SZNAO v Minister for Immigration
[2009] FMCA 429
•7 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNAO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 429 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered whether it was reasonable and practicable for the applicants to relocate within India – whether the Refugee Review Tribunal was obliged to consider the adequacy and effectiveness of state protection. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 424A; 425; 474; pt.8 div.2 Migration Regulations 1994 (Cth), reg.1.12(1) |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 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 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 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 Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 |
| First Applicant: | SZNAO |
| Second Applicant: | SZNAP |
| Third Applicant: | SZNAQ |
| Fourth Applicant: | SZNAR |
| Fifth Applicant: | SZNAS |
| Sixth Applicant: | SZNAT |
| Seventh Applicant: | SZNAU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3221 of 2008 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 April 2009 |
| Date of last submission: | 28 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2009 |
REPRESENTATION
| Applicants appeared on their own behalf |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Mr R. Baird, Clayton Utz |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3221 of 2008
| SZNAO |
First Applicant
| SZNAP |
Second Applicant
| SZNAQ |
Third Applicant
| SZNAR |
Fourth Applicant
| SZNAS |
Fifth Applicant
| SZNAT |
Sixth Applicant
| SZNAU |
Seventh 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 11 November 2008 and handed down on 12 November 2008.
Seven applicants are included in the application to this Court. The first-named applicant (“SZNAO”) is the husband of the second-named applicant and the adoptive father of the third-named applicant. SZNAO is also the father of the fourth-named applicant (“SZNAR”), whose wife is the fifth-named applicant and whose children are the sixth and seventh-named applicants. The claims of the family members of each of SZNAO and SZNAR are dependent on the claims of SZNAO and SZNAR.
SZNAO and SZNAR made separate applications for protection visas, on 1 July 2008 and 28 July 2008 respectively, following a decision by a delegate of the First Respondent (“the Delegate”) that SZNAR and his family were not members of SZNAO’s family unit as defined in clause 1.12(1) of the Migration Regulations 1994 (Cth).
The applicants claim to be citizens of India and of Hindu faith.
The applicants arrived in Australia on 28 May 2008 having departed legally from New Delhi. SZNAO and his family travelled on a passport issued in their own names and visitor visas issued on 19 March 2008, as did SZNAR and his family.
On 28 August 2008, the Delegate refused both protection visa applications in separate decisions.
On 22 September 2008, SZNAO and his family lodged an application for review by the Tribunal of the Delegate’s decision in respect of the protection visa application lodged by SZNAO 1 July 2008.
On 22 September 2008, SZNAR and his family lodged an application for review by the Tribunal of the Delegate’s decision in respect of the protection visa application lodged by SZNAR 8 July 2008.
On 11 November 2008, the Tribunal, in a joint decision, affirmed the decision of the Delegate not to grant protection visas.
On 5 December 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.”
Sections 91R and 91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal’s review and decision
On 22 September 2008, SZNAO and his family lodged an application for review of the Delegate’s decision dated 28 August 2008 by the Tribunal. On 22 September 2008, SZNAR and his family also lodged an application for review of the Delegate’s decision dated 28 August 2008 by the Tribunal.
Although SZNAO and SZNAR lodged separate applications for review of the separate Delegate’s decisions, dated 28 August 2008, the Tribunal decided to hear the applications together. No issue was taken either by SZNAO or SZNAR about the course adopted by the Tribunal. In the circumstances, I accept the submissions by counsel for the First Respondent, Mr Kennett, that there was no error in the Tribunal’s decision to adopt this course with respect to the applications before it. For the sake of completeness, I refer to Mr Kennett’s written submission on this issue as follows:
“2.The First, Second and Third Applicants (SZNAO, SZNAP and SZNAQ) are a married couple and their adopted son. The Fourth Applicant (SZNAR) is the adult son of SZNAO and SZNAP and the other Applicants (SZNAS, SZNAT and SZNAU) are his wife and children.
3.All seven Applicants initially applied for protection visas on the basis that SZNAO claimed to be a refugee and the others claimed to be members of the family unit. The Minister’s delegate formed the view that SZNAR, SZNAS and their children were not part of SZNAO’s family unit as defined in the Migration Regulations, and invited SZNAR to submit a new application form claiming to be a refugee in his own right, which he did. The delegate then assessed the Applicants on the basis that there were two family units: one comprising SZNAO (who claimed to be a refugee), SZNAP and SZNAQ; and one comprising SZNAR (who claimed to be a refugee), SZNAS, SZNAT and SZNAU. The delegate published separate decision records for the two families and in both cases refused to grant the visas sought.
