SZMCI v Minister for Immigration
[2008] FMCA 1447
•22 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMCI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1447 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of India a resident of Gujarat claiming a fear of persecution on the basis of his religion – applicant a Muslim who had assisted in slaughtering cows – involvement in bovicide – relocation – whether Tribunal decision was a relocation decision – Tribunal found that applicant did not have a well founded fear of persecution – no jurisdictional error. |
| Migration Act 1958 (Cth), s.474 |
| SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634; [2007] HCA 40 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 distinguished. Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 followed. Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followed. Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 |
| Applicant: | SZMCI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 747 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 June 2008 |
| Date of Last Submission: | 17 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr Azzi |
| Counsel for the Respondents: | Mr Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,250.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 747 of 2008
| SZMCI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a citizen of India, asks the Court to set aside a decision of the Refugee Review Tribunal made on 19th February 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
By his amended application, filed on 19th June 2008, the applicant asks the Court to issue the following writs:
(1)certiorari;
(2)mandamus directed to the second respondent, the Refugee Review Tribunal, requiring it to rehear the applicant’s application;
(3)prohibition directed to the first respondent, the Minister for Immigration and Citizenship; and
(4)perhaps redundantly, an order that the applicant’s application be remitted to the Tribunal for consideration.
The applicant claims that the Tribunal committed jurisdictional error by finding that the applicant could have relocated without considering the practicalities or reasonableness of relocation.
Background
The applicant arrived in Australia on 30th July 2007 and applied for a Protection (Class XA) visa on 31st August. In his application he claimed that he is a Muslim and was persecuted in India for his religion. He assist in the slaughtering of cows as part of the Muslim festival of Eid and claimed that he had been attacked by Hindus, who consider the cow to be a goddess, and harassed by the police because the slaughter of cows is considered to be illegal.
On 3rd October 2007 a delegate of the Minister refused the application for a visa. The delegate referred to independent country information, which he found did not support the applicant’s claim of persecution on the basis of his being a Muslim. The delegate also found:
The other important aspect of this case is that the claimed fears of the applicant are localised and even if accepted as genuine, for which no substantiation has been provided, I find no reason why if he wishes to be involved in the slaughtering of cows at the time of Eid-al-Fitr he could not relocate to one of those areas in India in which cow slaughter is not banned in order to gain effective protection rather than having to leave the country.[1]
[1] Court Book at 108
The applicant applied to the Refugee Review Tribunal on 9th October 2007 for review of the delegate’s decision.
Application for Review by the Refugee Review Tribunal
The Tribunal wrote to the applicant on 6th November 2007, inviting him to attend a hearing on 6th December 2007. The applicant attended the hearing and produced his Indian passport. He gave evidence with the assistance of a Gujarati interpreter.
The Tribunal signed its decision on 6th February 2008 and handed the decision down on 19th February this year.
The Refugee Review Tribunal Decision
The Tribunal affirmed the delegate’s decision not to grant the applicant a Protection (Class XA) visa.
In its Decision Record, the Tribunal set out the applicant’s claims and evidence, and including a detailed summary of his evidence to the Tribunal at the hearing. The Tribunal also referred to Information from other sources about incidents of “cow slaughter”.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the applicant was a citizen of India on the basis of his Indian passport. It accepted his claim that he is a Muslim and in order to earn money he had assisted local butchers to slaughter animals. It noted that he had ceased his involvement in the slaughter of cows once he had been threatened and beaten by people who he believed were local Hindus.
The Tribunal made these findings:
The Tribunal accepts that the applicant continued to receive low level verbal threats from some of the Hindus in Vavol. However it concludes that such communications were not accompanied by an intention to cause actual harm to the applicant. He was able to continue to live in the family home in Vavol for the entire period up until June 2007 when he left India...
