SZLYY v Minister for Immigration
[2008] FMCA 1121
•30 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLYY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1121 |
| MIGRATION – Review of decision of RRT – where Tribunal not satisfied of a well founded fear – where Tribunal makes a relocation finding. |
| Migration Act 1958 (Cth), ss.65, 424A Federal Magistrates Court Rules 2001 |
| Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 SZATV v Ministerfor Immigration [2007] HCA 40 |
| First Applicant: | SZLYY |
| Second Applicant: | SZLYZ |
| Third Applicant: | SZLZA |
| Fourth Applicant: | SZLZB |
| Fifth Applicant: | SZLZC |
| Sixth Applicant: | SZLZD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 319 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 July 2008 |
| Date of Last Submission: | 30 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2008 |
REPRESENTATION
| For the Applicants: | In person |
| Counsel for the Respondent: | Ms Sirtes |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Orders dismissing application pursuant to Part 13 Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 vacated.
Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 319 of 2008
| SZLYY |
First Applicant
| SZLYZ |
Second Applicant
| SZLZA |
Third Applicant
| SZLZB |
Fourth Applicant
| SZLZC |
Fifth Applicant
| SZLZD |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant and his wife and children are citizens of India.
The applicant first arrived in Australia in June 2004 but returned to India on 26 July 2005. He re-entered Australia on 11 October 2005 and his wife and children joined him here on 26 August 2006. He was at that time studying in Australia under a student visa. After his student visa was withdrawn he made an application on 12 April 2007 for a protection (Class XA) visa for himself and his family. On 14 May 2007 the delegate of the Minister refused to grant a protection visa and on 16 May 2007 the applicant applied for review of that decision by the Refugee Review Tribunal. The Tribunal held a hearing which the applicant attended together with his wife and on 18 December 2007 determined to affirm the decision not to grant a protection visa.
The decision was handed down on 15 January 2008 and the applicant was in attendance at the handing down.
The basis of the applicant's claim to be a person to whom Australia owed protection obligations was that he was a Muslim Indian living in Hyderabad who had come into conflict with members of the Hindu community, and in particular, members of the BJP party. The applicant had assisted his father who was the president of the local mosque in relation to an application for the use of an extra piece of land acquired by the mosque for mosque purposes. He says that after this happened local Hindus began to target him and his father and throw stones at his house. These actions were reported to the police when some action was taken but the harassment then started again. His father had recommended that he should move house and because of the unrest he said that his father's business had been destroyed. The applicant's wife told the Tribunal how there were riots in 2003 because of the mosque extensions and that she and her family had received threatening telephone calls. Both the applicant and his wife told the Tribunal that they could not relocate to another part of India because the problems will be the same there.
On 23 October 2007 the Tribunal wrote a letter pursuant to s.424A of the Migration Act 1958 (the “Act”) to the applicant inviting him to comment on some information which might be the reason or part of the reason for affirming the decision. There were three items listed.
The first related to a change in the applicant's evidence as to his membership of the MIM organisation. The second related to the inconsistency between his claim of fear to return to Hyderabad and the fact of his father's continued residence in that town and association with the mosque. The third matter related to the applicant's failure to lodge an application for a protection visa until after his student visa had been cancelled. The applicant responded to the letter indicating that even though he was not a member of the MIM he was imputed to have that membership by local Hindus. He explained his father's situation as an old man wishing to remain in his home and feeling responsibility to his co-religionists for the upkeep and continued activity of the local mosque. He gave his reasons for not applying for a protection visa which are described by the Tribunal at [CB 146-147].
The Tribunal in its findings and reasons, which commenced at [CB 159], did not accept that the applicant was a member of the MIM although it did accept that he was a supporter of that party and its policies and that he might have been perceived by local people to have been a member. The Tribunal did not accept a claim made by the applicant that he would be made to change his religion should he be forced to return to India. The Tribunal was impressed by the fact that the father had remained in Hyderabad and continued to attend the local mosque. The Tribunal did not believe that the applicant would be precluded from so doing should he return. The Tribunal accepted that the applicant's involvement with the extension of the mosque may have roused the ire of local Hindus and that this possibly led to attacks on his house and business but it also accepted that the police intervened and did not consider that any further persecution would take place if the applicant returned given that this occurred some time ago and that his father remained in Hyderabad and the mosque remained open.
The Tribunal was satisfied that the local police would provide a response if the situation arose again and therefore there was no denial of state protection. The Tribunal referred to the fact that the applicant had returned to India without undergoing any persecution. The Tribunal was not satisfied that in all the circumstances the applicant's claim of fear of persecution was well-founded. It then went on to make a separate finding that:
“Any persecution that the applicant may face is localised and he would be unlikely to continue to face attack if he and his family were to move to a state other than Andhra Pradesh. On his own evidence, the applicant was never a member of the MIM party. I find that should he relocate to another Indian state, he would not be identified as a member of the MIM party and would not be subject to persecution on the basis of his political opinion.
The applicant speaks, reads and writes Hindi, English and Urdu and his wife speaks, reads and writes Hindi. The applicant has a Diploma in Business Administration. The applicant has qualifications in business administration, which are not location specific. He has been able to adapt to the new environment in a new country despite language and cultural differences which are likely to have been more pronounced than if the applicant were to relocate to another state in India, many of which have a large Muslim population. I find that, given the applicant's background, language skills, qualifications and experience, it would be reasonable for him to relocate to another part of India.”
I do not propose to debate whether this finding is sufficient for the purposes of the relocation tests considered by the Full Bench in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at [440-441] or by the High Court in SZATV v Ministerfor Immigration [2007] HCA 40 because I think that the relocation finding was in all the circumstances otiose. The Tribunal had already stated from what appeared to me to be logical reasons drawn from the evidence that it had not reached a state of satisfaction required by s.65 of the Act.
The applicant in his application to this court provided no particulars of a jurisdictional error that he claimed the Tribunal had fallen into.
His letter attached to his application form deals only with his grounds for claiming that he is a refugee. I have given my own consideration to the decision of the Tribunal and have been unable to find an area in which jurisdictional error might have occurred in what I consider to be the substantive area of decision-making. The application is dismissed and the applicants must pay the First Respondent's costs which I assess in the sum of $4,250.00.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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