court Book. They are relatively brief, although brevity is not of itself a matter for criticism. The Tribunal accepted the Applicant's documentary evidence and the Applicant's oral evidence as to his having been a local politician who had been threatened with monetary extortion. The Tribunal noted that the Applicant was able to relocate to New Delhi while awaiting a visa to come to Australia and the Tribunal did not accept that the local terrorists in Jammu would have a network of the type claimed by the Applicant.
The Tribunal found that it was reasonable for the applicant, given the particular circumstances of his case, to relocate to another city in India such as New Delhi or Calcutta, far from the Pakistan border with Jammu where there are people who wish to do him harm.
In the light of that evidence and the Applicant's ability to relocate, the Tribunal was satisfied that the Applicant's fear of persecution for a Convention reason was not well-founded and affirmed the decision not to grant the Applicant a protection (Class XA) visa.
The Applicant commenced proceedings for judicial review in this Court by means of an application and affidavit in support filed on

18 September 2006. He filed an amended application on 12 December 2006. In that amended application he seeks writs of certiorari, prohibition and mandamus. He asks the Court to quash the Tribunal's decision and make an order in the nature of prohibition against the first Respondent Minister preventing the Minister from acting on the Delegate's decision to refuse a Protection Visa, and he asks for an order in the nature of mandamus requiring the Tribunal to redetermine the Applicant's application for a visa according to law.
The Applicant sets out two grounds. First, he claims that the Tribunal failed to assess his fears of harm suffered according to the refugee criteria and misapplied his claims and failed to evaluate his fears as per s.91R of the Migration Act. He further submitted that the Tribunal failed to grasp the real issues of the claims that the Applicant had made and misconstrued the issues, as it says, when relied on as local terrorists in Jammu. The Applicant says that his evidence was about an unidentified group that came across the Pakistani border. The Applicant says that the Tribunal failed to identify the real threat to the Applicant's life and made a serious miscalculation amounting to jurisdictional error.
The second ground is that the Applicant says that the Tribunal's finding as to the availability of relocation was contrary to the principles set out in Randhawa's[1] case, and that the finding that he was able to relocate was inconsistent with the evidence. The Applicant submitted that according to the Randhawa principles, the Tribunal, before reaching a relocation finding, failed to ascertain whether the Applicant could reasonably be expected to relocate because of the well-founded fear he had in relation to the part of the country from which he fled.
[1] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
The Applicant submits that the Tribunal failed to consider his ability to work and whether there was adequate state protection, being a Sikh, and the social considerations affecting him outside Jamu where he was born and bred until he came to Australia. It is alleged that there was a jurisdictional error by the Tribunal.
The Applicant did not file any written submissions. He told the Court that his amended application was prepared by his solicitor.

He contented himself with saying that he wished to stay in Australian and did not wish to go back to India.
The lawyers of the first Respondent Minister filed a written outline of submissions in which they claim that insofar as ground one is concerned it was clear that the Tribunal did not misunderstand any part of the Applicant's claims and that the Tribunal's reasons make it clear that it did understand the claim that the Applicant had presented. At its highest, they say, the Applicant's complaint is directed to the terminology used by the Tribunal to describe the source of the harm feared by the Applicant.
As for ground two, they submit that there is no basis for that complaint and that the Tribunal did consider whether it was reasonable for the Applicant to relocate within India to avoid harm. Consistently with the principles set out in NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 and Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. The Minister's lawyers submit that a finding as to the reasonableness of relocation is a factual matter for the Tribunal and not for the Court.

I am referred to the decision of SZBGC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1168 a judgment of Emmett J at [26]. I am also referred to SZFCB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 961. That, I notice, is an appeal from one of my decisions where Sackville J dismissed the appeal with costs.
The Tribunal decision, which was short and to the point, dealt almost exclusively with the Applicant's ability to relocate within India.