4.The Applicants accordingly made two separate applications for review by the Refugee Review Tribunal, albeit lodged on the same day.
5.The Tribunal dealt with these applications together. It sent the necessary correspondence separately to the two principal applicants (SZNAO and SZNAR), but it scheduled their hearings together, and wrote a single decision record dealing with both applications. In this decision (made on 11 November 2008 and sent to the Applicants the following day) the Tribunal decided to affirm the delegate’s decision(s).
6.The Tribunal took the view that the proper way to understand what had occurred before the delegate was that, rather than submitting a new visa application, SZNAR had changed the basis upon which he sought to meet the visa criteria by raising his own claims to be a refugee. (The Tribunal was also prepared to assess the claims of SZNAR’s wife and children on the basis that they claimed membership of his family unit, rather than SZNAO’s). This conclusion cast doubt on whether it was necessary for the delegate to publish two decisions (and for those decisions to be the subject of distinct applications to the Tribunal) but did not affect the issues of substance before the Tribunal, namely whether SZNAO and/or SZNAR was a person to whom Australia had protection obligations under the Refugees Convention.”
On 8 October 2008, the Tribunal wrote to SZNAO and SZNAR separately 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 all the applicants to attend a hearing on 5 November 2008 to give oral evidence and present arguments. SZNAO and SZNAR attended that hearing and gave evidence.
On 5 November 2008, SZNAO and SZNAR gave evidence at the hearing before the Tribunal in which they expanded upon their written claims.
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 that the applicants did not have a well-founded fear of persecution on the evidence before it. The Tribunal also found the applicants could reasonably relocate within India to escape any well-founded fear of persecution arising from their claims.
The claims of the applicants and the decision of the Tribunal are accurately summarised by counsel for the First Respondent, Mr Kennett, in his written submissions as follows:
“7.SZNAO and SZNAR relied on a common substratum of facts, which involved threats to the family and a deadly attack on their relatives by Islamic militants in their home village in Kashmir. The threats and attacks were said to be the result of SZNAO’s earlier service in the Indian Army. The Tribunal broadly accepted this account. It accepted that, in 2001-2002, the Applicants were generally fearful of persecution and that such persecution would have been based on their membership of a particular social group.[1]
8.However, the Tribunal concluded that the Applicants did not have a genuine fear of persecution on this basis since at least 2002, having moved away from their home village, they lived without harassment in another location.[2]
9.That finding was of course sufficient in itself to dictate a conclusion that the Applicants were not refugees. However, the Tribunal also found that the Applicants could avoid such persecution, as they did fear, by relocating within India,[3] and that in the circumstances it was reasonable for them to do so.[4]
10.The Tribunal accordingly concluded that neither SZNAO nor SZNAR was a person to whom Australia had protection obligations. This meant that neither they nor their family members met the criteria for grant of a protection visa.[5]”
[1] CB 634 [89], 636 [104].
[2] CB 634 [90]-[91], 636 [104].
[3] CB 634 [93], 636 [105].
[4] CB 635 [99], 636 [105].
[5] CB 637.
The proceeding before this Court
The applicants were unrepresented before this Court although had the assistance of a Hindi interpreter. Whilst both SZNAO and SZNAR appeared before the Court, it was SZNAR who spoke on behalf of all the applicants.
On 10 February 2009, SZNAO and SZNAR attended a directions hearing before this Court. The applicants were 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.
On 17 March 2009, the applicants filed an amended application. At the commencement of the hearing before this Court SZNAR confirmed that the applicants relied only on the grounds of the amended application.
The grounds of the amended application are expressed to be as follows:
“1.The Second Respondent erred in failing to properly consider the issue of relocation )in circumstances where relocation was an important consideration)
Particulars:
The Tribunal formed the view that harm feared by the applicants can be avoided if the applicant moved to another area of India. The applicants submit that other than considering the applicant’s ability to speak the language the Tribunal has erred in not considering the reasonableness and Practicality of relocation as decided in leading cases such as Randhawa, NAIZ, SZBJI cases. The Tribunal making other errors such as putting Irrelevant and outdated country information to test the applicant’s skills and thus employability (RRT decision 93-1000-Grenn Book 660-661) The Tribunal mainly formed its opinion about relocation taking outdated Country information.
