SZMZR v Minister for Immigration and Citizenship

[2009] FCA 904

FEDERAL COURT OF AUSTRALIA

SZMZR v Minister for Immigration and Citizenship [2009] FCA 904

SZMZR v Minister for Immigration and Citizenship [2009] FMCA 392 affirmed
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 followed
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 followed
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 cited

SZMZR and SZMZS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 430 of 2009

FOSTER J
17 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 430 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMZR
First Appellant

SZMZS
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	17 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs of and incidental to 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 430 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMZR
First Appellant

SZMZS
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	17 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 29 April 2009 (SZMZR v Minister for Immigration and Citizenship [2009] FMCA 392) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 14 October 2008 and handed down on 4 November 2008.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant protection visas to the appellants. 

2. The appellants are husband and wife.  Only the first appellant (the husband) appeared before me today.  There was no appearance by his wife although the first appellant informed me that he was speaking for his wife.  I shall hereafter refer to the first appellant as the husband. 

3. Before the Tribunal the second appellant indicated that she did not have an individual claim to be a refugee and that she was applying as a member of her husband’s family.  It appears that that has remained the position both before the Federal Magistrate and in this Court. 

4. The appellants are citizens of India.  They arrived in Australia on 4 May 2008.  On 20 May 2008, the appellants lodged an Application for Protection Visas with the Department of Immigration and Citizenship.  A delegate of the first respondent refused their Application on 17 July 2008. 

5. On 18 August 2008, the appellants applied to the Tribunal for a review of that decision.  Before the Tribunal, the husband claimed to have a well-founded fear of persecution because of political beliefs held by him.  He claimed that he was an active member of the Congress Party of India and was involved in community activities and fundraising on behalf of that organisation.  He claimed that these activities attracted the adverse interest of the Bharatiya Janata Party (the BJP).

6. The husband stated that, on 12 November 2007, he was physically threatened and harassed by two BJP leaders when he was seeking to raise campaign funds on behalf of the Congress Party and that, on 23 December 2007, he was beaten by BJP supporters and hospitalised for two days in an attack which resulted in the death of two people.  As a result of these attacks, the husband moved from his village to Ahmedabad for two months to avoid the difficulties that he was having with BJP supporters. 

7. The husband also claimed that, in March 2008, three days after he returned to his village, he was attacked in his home by six BJP supporters who used abusive language and hit the doors of his house in an aggressive manner.  He said that he called the police on this occasion.  He said that the police came and the BJP supporters fled.  He also claimed that, two days after this incident, he was surrounded by BJP supporters while he was shopping and that they had again assaulted him.  He said that he reported this incident to police, but that the police did not catch those involved because the BJP was in government at the time.  The husband stated that he feared for his life and decided to flee to Australia. 

8. The Tribunal accepted that the husband was a genuine member of the Congress Party and accepted most of his claims in respect of his activities on behalf of that party.  It accepted that between November 2007 and March 2008, he was targeted on at least four separate occasions by supporters of the BJP, who objected to his political activities.  The Tribunal also accepted the husband’s claim that, if he returned to the Kani region of India, he could be at risk of further harassment by BJP supporters.  However, the Tribunal did not accept that the husband was at risk of harm from the BJP irrespective of where he might reside in India, nor did it accept that he had been denied or would be denied protection by the governments of the various states throughout India.

9. The Tribunal was satisfied that the husband’s financial resources as well as his personal circumstances, skills and knowledge, which had enabled him previously to relocate safely within India, would enable him to do so again in the future and thereby to live without fear of persecution.  In making this finding, the Tribunal also referred to independent country information, which indicated that, in general, citizens of India were able to express their political opinions freely and safely and that members of the Congress Party were commonly able to express their views and to participate in political activities of their choice without adverse interest from the BJP. 

10. On the basis of the husband’s evidence and independent country information, the Tribunal also found that the authorities in Kani had acted appropriately when he sought their assistance, even though they had been unable to apprehend the perpetrators or to provide the husband with total protection.  The Tribunal concluded that the state in India provided a reasonable standard of protection for all citizens.  Accordingly, for these reasons, the Tribunal found that the husband did not have a well-founded fear of persecution in India for a Convention reason.

