SZMYN v Minister for Immigration and Citizenship

[2009] FCA 840

FEDERAL COURT OF AUSTRALIA

SZMYN v Minister for Immigration & Citizenship [2009] FCA 840

SZMYN v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 405 of 2009

BESANKO J
7 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 405 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMYN
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	7 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 405 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMYN
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	7 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court: SZMYN v Minister for Immigration & Citizenship & Anor [2009] FMCA 327. On 23 April 2009, that Court made an order that the appellant’s application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”) be dismissed.

2. The appellant is a national of India. He arrived in Australia on 10 April 2008. On 23 May 2008, he applied for a Protection (Class XA) visa (“protection visa”). On 23 June 2008, a delegate of the Minister for Immigration and Citizenship refused his application. The appellant made an application for a review by the Tribunal. He attended a hearing before the Tribunal at which he gave evidence and presented arguments on the issues affecting the review. On 8 October 2008, the Tribunal decided to affirm the decision of the delegate not to grant a protection visa to the appellant.

3. The appellant made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. That application was made on 24 November 2008. An amended application was filed and served on 16 January 2009. As I have said, the Federal Magistrates Court made an order on 23 April 2009 dismissing the appellant’s application.

4. In his outline of submissions, the first respondent provided a convenient summary of the appellant’s claim for refugee status. He said:

   “In summary, the appellant claimed to have been a member of the Communist Party of India – Marxist (‘CPI(M)’) in Kerala State and to fear harm from members of his own party and/or members of the opposing Congress Party.

   Specifically, the applicant claimed that:

   [1]       in 1990 he joined the CPI(M) and became involved in its political activities;

   [2]in 1993 he went to Mumbai for ‘safety reasons’ fearing the Congress Party supporters who targeted CPI(M) members and supporters;

   [3]in 1998 the applicant was harassed by the All India Congress Party because he was a long-term member of the CPI(M) trade union; and

   [4]in 2007 the applicant returned to his birthplace (the State of Kerala), where the CPI(M) were in power. In 2008, the applicant was assaulted by local CPI(M) members when he refused to work for them. The Kerala police were ‘slow/reluctant’ to protect the applicant because of his imputed political profile.”

5. The Tribunal member found that the appellant’s claimed fear of harm was not well-founded because it did not extend to the country of his nationality as a whole. That is, according to the Tribunal member, the appellant was reasonably able to access effective protection from harm within the borders of India. The appellant’s fear of harm was “highly localised” to the region of India where he was born and the independent information and the appellant’s own past experiences indicated that he could effectively relocate within India to avoid that harm. The Tribunal member said that it was “not implausible” that within the political activity of India, individuals connected with the CPI(M), which the appellant supported in the past, may seek to pressure him to become involved with that party should he return to the area where he is known. The Tribunal member said that that pressure could include threats of violence against him. However, the Tribunal member said that:

   “It is evident, however, that this threat extends only to a very small geographic area of India, being the region in which he was active in the past and was known for that involvement.”

6. The Tribunal member noted that the appellant had previously feared harm from political opponents in the Congress Party in his area, but that he had been able to effectively obtain safety by leaving the area for an extended period and only returning occasionally. The appellant had been able to move and live in Mumbai where he obtained employment skills and experience in welding. The Tribunal member found that it was “unlikely in the extreme” that anybody would be interested in pursuing the appellant away from his local area. The Tribunal member found that the appellant was likely to obtain appropriate employment elsewhere in India. The Tribunal member expressed his conclusion on the appellant’s claim of a well-founded fear of persecution by reason of political opinion, as follows:

   “In the Tribunal’s view, the applicant can avoid the localised fear of harm he holds by relocating within India and that in doing so the chance of him coming to harm from members of the CPI(M) would be extremely remote. Neither would his location within India limit any relevant rights of the applicant, as it is his desire not to involve himself in politics which he wishes to exercise and would be able to do elsewhere in India.”