2.The Tribunal committed a Jurisdictional error by failing to review the adequacy and effectiveness of State Protection in accordance with the Migration Act 1958 instead on what the applicant had to say
Particulars
The applicant when answering the issue of state protection answered (RRT Decision: page 8-9 col35, 36, 37 Green Book PP 646-647)” in response to Question 45 the applicant stated that the government is unable to give enuine (sic) Protection to them. The main reason for the failure to protect the innocent Hindus and ex-army persons and informer is that the local Jammu and Kashmir police and politicians are collided with the militants. The applicant already provided a report on this issue entitled “police, politicians and Military nexus”. The applicant submits that instead of making proper inquiries in affirming the delegate’s decision, the Tribunal relied upon the answer of the applicant to a pointed question in finding of adequacy and effectiveness of the State protection. RRT accepted that the available information suggests that state protection is inadequate for Hindus, Sikhs, and other religious Minorities and civilians generally in Jammu and Kashmir.
3.The Applicants submit that Tribunal erred in making findings of well-founded fear.
Particulars
The Tribunal accepts that the applicant was genuinely fearful of persecution in Poonch due to his religion or his membership of a particular social group that may be defined as ex-army personnel or those with links to the army or the police) that he left Poonch to avoid such persecution. The RRT erred in adopting an unduly harsh approach to the Well –founded fear. The Stringent application of the test may also result in error in assessment of the finding in relation to well founded fear.
4.The Second Respondent misconstrued the real chance test by saying that the Tribunal has formed the view that the harm feared by the applicant can be avoided if the applicant moved another area of India.
Particulars
The RRT made error in law when it based its decision on presumption and speculations. The Applicants submit that the Tribunal has misconstrued the test; has failed to carry out the “real chance” test as required by the law. The RRT failed to assess the cumulative effects of separate incidents related with his claim for protection visa. The Applicants claim that they were denied natural justice and procedural fairness.”
SZNAR confirmed that the applicants had not filed any evidence or submissions in support of the amended application. SZNAR was invited to make submissions in support of each of the grounds of the amended application and in support of the application generally. SZNAO was also extended the same invitation, although he declined to make any submissions.
I understand the grounds of the amended application collectively to make complaints about:
i)the Tribunal’s findings in relation to relocation;
ii)the failure by the Tribunal to consider the adequacy and effectiveness of state protection;
iii)that the Tribunal adopted “an unduly harsh approach” to its consideration of whether the applicants had a well-founded fear of persecution; and,
iv)that the applicants were denied natural justice and procedural fairness because the Tribunal misconstrued the real chance test and based its decision on presumption and speculation.
For the reasons set out below, none of the complaints are made out.
Grounds 1 and 2
Grounds 1 alleged that the Tribunal failed to “properly consider” the issue of relocation.
Ground 2 alleged that the Tribunal erred in failing to consider the adequacy and effectiveness of state protection.
Counsel for the First Respondent, Mr Kennett, submitted that it was not necessary for the Tribunal to consider whether the state could or would protect SZNAO from harm or whether they could relocate in India because the Tribunal had made a positive finding that the applicants did not have a genuine subjective fear of persecution and had not been in fear of persecution for several years. Mr Kennett’s submission raises essentially the same issue in respect of both Grounds 1 and 2.
Therefore, I have dealt with Grounds 1 and 2 together.
SZNAR submitted that the Tribunal did not consider the applicants fear of persecution and only gave weight to the relocation issue. Other than that statement, SZNAR did not make any meaningful submissions in support of the grounds. The Court notes that the grounds of the amended application are in a form regularly seen in this Court.
The Tribunal considered the claims of each of SZNAO and SZNAR separately, although arrived at the same conclusion based on similar findings.
The Tribunal noted that SZNAO claimed to fear persecution from “the terrorists, the militants and the extremists, including the Muslims.” The Tribunal summarised SZNAO’s claims of a fear of persecution because of his religion, his connection with the army and the authorities and because he was perceived as passing information about the militants and the terrorists and membership of a particular social group. The Tribunal defined the particular social group as “ex-army personnel or those with links to the army or the police”.
In relation to SZNAO, the Tribunal accepted that members of SZNAO’s family had been killed in Poonch in 2001 and that, at that time, SZNAO had a genuine fear of persecution in Poonch for the Convention reasons of religion and membership of a particular social group. The Tribunal accepted that SZNAO and SZNAR and their families left Poonch and moved to Kathua in 2001/2 to avoid such persecution.
