SZLVG v Minister for Immigration - [2008] FMCA 960

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLVG v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 960

MIGRATION – Review of RRT decision – where Tribunal found applicant had a well-founded fear of persecution – where Tribunal found applicant was a person who could reasonably relocate to another state – whether Tribunal correctly addressed the question of relocation – whether failure to comply with s.424A Migration Act 1958 (Cth).

Migration Act 1958 (Cth), s.424A

VAF v Minister for Immigration [2004] FCA FC 123
SZGZQ v Ministerfor Immigration [2007] FCA 109
SZATV v Ministerfor Immigration [2007] HCA 40
SZAIX v Minister for Immigration [2006] FCA 3
SZIED v Minister for Immigration [2007] FCA 1347
Randhawa v Minister for Immigration (1994) 52 FCR 437

Applicant:

SZLVG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3975 of 2007

Judgment of:

Raphael FM

Hearing date:

30 June 2008

Date of Last Submission:

30 June 2008

Delivered at:

Sydney

Delivered on:

30 June 2008

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the first respondent's costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3975 of 2007

SZLVG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India. He arrived in Australia on 27 March 2007. On 23 April 2007 he applied to the Department of Immigration and Citizenship for a protection (class XA) visa. On 17 May 2007 the delegate of the Minister refused to grant a protection visa. On 12 June 2007 the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision. The applicant attended a hearing before the Tribunal, following which the Tribunal wrote to him on 4 September 2007. The letter provided him with an opportunity to comment upon information that the Tribunal considered would, subject to any of those comments, be the reason or part of the reason for affirming the decision that was under review.
On 17 September 2007 the applicant's migration agent wrote to the Tribunal requesting an extension until 1 November 2007. The Tribunal declined to provide that extension but noted that the member would not make a decision on the review until that date. This effectively gave the applicant until 30 October 2007 to provide a response. A response was provided on 25 September 2007 by his agent. On 15 November 2007 the Tribunal determined to affirm the decision under review and handed that decision down on 4 December 2007.
The applicant is a Bengali, resident in Calcutta. He claims to have had 14 years of education and completed a Bachelor of Science degree in 1977. From 1992 until 2005 he worked in Italy. He did not have to return from Italy but he did so. He resumed residence in Calcutta with his wife and child. He started up a business exporting into Italy.

The business was relatively successful.
The applicant joined a political party known as the TMC upon his return from Italy. He claimed that there was a bitter rivalry between the TMC and another party, the CPIM. He claimed that members of the CPIM approached him and tried to make him leave the TMC and to join the CPIM. He refused. He became active in the TMC but at the same time became a target of the CPIM membership.
In his statement attached to his protection visa application, [CB 27]-[31], he claimed that he was threatened by CPIM activists, who tried to extort money from him. As his interest in TMC politics increased, he became of more interest to the CPIM and, in the middle of January 2007, he was attacked by thugs and physically assaulted. He was threatened with being killed. He reported the matter to the police but they refused to take any action.
One of the areas in which the applicant was active related to attempts by the state government, which was CPIM led, to acquire large amounts of farm land for the purposes of industrial expansion.