The Tribunal finds that notwithstanding the applicant’s claim that he kept safe by remaining at home it would not have been difficult for a person intent on doing him harm to have done so, They did not do so. The Tribunal finds that any threat of harm was not such that the applicant took it seriously enough as to seek to relocate away from the family home at any time.[2]
[2] Court Book at 153
The Tribunal accepted that the applicant had received beatings in 2006 that represented serious harm, and it accepted that he may continue to face low levels of verbal harassment in Vavol because of his previous actions if he were to return but concluded that this would diminish with the passage of time and said:
The Tribunal finds that there is no real chance that the applicant will suffer serious harm from the BJP, the RSS or the VHP for reasons of his involvement in bovicide if he returns to India.[3]
[3] Ibid
The Tribunal went on to conclude that the applicant would be able to continue to practice his religion in the future, saying:
The Tribunal finds that the chance is remote that the applicant will face serious harm such that it amounts to persecution if he returns to India in the near future for reason of his religion.[4]
[4] Court Book 154
The Tribunal then considered that the slaughter of cows is against the law in the State of Gujarat but the applicant did not claim that the police were seeking him for that reason:
Nevertheless, the Tribunal is satisfied that the police have no evidence that the applicant was involved in bovicide and have no interest in pursuing the applicant in relation to any offence against the laws of the State of Gujarat for any part he played in the slaughter of cows in the past.[5]
[5] Ibid
The Tribunal concluded that the chance was remote that the applicant would suffer serious harm amounting to persecution for reason of his religion of for any Convention related reason if he were to return to India in the foreseeable future and affirmed the decision not to grant the applicant a protection visa.
Application for Judicial Review
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 27th March 2008. The applicant, who had briefed counsel, filed an amended application on 19th June 2008, some 5 days before the date of the final hearing.
In the amended application, the applicant relies on the ground that the Tribunal committed jurisdictional error of law by finding that the applicant could have relocated without considering the practicalities or reasonableness of relocation. Particulars of that ground are:
(a)The Tribunal accepted that the applicant’s wife relocated to live with her parents because of the problems faced by the applicant in Vavol (CB 153.8).
(b)The applicant said that there is no safety anywhere in India as VHP are also in big places (CB 151).
(c)The applicant also said that there is nothing much open to him (CB 150.9).
(d)The applicant further stated that he supported his family from his father’s pension when he was not working (CB 149).
(e)The Tribunal accepted that the applicant slaughtered cows “purely for the income he derived” from such work (CB 152.8).
(f)The Tribunal’s relocation finding reinforced its finding that the threats received by the applicant were not sufficiently serious to constitute Convention based persecution – viz., “any threat of harm was not such that the applicant took it seriously enough as to seek to relocate away from the family home” (CB 153.8).
Submissions
The first respondent had filed an outline of submissions on 17th June 2008, according to the original timetable set by the Court. The applicant’s submissions were not filed until 19th June 2008, as was the amended application. Thus, the first respondent’s submissions had been prepared and filed before the applicant had sought to file his amended application. The late filing of documents is a cause of delay and expense in this Court and it is a practice not to be encouraged.
The applicant’s counsel also filed in court an affidavit of Tamara Jayne Boaden sworn on 8th June 2008 annexing a transcript of the Refugee Review Tribunal hearing on 6th December 2007.
The first respondent was granted leave to file and serve a supplementary outline of submissions by 4th July and the applicant was granted leave to file any submissions in reply by 18th July 2008. The parties complied with that timetable.
Counsel for the applicant, Dr Azzi, submitted that the Tribunal had accepted that the applicant’s wife left because of the problems faced by the applicant but found that those problems were not sufficiently serious because the applicant did not seek to relocate, saying (inter alia):
In the first place the applicant himself could have relocated with his wife had he wished to avoid any unwanted attention in Vavol. He did not do so.[6]
[6] Court Book 153
He also noted that the Tribunal had accepted that the applicant and his family relied on the applicant’s father’s pension to survive on when the applicant was not working. Dr Azzi submitted that it was clear from the transcript that the Tribunal did not consider whether the applicant’s father was willing to support the applicant had he decided to relocate away from Vavol to live with his wife’s family, nor did it consider whether the applicant’s wife’s family was willing to support the applicant and/or allow him to live with them had he decided to relocate with his wife. The inference to be drawn is that it is highly unlikely the wife or her family would have allowed the applicant to stay with them given the applicant’s reservations about his wife’s commitment to the family or her desire to speak to the applicant and the illogical finding by the Tribunal that the applicant’s “wife had left the family home in Vavol for reasons beyond [the applicant’s] difficulties”.[7]
[7] Court Book 153
Dr Azzi submitted that the above finding by the Tribunal is illogical and was not necessarily open to it in that:
(a)It contradicts the tenor of the evidence of the applicant as well as the Tribunal’s earlier finding that “the Tribunal heard and accepts that the applicant’s wife left his parents’ home to live with her parents because of his problems”[8]; and
(b)Is based on mere speculation (rather than concrete facts or evidence) about the subjective, uncorroborated and untested exclamations about the presumed callousness of the wife in not wanting to see her children and therefore why would she want to speak to him. In fact, it is submitted, the applicant told the Tribunal that his wife would see her children if “there was a marriage or something around” (Transcript 10.4-6). Besides, he submitted, the applicant’s response about the disinclination of the wife to speak to him was in direct response to a question by the Tribunal (at Transcript 13.8-9).
