SZLMU v Minister for Immigration and Citizenship

[2008] FCA 878

FEDERAL COURT OF AUSTRALIA

SZLMU v Minister for Immigration and Citizenship [2008] FCA 878

SZLMU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 199 OF 2008

EMMETT J
27 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 199 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLMU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	27 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal in the sum of $2,700.

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 199 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLMU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	27 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by the Federal Magistrates Court dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). 

2. The appellant is a citizen of India.  He arrived in Australia on 8 February 2007.  On 22 March 2007, he applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act).  On 3 May 2007, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), decided to refuse to grant a visa to the appellant.  On 29 May 2007, the appellant applied to the Tribunal for review of the delegate’s decision.  On 29 August 2007, the Tribunal affirmed the delegate’s decision not to grant a protection visa.  The reasons for that decision were handed down on 20 September 2007.

3. On 16 October 2007, the appellant commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  On 29 January 2008, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister’s costs in the sum of $3,500.  On 18 February 2008, the appellant filed a notice of appeal to the Federal Court from the orders of the Federal Magistrates Court.

4. The appellant appeared before this Court without any legal representation but with the assistance of an interpreter.  He appeared to have no difficulty in understanding the interpreter.  The appellant filed no written submissions despite a direction from the Court requiring him to do so.  However, he made brief oral submissions with the assistance of the interpreter. 

5. According to the Tribunal’s findings, the appellant is an unmarried Muslim man from Tamil Nadu in India.  He speaks, read and writes Tamil and speaks, reads and writes English to a proficiency of about 50%.  He was born in India and his mother, who is separated from her husband, lives in India.  The appellant said that he fell in love with a Hindu girl from a neighbouring area.  However, their family members vehemently opposed their relationship. The girl’s father was a strong member of an anti-Muslim organization called Rashtriya Swayam Sewak Sang, usually referred to as RSS.  The appellant said that the girl’s father threatened to do him harm if he did not forget the girl.  He claimed that, since he felt that an attempt would be made on his life, his mother arranged for him to go to Dubai in 2004. 

6. He returned to India on vacation in 2005 and met the girl without the knowledge of their families.  Thereafter, when the appellant was back in Dubai, they continued communicating by telephone.  During that time, a communal clash between the Hindu residents of the appellant’s area and the Muslims of the girl’s area occurred in connection with a temple.  The appellant claimed that the girl’s father, as a leader of the RSS, tried to make use of that issue in an attempt on the appellant’s life. The girl informed the appellant by telephone, while he was in Dubai, that her father planned to kill him if he returned to India.  However, the appellant’s mother fell seriously ill and the appellant returned to India in 2006 to visit her in hospital.  He claimed that the RSS leaders planned to assassinate him upon his return from the hospital but he escaped to Dubai.  He returned to India at the end of 2006 to see his mother.  On this occasion he again secretly met the girl.  They were intending to see the appellant’s mother in hospital when residents, under the leadership of her father, surrounded his home and attempted to attack him.  He said that only intervention by the police prevented casualties.  Subsequently, he escaped and came to Australia in February 2007.

7. While the Tribunal considered that the appellant’s credibility had come under scrutiny at the hearing before the Tribunal, it accepted his claims.  However, the Tribunal then went on to consider whether it was reasonable for the appellant to relocate somewhere else in India.  The Tribunal observed that the international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders.  Accordingly, even if a person has a well-founded fear of persecution in his or her home region, the Refugees’ Convention does not provide for an entitlement to protection outside of the person’s country of nationality if the person could nevertheless avail himself or herself of the real protection of the country of nationality elsewhere in that country.  The Tribunal referred expressly to the decision of this Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