For that reason, the ground set out in ground one is almost irrelevant. In any event, however, I am satisfied that there is no evidence that the Tribunal failed to grasp the real issue of the Applicant's claims.
The Tribunal does not in its findings and reasons make any comment to the extent that the Applicant's claims were not justified. The Tribunal dealt with the reasonableness of relocation. The Tribunal said at page 99 of the Court Book that it accepted the documentary evidence submitted and the Applicant's own oral evidence with regard to his being a local politician who had been threatened with monetary extortion.
The Tribunal, however, went on to make this finding which is a key finding, and in fact the key finding, in the decision.
However, the Tribunal notes the Applicant was able to relocate to New Delhi while awaiting a visa to come to Australia.

The Tribunal finds it fanciful and does not accept that the local terrorists in Jammu have a network such as that claimed by the Applicant that means he would be sought out and harmed wherever he might relocate in India. In the light of the freedom of movement available to Indians, and in the light of the Applicant's professional skills as substantiated by the material submitted to the Tribunal, the Tribunal finds that it is reasonable for the Applicant, given the particular circumstances of this case, to relocate to another city in India such as New Delhi or Calcutta, far from the Pakistan border with Jamu where there are people who wish to do him harm.
In my view, there is nothing in the Tribunal's finding that is contrary to the principles set out in Randhawa's case. I am also satisfied that the Tribunal's finding was not inconsistent with the evidence that was available to the Tribunal. The Applicant had told the Tribunal that he left his local area and went to New Delhi where he applied for a visa to come to Australia and remained in New Delhi until he left for Australia. Clearly that is evidence that the Tribunal was entitled to take into account in assessing the reasonableness of the question of relocation.
Again, whilst the Applicant submitted that the Tribunal failed to consider the Applicant's ability to work; it is clear that the Tribunal considered the Applicant's situation and in particular referred to his professional skills. The Applicant claims that the Tribunal did not consider whether there was adequate state protection for him being a Sikh, but in my view the Tribunal considered that relocation to New Delhi or another city such as Calcutta would put the Applicant far from the border with Jammu where there were people who wished to do him harm. The Tribunal was not of the view that the Applicant had shown himself to have a national profile or that there were people in other parts of India who had any wish to harm him whatsoever.
I look at the decision of Emmett J in SZBGC (supra) at [26].

His Honour, in that case, referred to a situation where the Tribunal had found relocation on behalf of that Applicant to be reasonably practical. His Honour said that that was a factual finding for the Tribunal and not for the Court. In making it, the Tribunal was not required as a separate matter to elaborate upon how relocation could practically occur.

It considered relocation to be reasonable in the circumstances of the case and that conclusion involved no jurisdictional error.
Similarly, in SZFCB (supra) at [22], Sackville J considered a ground of appeal which complained that the Court at first instance had failed to find that the Tribunal had misapplied the principles stated in Randhawa. His Honour referred to the decision of Branson J in NAIZ (supra) at [10] and [11], where her Honour restated those principles.

At paragraph 24 Sackville J expressed the opinion in the case before him that the Tribunal had given consideration to the practical realities facing the appellant if he was required to relocate.
In this case, following on those two decisions, I am satisfied that the Tribunal had given some thought to the reasonableness of relocation and was swayed particularly by the fact that the Applicant had, albeit temporarily, relocated to New Delhi for a period of time until he left for Australia. In my view, the evidence supports the Tribunal's finding as to the reasonableness of relocation and it is the Tribunal which must make a factual finding as to whether relocation is reasonable or not.

In my view, the Tribunal has not fallen into error.
I am mindful of the fact that the Applicant is not currently legally represented, although he has previously had legal assistance. In my reading of the decision, no jurisdictional error or any arguable jurisdictional error appears. I am satisfied that no jurisdictional error has been shown and the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. As it is a privative clause decision, it is not subject to orders in the nature of certiorari, prohibition or mandamus.
It follows that the application must be dismissed.
There is an application for costs on behalf of the first Respondent Minister in the sum of $4,000.00. The applicant says that he does not have the funds to meet that order and I accept that that may well be the case. That is not of itself a reason not to make a costs order in favour of a successful party and, in my view, this is an appropriate case in which an order for costs should be made. The amount of $4,000.00, which is sought, is within the scale provided by the Federal Magistrates Court Rules.
The fact that the Applicant is short of funds is a matter that I can take into account in allowing time to pay, and I propose to do that.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 1 March 2007