SZMZL v Minister for Immigration
[2009] FMCA 373
•29 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMZL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 373 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal determined the applicant’s claim of a well-founded fear of persecution by reason of his religion or membership of a particular social group – whether the Refugee Review Tribunal considered the practicalities for the applicants in relocating in India. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 424A(3)(a); 424A(3)(b); 424A(3)(ba); 474; pt.8 div.2 |
| NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 487 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 SZATV v Minister for Immigration and Citizenship [2007] HCA 40 Applicant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Januzi v Secretary of State for the Home Department [2006] 2 AC 426 SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 |
| First Applicant: | SZMZL |
| Second Applicant: | SZMZM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3132 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 3 April 2009 |
| Date of last submission: | 3 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2009 |
REPRESENTATION
| Applicants appeared on their on behalf |
| Counsel for the Respondent: | Mr Y. Shariff |
| Solicitors for the Respondent: | Ms J. Dinihan, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3132 of 2008
| SZMZL |
First Applicant
| SZMZM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 October 2008 and handed down on 4 November 2008.
The first-named applicant claims to be a citizen of India and previously a member of the student wing of the Indian National Congress (“the First Applicant”). The second-named applicant is the wife of the First Applicant and her claims are wholly dependent on the claims of the First Applicant (“the Applicant Wife”).
The First Applicant arrived in Australia on 4 March 2008 having departed legally from Chennai on a passport issued in his own name and a visitor visa.
On 17 April 2008, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 3 July 2008, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for a protection visa.
On 30 July 2008, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 4 November 2008, the Tribunal affirmed the decision of the Delegate not to grant protection visas.
On 28 November 2008, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The First Applicant provided a statement in support of his protection visa application in which the First Applicant made claims of a fear of persecution in India by reason of his activities as a Christian and as a member of the Kerala Student’s Union, being the student wing of the Indian National Congress Party. The First Applicant’s claims are accurately summarised in the written submissions of counsel for the First Respondent, Mr Shariff, as follows:
“1.3 In his protection visa application, the first applicant claimed to fear persecution in India because of his political activities and opinion and his religious beliefs. In particular, the first applicant claimed that:
a) he was a Christian (CB 36.2) and he had engaged in Church activities: CB 37.1;
b) when he was a student (between the years of 1985 to 1987), he was a member of the Kerala Students Union (KSU) and that he had been threatened with harm by the rival Student Federation of India (SFI) (which was the student wing of the Communist Party of India (CPI(M)): CB 36.6-36.10;
c) he had held various employment positions in both Kerala and Mumbai between 1992 to 1997: CB 37.2-37.4;
d) in 1997 the first applicant travelled to Abu Dhabi for employment and returned in 2005 to start up a bakery business and to live with his wife and children: CB 37.5-37.6;
e) the first applicant’s application to operate the bakery business was delayed due to his previous political activities with the KSU and he perceived discriminatory conduct: CB 37.7;
f) once the business commenced, the CPI(M)’s union demanded that he provide employment to members of that union: CB 37.8;
g) as punishment for the first applicant’s refusal to comply with the CPI(M)’s demand, the CPI(M)’s local council member demanded that he pay funds to that party but the first applicant refused: CB 37.9. Following this refusal, the CPI(M)’s members, the local council members and thugs demanded that the first applicant cease engaging non-union labour and beat him: CB 37.9. The first applicant was told not to report the matter to the police: CB 37.9;
h) on one occasion, the applicant witnessed major clashes between Hindu extremists and Christians and he was assaulted by the Hindu supporters: CB 38.2;
i) the applicant faced loss of income and was unable to run his business: CB 38.3; and
j) the first applicant fears returning to his home State of Kerala until the ruling party CPI(M)’s power is over: CB 38.4.”
The Delegate’s decision
On 3 July 2008, the Delegate refused the applicants’ application for protection visas on the basis that the applicants are not persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
The Tribunal’s review and decision
On 30 July 2008, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
On 18 August 2008, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 17 September 2008 to give oral evidence and present arguments. This Tribunal wrote to the applicants on 9 September 2008, rescheduling this hearing to 3 October 2008.