11. The appellants sought judicial review of the Tribunal’s decision by filing an Application in the Federal Magistrates Court on 1 December 2008.  An Amended Application before that Court was filed on 16 March 2009.  In the Federal Magistrates Court, the appellants claimed that the Tribunal had erred in:

    (a)Adopting an unduly harsh approach to the test of well-founded fear;

    (b)Failing to apply the “real chance” test;

    (c)Failing properly to consider the issue of relocation;

    (d)Failing to review the adequacy of state protection in India;

    (e)Making the decision which it made on the basis of unreliable information; and

    (f)Failing to undertake an investigation before making a decision.

12. The learned Federal Magistrate set out the grounds of the appellants’ application before her at [27] of her reasons for judgment. 

13. In considering the Tribunal’s decision, in light of the claims made before her by the husband, the Federal Magistrate noted that it was clear that the Tribunal had considered carefully every aspect of the husband’s claims and had accepted his claims of past persecution by reason of his political involvement in Kani.  However, the Tribunal had concluded that, in all the circumstances, relocation within India was reasonable for the appellants.  Her Honour stated that the Tribunal’s conclusion was based on its analysis and evaluation of the evidence and the material before it.  Her Honour was satisfied that the findings of the Tribunal in relation to relocation were open to it on the evidence and on the material before it for the reasons which it had given. 

14. Her Honour went on to state that, in the circumstances, the appellants’ contentions contained in the first ground of appeal were not made out. 

15. As far as the second ground of appeal was concerned, the Federal Magistrate noted that the Tribunal had largely accepted the husband’s claims, but had found, however, that, in the light of country information before it and its evaluation of his claims generally, the Tribunal was not satisfied that there was a real chance of persecution in the foreseeable future by members of the BJP elsewhere in India.  Her Honour was satisfied that it was open to the Tribunal to prefer the country information which it had before it, where the husband’s evidence was inconsistent with that information. 

16. In dealing with the third ground, her Honour stated that a fair reading of the Tribunal’s decision made clear that the Tribunal had had regard to the practicalities of the appellants’ relocating elsewhere in India.  Her Honour noted that the Tribunal’s finding on relocation did not suggest that the husband would need to modify his behaviour.  Rather, the Tribunal had made a positive finding that the husband would be able to express his political opinion and to continue his work with the Congress Party in India if he chose to do so.  Her Honour found that, in the circumstances, the Tribunal’s findings and conclusions with respect to the issue of relocation were open to it on the evidence and on the material before it, and for the reasons which it gave. 

17. As far as the fourth ground of appeal before her was concerned, the Federal Magistrate found that the Tribunal had specifically considered the husband’s claim that the authorities in Kani had refused to assist him and that the findings of the Tribunal in this regard were fairly open to it on the evidence before it. 

18. Finally, her Honour found that there was no evidence before the Court to suggest that the country information to which the Tribunal had had regard was “unreliable”.  

19. Her Honour further noted that there was no obligation on the Tribunal to investigate further the husband’s claims and that this was not a case where there was obvious material available to the Tribunal which was centrally relevant to its decision which the Tribunal had declined to investigate. 

20. The appellants filed their Notice of Appeal in this Court on 15 May 2009.  The grounds of appeal specified in that notice were as follows:

    1.His [sic] Honour Federal Magistrate failed to hold that Refugee Review Tribunal made jurisdictional error when adopted harsh approach to well-founded fear.  The Tribunal misapplied the express and implied meaning of term “Well-founded fear” and “Refugee” from the UN Convention in relation to applicant’s fear of persecution.

    2.The Hon. Federal Magistrate failed to hold the Tribunal erred in failing to properly consider the issue of relocation (in circumstances wher [sic] relocation was an important consideration.

    3.Hon. Federal Magistrate failed to hold that the Tribunal has failed to carryout the real chance test as required by the law but has resorted to balance of probabilities and other types of tests.

21. The husband did not make any submissions-in-chief before me today.  However, in reply to the submissions made on behalf of the first respondent, the husband asserted that the Tribunal had not given to him a fair opportunity to express himself at the hearing conducted by the Tribunal and had also arrived at a wrong conclusion in respect of the question of relocation within India. 