The Tribunal found that SZNAO no longer had a genuine fear of persecution once he left Poonch or at least after he returned from a trip to Korea in 2002. The Tribunal noted that SZNAO remained at the same place of residence between 2002 and 2008. The Tribunal noted that SZNAO claimed that, after he returned from Korea in 2002, there was no further contact from those who he claimed wished to harm him. The Applicant also claimed that because he had a job and good connections he decided to stay in Kathua. The Tribunal noted that SZNAO said that in 2006 tensions arose in Kathua. However SZNAO remained at his home for a further 2 years.
SZNAO claimed that in 2008 he received a telephone call threatening SZNAR. The Tribunal accepted that SZNAO may have received the telephone call in 2008 but did not accept that SZNAO or SZNAR were fearful of persecution after that telephone call. In particular, the Tribunal noted that although the applicants obtained visas to enter Australia in March, in fact, they did not leave India until May 2008.
The Tribunal made similar findings in respect to SZNAR. The Tribunal found that SZNAR had a fear of persecution after the 2001 incident in Poonch and that he moved to Kathua with his family to avoid such persecution. However, the Tribunal found that SZNAR did not have a well-founded fear of persecution after moving to Kathua in 2002 because he remained at the one place of residence until his departure for Australia in 2008, despite having left his job and despite the telephone call in 2008. The Tribunal noted that SZNAO stated that, after the telephone call, he rarely left the house. However, the Tribunal did not accept that SZNAR remained in the house merely because of the telephone call.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal explored with SZNAO and SZNAR in some detail the claims that they made. The Tribunal’s decision record notes various exchanges that the Tribunal had with SZNAO and SZNAR and noted matters of concern that it put to SZNAO and SZNAR about their evidence and noted the responses.
There was no transcript of the Tribunal hearing provided to this Court, neither did the applicants provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 10 February 2009 the applicants were given an opportunity to file a transcript of the Tribunal hearing. The applicants were directed to ensure than any such transcript was verified by affidavit. The applicants were also directed to give notice if they wished to rely on tapes of the hearing. However, no step was taken by the applicants to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by SZNAO and SZNAR and exchanges it had with SZNAO and SZNAR at the Tribunal hearing.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings that neither SZNAO nor SZNAR had a genuine and subjective fear of persecution, were open to it on the evidence and material before it and for the reasons it gave.
Having found that SZNAO and SZNAR did not have a genuine and subjective fear of persecution, it follows that the Tribunal, as it stated, was not satisfied that SZNAO and SZNAR have a well-founded fear of persecution for a Convention related reason. That conclusion was based on findings made by the Tribunal after having applied the correct law to those findings. In the circumstances, the Tribunal’s conclusion was open to it on the material and evidence before it and for the reasons it gave.
Having concluded that SZNAO and SZNAR did not have a well-founded fear of persecution for a Convention related reason, it was not necessary for the Tribunal to consider either the issue of the adequacy and effectiveness of any state protection or the issue of relocation.
To the extent that the particulars in support of Ground 1 allege that the Tribunal used “irrelevant and outdated country information”, the allegation was not supported by particulars, evidence or submissions. It is for a Tribunal to decide that country information to which it has regard and the weight it gives to that information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] and [13]).
To the extent that the particulars in support of Ground 2 allege that the Tribunal failed to make proper enquiries in affirming the Delegate’s decision, there is no general obligation on the Tribunal to investigate the applicants’ 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]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528).
There was nothing in the instant case to suggest that there was material readily available and centrally relevant to the decision such that it was unreasonable for the Tribunal not to have attempted to obtain that information. There were no particulars, evidence or submissions to support the Applicant’s bare assertion that the Tribunal should have investigated their claims.
It is for the applicants to satisfy the Tribunal, being the relevant decision maker, that they meet the criteria required for being refugees. If the Tribunal, as the relevant decision maker, is not so satisfied, then s.65(1) of the Act mandates that protection visas must be refused.
As stated above, the findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for the reasons it gave.
For those reasons Grounds 1 and 2 of the amended application are not made out.
Ground 3
Ground 3 makes the bare assertion that the “Tribunal erred in making findings of well-founded fear.” The particulars in support allege that the Tribunal adopted “an unduly harsh approach to the well-founded fear.”