On 3 October 2008, the First Applicant gave evidence at the hearing before the Tribunal. The Applicant Wife did not attend the hearing and did not give oral evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal found the First Applicant was not a witness of truth.
The claims made by the First Applicant and the decision of the Tribunal are accurately summarised by counsel for the First Respondent in his written submissions as follows:
“The first applicant’s claims consisted of the following:
(a)that by reason of his student political activities, he had been bullied, harassed and beaten: CB 37.5-37.9;
(b)that he was assaulted by Hindu extremists by reason of his Christianity: CB 38.2;
(c)that he had been targeted because of his imputed wealth: CB129-130[50]; and
(d)that he had been harassed because of his family’s association with the Indian National Congress and the second applicant’s candidacy in a recent election: CB 129[45], [49]-[50].
…
The Tribunal’s decision record sets out the applicant’s claims (CB 124[20]-125[27]) and also outlines the evidence that the applicant gave at the Tribunal hearing (CB 128[42]-130[56]). During the tribunal hearing, the first applicant appeared to modify his claim of persecution on grounds of political opinion by asserting that his family had loyalties to the Indian National Congress and that his sisters had been harassed because his wife was a candidate for National Congress and that he too had too been harassed by opposition: CB 129[45],[49]-[50]. He also claimed that he had been targeted because when he returned from the Gulf he was perceived as someone with money: CB 129[50].
The Tribunal accepted that the applicants were Indian nationals: CB 131[57]. The Tribunal then made the following findings:
(a) although it accepted that the first applicant and his family may have been associated with the Indian Congress Party, it was not satisfied that the applicant was an active member of that party or that opposition members would specifically target him: CB 131[60];
(b) having observed that the applicant had claimed that his political activities were largely confined to his student days and that he had not resumed these activities prior to his departure to the Gulf in 1997, the Tribunal proceeded to find that it was implausible to suggest that his student activities would continue to be of interest to anyone: CB 131[61];
(c) the Tribunal accepted that Christians formed a minority in the State of Kerala: CB 132[65]. The Tribunal also accepted that there had been clashes between Hindus and Christians and that the applicant may have witnessed such clashes or been the victim of them: CB 132[66]. The Tribunal held that it was not implausible that the applicant may become a victim of random acts of violence: CB 132[65]. However, the Tribunal held that this would make the first applicant a victim of civil disorder or generalised sectarian violence and not a refugee from persecution: CB 132[65];
(d) the Tribunal accepted that the first applicant may have been singled out and pressured to employ certain employees because he was a wealthy man or imputed to be one: CB 132[66]. It further accepted that the applicant may have experienced bullying, threats and extortion in the operation of his business: CB 132[66]. However, the Tribunal did not accept that the applicant was targeted for his political opinion or that he was beaten for those reasons: CB 132[66];
(e) the Tribunal concluded that the applicant’s fear was not well-founded: CB 132[68];
(f) the Tribunal found that the applicant had not taken any steps to obtain assistance from the police and that there was no evidence that they would not have done so: CB 132[71]. The Tribunal found that the applicant did not report the incidents because they only amounted to low level harassment and not the harm or persecution claimed by him: CB 132[71]. In any event, the Tribunal found that the State authorities would be able to provide the first applicant with a reasonable level of State protection should he return to India now or in the reasonably forseesable future: CB 133[72]; and
(g) the Tribunal found that it was reasonable for the applicant to relocate to another part of India if he had a subjective fear of returning to Kerala. In arriving at this conclusion, the Tribunal took into account the fact that the first applicant and his wife have Tertiary qualifications, they both speak English and Malyalam, the first applicant had an excellent employment record, the second applicant had been able to find employment in Australia and that their reasons against relocation, that is, difficulty in finding employment and traditional ties to Kerala were inconsistent with their decision to relocate to Australia: CB 133[73].
Having considered the first applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant suffered past persecution or that he faces a real chance of persecution if he returns to India on the grounds of his race, his religion, nationality, political opinion or membership of a social group, actual or imputed: CB 133[75]-[76]. Given this finding in relation to the first applicant, the Tribunal also rejected the second applicant’s claims: CB 133[77].”
