SZNMG v Minister for Immigration
[2009] FMCA 1253
•18 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNMG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1253 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. The applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZNMG”, “SZNMH” and “SZNMI”. |
| Federal Magistrates Court Rules 2001 (Cth), Part 2 Migration Act 1958 (Cth), ss.91R(1), 91X |
| SZATV v Minister for Immigration & Citizenship [2007] HCA 40 |
| First Applicant: | SZNMG |
| Second Applicant: | SZNMH |
| Third Applicant: | SZNMI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG904 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 31 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2009 |
REPRESENTATION
| Solicitors for the Applicants: | The first applicant appeared in person with the assistance of a Punjabi interpreter |
| Counsel for the Respondents: | Mr J Potts |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application filed on 17 April 2009 is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG904 of 2009
| SZNMG |
First Applicant
| SZNMH |
Second Applicant
| SZNMI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicants are husband (SZNMG), wife (SZNMH) and young son (SZNMI) from Goraya, Punjab, India. At the commencement of the hearing and for the purpose of Part 2 of the Federal Magistrates Court Rules 2001 (Cth), the first applicant (also “the applicant”) was appointed as a litigation guardian of his son, the third applicant. The first and second applicants claim that they are members of the Dera Sacha Sauda and the guru Baba Ram Ji. The first applicant claims he was harassed by members of the Akali Dal because of his beliefs.
The first applicant claims that he organised gatherings at his home to discuss Baba Ji’s philosophies. In November 2006 he was contacted by the main organiser of the local Gurudwara who said pejorative things about his guru and warned the first applicant for dividing the community. The applicant also claims that from January 2007 he was threatened a few times by Akali Dal members. He claims that in March 2007 a group went to his shop and broke things in it. The police refused to write a report about the incident and the applicant later received a threat against the shop.
He claims that in May 2007 during a gathering at his home, a group of 20 entered the house and the applicant recognised them as workers of Akali Dal and Gurudwara. He further claims that one night in December 2007 when returning home from a meeting, he was attacked and beaten with an iron rod. He heard one of the attackers say that he was preaching against their Gurus. After the applicant was released from hospital, he tried to lodge a police report but instead was threatened by the police. When the applicant reopened his shop, he found letters threatening him; including one which threatened kidnap of his young son. The family moved to the second applicant’s family home in Karnal as a result. The first applicant claims that during this time he found out that the Akali Dal and Gurudwara members knew they were hiding in Karnal. Out of fear for their safety, the applicants left for Australia.
The applicants arrived in Australia on 7 May 2008 and applied to the Department of Immigration for Protection (Class XA) visas on 19 June 2008. A delegate of the Minister refused to grant the visas on 16 September 2008 and the applicants were notified on the same date. On 13 October 2008 the applicants applied to the Refugee Review Tribunal (“the Tribunal”) for review of the delegate’s decision. On 18 March 2009, the Tribunal affirmed the decisions refusing to grant the protection visas to the applicants. On 17 April 2009, the applicants applied to the Federal Magistrates Court for review of the Tribunal’s decision. It is this decision of Jonathan Duignan (Tribunal case number 0806712) which is under review by this Court.
Court Book
The applicant filed an affidavit on 20 July 2009 which attached a transcript of the Tribunal hearing of 7 January 2009.
The Application for review filed on 17 April 2009 contains three grounds of review:
i)The Refugee Review Tribunal erred in law in understanding my claim;
ii)The Refugee Review Tribunal accepted my serious harm but misapplied s.91R(a)(b).
iii)The Tribunal failed to understand the difficulties and possibilities of relocation.
At the first Court date of 13 May 2009, the applicant indicated that he wished to participate in the Court’s legal advice scheme and a panel advisor was subsequently allocated to them. The applicant attended a conference with a panel advisor and a Punjabi interpreter was present. At the directions hearing the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 20 July 2009. The applicant has elected not to avail himself of this opportunity.
Tribunal decision
The applicants husband and wife attended a hearing before the Tribunal on 10 February 2009 (CB 85). The Tribunal accepted that the applicants had been affected by incidents of intimidation and harm in the past as claimed and that this had given rise to reasonable fears about remaining in the part of India where they formerly resided (CB 105 at [77]). In the Tribunal’s view however the real threat to the applicants did not extend to India as a whole and they would be able to assess real and effective protection from harm by returning to another area of India to live (CB 105 at [78]). The Tribunal believed that moving to a new area in India would reduce their risk of harm from religious or political opinion (CB 105 at [79]). It was also of the view that the applicants would receive proper protection from security authorities in India should they move (CB 106 at [80]-[81]). In the Tribunal’s view the applicants possess the attributes, resources, support and capacity to settle successfully elsewhere in India and away from their former home (CB 106 at [81]-[86]).
Consideration
Mr Potts, for the first respondent, drew the Court’s attention to the Tribunal decision at [77]:
77. The Tribunal accepts that the applicant have [been] affected by the instance of intimidation and harm as claimed in the past and that this has given rise to reasonable fears about remaining in the area of India where they formally resided. It appears clear that they are well known in their local area for the support of Dera Sacha Sauda and that this could give rise to the possibility of additional harm being directed at them should they return to that area.
Mr Potts submitted that there was an acceptance of much of the substance of the claim as advanced in respect of what had happened in the past. The critical and adverse conclusion that the Tribunal reached followed from para.78 where it formed the view that:
78. In the Tribunal’s view, however, the real threat to the applicants does not extend to India as a whole and they are able to access real and effective protection from harm by returning to another area of India to live.