[8] Court Book 153
Dr Azzi submitted that the Tribunal did not consider whether the applicant could support himself if he returned to India in the event he seeks to relocate and/or whether his father is willing to continue to use his pension to support the applicant should he learn the truth about the reason the applicant left India in the first place. He also submitted that the Tribunal did not consider whether the pension of the applicant’s father was being used also to support him while he is in Australia.
Dr Azzi submitted that the Tribunal fell into jurisdictional error by relying on the possibility of internal relocation to bolster its findings that the harm faced by the applicant was not sufficiently serious to constitute Convention based persecution without first ascertaining whether it would be reasonable to expect him to seek refuge in another part of his country of nationality (see SZATV v Minister for Immigration and Citizenship[9] at [22]).
[9] (2007) 237 ALR 634; [2007] HCA 40
In SZATV at [24], Gummow, Hayne and Crennan JJ noted:
…What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
Dr Azzi submitted that the summary way in which the Tribunal dealt with the issue of relocation including the failure to explore the opportunities (limited or otherwise) for the applicant to derive income apart from bovicide work and whether he could in fact live with his wife’s parents, and whether his father would be willing to continue to use his pension to support the applicant in the event he relocated away from the family home leads to the conclusion that the Tribunal misapplied the test of relocation (see NAJZ v Minister for Immigration and Multicultural and Indigenous Affairs[10] at [22]).
[10] [2005] FCAFC 37
Further, Dr Azzi submitted that the Tribunal fell into jurisdictional error by relying on the fact that the applicant did not seek to relocate to refute the seriousness of the harm he feared before he left India, thereby erring when assessing the risk of harm the applicant feared if he returned to India.
Counsel for the Minister, Mr Mitchell, submitted that the applicant’s submissions on relocation misconceives the Tribunal’s findings in respect of his claims to have suffered persecution prior to coming to Australia and/or misconceives the authorities quoted. He submitted that the Tribunal found that:
(a)the applicant was beaten in 2006, which constituted serious harm;
(b)he continued to receive threats;
(c)the threats were low-level threats;
(d)the applicant was able to live in the family home until June 2007; and
(e)the applicant’s fears were not well-founded.
Mr Mitchell submitted that the Tribunal did not make its decision on the basis that the applicant could prospectively relocate to avoid the persecution he feared. Rather, it found that his fears were not well-founded because the threats that he claimed to fear were low level, would diminish over time, and had not been taken seriously by the applicant in the period prior to his departure for Australia.
The finding that the applicant “could have relocated” was a factual matter that formed part of the Tribunal’s appraisal as to whether his claims to have been subject to threats in the period prior to his departure constituted persecution and therefore whether they gave rise to a prospective well-founded fear of Convention-related persecution (see Minister for Immigration and Ethnic Affairs v Guo[11] at 575).
[11] (1997) 191 CLR 559
The decisions in Randhawa v Minister for Immigration Local Government and Ethnic Affairs[12], NAIZ (supra) and SZATV (supra), authorities on the relocation issue, all considered decisions that were based on findings that, notwithstanding that an applicant may have had a well-founded fear of persecution within a region of a country or had suffered past persecution in a region of a country, the fears would not be well-founded because the applicant could prospectively relocate within his or her country of nationality to avoid the persecution. Those findings are different from the findings in the present case which drew inferences from past conduct as to whether his fears arising from threats were well-founded.