The proceeding before this Court
The applicants were unrepresented before this Court, although had the assistance of a Malayalam interpreter. The First Applicant informed the Court that he appeared on behalf of both applicants.
On 9 February 2009, the First Applicant attended a directions hearing before this Court on behalf of himself and the Applicant Wife and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit. The applicants were directed to ensure that any transcript of the Tribunal hearing upon which they intended to rely was verified by affidavit. On 2 April 2009, the applicants filed an amended application.
At the directions hearing, the Court referred the applicants to the Court’s legal advice scheme for free legal advice. The Court also provided to the First Applicant a contact list of providers of legal assistance and interpreting services. The Court also provided to the First Applicant an information sheet in Malayalam containing the contact details of translating services. The applicants have participated in the Court’s legal advice scheme.
The First Applicant confirmed that the applicants relied on the grounds contained in the initiating application filed on 28 November 2008 and the additional grounds contained in an amended application filed on 2 April 2009.
The grounds of the initiating application are expressed to be as follows:
“1. The RRT misunderstood my Convention claims advanced- NABE v MIMA (No 2) [2004] FCAFC 263
2. The RRT did not comply with its obligations under section 424A of the Migration Act 1958.”
The grounds of the amended application are expressed to be as follows:
“1.The Tribunal failed to determine the application made to it.
Particulars
a)At par. 58 the Tribunal correctly determined the basis of the application before it as fear of persecution on the basis of religion, political opinion and membership of a particular social group.
b)At par. 60 the Tribunal purported to determine the issue of political belief.
c)The Tribunal however failed to determine the issues of religion and membership of a particular social group in relation to the harm feared by the Applicants.
d)In addition to the extent that membership of a particular social group is related to religious belief the Tribunal in determining the Applicants could relocate to another part of India failed to consider the impact of that relocation on their membership of a particular social group (see below).
2.The Tribunal in determining the Applicants could relocate to another part of India failed to consider at all or fully the reasonableness and effect of that relocation.
Particulars
a)The Tribunal found that Kerala had the largest Christian population in India.
b)The Tribunal failed to consider and assess the effect on the Applicants of relocation within India to parts that have a smaller or minimal Christian population, and in addition the impact on the Applicants of being separated from people having similar Christian beliefs and practices and/or different social groupings.”
Each of the grounds was interpreted for the assistance of the applicants and the applicants were invited to make submissions in support of each of the grounds and in support of their application generally. The First Applicant confirmed that the applicants had filed no evidence or submissions in support of their application.
Ground 1 of application
Ground 1 of the application makes a bare assertion of error that the Tribunal misunderstood the First Applicant’s claims. This ground was unsupported by particulars or evidence.
The Court asked the First Applicant in what way did he contend that the Tribunal misunderstood his claims. The First Applicant answered that there was a problem in India between Muslims and Christians and that the Tribunal did not ask the First Applicant questions about that matter. The Court again asked the First Applicant what was the claim that he asserted the Tribunal misunderstood. The First Applicant answered that it was the fight in his church opposite a water pond for drinking and that the Muslims were trying to put mud in the pond. The First Applicant said that the Tribunal did not ask him about this claim and was not listening to him. The First Applicant submitted that the Tribunal failed to consider his claims because it had no regard to his actual assertions because it did not believe him.
In relation to the First Applicant’s claim of fear of persecution based on his political opinion, the Tribunal was not satisfied that the First Applicant was an active member of the Indian National Congress party or that he had involved himself in its activities in a manner that would cause opposing party members to target him specifically. The Tribunal noted that the First Applicant’s claims of political activities were largely confined to his student days and that he had not resumed any activity prior to his departure in 1997. The Tribunal found the First Applicant’s claim that his wife was a candidate in a recent election and his sisters harassed because they campaigned on her behalf to be lacking in detail and had the hallmarks of a last minute addition to bolster his claims. The Tribunal noted that the First Applicant had not mentioned his wife’s candidacy in his written claims.
