SZLKA v Minister for Immigration

[2008] FMCA 909

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLKA v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 909

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLKA”.

Migration Act 1958 (Cth), s.91X

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Applicant: SZLKA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3000 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 14 May 2008

Delivered at: Sydney

Delivered on: 4 July 2008

REPRESENTATION

Applicant: The applicant appeared in person with the assistance of a Tamil interpreter

Counsel for the Respondents: Ms S Sirtes

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed on 27 September 2007 is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3000 of 2007

SZLKA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant was born in 1969 in India and is a married Muslim man.  The applicant’s statement attached to his Protection (Class XA) visa application states that he left India on 26 December 2006 and arrived in Australia on 30 December 2006.

2. The applicant claims to have been an active member of the Tamil Nadu Thowheed Jamaath (TNTJ) since 2004.  The group was “founded for the Educational and Economical progress of Muslims” and fights for the “rights of Backward and Downtrodden section among the Hindus” (CB 107). The applicant states that the organisation is disliked amongst Hindus.  Consequently, Hindus have attacked the group and the applicant feels targeted and intimidated. 

3. The applicant claims that during election campaigns, he was told that the opposition party (the DMK) would “attack and avenge” him.  However, the DMK was elected to power.

4. The applicant claims that the TNTJ forbids “garlanding” which conflicted with the applicant’s local Mosque administration.  This caused tension at a friend’s wedding and consequently the local administration excommunicated and intimidated the applicant. 

5. The applicant left Tamil Nadu for Thailand for fear of persecution by the local administration and political parties.  When he returned to Tamil Nadu, the local administration attempted to attack him and he went back to Thailand where his visa was not renewed. 

6. The applicant arrived in Australia on 30 December 2006 and applied for a Protection (Class XA) visa on 7 February 2007.  A delegate of the Minister for Immigration refused to grant the visa on 23 March 2007 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 11 April 2007 for review of that decision.  On 16 August 2007, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (reference number 071322734), which is the decision the subject of this review.

7. A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.

8. At the first Court date the applicant indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal.  The Court file indicates that the applicant was allocated a panel advisor.  The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 11 December 2007.  The applicant availed himself of this opportunity and filed an amended application.  He was also required to file brief written submissions and a list of any authorities relied upon fourteen days prior to the hearing.  This order was not complied with.

Tribunal’s findings and reasons

1. A convenient summary of the Tribunal’s findings and reasons is contained in the first respondent’s written submissions prepared by Ms Sirtes and I adopt paragraph 7 of those submissions for the purposes of this judgment:

   The Tribunal

   (a) Assessed the claims of the applicant as against India (CB 137.8).

   (b) Accepted the applicant’s oral evidence (which is summarised at CB 137.9 to 138.8), finding that the applicant demonstrated a good understanding of local politics in Tamil Nadu and that he had successfully challenged the Tribunal’s independent country information in various respects (CB 138.9).

   (c) Accepted that the applicant had campaigned for the ADMK and that he became well known to opposing DMK members who wanted to take revenge on him and had threatened and attacked him (CB 139.1).

   (d) Accepted a recent US DOS report that lower caste Hindus had converted to Islam in India and, was willing to accept that it had occurred in the applicant’s area.  The Tribunal went on to accept that the applicant had been a member of TNTJ since April 2004and that he had been involved in fighting for human rights as an active member of TNTJ (CB 139.4).

   (e) Accepted, for the purposes of the decision that the applicant had been targeted and intimidated for trying to assist downtrodden Hindus and further accepted the applicant’s statement that he could no longer live in his village.

   (f) Accepted that the applicant faced serious harm, amounting to persecution in Tamil Nadu for reasons of his political opinion and religion (CB 139.7)

   (g) Found that the applicant could relocate within India and that he did not have a political or religious profile which would attract adverse attention in Kerala (CB 140 to 141.7).

   (h) Found that the applicant would enjoy the meaningful protection of Indian Police and other security institutions in Kerala, and was therefore not satisfied that the applicant would encounter any difficulty in the reasonably foreseeable future for reasons of his political opinion or religion (or any other Convention reason)(CB 141.9).