[12] (1994) 52FCR 437
Mr Mitchell further submitted that the above authorities are not authority for the proposition that, whenever a tribunal refers to relocation or considers the fact that an applicant did not relocate to avoid asserted past harm and could have so relocated, such reference or consideration triggers a requirement that the reasonableness of such relocation be considered and that the failure to do so breaches an inviolable limitation or imperative duty inherent to the tribunal’s jurisdiction (Plaintiff S157/2002 v Commonwealth of Australia[13] at [76]; R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section[14] at 208).
[13] (2003) 211 CLR 476
[14] (1951) 82 CLR 208
Counsel for the applicant referred to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo at 557 and then submitted that, without considering whether it was reasonable for the applicant to relocate during the 7 to 8 months period in which he received harm before he left India, it was difficult for the Tribunal to make a reliable assessment of whether any future threats of harm would be sufficiently serious to constitute persecution. He went on to submit that there is nothing in the authorities relied on by the applicant to suggest that principles of relocation are confined to prospective determinations of fear of harm such that the Tribunal is only required to consider reasonableness of relocation when making a finding about relocation upon return to a country of nationality, referring to NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs at [10].
Conclusions
The applicant’s contention is misconceived. The Tribunal decision is not a relocation decision. The submissions of the applicant’s counsel have placed the question of relocation before the question of whether the applicant had a well founded fear.
The Tribunal’s task was to determine whether the applicant had a well founded fear or persecution for a Convention reason. It considered the evidence and found that the applicant had been beaten in 2006 and accepted that this constituted serious harm. It then found that the applicant had received threats since 2006. However, when it considered the evidence about those threats, the Tribunal concluded that they were “low levels of verbal harassment” that would “diminish over time”.[15]
[15] Court Book 153
Part of the Tribunal’s reasoning was that the evidence showed that the applicant had continued to live in the family home at Vavol and did not move out of the home, even though “it would not have been difficult for a person intent on doing him harm to have done so”.[16] In other words, the people who had threatened the applicant knew where he lived, so they could have found him if they wanted to. The applicant did not find it necessary to move out of the home to protect himself. The Tribunal found:
The Tribunal finds that any threat of harm was not such that the applicant took it seriously enough as to seek to relocate away from the family home at any time.[17]
[16] Ibid
[17] Ibid
The task of the Tribunal was to determine whether there was a real chance that the applicant would be persecuted for a Convention reason. This involves:
(a)making a determination about past events; and
(b)estimating the likelihood that an event will arise in the future.
The High Court discussed this process in Minister for Immigration and Ethnic Affairs v Guo at 575:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[18]
[18] per Brennan CJ, Dawson, Toohey, Gaudron, Mc Hugh and Gummow JJ at 575
The Tribunal’s obligation is to determine whether the applicant has a well founded fear of persecution. Then, and only then, does the Tribunal need to consider the question of relocation. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs, Black CJ stated:
Although it is true that the Convention definition of refugee does no refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. 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. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.[19]
[19] Randhawa at 440-441
In the present case, the Tribunal found that the applicant had suffered beatings in the past, which constituted serious harm. It then found that there were continuing low level threats which constituted verbal harassment which would be likely to diminish over time. The Tribunal noted that the applicant had not found those threats to be such a cause of fear that he found the need to move out of his house where he had lived for years. It then found that the applicant did not have a well founded fear of harm amounting to persecution in the future. Having made that finding, it was under no obligation to consider whether or not it was reasonable for the applicant to relocate to another part of India.
In my view, the decision in NIAZ can be distinguished on its facts. In the present case, the Tribunal considered the totality of the evidence of the nature of the threats, of which the fact that the applicant had not moved out of home was only a part.
There is no jurisdictional error. The Tribunal decision is a privative clause decision and not subject to certiorari, mandamus or prohibition (s 474).
The application will be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. L. Coutman
Date: 20 October 2008
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