SZJXP v Minister for Immigration - [2007] FMCA 1603

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJXP & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1603

MIGRATION – RRT decision – Indian applicants seeking protection from religious persecution – Tribunal found safe relocation within India available – no jurisdictional error.

Migration Act 1958 (Cth), s.425

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration & Citizenship [2007] HCA 40

First Applicant:

SZJXP

Second Applicant:

SZJXT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3888 of 2006

Judgment of:

Smith FM

Hearing date:

12 September 2007

Delivered at:

Sydney

Delivered on:

12 September 2007

REPRESENTATION

Counsel for the Applicants:

In Person

Counsel for the First Respondent:

Ms R Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicants pay the first respondent’s costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3888 of 2006

SZJXP

First Applicant

SZJXT

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicants are a husband and wife from Kerala in India. They applied for a protection visa on grounds set out in statements by the applicant husband, explaining why he fears persecution if he returns to India. His wife did not make separate claims, and I shall refer to the husband as the applicant.
In his protection visa application, the applicant referred to having been a member of a Maoist Peoples War Group, and to fearing persecution by the authorities in India because of that association. However, when he attended a hearing by the Tribunal he told it that he had only been a member for one year in 1985, and had then left that party. He told the Tribunal that he would no longer be of concern to the Indian authorities. The Tribunal correctly, in my opinion, considered that this was not a claim giving rise to an entitlement to a protection visa.
The more significant claim pursued by the applicant before the Tribunal was that in Kerala he had assisted a Catholic Youth Movement. In written statements to the Tribunal, he described his activities as taking him among coastal villages in order “to serve the untouchables and the Dilats”. In the course of these activities, he was arrested by police once, held for a day, and mistreated. Between 2001 and 2005, he was detained by police for questioning some 18 times. He claimed that this attention occurred because of hostility by Hindus towards Catholics, and he claimed to have received threats from Hindu fanatics. His statements also referred to laws which had been passed in some parts of India, rendering unlawful some activities in relation to the conversion of Hindu people.
The delegate of the Minister considered the visa application, and refused it on 26 July 2006. Although he accepted the claims about the applicant's activities and the attitudes of the local fundamentalists and authorities in Kerala, the delegate found “that he and his wife would be able to relocate within India”. The delegate referred to relevant country information, and said:
I consider that at present the applicant would be able to relocate to an area that is not affected by the religious violence.
The applicant is very well educated, and has a good record of employment. He speaks English fluently, and speaks Tamil and Malayalam. Relocation in India is therefore a viable and reasonable option for the applicant.
I find that if the applicant relocates to an area of India which is not affected by inter-racial violence, there is no real chance that he will face persecution.
The Tribunal affirmed the delegate's decision, in a decision handed down on 12 December 2006. It identified the claims made by the applicant and relevant country information, and gave brief reasons for reaching the same conclusion as the delegate. It said:
The Tribunal accepts that inter-faith violence, including Hindu attacks on Christians, occurs sporadically in India and that the husband applicant may well have suffered in Kerala as he claims. However, the Tribunal finds it would be reasonable in the applicants’ particular circumstances to relocate to another city such as New Delhi where they might live safely and where the Catholic Church is well established and where they might pursue their faith. The Tribunal finds the independent evidence cited above (“The vast majority of Indians of every religious faith lived in peaceful coexistence”) supports a finding that the applicant’s claim that inter-religious violence exists throughout India not to be credible. Further, the Tribunal does not find as credible the husband applicant’s claim that he would be pursued across India, even to New Delhi, by those in Kerala who have harmed him in the past. The Tribunal finds that there is considerable evidence that New Delhi, the national capital, is a well-ordered city ( and the Tribunal has before it no evidence that speaks of inter-religious violence there.
In the light of the evidence before it, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution within the meaning of the Convention. Therefore the Tribunal finds their fear is not well founded.
The applicants now ask the Court to set aside the Tribunal's decision, and to order it to reconsider their refugee claims. I can only make these orders if I am satisfied that its decision was affected by jurisdictional error. I do not have authority to decide whether the applicants would be at risk of Convention-related persecution everywhere in India, nor whether they should be granted protection visas or any other permission to stay in Australia.
In their amended application, it is contended that the Tribunal exceeded its jurisdiction and constructively failed to exercise jurisdiction in relation to the applicant's claims based on persecution as Christians and for his participation in church activities in Kerala. Seven particulars are provided.
The first particular submits that the Tribunal “Unfairly and with bias rejected the answers given by the applicant”. It is claimed that the Tribunal had “a preconceived determination with bias” and this caused it not to consider his claimed history. However, I have considered the material before me, including a transcript of a hearing attended by the applicant husband on 23 October 2006, and have not been persuaded that the Tribunal did not genuinely consider their case and was not open to receive whatever supporting evidence they wished to present.
It is apparent from the transcript that the Tribunal, after preliminary investigation of the claimed connection with Maoists, and as to their claims of harm suffered in Kerala, saw the central issue in the case to be the same issue as had been addressed by the delegate, that is, relocation within India. The Tribunal clearly put to the applicant information suggesting that there were parts of India, including New Delhi, where they could live safely, and invited his comments in relation to that issue. The applicant said that the impediment for relocation was that he feared that the RSS People, who knew him “because of the problem what happened in Kerala”, would pursue him elsewhere in India and “wherever I go they will kill me. That is what the challenge is”. He did not present any practical obstacle facing relocation, notwithstanding an invitation by the Tribunal repeated at the end of the hearing for him to tell it “anything else you want to tell me”.
