SZNBB v Minister for Immigration and Citizenship

[2009] FCA 927

FEDERAL COURT OF AUSTRALIA

SZNBB v Minister for Immigration and Citizenship [2009] FCA 927

SZNBB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 402 of 2009

SIOPIS J
21 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 402 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNBB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	21 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs to be taxed.

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 402 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNBB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	21 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India who arrived in Australia on 18 May 2008 on a visitor’s visa.  On 27 June 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

2. The appellant claimed to have a well-founded fear of persecution because of his political opinion arising from his involvement with the Congress Party in Assam state for over 20 years.  He contended that he feared persecution by the United Liberation Front of Assam (ULFA).  He claimed to have been kidnapped by the ULFA whilst he was residing in Assam.  He then fled to Kolkata before departing for Australia.

3. A delegate of the first respondent refused the application for a protection visa on 15 August 2008.  An issue before the delegate was whether the appellant could relocate to another part of India.  The delegate found the appellant had the option of relocating to another part of India.  The delegate noted that the appellant had admitted that he had a “peaceful life” while living in Kolkata.

   THE TRIBUNAL

4. On 10 September 2008, the appellant applied to the Tribunal for a review of the delegate’s decision.

5. Before the Tribunal, the appellant claimed that he was involved with the Congress Party in Assam state for over 20 years.  He claimed that in 2006, he had a dispute with a former Congress Party member, who was subsequently elected as an independent Member of the Legislative Assembly (MLA).  The appellant said that he began to attract the adverse interest of the ULFA, a terrorist organisation, to which the MLA had connections.  The appellant claimed that the ULFA sent four letters demanding money from him.  He claimed that he paid the first demand but not the second demand.  He claimed that after he refused to pay the second instalment he was kidnapped and held for seven days until his brother paid the ransom.  The appellant said that he paid the third demand in February 2007.  After receiving the fourth demand, he did not pay it and fled to Kolkata, where he stayed from August 2007 until he came to Australia in May 2008.  He claimed that while he was in Kolkata he received a call on his mobile phone, warning him that he would be killed if he did not comply with the ULFA’s demands.

6. The appellant claimed that the ULFA had agents throughout India and that they would be able to find him if he returned to India.  He stated that the authorities would not be able to protect him and that relocation was not a reasonable option for him as he would have language and employment difficulties.

7. The Tribunal largely accepted the appellant’s claims.  However, it formed the view that his difficulties with the ULFA and the MLA were confined to the Dalgaon region of Assam state and that he had not been harmed in Kolkata as he was not in Assam.  The Tribunal found, on the basis of independent country information, that the ULFA was not active beyond Assam state and did not accept the appellant’s contention that the ULFA had the ability or interest to pursue individuals outside of Assam state.  The Tribunal also found that the MLA’s range of influence was limited to Assam state.

8. The Tribunal was satisfied that the appellant could avoid further difficulties by relocating within India.  The Tribunal formed the view that the appellant had the personal circumstances, skills, knowledge, and resources to allow him to relocate successfully within India.  The Tribunal concluded that it was reasonable for him to relocate within India to avoid the harm he anticipated in Assam state.  Therefore, the Tribunal was not satisfied that the appellant faced a real chance of serious harm in India such that he had a well‑founded fear of persecution.

   THE FEDERAL MAGISTRATE

9. On 9 December 2008, the appellant sought judicial review in the Federal Magistrates Court.  On 23 March 2009, the appellant filed an amended application, claiming that:

   1.The Tribunal failed to exercise its duty under s 424A of the Migration Act 1958 (Cth) (the Act) as it failed to notify the appellant about an adverse finding from an independent source. More particularly, the appellant complained that the Tribunal had not sought his comment on the country information relied on by the Tribunal to find that the ULFA was not active beyond the state of Assam.

   2.The Tribunal failed to realise that relocation was not a solution in the context of the appellant’s particular circumstances.

10. The Federal Magistrate dismissed the appellant’s application for judicial review.

    THE APPEAL

11. On 11 May 2009, the appellant filed a notice of appeal in which he repeated the claims made in his application for judicial review.  I have, however, treated his notice of appeal as containing contentions that the Federal Magistrate erred in failing to find that:

    1.The Tribunal failed to exercise its duty under s 424A of the Act as it failed to notify the appellant about an adverse finding from an independent source.

    2.The Tribunal failed to realise that relocation was not a solution in the context of the appellant’s particular circumstances.

    Ground 1

12. In relation to the first ground of appeal, the appellant contended before me that the Tribunal had not complied with s 424A of the Act because it failed to provide him with an opportunity to contest the finding ultimately made by the Tribunal that the ULFA was not active outside of Assam. The appellant said that had he been given that opportunity he would have produced documents to support his claim that the ULFA was active outside of Assam.

13. The Federal Magistrate concluded that the Tribunal was not obliged to invite the appellant to provide written comments, or to follow procedures at a hearing under s 424AA, where it proposes to rely upon country information as the reason, or part of the reason, for its decision. The Federal Magistrate relied upon SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46.