7. The Tribunal member noted that the appellant belonged to a Christian Other Backward Community. He also considered whether the appellant had a well-founded fear of persecution for reasons of religion. The Tribunal member concluded that the appellant did not hold a well-founded fear of persecution for reasons of religion and he said:

   “The applicant has not experienced any harm in this respect in the past and his oral evidence at the hearing indicated that he did not now hold a subjective fear of any harm on this basis should he now return to India. Nor does the Tribunal accept that the applicant is at risk of any harms arising from generalised internal conflicts to which he has referred. He has moved from his local area in the past without experiencing such harms and in the Tribunal’s view this option is reasonably open to him on return.”

8. The grounds of the amended application to the Federal Magistrates Court for constitutional writs directed to the Tribunal were as follows:

   “1.The Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per sec. 91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

   a.The Tribunal not considered that the Applicant is belong to a Christian minority who had been under immense and intimidating pressure from the CPI(M).

   b.The Tribunal made no finding as to the extent or nature of persecution suffered by the applicant.

   c.The Tribunal however found that any persecution suffered was not for any convention reason but did not give reasons for the finding.

   d.The Tribunal failed to record the material facts for the reasons referred to above.

   e.The Tribunal did not make any finding, it was reasonable for the applicant to fear such problems in the future should he return to India.

   2.The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against the case in the final outcome, The Tribunal used all information for matter of reasoning and evaluation of my case for the protection visa, The Tribunal was pre occupied and did not have a fresh look. The Tribunal failed to consider the country information in proper way.”

9. The federal magistrate said that the Tribunal’s understanding of the relocation principles was correct and that the Tribunal did not fall into error when making its findings about relocation. The federal magistrate said that there was no error in the Tribunal’s finding that the appellant did not have a well-founded fear of persecution for reasons of religion. The federal magistrate held that the Tribunal had complied with s 430 of the Migration Act 1958 (Cth) (“the Act”). He held that the Tribunal had not failed to consider whether the appellant would suffer serious harm under s 91R(2) of the Act. The federal magistrate said that the Tribunal’s use of country information and the weight that it gave to that information was entirely a matter for it. He said that no error in the Tribunal’s use of independent country information had been identified. The federal magistrate said that the second ground of the appellant’s application perhaps raised an issue of apprehended bias. However, he said that there was no evidence of apprehended bias.

10. In his notice of appeal to this Court, the appellant repeated, in grounds 2 and 3, the two grounds in his application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. Ground 1 in the notice of appeal is new and was not raised before the Federal Magistrates Court. It is in the following terms:

    “1.The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal not giving me the opportunity of the adverse information in the possession of the Tribunal. The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act.”

11. On 11 May 2009, a deputy district registrar made orders requiring each of the appellant and the respondent to file and serve written submissions before the hearing date. The appellant did not file and serve any written submissions. The first respondent did file and serve written submissions. The appellant appeared in person at the hearing of the appeal. He made brief oral submissions of a very general nature and nothing was advanced by him in support of any of the grounds of appeal. I have read the materials carefully. There is nothing to suggest that the federal magistrate erred in his treatment of the application before him. That is sufficient to dispose of grounds 2 and 3 of the notice of appeal. Ground 1 is new and leave to raise the ground is required. I do not need to consider whether leave should be granted, because, even if granted, it is clear that the ground must be dismissed. It seems clear that the appellant was given the opportunity to comment on the country information which the Tribunal member relied upon to reach the conclusions critical to his decision. The second part of the ground misunderstands the duty of the Tribunal. As the first respondent correctly submitted, it is not sufficient that there be evidence before the Tribunal which might support a finding that a review applicant is a refugee, but rather the Tribunal must reach a positive finding of satisfaction.

12. For the above reasons, the appeal must be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        7 August 2009

The Appellant appeared in person.
Counsel for the Respondents:	Ms E Warner Knight
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	5 August 2009
Date of Judgment:	7 August 2009