8. The Tribunal found that, if the appellant were to marry the girl, who would then convert to Islam, the RSS would not represent a real chance of persecution if they relocated to Kerala.  In reaching that conclusion, the Tribunal relied on its findings that the appellant has a relatively low profile, is relatively well educated and readily employable, and would have no difficulty communicating in those parts of India where Tamil and/or English are spoken.  The Tribunal found that 2.3% of the population in Kerala speak Tamil.  Referring to independent country information, the Tribunal went on to find, among other things, that:

   ·the Indian Constitution guarantees Indian citizens the right to move freely throughout the territory of India;

   ·there are Muslim communities throughout India and Muslims are able to relocate within India; 

   ·Muslims constitute 13.4% of the population of India; 

   ·large Muslim populations are found in various states of India, including Kerala;

   ·Hindu extremist groups, such as the RSS, have been weakened over the past few years in Kerala, and there is no serious threat to the religious freedom of non-Hindu communities;

   ·the protection within India meets basic norms of civil, political and socioeconomic human rights; and

   ·the internal safety of citizens in India is not illusory or unpredictable. 

   The Tribunal found, therefore, that the appellant would enjoy the meaningful protection of the Indian police and other security institutions in Kerala. 

9. For these reasons, the Tribunal was not satisfied that the appellant would encounter any difficulty in the reasonably foreseeable future for any Convention based reason if he moved to Kerala.  The Tribunal was satisfied that neither lack of language proficiency, nor the applicant’s education or profile would be a barrier to the appellant’s relocating to Kerala.  The Tribunal considered that there was no reason why the appellant could not start a new life in Kerala and develop new social circles there.  The Tribunal concluded that relocation was both a reasonable and practical option for the appellant and for the girl. In those circumstances, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations.

10. In his application to the Federal Magistrates Court, the appellant stated six grounds in his application.  The Federal Magistrates Court dealt with each of those in turn.  The first ground was that “the Tribunal did not take into account relevant considerations or integers central to the [appellant’s] claims”.  However, as the Federal Magistrates Court observed, the Tribunal accepted the appellant’s claims.  The Tribunal’s decision was not based on the fact that it did not accept his claims but that it was reasonable for him to relocate within India.  The primary judge referred to the Tribunal’s reference to Randhawa’s case and considered that the Tribunal’s understanding of that decision did not display any error.

11. The second ground was that “the Tribunal did not consider [that] the [appellant] … had been under immense and intimidating pressure from the RSS and [the girl’s] family members because of his involvement with her … [and that] the Tribunal did not consider the appellant’s claim that the RSS … will kill him if he returns to India.”  The primary judge, quite correctly, found that the Tribunal did in fact consider those matters for the reasons that I have given. 

12. The third ground was that “the Tribunal failed to investigate [the appellant’s] genuine claims.” As the primary judge observed, there is no obligation on the Tribunal to carry out an independent investigation. While it has power to seek further information under the Act, and the Tribunal in fact did so in this case, by writing two letters to the appellant seeking further information, the primary judge correctly found that there was no obligation for the Tribunal to make any further inquiries.

13. The fourth ground was that “[t]he Tribunal did not use the country information as specific [sic] … [and] used … all [the] information for [a] matter of reasoning and evaluation [of the appellant’s] case.”  The ground is incomprehensible.  The primary judge observed that the Tribunal produced a considerable amount of country information ranging over a number of subjects that were relevant to the appellant’s claim that he was, as a Muslim, subject to persecution from extremist Hindus because he wished to marry a Hindu woman.  As his Honour pointed out, the Tribunal considered that information and used it to arrive at its conclusion that the appellant could relocate to another part of India.

14. The fifth ground was that the Tribunal “emphasised … irrelevant questions at the hearing and ignored [the appellant’s] minority background that put [his] life in danger.  In doing so the Tribunal … ignored relevant material”.  There are no particulars furnished of this ground and the primary judge correctly found that there was no substance in the ground.