Consideration

Grounds of review

1. That RRT failed to complete the exercise of its jurisdiction.

2. That the decision led to the omission of principles of natural justice while making a decision.

Particulars: 1

(a) The Tribunal rejected my claim on the basis that the relocation to other state to it in support of my claim which led the Tribunal to conclude that failure to be an adverse credibility finding limiting the meaning of s.424 in contravention to the Article 1A(2) of the Convention thus the Tribunal declaring that the credibility factor lies in providing the material evidences in support.

(b) The RRT failed to satisfy itself upon whether the applicants had a well founded fear of dangerous situation based on probative material or logical grounds.

Particulars

The situation among the conflict between the Muslim faction’s activities (Samantha Jamath and TNTJ, Sufi etc) was not taken into account in spite of the independent country information report mentioning the problems among the Muslim factions.

(c) The RRT failed to make findings on all the applicant’s claims

Particulars

The choice to relocate in India and including the state of Kerala, I reiterate can only worsen my situation and my mental health more and more in life let alone the constant fear of violence by other faction of Muslim groups.  And in most pats of Northern India, public unrest has become a common feature like the Gujarat riots on religious grounds, terrorist attacks, exploitation of labour, mismanagement of civic basic systems, bribery, communal clashes, fights between people on the grounds of ethnicity (caste), secessionist struggles and movements, constant imposition of rule by Para-military forces, industrial strikes, lock-outs, unemployment situation, industrial units falling sick, restriction for entry into state from other parts of country, restriction of employment only for local residents, complications in getting legal clearance in the matter of obtaining new ration cards which is the basic necessity for all Indians to buy food provisions under controlled rates and many more on the line facing to lead a normal life as a human.

Being a Tamil Muslim, whenever I was picked up by the patrolling police of other parts of the state/country while trying to escape the preventive arrests done in my locality, the police used to whisk me away to the police station.  Each time I was taken into custody on suspicious grounds by the police patrolling the railway stations on nights I was held in the police custody until I produced some evidence in proof of my identity and the reason for being there in that  place. Some times, the police of the locality traced my identity and questioned the motives behind my visit to their jurisdiction and accused me of planing to perpetuate some unlawful acts.  I continue that it is the usual practice of state police to share their information with the central police agency Intelligence Bureau of police and other state police departments for security purposes.  And information about me and activists like us are on the records of the special branch wing of the Tamilnadu state police.  Generally that the same information was shared with the IB (Intelligence Bureau) who shares them with other central and state agencies.

That the consequences of such information sharing resulted in the anti-faction of my activists in other states under fictitious circumstances.  The attempt to relocate has only worsened the situation of many activists in the country as they were in the unfamiliar territories of the country.  The amount of hardship, uncertainty in life that I will have to face relocating myself with my wife and my childrens, where they have no relatives nor can they expect any support from others considering the situation explained above sound more like a death trap than a feasible option for me.

After the assassination of late Prime Minister Indira Gandhi in 1984, Sikhs community was violently attacked in some parts of India and the stigma of the Sikh community persists to this day.  Even though the Tamil community was not subjected to the same cruel, harsh treatment by the people of other states after the assassination of Late Prime Minister Rajv Gandhi, however, there was an hunt for Sri Lankan Tamils by the Police of other states whenever they came across strangers speaking Tamil language.

Unless and otherwise, I am stress out, substantial proof for migrating to settle down in other state is provided, it will be impossible to succumb to the suspicions of the local Imam (MOSQUE HEAD) who are on the constant vigilant of the area with the aid of sharing the information in my native areas and are on the lookout for revenge against me.

Being openly I was against other Muslim faction group, I became known among these people and was an easy target for other state of Muslim communities.  It is my contention that it is unbearable for me to lead an indifferent life while the life around me reels in poverty, unemployment and subhuman conditions.

So in such a dreadful situation with a past record of activities revenge before the other faction of Muslim group it is impossible for me to settle down anywhere in India including Kerala state, which is very dangerous for my life and my family.

The RRT may freshly to refer to or reconsider the material placed before it by the applicants including those statutory declarations and other oral evidences before to the RRT.

In light of unfavourable and hostile situation, I fear for the safety of my life.