Mr Potts submitted that the Tribunal formed the belief that by moving to a new area of India they would reduce any harm directed at them because of their religious and political opinion to a remote one. Paragraph 79 states:
The Tribunal believes that by moving to a new area they would reduce the risk of harm arising from their religious or political opinion to one which was remote. In the Tribunal’s view, it is noted that after leaving their local area in January or February 2008, they were not again located or harmed in India at any time before their departure from India in May 2008. This was despite being aware that the group that wanted to harm them knew they were in Karnal from shortly after their departure from their home village, and moving to an area where their presence could be anticipated as a result of having family there.
In the Tribunal’s view, this indicated that the intention or desire to harm the applicants could be localised and there was little likelihood of threats being acted upon should they relocate to a new area away from their former home.
Mr Potts referred the Court to an affidavit of Maureen Laba Sakis and indicated that the recent submissions filed by the applicant invites the Court to consider the contents of the transcript of the Tribunal hearing, in particular p.16.7:
Applicant: We came to Karnal in January.
Member: Right, and they found out, the Akali Dal members found out about two weeks later.
Applicant: Yes
Member: So when did you leave India?
Applicant: We came to Sydney on 7 May.
Member: So between February last year and May where did you live?
Applicant: We took another small house.
Member: Where was that?
Applicant: It was in Karnal.
Mr Potts then referred back to the Tribunal decision at para.80:
The Tribunal is also of the view that it could be expected that the applicants would receive proper protection from security authorities in India should they now move to a new area.
It was brought to my attention that there is a reference in that paragraph to a piece of country information where the Tribunal indicated that would be the case.
Then at para.81 the Tribunal states:
The Tribunal also believes that the couple can reasonably access protection elsewhere in India…in the Tribunal’s view they possess the attributes, resources, support and capacity to settle successfully elsewhere in India and away from their former home.
Mr Potts submits that after that paragraph, the Tribunal turned to consider the issue of reasonableness in the terms established by the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40. The Tribunal considered the applicant’s individual circumstances and whether, in light of those individual circumstances, it could be said that internal relocation was a reasonable option (CB 106-7 at [82]-[86]). The consideration demonstrated in those paragraphs is entirely consistent with the law laid down by the High Court and the obligation of the Tribunal to consider.
That led, ultimately, for the Tribunal to conclude:
87. For these reasons, it is the view of the Tribunal that no applicant in this matter can be said to hold a well founded fear of being persecuted for any Convention reason should they return to a different region of India than where they have formerly lived. There appears only a remote likelihood that those seeking to harm them in their former region of residence would have an interest in, or a capacity to, locate them in another region of India. They can rely on protection from security authorities in other regions of India and have the capacity and resources to do so. (CB 107 at [87])
Mr Potts submits that the applicants were unsuccessful before the Tribunal based on the two findings of relocation and effective state protection. For the applicants to succeed in this Court, they must undermine those two findings either by demonstrating something erroneous in them or by demonstrating some error in the procedure of the Tribunal. I agree with Mr Potts that there does not appear to be any such complaint in the Application or written submissions.
Ground one – the Tribunal erred in law in misunderstanding my claim
Commencing at para.21 (CB 91) and following, the Tribunal set out in some considerable detail all the claims before it. There is nothing in those paragraphs to indicate any relevant misunderstanding of the claims as put forward. The Tribunal accepted that the applicant had been affected by instances of intimidation and harm as claimed (CB 105 at [79]). However what the Tribunal also found, which was fatal to the Application, was that the applicants could reasonably relocate, and if they did, they would secure effective state protection. On a fair reading of the decision I am satisfied that this ground cannot be sustained and should be dismissed.
Ground two – the Refugee Review Tribunal accepted my serious harm but misapplied s.97R(a)(b)
The ground as pleaded relies on a provision of the Act that does not exist. However I will make the assumption that this applicant is pleading s.91R(1)(a) and (b). Assuming that this is the provision upon which the applicant relies then the acceptance by the Tribunal at para.76 of the essential aspects of the applicant’s claim did not evidence any misunderstanding of the notion of serious harm. It did not evidence any misunderstanding of the reason, being the essential and significant reason, for the persecution. The Tribunal clearly acknowledges this in para.76 where it states:
In the Tribunal’s view, these matters do fall within the ambit of the Convention. The physical assaults or the possibility of kidnapping and harm are sufficiently serious harm that they can be considered persecution. (CB 105)
I am satisfied that this is the correct application of the law, and it was one that was wholly favourable to the applicants in the manner in which it was applied. In the circumstances, I am satisfied that this ground cannot be sustained and should be dismissed.
Ground three – the Tribunal failed to understand the difficulties and the impossibilities of relocation
Provided the Tribunal actually understands the enquiry it is making directly and that it must look at the question of whether it would be reasonable in the circumstances of particular applicants to relocate, the weight it gives to evidence and the conclusions reached in respect of relocation become factual questions. If the Tribunal is applying the correct question, examining the evidence and forming a view upon it, it is essentially the role of the Tribunal in these circumstances to determine the factual question. At paras.82-86 of the decision record, the Tribunal reviewed all of the relevant circumstances as it saw them. It then formed a view that was open to it on the evidence. On the material contained within those paragraphs, I am satisfied that the Tribunal did not reach its conclusion in a capricious or arbitrary way. It was not reached in the absence of relevant consideration or by taking into account some irrelevant consideration. Consequently the ground as pleaded is a challenge to the merits of the Tribunal’s factual findings which is not open for this Court to review.
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Punjabi interpreter. I am satisfied the applicant has been provided with assistance to present his review application. Although he elected not to file an Amended Application after his panel advice, he did provide a transcript of the Tribunal proceedings and written submissions.
I am satisfied that all the issues identified in the Application have been satisfactorily addressed by Mr Potts in oral and written submissions. On a fair reading of the Tribunal decision it is not apparent that any other grounds of review exist which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 18 December 2009