I do not find that the transcript shows the Tribunal being unwilling to listen to all that the applicant wished to put to it, in particular, on the issue of relocation. The fact that ultimately it decided against the applicant, and was not persuaded by his objection to relocation, does not, in my opinion, show that the Tribunal did not address the matter with an open mind before arriving at its ultimate decision. In my opinion, its reasons, though brief, show it addressing the applicants' claims which were before it.
Particular 2 of the amended application argues that the Tribunal failed to: “see the possibility and the probability of the applicant facing abduction and forced detention against his wishes under the anti-conversion laws passed by the Indian government”.
Evidence before the Tribunal showed that:
Conversion continued to be a highly contentious issue. Some Hindu organizations and others frequently alleged that Christian missionaries lured converts, particularly form the lower castes, with offers of free education and healthcare, and equated such actions with forced conversions. Some Christian groups alleged that Hindu groups forcibly “reconverted” those who had embraced Christianity. Several state governments, most recently the government of Rajasthan, enacted laws to criminalize coerced and/or fraudulent conversions. Some nongovernmental organizations (NGOs) claimed some state governments used these laws to restrict voluntary conversions and to harass religious minorities …
The Tribunal quoted the above paragraph from a US State Department country report in its statement of reasons, as well as reciting a submission by the applicant which had referred to the laws enacted in Rajasthan. I am not persuaded that the Tribunal failed to consider the implications of that information.
Particulars 3 through to 6 of the amended application point to various aspects of the claims made by the applicant, and argue that the Tribunal ignored them when arriving at its relocation finding. However, in my opinion, the arguments presented do not rise above arguments as to the merits of the conclusion arrived at by the Tribunal, and I am not persuaded that any of the points reveal a Tribunal which has failed to exercise its jurisdiction according to law.
Particular 7 of the amended application is as follows:
The Tribunal made a jurisdictional error when the Tribunal member after mentioning to the applicant at the hearing as being unwell and for failing to offer another date for a fresh hearing when the Tribunal member is well and for failing to offer the applicant an opportunity to give more detailed evidence before concluding the hearing in haste. The Tribunal had deliberately and in haste rejected the claims and concluded the hearing without giving the applicant the opportunity to reply to the Tribunal and thus made a jurisdictional error. The Tribunal had deliberately acted in pre-conceived notion and with bias while conducting the hearing in haste and thus made a jurisdictional error.
The transcript of the hearing shows that it lasted some 25 minutes, and that at its start the Tribunal said “I have lost my voice”. However, there is no indication in the remainder of the transcript that any impediment suffered by the Tribunal caused it to be unable to conduct a hearing at which the applicant was afforded the opportunity, required under s.425 of the Migration Act 1958 (Cth) “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
I can detect no sign that the relative brevity of the hearing was the result of any medical incapacity on the part of the Tribunal. Rather, as I have indicated, it shows that the Tribunal identified what it regarded as the critical issue of relocation, and gave the applicant every opportunity to present his evidence relating to that issue.
I am not persuaded that it was incumbent on the Tribunal to adjourn the hearing for any reason, nor that there was an aspect of “haste” about the hearing which rendered the hearing an inadequate satisfaction of obligations under s.425(1). As I have indicated above, I also do not accept that the transcript provides evidence showing actual or apprehended bias on the part of the Tribunal, in the sense that it closed its mind on the issues it had to decide, or was not prepared to give genuine consideration to the applicant’s evidence.
The applicant today made the added claim that he himself had a throat problem at the hearing. However, this is not a claim which he has made previously, nor with the support of sworn or expert evidence. I am not persuaded that he was, himself, suffering any incapacity which caused the hearing not to satisfy the requirements of s.425(1) (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553).
The applicants attended today and addressed some of the points made in their amended application, which I have addressed above.
A further aspect which I raised with counsel for the Minister was whether the Tribunal's reasons sufficiently showed it addressing relevant principles in relation to internal relocation, in particular the requirement found in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 that a decision-maker should address the reasonableness of relocation in the particular circumstances of the applicants (see also NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37). The High Court's recent consideration of the principles of internal relocation have, in my opinion, left this test not relevantly altered. At [24] of SZATV v Minister for Immigration & Citizenship [2007] HCA 40 the majority judgment says:
What is 'reasonable' in the sense of 'practicable', must depend upon the particular circumstance of the applicant for refugee status and in the impact upon that person of relocation of the place of residence within the country of nationality.
In the present case, it is true that the Tribunal did not enter into a discussion of all the practical circumstances which would face the applicants relocating within India from Kerala to a place where Christians are relatively secure in the practice of their religion. However, the delegate had pointed to some of their relevant circumstances, and the applicants did not put in issue any problem in relation to relocation, other than the fear that they would be pursued by hostile forces from Kerala. The Tribunal did address that concern, and I am not persuaded that the absence of further discussion in relation to relocation shows a failure on its part to consider the ‘practicability’ of the applicants relocating within India.
For the above reasons I have not been satisfied that the Tribunal's decision is affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 4 October 2007