The applicant’s claim:

1. A writ of certiori to quash the RRT decisions.

2. That an order that the matter be remitted to the tribunal to be determined according to law.

3. That an order that the respondent pay the applicant’s costs.

4. That such other orders as the court sees fit.

1. When the applicant was invited to make oral submissions he said that his life had been threatened due to his political affiliations and gave details of the running dispute between Tamil Muslims and the majority Hindu population. The applicant indicated that he had the added problem of being a Tamil Muslim associated with the LTTE in Sri Lanka (Liberation Tigers of Tamil Eelam) and the police and civil authorities were concerned that he was sheltering their members in India.  The applicant submits that if he were to enter the State of Kerala he would be arrested by the police for being an LTTE activist.  Similarly, if he was to relocate Andhra Pradesh, he would also be targeted as that State was on alert for Tamil LTTE sympathisers.

2. The applicant claims to fear persecution from the Hindu militant organisation known as Rashtriya Swayamsevak Sangh (RSS), the Bharatiya Janata Party (BJP) and the Dravida Munnetra Kazahagam Party (DMK)) because of his membership of the TNTJ.  As a number of people were converting to Islam, the Hindu RSS organisations were targeting and intimidating those converts.  The applicant submits that he advised the Tribunal that he would not be able to live in Avanipuram, Tamil Nadu which was the area of his birth because of these threats.  The Tribunal responded that he could transfer to the next state (Kerala) or Andhra Pradesh where Tamil is spoken by a small number of the population.  The applicant then addressed why he could not cross live in either State.

3. In support of this, the applicant sought to hand up six articles he had obtained from the internet highlighting situations in these areas involving Muslims and the LTTE.  I will return to these articles.  The applicant indicated that a national security advisor, Mr Narayanan, had advised the governments of Tamil Nadu and Kerala to keep check on LTTE activities in both States because there were small pockets of rebel groups.  He indicated that Mr Narayanan said that the intelligence bureau had cautioned that LTTE units in Sri Lanka might have active supporters in both Kerala and Andhra Pradesh. 

4. The applicant claims that if he were heard speaking Tamil, he would be suspected of having LTTE connections and arrested.  The police would interrogate him and he would be forced to state which political party he belonged to.  He also believes that he would be forced to say the problems that he was having with the DMK, RSS and BJP.  This would immediately result in the police establishing contact with the police in Avaniapuram, Tamil Nadu. 

5. The applicant claims that the police would question him about his association with the TNTJ and advise the DMK party that he was living in Kerala.  Because of his problems with them, the DMK would come to know of his whereabouts and his life would again be in jeopardy.  The applicant states that the DMK’s communist connections would also find him out and pay others to have him removed.  The RSS and BJP would also become aware of his whereabouts and this would further place his life at risk.

6. The applicant also made submissions on the practical issues of living in Kerala with his family because he would not have access to a ration card which would deny him living essentials.  He also raised caste, religious, political and community issues his family would face as outsiders in the State. 

7. Ms Sirtes addressed in oral submissions the pro-forma ground raised in the amended application alleging a breach of natural justice in the Tribunal’s adverse credibility finding.  I agree with Ms Sirtes’ submission that the Tribunal did not make any adverse credibility finding in its decision.  In fact, the Tribunal member was willing to accept the applicant’s claim and it based its decision on the issue of relocation.

8. This was clearly stated by the Tribunal in its “Findings and Reasons”:

   The Tribunal finds that because of its political opinion and religion, the applicant faces serious harm, amounting to persecution in Tamil Nadu.

   The above finding also relates to the situation if the applicant were to return to Tamil Nadu.

   However, the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country.  The international community is not under any obligation to provide protection outside the borders of the country or nationality if real protection can be found within those borders.  Therefore, even if an applicant has a well founded fear of persecution in the home region, the Convention does not provide protection if they could nevertheless avail themselves of real protection of their country of their nationality elsewhere within that country: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440.1.

