SZNCY v Minister for Immigration
[2017] FCCA 1742
•26 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZNCY & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1742 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA) visas – the Tribunal did not ask itself the wrong question in determining whether the applicants could reasonably relocate – the Tribunal properly considered whether it was reasonable in the circumstances for the applicants to relocate – no jurisdictional error identified – further amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35 |
| First Applicant: | SZNCY |
| Second Applicant: | SZNCX |
| Third Applicant: | SZQNI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 399 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 26 July 2017 |
| Date of Last Submission: | 26 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia on a direct access basis |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Grant leave to the applicant to rely upon the further amended application annexed to the submissions filed on behalf of the applicant on 12 July 2017 and dispense with the need for the electronic filing thereof.
The further amended application is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 399 of 2016
| SZNCY |
First Applicant
| SZNCX |
Second Applicant
| SZQNI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 January 2016, affirming a decision of the delegate not to grant the applicants protection visas.
The applicants were found to be citizens of India and their claims were assessed against that country. The first and second applicants are husband and wife and the third applicant is one of the two children of the first and second applicants.
Earlier unsuccessful protection applications have been made on behalf of the applicants and the current application for protection visas was based on the grounds of complementary protection, consistent with the principles in the SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 35. On 14 October 2014 a delegate on behalf of the first respondent refused to grant the applicants protection visas.
The Tribunal’s decision
On 28 October 2014, the applicants applied for review. The first and second applicants accompanied by their two children appeared before the Tribunal on 20 January 2016 to give evidence and present arguments.
The Tribunal in its reasons delivered on 20 January 2016 found that it was reasonable and practical to relocate within India. The Tribunal made reference to the previous protection visa applications and claims that had been previously considered and determined.
The Tribunal noted in respect of the wife’s previous claims from the most recent hearing, that the present Tribunal understood the applicant wife was not claiming to be persecuted for reasons of her membership of a subservient caste (which could attract protection obligations), but to have worked with low caste persons in India (relating to religious conversions). The Tribunal discussed the religious conversions in its reasons but given that understanding, has not discussed her alleged caste membership further.
The Tribunal accepted the husband advanced claims of persecution on the grounds of political opinion, but limited to his home region. The Tribunal also accepted the applicant’s claims of religious persecution, relating to religious conversion in his home region. The Tribunal did not accept that the applicants would attempt to convert non-Christians if returned to India.
Refugee convention criteria assessment
The Tribunal found that it was reasonable and practical for the applicants to relocate within India, having regard to the husband being able to relocate to an area where his political party was in power and able to engage without any problem and that his claims were related to local issues and not related to the wider agendas of any political party. The Tribunal rejected the husband’s claim that he would be required to register with police in a new area, and that he would be able to be traced and killed by his enemies.
The Tribunal found that the wife’s family responsibilities and behaviour in Australia indicated that she would not engage in any work that would be perceived as converting non-Christians to her religious beliefs. The Tribunal rejected the applicants’ claims that generalised that religious violence made it unsafe for them in India. The Tribunal took into account the husband’s skills, qualifications and capability to travel and work as demonstrated by the husband residing and working in both Malaysia and Australia.
The Tribunal took into account that one of the wife’s sisters had already relocated to Tamil Nadu, and that the wife’s demonstrated history identified an ability to relocate. The Tribunal found that there were no health or education reasons against relocation.
The Tribunal, having considered the complementary protection criterion and correctly identified the relevant law, found that it was not satisfied that the applicants had a real risk of significant harm in India. The Tribunal found the applicant husband could safely relocate within India.
The Tribunal found that the applicants could safely and reasonably relocate within India and not have a real chance of suffering any serious harm, for any reason. The Tribunal found that it was satisfied the applicant husband and the applicant wife can safely relocate within India.
The Tribunal was satisfied that health, education or employment prospects would not make it unreasonable for the applicant husband or his family to relocate within India. The Tribunal was satisfied that the applicant husband may safely and reasonably relocate within India.
The Tribunal made express reference to the wife, now having to care for two infant children but found, taking into account country information in respect of health or education that it would not be unreasonable for the applicant wife and her family to relocate within India.
The Tribunal was satisfied that the applicant wife may safely and reasonably relocate within India. The Tribunal was not satisfied the applicants would have a real chance of suffering any harm, should they be returned to India as failed asylum seekers.
Having considered the claims cumulatively, the Tribunal was not satisfied that the applicants have a real chance of suffering serious harm in India should they relocate, and found that it was not satisfied that the applicants have a real chance of serious harm if returned to India.
Complementary protection criteria assessment
The Tribunal, in relation to relocation and complementary protection, found that it was not satisfied the applicants have a real chance of suffering serious harm for any claim, should they relocate within India. The Tribunal was not satisfied the applicants have a real risk of suffering significant harm for any reason, should they relocate within India.