The Tribunal found that the First Applicant’s claims of fears that members of opposing political parties and the police would kill him, if he returned to India, because of threats and violence suffered by a local council member were the result of “civil disorder or generalised sectarian violence”. The Tribunal was not satisfied that there was any Convention nexus in such violence. A fair reading of the Tribunal’s decision record suggests that this finding is a rejection of any Convention based persecution of the First Applicant by Hindus because of his Christianity.
The Tribunal accepted that the First Applicant may have suffered some discrimination because of his wealth and the fact that he owned a business, however, was not satisfied that the First Applicant was targeted by reason of his political opinion. Neither did the Tribunal accept that the First Applicant was beaten because of his political opinion. A fair reading of the Tribunal’s decision record suggests that this finding is a rejection of any Convention based persecution of the First Applicant by reason of his membership of a particular social group of wealthy business owners who are also members of the Indian National Congress Party.
The Tribunal found that the First Applicant had embellished his claims for the purposes of supporting his protection application and did not accept that he had suffered harm amounting to persecution.
Further, and in any event, the Tribunal did not accept that authorities would fail to provide the First Applicant state protection, as required by international standards, should he return to India either now or in the reasonably foreseeable future. In making that finding, the Tribunal noted that the First Applicant had not sought the protection of authorities and had not reported the claimed incidents of harassment and assault at any time. The Tribunal noted that the First Applicant claimed that police would not help him because they were allied with the opposing political party. However the Tribunal found that there was no evidence before it that the police would not have assisted him if he had reported such claims. The Tribunal found that the First Applicant did not report the incidents because they amounted only to a low level of harassment and did not amount to persecution for the purposes of the Refugees Convention.
The First Applicant was unable to identify to this Court any particular claim advanced by him that the Tribunal had failed to consider and none is apparent on a fair reading of the Tribunal’s decision record.
There was no transcript of the Tribunal hearing provided to this Court, nor did the First Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the First Applicant and the exchanges it had with the First Applicant at the hearing.
In the circumstances, the Court is not persuaded that there was a claim that arose squarely from the evidence and material before the Tribunal to which it failed to consider (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, the Full Court at [58]).
The findings and conclusions made by the Tribunal and referred to above were open to it on the evidence and material before it and for the reasons it gave.
The First Applicant also made a complaint orally to this Court at the hearing that the Tribunal did not ask him about his claims (see paragraph 30 above). However there is no general obligation on the Tribunal to investigate the First Applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]). There was no material readily available and centrally relevant to the claims of the First Applicant such that it would have been an unreasonable exercise for the Tribunal to proceed without making an attempt to obtain that information (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 per Wilcox J).
The further complaint made by the First Applicant that the Tribunal did not listen to him was not supported by any further submission or any particulars or evidence (see paragraph 30 above). A fair reading of the Tribunal’s decision record does not support such an allegation.
The Tribunal’s decision record discloses in some detail the evidence given by the First Applicant at the Tribunal hearing and exchanges the Tribunal had with the First Applicant about various aspects of his evidence. A fair reading of the Tribunal decision makes clear that the Tribunal put to the First Applicant matters of concern it had arising from his claims and evidence and noted the First Applicant’s responses. In particular, the Tribunal noted that it asked the First Applicant if there was anything further he wished to add by way of evidence or comment on the Tribunal’s concerns. The Tribunal noted the First Applicant’s response that he wanted to protect his family.
Further, the Tribunal noted that it told the First Applicant that if there was any other evidence that he wished to provide then, as long as he provided such evidence before the handing down of the decision, the Tribunal would take it into consideration. The Tribunal told the First Applicant that it would finalise its decision at the end of the following week.
Otherwise, the First Applicant’s complaints are no more than disagreements with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 162 ALR 1).
Accordingly, Ground 1 is not made out.
Ground 2 of application
Ground 2 is also unsupported by particulars evidence and submissions. Ground 2 makes the bare assertion of a failure by the Tribunal to comply with s.424A of the Act.