15. The final ground is that “[t]he Tribunal [applied the wrong test in that it] left out individual elements of the [appellant’s] claims … [and] require[ed] independent evidence of [a] fact before the Tribunal would accept the claim being made by the [appellant].”  As I have said, while the Tribunal had some doubts about the credibility of the appellant, it accepted his claims.  The primary judge correctly rejected the ground as having no substance.  If anything it does no more than go to the Tribunal’s findings of fact. 

16. The primary judge then went on to consider the reasoning of the Tribunal in concluding that it would be reasonable for the appellant to relocate to Kerala.  His Honour observed that the Tribunal relied on independent country information showing that 2.3% of the population of Kerala spoke Tamil. His Honour observed that this was not a high percentage, as opposed to 86.7% of the population in the appellant’s home state of Tamil Nadu.  Nevertheless, his Honour considered that there was evidence before the Tribunal that Tamil was spoken at least by some people in Kerala and that the Tribunal was at liberty to rely on the independent country information to find that it would be reasonable for the appellant to relocate there.

17. His Honour also observed that the appellant took issue in oral submissions with the Tribunal’s finding that there was no real chance that the RSS would be likely to trace him and harm him if he were to relocate to Kerala. His Honour observed that this was a factual finding and that there was independent country information upon which the Tribunal was entitled to rely in making the finding. His Honour found that the Tribunal considered the appellant’s claim and was satisfied that it would be reasonable for him to relocate to another part of India and find safety there, notwithstanding the fact that the appellant did fear harm if he returned to his home region. Therefore, his Honour concluded that no jurisdictional error had been demonstrated and that the decision of the Tribunal was a privative clause decision within s 474 of the Act.

18. The notice of appeal filed in this Court is without particularity.  The appellant, as I have said, made no written submissions.  When invited to speak in support of the appeal and to indicate error on the part of the Federal Magistrates Court, the appellant simply referred to the Tribunal’s finding that he could relocate to Kerala in circumstances where his claims had been accepted.  He said that he did not speak the language that is mostly spoken in Kerala and that he could not learn it.  He said that he had only learnt English to some extent during his time in Dubai.  They are complaints about the factual findings made by the Tribunal. They do not suggest any error on the part of the Federal Magistrates Court or, indeed, on the part of the Tribunal. 

19. The notice of appeal to this Court contains nine grounds. The first two are that the Federal Magistrates Court erred in failing to find error of law or jurisdictional error and in dismissing the case without considering the legal and factual errors contained in the decision of the Tribunal.  No particulars were furnished and there is no substance in these grounds. 

20. The third ground asserts that the Federal Magistrates Court “made a legal, factual and jurisdictional error” in not applying the principles laid down in Randhawa’s case.  I perceive no error in the way in which his Honour dealt with that matter. 

21. The fourth ground asserts that the Federal Magistrates Court failed to take into account that the Tribunal’s decision was unjust.  Clearly there is no substance in that ground. 

22. The fifth ground asserts that the Tribunal emphasised irrelevant questions at the oral hearing and ignored the appellant’s religious background and relationship with the girl that put his life at risk. That assertion is quite without foundation. 

23. The final four grounds, without referring to the Federal Magistrates Court, make assertions about the Tribunal’s conduct of the review.  On the assumption that they are to be read as contentions that the Federal Magistrates Court erred by failing to accept those assertions, they still do not constitute any possible ground of appeal.  They are simply bald assertions without any particulars. 

24. The appeal must be dismissed.  The Minister asks for his costs of the appeal.  The total costs incurred by the Minister in connection with the proceeding are estimated to exceed $3,600, including $1,750 for disbursements representing counsel’s fees and attendance in Court, without any costs associated with the attendance in Court of the Minister’s solicitor.  An order requiring the appellant to pay costs in the sum of $2,700 represents a discount of the party-party costs that the Minister would be entitled to recover on taxation.  In the circumstances, it is appropriate to fix the Minister’s costs in that sum. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       17 June 2008

The Appellant appeared in person.
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	27 May 2008
Date of Judgment:	27 May 2008