SZNBZ v Minister for Immigration and Citizenship

[2010] FCA 496

FEDERAL COURT OF AUSTRALIA

SZNBZ v Minister for Immigration and Citizenship [2010] FCA 496

Citation:		SZNBZ v Minister for Immigration and Citizenship [2010] FCA 496
Appeal from:		SZNBZ v Minister for Immigration [2010] FMCA 77
Parties:		SZNBZ and SZMUD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 201 of 2010
Judge:		NICHOLAS J
Date of judgment:		20 May 2010
Legislation:		Migration Act 1958 (Cth) s 424A
Cases cited:		SZNBZ v Minister for Immigration [2010] FMCA 77 affirmed 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 NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 144 FCR 1 cited
Date of hearing:	19 May 2010
Date of last submissions:	19 May 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	18
The second appellant appeared in person.  There was no appearance for the first appellant.
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 201 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNBZ
First Appellant

SZMUD
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	20 MAY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the first respondent’s costs.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 201 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNBZ
First Appellant

SZMUD
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLAS J
DATE:	20 MAY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants appeal from the decision of Federal Magistrate Lloyd-Jones delivered on 12 February 2010 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 May 2009 (see SZNBZ v Minister for Immigration [2010] FMCA 77). The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant Protection (Class XA) visas to the appellants.

   BACKGROUND

2. The appellants are citizens of India who arrived in Australia on 21 November 2008. On 30 December 2008 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 3 March 2009. On 19 March 2009 the appellants applied to the Tribunal for a review of that decision.

3. The appellants are husband and wife from India. The first appellant claimed to have been an active member of the Communist Party of India (CPI (M)) who was targeted by political opponents in the Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party. He claimed to have faced numerous difficulties with his opponents between 1994 and 1997 and as a consequence fled to Saudi Arabia in 1997. In Saudi Arabia he continued to provide financial support to the CPI (M).

4. On his return to Kerala in 2002, he claimed he was targeted and that his house was attacked by a Muslim group, the National Development Front (NDF), for not supporting them. He also claimed he faced difficulties with the RSS in his village. He went into hiding at his uncle’s house until his father organised a visa for him to go to Singapore in 2005.

5. The first appellant continued to provide financial support to the CPI (M) while in Singapore. He returned to India to marry in January 2008. Shortly after his return, violence ensued between the RSS and CPI (M), which led to many deaths and he went into hiding. He claimed he was subsequently attacked and received threatening letters from the RSS because they believed he was involved in the murder of an RSS man. He claimed that he went to the police but was attacked by members of the RSS on 24 April 2008. He feared he could have been killed in India, and upon his release from hospital, he fled to Singapore.

6. The first appellant claimed that he applied to become a permanent resident in Singapore but the company he was working for was going bankrupt and his application was rejected. Further, the first appellant claimed that the RRS continued threatening him and he was fearful that he could also be attacked in Singapore. He therefore decided to come to Australia to seek protection.

   ADJOURNMENT

7. Only the second appellant appeared at the hearing of the appeal.  I was informed by her that the first appellant was at home and unable to attend because he was unwell.  In support of her application to adjourn the appeal for a month, I received into evidence various written communications from the second appellant to the Court which included a copy of a letter from a general practitioner to another doctor who I presume is a psychiatrist.  Among other things, the referral states that the first appellant “complains of too much stress”. 

8. I was not satisfied that the first appellant was too unwell to have attended the hearing of his appeal and, accordingly, the application for an adjournment was refused. 

   THE TRIBUNAL’S DECISION

9. The Tribunal accepted the first appellant’s claim of involvement with the CPI (M) in Kerala and that he suffered difficulties with political opponents. It also accepted that he was attacked on 24 April 2008 by RSS members for the reasons he claimed, and that he and his wife could encounter further difficulties with these groups if they returned to Kerala in India.

10. However, the Tribunal also found that the appellants’ difficulties were confined to their local area and that they could relocate within India to avoid the political groups they feared. The Tribunal considered it was reasonable for the appellants to relocate because the first appellant had an educational background, skills and knowledge that would enable him and his wife to relocate successfully within India.

11. The Tribunal was also satisfied on the basis of independent country information that if the appellants required protection after relocating, reasonable levels of State protection within India were available. It concluded that after relocation the appellants would be able to avoid further harm from their political opponents in Kerala and that they would not face persecution for reason of political opinion or any other Convention reason.

    THE FEDERAL MAGISTRATE’S DECISION

12. The appellants’ application to set aside the Tribunal’s decision was dismissed by the learned federal magistrate.  Subject to the matter which I address in paras [16]-[17] below, the grounds of appeal, and some short written submissions filed by the appellants, essentially raise the same points that were raised by the appellants before the federal magistrate. 

13. Before the federal magistrate the appellants argued that the Tribunal failed to consider whether the applicants would suffer serious harm if they were to relocate in India.  It is clear from the Tribunal’s reasons for decision that the Tribunal considered that question.  In the course of considering it the Tribunal referred to the decisions of the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-441 and the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18. There is no suggestion that the Tribunal applied an incorrect test. I agree with the federal magistrate’s reasons for rejecting the appellants’ challenge to the Tribunal’s decision in so far as it is based on this point.

14. The appellants also argued before the federal magistrate that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act). The federal magistrate rejected this challenge to the Tribunal’s decision on the basis that all the information relied upon by the Tribunal in its decision making process fell within the exclusions contained in s 424A(3) of the Act. Neither the notice of appeal nor the written submissions filed by the appellants identify any information which was relied upon by the Tribunal that fell outside those exclusions. My reading of the Tribunal’s reasons does not suggest that there was any such information. I agree with the federal magistrate’s reasons for rejecting this challenge to the Tribunal’s decision.

15. The other arguments raised before the federal magistrate were in the nature of arguments challenging the factual findings made by the Tribunal in relation to the issue of relocation.  I agree with his Honour’s reasons for rejecting these arguments. 

    ADDITIONAL MATTERS

16. The written submissions filed on behalf of the appellants raise the following point which does not appear to have been raised in the Federal Magistrates Court:

    The Federal Magistrate failed take [sic] in to consideration that the Tribunal failed to consider whether or not a liberal Muslim in India was at risk of harm from radical Hindus and Muslims, and not able to access effective protection whilst the Tribunal formed the view that applicant was a credible witness.

17. I am not prepared to give the appellants’ leave to raise this point.  Apart from the fact that it was not raised below, it seems to me that it lacks substance.  It does not appear that a claim to protection based upon the fact that either the first or second appellant was a “liberal Muslim” was apparent on the face of the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 144 FCR 1 at [55]-[63]. I do not consider that the Tribunal was required to consider such a claim. Even if I am wrong about that, I do not think it should be inferred that a claim of the kind articulated in the written submissions was not considered and dealt with by the Tribunal. It appears to me to be comprehended by the Tribunal’s relocation findings, which are to the effect that the appellants will avoid the risk of harm from their “political opponents” if they relocate to another part of India. I take this to include both the RSS and the NDF.

    RESULT

18. I am satisfied that the learned federal magistrate’s decision was correct.  The appeal is dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated:        20 May 2010