The Court explained to the First Applicant what s.424A of the Act obliges the Tribunal to do. The First Applicant was not able to identify any information that he could assert enlivened the obligations of s.424A of the Act. The First Applicant declined to make any oral submissions in support of Ground 2.
A fair reading of the Tribunal’s decision record makes clear that there was no information to which the Tribunal had regard that enlivened the obligations of s.424A. The Tribunal’s decision record discloses that, in affirming the decision under review, the Tribunal relied on information given by the applicants for the purposes of the review. Such information is excluded from the obligations of s.424A by reason of s.424A(3)(b) and (ba) of the Act. The Tribunal also had regard to independent country information which it identified in its decision record in some detail. Again, such information is excluded from the obligations of s.424A of the Act be reason of s.424A(3)(a) of the Act (VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [15]).
Otherwise, the Tribunal’s analysis and evaluation of the evidence and material before it are no more than the thought processes of the Tribunal and are not information that enliven the obligations of s.424A (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]).
Accordingly, Ground 2 is rejected.
Ground 1 of amended application
The First Applicant informed the Court that the grounds of the amended application were drawn by the panel adviser, Mr John Atkin, of counsel. The First Applicant was unable to make any submissions in support of the grounds, including any submission to explain to the Court what the grounds meant. In order to assist the Court, Mr Atkin kindly appeared at the Court’s request to explain to the Court the grounds of the amended application.
The Court understands that the first ground of the amended application is an assertion that the Tribunal failed to make any finding about the First Applicant’s claim of a fear of persecution by reason of his religion and membership of a particular social group. True it is that the Tribunal specifically identified the First Applicant’s claims “as they emerged from the hearing, are that he fears persecution on the basis of his religion, political opinion and membership of a particular social group.”
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood that the First Applicant was asserting that he and his family were Christians and of an opposing religion to the ruling political party. A fair reading of the Tribunal’s decision record makes clear that at the heart of the First Applicant’s claims was his claim that the persecution that he alleged he suffered was because of his and his family’s involvement with the Indian National Congress Party. As referred to in paragraphs 32 and 33 above, the Tribunal rejected the First Applicant’s claims of a fear of persecution on the basis of his religion or membership of a particular social group.
The harm feared was clearly expressed by the First Applicant to be from members of the CPI(M) party by reason of his involvement with the National Congress Party. The Tribunal was not satisfied that any past harm suffered by the First Applicant for any Convention reason was sufficient to amount to persecution for the purposes of the Refugees’ Convention. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
State Protection
Moreover, in any event, the Tribunal was not satisfied that the First Applicant would not be offered state protection as a result of the incidents that he claimed to have suffered. The Tribunal stated that:
“17. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement that an applicant must in fact hold such a fear. A person who has a “well-founded fear” of persecution under the Convention if they have a genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
…
72. The Tribunal does not accept that the authorities would fail to provide the applicant with a reasonable level of protection required by international standards should he return to India either now or in the reasonably foreseeable future.”
The Tribunal noted that the First Applicant’s claim that the police would not help him because they were close allies with the CPI(M). However, the Tribunal also noted that the First Applicant had not sought the assistance of police and that there was no evidence before it that the police would not have assisted him if he had reported the claimed incidents. The Tribunal found that the First Applicant had not reported the incidents because they amounted “only to low level harassment, and not the harm or persecution claimed”. The Tribunal had regard to the statement by James Hathaway in his book, The Law of Refugee Status, where he said as follows:
“Obviously there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming.”
It is not enough for the First Applicant to show that there was a real risk that, if he returned to India, he might suffer further harm. The First Applicant must satisfy the Tribunal that the harm was persecution and must justify his unwillingness to seek the protection of his country (Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 487 per Gleeson CJ, Hayne and Heydon JJ at [29]).
The Tribunal’s findings on the availability of state protection were open to it on the evidence and material before it and for the reasons it gave. In the circumstances, the First Applicant’s claims were not capable of satisfying a necessary criterion for being a refugee, irrespective of any asserted Convention related reason. The Tribunal’s finding about state protection has the consequence that the First Applicant failed to meet a mandatory criterion of being a refugee.