22. The first respondent submitted that:

    (a)The first ground of appeal constitutes an impermissible attempt to persuade the Court to conduct a merits review of the Tribunal’s decision and, for that reason, should be rejected;

    (b)There was no jurisdictional error in the Tribunal’s finding that the appellants could safely relocate within India.  In amplifying this submission, the first respondent cited SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and further submitted that the Tribunal had applied the correct principles in considering the question of relocation, thereby arriving at the correct conclusion on this point; and

    (c)The Tribunal had applied the correct test for the assessment of the husband’s claims.  The first respondent made specific reference to [17] of the Tribunal’s decision in this regard. 

23. Before turning to the grounds of appeal which have actually been raised in the Notice of Appeal, I should pause to deal with the additional matter raised this morning in oral submissions, namely, that the Tribunal had not given the husband a fair opportunity to express himself.  There is no evidence before me that would support that contention. 

24. When one has regard to the terms of the Tribunal’s decision and to the fact that, for the purposes of conducting its review, the Tribunal listened to the recording of the interview which was conducted by the delegate with the appellant on 9 July 2008, there is nothing to support an allegation that the Tribunal denied procedural fairness to the husband.  This contention was not advanced in the Notice of Appeal as filed but, in any event, has no merit. 

25. Turning now to deal with the grounds of appeal in the document as filed. 

    GROUND 1

26. This ground is merely a repetition of a similar ground argued before the Federal Magistrate.  It is an attempt to re-agitate the merits which, of course, is not permissible in this appeal.  The approach which the Federal Magistrate took to this ground was correct.  Indeed, a fair reading of the Tribunal’s decision supports the proposition that the approach which the Tribunal took to the question embedded in this ground of appeal was also correct.  This Court cannot engage in fact-finding about the merits of the administrative decision under review (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10; and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

27. Accordingly, in my judgment, Ground 1 has not been made out. 

    GROUND 2

28. Turning now to the second ground, in my judgment and contrary to the appellants’ submissions, the Tribunal applied the correct principles in looking at the question of relocation.  The essence of those principles is that, in making a relocation finding, the decision-maker must consider the reasonableness of relocation in light of the applicant’s particular circumstances. 

29. Further, in safely relocating, the applicant is not expected to modify his or her behaviour in order to avoid persecution (SZATV 233 CLR 18; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437).

30. At [41] to [46] of its reasons, the Tribunal gave careful consideration to the appellants’ ability to relocate within India.  In those paragraphs of its reasons, the Tribunal gave express consideration to the practicalities of the appellants relocating in light of the husband’s personal situation and circumstances (including his previously demonstrated ability to relocate within India), as well as his financial resources, skills and knowledge. 

31. The Federal Magistrate noted that the findings and reasons of the Tribunal did not manifest a misunderstanding or a misapplication of the relevant principles.  In my judgment, the Federal Magistrate was correct when she expressed this conclusion, and there was no error in the approach of the Tribunal in dealing with relocation. 

    GROUND 3

32. Ground 3 was also advanced before the Federal Magistrate.  The Federal Magistrate noted that the Tribunal concluded that it could not be satisfied that there was a real chance of persecution of the husband in the foreseeable future by members of the BJP elsewhere in India.  Her Honour said that it was open to the Tribunal to prefer the country information where the husband’s evidence differed from it.  At the beginning of its reasons for decision, the Tribunal set out the law relating to the real chance test which is related to the concept of a well-founded fear for a Convention reason.  In my judgment, it correctly articulated the relevant principles. 

33. In substance, the complaint under Ground 3 is a complaint that the Tribunal came to the wrong view on the facts.  In my judgment, there is no error disclosed in the Tribunal’s decision and, in particular, no error which could be characterised as jurisdictional error.  Accordingly, Ground 3 has not been made out. 

    CONCLUSION

34. For these reasons, there has been no error on the part of the Federal Magistrate demonstrated by the appellants, nor have they been able to demonstrate jurisdictional error on the part of the Tribunal.  Accordingly, I propose to dismiss the appeal with costs. 

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:        19 August 2009

The Appellants appeared in person
Solicitor for the First Respondent:	Mr J Pinder of DLA Phillips Fox
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

Date of Hearing:	17 August 2009
Date of Judgment:	17 August 2009