   However, this principle only applies to people who can generally access domestic protection, and from whom the reality of protection is meaningful.  If relocation is not a reasonable option in the particular circumstances, it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well founded: Randhawa per Black CJ at [44]2-[443], Beaumont J at [450]-[451]. (CB 139-140)

9. The Tribunal then carefully considered whether relocation was a reasonable option for the applicant.  In this analysis the Tribunal considered:

   a)India as a populous and vast country, with States that differ markedly in many respects, including religious background, language and culture.

   b)That the applicant was well educated, had an aptitude for language, business experience, and was versatile, intelligent, resourceful and ambitious.

   c)The applicant’s degree in mathematics which was a transportable skill.

   d)That the applicant spoke both Tamil and English.

   e)That he would have no difficulty communicating in those parts of India where Tamil and English are spoken.

   f)The Indian Constitution guarantees its citizens the right to move freely throughout India.

   g)Muslims constitute 13.4% of the Indian population and there are Muslim communities in all Indian States.

   h)The BJP and other Hindu extremist groups have been weakened over the past few years in Kerala and there is no serious threat to the religious freedom of non-Hindu communities.

   i)The State of Kerala is not ruled by the Congress party, supporters of the DMK, the BJP or supporters of the RSS but by a coalition of various other parties.

   j)India is a secular country and all faiths generally have freedom of worship. 

   k)India has a democratically elected government and is governed essentially by the rule of law.

   l)India has an independent judiciary.

   m)Where communal violence has occurred in India, authorities have sought to end it at the earliest opportunity.

   n)Persons inciting communal violence can be prosecuted under Indian law. (CB 140-141)

10. In summary the Tribunal found the following:

    The Tribunal finds that the applicant does not have a political religious profile which would attract adverse attention in Kareela.

    Furthermore, based on country information, the Tribunal finds that there are normal checks and balances associated with a full functioning democracy in India, including Kareela.

    As such, the Tribunal findings that the applicant will enjoy a meaningful protection of the Indian police and other security institutions in Kareela.  It is satisfied that the protection within India meets basic norms of civil; political, and socio-economic human rights and that the internal safety is not illusory or unpredictable and state accountability for harm is established. (CB 141)

11. Part of the Tribunal’s role is to determine whether or not it is possible for the applicant to relocate.  A fair reading of the decision indicates that the Tribunal member undertook a detailed review of the country information available to it in making its determination.  The Tribunal has been guided in its approach by the authorities setting out its responsibilities and issues which are critical to this analysis.  I am satisfied that on the material before me, it is not apparent that the Tribunal has made any jurisdictional error in this process. 

1. Despite this review by the Tribunal, the applicant contends that it would not be possible for him to safely relocate to the State of Kerala and tendered six internet articles which are referred to above.  The articles fall into two distinct categories:

   a)Articles which predated the Tribunal hearing and include the “Tamil Tribune” and “Human Rights Watch”.

   b)Four internet articles which are written after the Tribunal had handed down its decision.

2. A review of the Tribunal decision indicates no reference to either of the articles in category (a) above.  The Tribunal relied on certain country information as part of its fact finding process and duty as stated in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]:

   Reliance on ‘country information’

   [11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

   The applicant’s attempt to put before this Court additional country information – which he acknowledges was not before the Tribunal – is of no assistance in determining whether the Tribunal committed a jurisdictional error.  It is not appropriate for this Court to review the correctness or fairness of the selection of country information by the Tribunal, or to re-assess inferences drawn from that material.  This is a determination of fact reserved for the decision-maker and cannot be upset by judicial review.  In respect of the second set of articles contained in category (b) above, all of those articles were written after the Tribunal decision was handed down and clearly cannot be considered by this Court as the material was unavailable to the Tribunal at the time of its decision.

Conclusion

1. The applicant is a self-represented litigant who was assisted at the hearing by a Tamil interpreter.  The applicant made extensive oral submissions addressing why he could not successfully relocate to Kerala.  The Tribunal had analysed in detail the feasibility of the applicant relocating.  The issues raised by the applicant before this Court appear to have been prepared between the time of the Tribunal decision and the application to this Court.  There is no transcript of the Tribunal hearing in evidence and it is not possible to determine whether any of these issues were canvassed during the Tribunal hearing.  However, there is no reference to them in the Tribunal’s decision.  The Tribunal did note in the decision that there was a limited amount of independent country information which dealt with the Tamil Nadu Thowheed Jamaath Party in Kerala.  It also noted little evidence of anti-Muslim sentiments in Kerala or evidence that the Muslim community there was being targeted. 

2. The analysis of the Tribunal was detailed in respect of all the material available to it and it is ultimately the Tribunal’s responsibility to determine the relevance and weight to give that information.  On a fair reading of the Tribunal decision, it is not apparent that it made any jurisdictional error in its relocation finding. Consequently, the application should be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  4 July 2008