In relation to Ground 3, a fair reading of the Tribunal’s decision record, as referred to above, does not support the allegation that the Tribunal adopted “an unduly harsh approach” to considering whether SZNAO and SZNAR had a well-founded fear of persecution. As stated above, the Tribunal’s findings in rejecting that SZNAO and SZNAR had a well-founded fear of persecution were open to it on the evidence and material before it and for the reasons it gave.
Otherwise, Ground 3 is no more than a disagreement and complaint about the Tribunal’s findings. Such a complaint invites 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; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1985) 162 CLR 24 at 41 per Mason J).
Accordingly, Ground 3 is not made out.
Ground 4
Ground 4 alleges that the Tribunal “misconstrued the real chance test” as a result of which the applicants were denied natural justice and procedural fairness.
Ground 4 was not supported by further particulars, evidence or submissions.
In relation to Ground 4, there was no occasion for the Tribunal to consider the real chance test where it was not satisfied that the applicants had a well-founded fear of persecution.
A fair reading of the Tribunal’s decision makes clear that the applicants were invited to attend a hearing before the Tribunal and were given an opportunity to give evidence and present arguments (pursuant to s.425 of the Act).
The rejection of the applicants’ claims by the Tribunal was based on its non-acceptance of the evidence of SZNAO and SZNAR that either had a well-founded fear of persecution. Those findings were based on the evidence of SZNAO and SZNAR that they successfully relocated to Kathua and travelled to and from Korea in 2002, following the initial persecution in Poonch in 2001.
The Tribunal did not accept that the one threatening telephone call in 2008 was serious harm amounting to persecution.
There was no information to which the Tribunal had regard that enlivened the obligations of s.424A of the Act.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal put to SZNAO and SZNAR matters of concern that it had about their evidence and noted their responses. It was open to the Tribunal to reject those explanations. The Tribunal is required to analyse and evaluate the evidence before it and make findings in respect of that evidence. It did so.
The Tribunal found that it was reasonable for SZNAO and SZNAR to relocate to another part of India.
In relation to SZNAO, the Tribunal found that it was reasonable for SZNAO, having regard to his circumstances, that he and his family relocate to another state in India. The Tribunal noted SZNAO’s claim that he would not be protected anywhere in India and that India is not able to protect its citizens. The Tribunal accepted country reports that suggested there is some degree of instability in India, however, the Tribunal found that any harm arising was not “part of a systematic conduct directed for a Convention reason against [the Applicant] as an individual or as a member of a class.” The Tribunal found that such general violence was unsystematic or random. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
The Tribunal found that it was reasonable for SZNAR to relocate to another part of India given his qualifications, language skills and the fact that he had been able to travel with his family to Australia.
A fair reading of the Tribunal’s decision record and both SZNAO’s and SZNAR’s claims does not suggest that there was any particular difficulty or impediment that would arise specific to any of the applicants that may affect their ability to relocate in the practical sense within India (NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] per Branson J). Neither did SZNAR assert to this Court that there was any such particular difficulty to which the Tribunal should have regard in considering whether it was reasonable for the applicants to relocate within India.
In the circumstances, the Tribunal’s findings in relation to whether it was reasonable for the applicants to relocate within India were open to it on the evidence and material before it and for the reasons it gave.
Moreover, the Tribunal’s findings that it was reasonable for SZNAO and SZNAR and their families to relocate within India are independent of the Tribunal’s findings in relation to the claims of persecution.
The relocation finding in respect of each of SZNAO and SZNAR was an independent basis upon which the Tribunal affirmed the decisions under review. Neither basis upon which the Tribunal affirmed the decisions under review was affected by jurisdiction error. For the Tribunal’s decision to be affected by jurisdictional error, both bases would need to be affected by jurisdictional error (VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33]; SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660 at [23]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [233] per Allsop J).
Accordingly none of the grounds of the amended application are made out.
Conclusion
A fair reading of the Tribunal’s decision makes it clear that the Tribunal understood the claims being made by the applicants and accurately summarised those claims in its decision record. The Tribunal explored those claims with SZNAO and SZNAR at a hearing. The Tribunal put to SZNAO and SZNAR in some detail matters of concern it had about their evidence and noted their responses. The Tribunal also identified country information to which it had regard and which it put to SZNAO and SZNAR at the hearing, noting their responses. 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 record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it 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: 7 May 2009
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