14. The Federal Magistrate, however, recognised that the Tribunal was obliged to ensure that the appellant had a reasonable opportunity to be aware of, and to address, issues upon which the review will be decided.  The Federal Magistrate found that the appellant was sufficiently on notice of the question of whether he could relocate outside Assam without a significant risk of persecution.  The Federal Magistrate further stated that the issue should have been apparent to the appellant from the proceeding before the delegate, including the delegate’s decision, and from the course of the Tribunal’s questioning at the hearing.

15. The Federal Magistrate noted that the appellant regretted not presenting information in support of his contention that the ULFA makes and carries out threats outside Assam.  However, the Federal Magistrate did not consider that the appellant was prevented from appreciating that information showing the broader reach of the ULFA would be relevant to his claims.  Furthermore, the appellant was also not prevented from presenting such information at the Tribunal’s hearing, if not earlier.

16. The Federal Magistrate added that the Tribunal had taken into account the appellant’s personal opinion as to the risk he faced outside Assam, which it thought was contrary to the country information it had before it.  The Federal Magistrate concluded that it was the Tribunal’s task to make an assessment of that risk, and that it had made a decision which was open to it on the material before it.

17. In my view, the Federal Magistrate did not err in making the findings that he did. For the reasons given by the Federal Magistrate, the Tribunal did not fail to comply with s 424A of the Act in respect of its reliance upon country information. Further, there is no obligation on the Tribunal to invite comment under s 424A in respect of its thought processes.

18. It is clear from the delegate’s decision and the record of the Tribunal’s decision that the question of whether it was reasonable for the appellant to relocate to another part of India was a live issue on the question of whether the appellant had a well-founded fear of persecution if he returned to India.  Inherent in this issue was the question of whether the ULFA was active outside of Assam.  This issue was raised by the Tribunal and the appellant was given an opportunity to comment on this issue during the hearing.  He took this opportunity and stated that the ULFA had agents throughout India.  The Tribunal preferred the country information.  That is a matter for the Tribunal (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437). It was open to the Tribunal to have come to the conclusion on relocation that it did.

19. It was also open to the appellant to have placed material before the Tribunal on this issue.  It was for the appellant to have satisfied the Tribunal that he had a well‑founded fear of persecution (Abebe v The Commonwealth of Australia (1999) 197 CLR 510).

20. The Federal Magistrate did not err in concluding that the first ground of review did not disclose a jurisdictional error by the Tribunal.

21. The first ground of appeal is dismissed.

    Ground 2

22. The second ground of appeal is related to the second ground of review before the Federal Magistrate.

23. In relation to the second ground of review, the Federal Magistrate referred to the case of SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV).

24. In SZATV, the High Court gave consideration to the criteria by which the question of whether relocation within the country of the visa applicant’s nationality was reasonable, was to be assessed.  At [23]-[25], Gummow, Hayne and Crennan JJ observed:

    The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.  This formulation does not suffer from the defects urged by the appellant.  It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.

    However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory.  What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.

    It is true that the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense.  The distinction was emphasised by Lord Bingham in Januzi as follows:

    [T]he thrust of the Convention is to ensure the fair and equal treatment of refugees in countries of asylum, so as to provide effective protection against persecution for Convention reasons.  It was not directed (persecution apart) to the level of rights prevailing in the country of nationality.

    The reasoning in the last sentence might be applied to such matters as differential living standards in various areas of the country of nationality, whether attributable to climatic, economic or political conditions.  In Januzi Lord Hope of Craighead added:

    I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio‑economic human rights.  (Footnotes omitted.)

25. The Federal Magistrate found that the Tribunal had assessed the question of relocation by reference to the correct principles.  He also found that the Tribunal had correctly addressed the issue of relocation, including a full consideration of the relevant issues relating to the practicality of relocation and of the objections raised by the appellant in this regard.

26. Further, the Federal Magistrate noted that the appellant’s complaint that the appellant would face suspicion by locals of strangers, if he relocated (which the Federal Magistrate referred to as “neighbourhood hostility”), did not appear to have been raised by the appellant before the Tribunal.

27. In my view, the Federal Magistrate did not err in the findings which he made and in concluding that there was no jurisdictional error by the Tribunal.

28. The appellant did not in his submissions before me identify any error in the approach of the Federal Magistrate.  Rather, the appellant made submissions before me as to the difficulties he would face if he was required to relocate within India.  The appellant referred specifically to the suspicion that he would face as a stranger in a new environment.  The submissions made by the appellant before me invited an impermissible merits review and did not disclose jurisdictional error by the Tribunal nor error by the Federal Magistrate.

29. The second ground of appeal is dismissed.

30. The appeal is dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        21 August 2009

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Ms B Anniwell
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	17 August 2009
Date of Judgment:	21 August 2009