The applicant became involved in demonstrations to prevent this. These demonstrations were violent and the applicant was concerned for his safety.
During the course of the Tribunal hearing, the applicant mentioned an incident in October or November 2006 when CPIM thugs came to his house and pointed a pipe gun at him and pushed him, telling him that he must join their party and leave the TMC. This appeared to be inconsistent with the earlier statement that the violent threats made by CPIM occurred in January 2007. The Tribunal expressed some concern about this apparent inconsistency.
Importantly for the applicant, the Tribunal effectively accepted that, subject to the question of relocation, he was a person to whom Australia owed protection obligations because he did have a well founded fear of persecution for convention reasons in the West Bengal state. The Tribunal accepted most of his claims and, in particular, accepted that the rivalry between the TMC and the CPIM was violent and that there could be a failure of state protection to TMC members.
What the Tribunal did decide, however, was that the applicant was a person who could reasonably relocate outside the states of West Bengal and Tripura [CB 108].
“The applicant's evidence indicates that his level of involvement in TMC was confined to his local area. The Tribunal finds that the kind of political profile he described was not such that it would attract the interests of the CPIM anywhere but in his local district. The TMC operates in West Bengal … and is therefore a local party. If the applicant relocated to another part of India other than West Bengal or Tripura, where CPIM was not active, and still continued with political activity, the Tribunal finds that there is not a real chance of persecution occurring...”
The Tribunal then went on to consider other required aspects of a relocation decision:
“The second question for consideration is whether it would be reasonable for the applicant to relocate in these particular circumstances, considering the impact upon the applicant of relocation. The applicant is an educated man with a Bachelor of Science degree and extensive employment experience in the science and business fields. He has operated his own import/export business which he says was successful. He worked in Italy from 1992 to 2005, so also has experience in adapting to new environments. He speaks English (although he said his pronunciation is not good) and Hindi which would allow him to work and live in many states of India. He said he can speak Italian if he wished to continue business dealings with Italy from another state. The Tribunal finds that he has sufficient education, employment and language skills to permit him to find work outside West Bengal. He also has a demonstrated ability to live and work in other countries, indicating resilience and flexibility to be able to resettle in a foreign milieu.”
The Tribunal had earlier questioned the applicant about relocation because the applicant had told it that he had lived for some time in the state of Gujarat but had to leave [CB 108]:
“The Tribunal asked him why he did not move to another state besides Gujarat. He said that in other states there are different faces and languages. The Tribunal does not accept that different faces and languages would lead to a conclusion that it would not be reasonable for the applicant to relocate in his circumstances. The applicant lived in Italy for over 10 years so has experience in adapting to cultures which are very different to his own. The Tribunal does not accept that it would be unreasonable for the applicant to relocate because of the different "faces and languages" in other states, taking into account the applicant's own ethnicity and language skills.”
Finally, the Tribunal considered a complaint made by the applicant that if he did move to another state he would be a stranger, he would be instantly recognisable, he would have difficulties with employment, and the police would send him back to West Bengal. The Tribunal, relying on independent country information which indicated that the Constitution of India provided for freedom of movement, a practice which was generally accepted, concluded that this complaint was not properly made out. In regard to the applicant’s employment, the Tribunal concluded that his education and extensive experience outside of India and the nature of the business that he was operating, indicated that it could be carried out in another state.
The applicant filed an amended application on 26 February 2008. The document is discursive and much of it deals with the findings about his claims to have a well-founded fear of persecution. In my view, there is no need to go into these matters because the Tribunal came to the conclusion that it accepted that the applicant did have such a fear and that it was well-founded.
The applicant claimed that the Tribunal did not comply with s.424A of the Migration Act 1958 (Cth) (“the Act”). His complaint in this regard seems to be in relation to the findings that the Tribunal came to in respect of relocation: firstly, that there was freedom of movement in India and secondly, that he would not be sent back to Bengal by the police if he did move:
“In making each of the alternate findings the tribunal chose a version of events different to me. The tribunal did not accept me as a credible witness due to inconsistencies in my evidence. Under the circumstances, it is my case that each of the alternate findings is affected by the s.424A error.”
It is to be remembered that the Tribunal did send a letter under s.424A to the applicant and was certainly well aware of its obligations to do so if it should be considering ‘information’ that might affect its decision. The information referred to by the applicant in his application does not seem to me to be information at all but rather it is conclusions drawn by the Tribunal. As Finn and Stone JJ said in VAF v Minister for Immigration [2004] FCA FC 123 at [24(iii)]:
“… the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations [authority cited]; nor does it extend to identify gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc …”
What the Tribunal did in this particular case was to consider two pieces of evidence and prefer one over another. The evidence that it preferred was independent country information that was not required to be revealed to the applicant under s.424A. In coming to a decision to prefer one piece of evidence over another, the Tribunal is not required to put its appraisals or thought processes to an applicant: SZGZQ v Ministerfor Immigration [2007] FCA 109 at [16] per Cowdroy J. It is in fact the Tribunal's job to listen to all the evidence and come to a conclusion about which it accepts and which it does not.
In the applicant's written submissions, filed on 16 June 2008, he again refers to a failure to comply with s.424A of the Act, this time in relation to the Tribunal's failure to provide him with additional time. The Tribunal is the master of its own timetables and is entitled to take into account an application for extra time and to grant or decline it as it believes appropriate in all the circumstances. In this particular case, the request for six weeks was put on the basis that the applicant wished to provide some documents relevant to his claim. Those documents were not identified and, so far as I am aware, no further documents have ever been provided. The applicant asked for time until

1 November 2007
. The Tribunal indicated that whilst it would not give the extension, it was not going to hand its decision down until after

1 November 2007
and therefore, effectively, the applicant did have that amount of time. I am therefore unable to see that there was any unfairness in the manner in which the Tribunal acted in regard to this request for an extension.
The second matter raised by the applicant in his written submissions deals with the question of relocation. The question of whether it is reasonable, in the sense of practicable, for an applicant to relocate to a region depends upon the particular circumstances of the applicant and the impact upon that person of relocation from the place of residence: SZATV v Ministerfor Immigration [2007] HCA 40 at [24] per Gummow, Hayne and Crennan JJ. Territorial distinctions can be relevant when (at [26]):
“There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of geography”: SZATV at [26] per Gummow, Hayne and Crennan JJ.
The Tribunal's finding that the applicant could relocate to other areas of India where CPIM was not active acknowledged that there were territorial distinctions between West Bengal and other parts of India [CB 108].
The Tribunal did not suggest that the applicant would have to live “discreetly” in other parts of India (see SZATV at [32] per Gummow, Hayne and Crennan JJ); rather, it found that the applicant could freely express his political opinion in other parts of India. The Tribunal did consider whether as a matter of practical reality it was reasonable for the applicant to relocate: see SZAIX v Minister for Immigration [2006] FCA 3 per Magwick J at [63]; SZIED v Minister for Immigration [2007] FCA 1347 per Moore J. The Tribunal considered the applicant’s business, the languages he spoke, his levels of education and his ability to live and work in other countries.
I am of the view that the Tribunal exercised its jurisdiction in relation to the question of relocation conformably with the principles set out in Randhawa v Minister for Immigration (1994) 52 FCR 437 and the authorities which have followed from it. In those circumstances, I am unable to assist the applicant in his request for a review. I dismiss the application. The applicant is to pay the first respondent's costs assessed in the sum of $4500.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 14 July 2008