The Tribunal made reference to considering the individual merits as identified by the Tribunal, being the circumstances of the applicants and were satisfied the applicants may reasonably relocate within India. The Tribunal found that it was satisfied the applicants may safely and reasonably relocate within India.
The Tribunal was not satisfied the applicants have a real risk of suffering significant harm in India, should they safely relocate. The Tribunal found that it was not satisfied on the evidence and material before it, that the applicants have a real risk of significant harm if returned to India.
The Tribunal found that it was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk they will suffer significant harm if returned to India. It was in those circumstances that the Tribunal found that the applicants failed to meet the criterion under s.36(2)(aa) of the Migration Act.
Whilst the Tribunal was not required to make findings under the further protection application under s.36(2)(a) of the Migration Act, it is apparent that the Tribunal took into account those findings in the findings it made in respect of the further claimant for complementary protection that was within the jurisdiction of the Tribunal to consider. No relevant error arises from this approach by the Tribunal.
Before this Court
The grounds of the application are as follows:-
1. In finding that the first applicant could safely relocate within India and therefore was not owed protection under the Refugees Convention or the complementary protection provisions of the Migration Act 1958 (“Act”), the Tribunal asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.
Particulars
The Tribunal implicitly required the first applicant to modify his behaviour so as to avoid harm.
2. Further or in the alternative, in finding that the first and second applicant could safely relocate within India and therefore was not owed protection, the Tribunal did not consider whether internal relocation was reasonable in all of the circumstances.
3. Further or in the alternative to I and 2, the Tribunal failed to consider a claim.
Particulars
The Tribunal failed to consider whether the second and/or third applicants met the criterion set out in section 36(2)(aa) of the Act.
Consideration
Ground 1
In relation to ground 1, Mr Chia of counsel, submitted that the Tribunal implicitly required the first applicant to modify his behaviour in relation to his political views so as to avoid harm. The findings of the Tribunal were that the first applicant’s concern in respect of political harm was localised. There was no finding, implicit or expressed, that the first applicant had to modify his behaviour.
No wrong question was asked by the Tribunal in determining whether the applicants could reasonably relocate. Nor did the Tribunal confine itself to a consideration simply of whether the applicants could safely relocate. No jurisdictional error in relation to ground 1 is made out.
Ground 2
In relation to ground 2, Mr Chia of counsel submitted that the Tribunal failed to take into account all the circumstances in determining the reasons of whether the first and second applicants could relocate.
Mr Chia of counsel submitted that there is a claim by the second applicant, to be a member of a caste that should have been the subject of consideration and findings. It is apparent that the Tribunal took into account what the applicant said in relation to her involvement of having work with low caste persons and there was no claim either expressed or implied that arose on the material that the applicant feared harm in relation to relocation by reason of her caste. No such claim arose on the material before the Tribunal in respect of the child.
The Tribunal clearly took into account that not only was there the third applicant but, that there was another child and on the fair reading of the Tribunal’s reasons, the Tribunal took into account the wife’s expressed concern in respect of her obligation to care for her children. I do not accept that any claim arose in the material that the second applicant feared harm as a woman.
Mr Chia of counsel took the Court to passages in the transcript in which the Tribunal raised with the second applicant why she would not want to return to India and initially, the first applicant identified that she was a woman. However, on a fair reading of the transcript, it is apparent that when issue was sought to be clarified with the second applicant, the second applicant identified her concern as being in respect of her care and responsibility for her children. That was an issue clearly taken into account and the subject of dispositive findings by the Tribunal in its determination that it was reasonable for the applicants to relocate.
Mr Chia of counsel also submitted that there was a failure to take into account issues of health and education. That is contrary to the express findings made by the Tribunal which reflect taking into account these matters.
The Tribunal had clearly taken into account the first applicant’s claims of his concern in respect of localised political activity in finding that it was reasonable for the first applicant to relocate. On a fair reading of the Tribunal’s reasons, the Tribunal properly considered whether it was reasonable in the individual circumstances for the applicants to relocate. Ground 2 is in substance an invitation for this Court to engage in an impermissible merits review. There was no failure by the Tribunal to consider whether the applicants could reasonably relocate. No jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, Mr Chia of counsel submitted that there had been a failure to make appropriate findings in respect of relocation and a claim for complementary protection in respect of the second and third applicants. For the reasons earlier given, I do not accept that there is a claim advanced on behalf of the second applicant or on behalf of the third applicant to fear harm by reason of being a member of a caste.
Further, on a fair reading of the Tribunal’s decisions, the Tribunal made findings in relation to whether it was reasonable or practical for the second and third applicants to relocate in all the circumstances. No jurisdictional error is made out by ground 3.
Conclusion
The further amended application is dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 15 August 2017
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