It is for the First Applicant to satisfy the Tribunal that he meets the criteria required for being a refugee (Abebe at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]). If the Tribunal is not so satisfied, s.65(1) of the Act makes clear that the Tribunal, as the relevant decision maker, must affirm the decision under review and refuse the First Applicant a protection visa.
Accordingly, Ground 1 of the amended application is not made out.
Ground 2 of amended application
The Court understands that Ground 2 is a complaint that the Tribunal failed to consider and assess the effects on the applicants of relocation in India in accordance with the principles espoused in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 and SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (“SZATV”).
In considering the issue of relocation, the Tribunal must consider the reasonableness of relocation in light of the First Applicant’s particular circumstances and whether or not, in safely relocating, the First Applicant would need to modify his behaviour in order to avoid persecution (SZATV at [23]-[24,[40]; Applicant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473).
The Tribunal must consider what is reasonable, in the sense of practicable, in relation to the particular circumstances of the First Applicant and the impact on him of relocation within India. (SZATV at [25]; Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 457 per Lord Hope of Craighead).
A fair reading of the Tribunal’s decision record does not support the allegations made in Ground 2 of the amended application. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the reasonableness for the applicants to relocate within India. The Tribunal had particular regard to the applicants’ “excellent employment record” and was satisfied that both applicants would be able to find work in another part of India. The Tribunal found that there was no evidence before it that it would be unsafe for the applicants to relocate to any other part of India. The Tribunal had regard to country information that disclosed that the law in India provided freedom of movement and that the government generally accepted such a practice.
The Tribunal’s decision record discloses that the Tribunal asked the First Applicant if he had considered moving to any other part of India to continue his business and noted the First Applicant’s response that it was not possible to go elsewhere. The Tribunal noted that it pressed the First Applicant for an explanation and noted that the First Applicant claimed that he did not have enough money to re-establish his business in another part of India and that it would be too difficult. The Tribunal noted that it put to the First Applicant that the First Applicant had relocated to Australia where he would not have had the benefit of knowing the language or culture and asked him why it would not have been easier for him to relocate to India. The Tribunal noted the First Applicant’s response that the situation in India was getting worse for Christians and that people were destroying churches and that the applicants would not be safe.
It is apparent from the Tribunal’s decision record that it specifically discussed with the First Applicant the issue of relocation and noted the First Applicant’s responses. The Tribunal was obliged to consider the practical realities in respect of the First Applicant in considering whether it would be reasonable for the First Applicant to relocate (SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216; NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 (“NAIZ”)).
A fair reading of the Tribunal’s decision record does not suggest that there was any specific difficulty or practical impediment raised by the First Applicant that would have required the Tribunal’s specific consideration, such as in NAIZ. In NAIZ, the applicant was a 55 year old unemployed widow in Fiji who claimed that she needed to be “looked after”. The Full Court found that the tribunal had failed to consider that specific practical reality as to whether or not that applicant would have anyone to look after her if she were to relocate within Fiji. A fair reading of the Tribunal’s decision record does not suggest that there was any evidence or material before the Tribunal of any difficulty or practical impediment of the First Applicant that would have required the Tribunal to consider further specific matters about the First Applicant in relation to the issue of relocation.
The Tribunal’s ultimate findings in relation to relocation were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 of the amended application is not made out.
The Tribunal’s finding in relation to relocation was an independent basis for affirming the decision under review. Accordingly, any error in the Tribunal’s consideration of either relocation or its consideration and findings.
In the circumstances, even if there was an error in the Tribunal’s consideration and decision of whether or not the First Applicant had a well-founded fear of persecution for a Convention related reason would not affect the validity of the Tribunal’s conclusion that it was reasonable and practicable for the First Applicant to relocate in India (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [233] per Allsop J; SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23] per Sackville J).
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the applicants; explored those claims with the First Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the First Applicant matters of concern it had about his evidence and noted the First Applicant’s responses. The Tribunal also put to the First Applicant independent country information before it and invited the First Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for which it provided reasons. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 29 April 2009
0
19
2