SZNMS v Minister for Immigration
[2009] FMCA 809
•24 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNMS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 809 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal erred in making relocation finding without finding as to Convention – related harm – no need for Tribunal to do so where proceeds on assumption that applicant satisfies definition of “refugee” – Tribunal considered all claims and integers – applicant seeking merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | SZNMS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 929 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 June 2009 |
| Date of Last Submission: | 30 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Appearing for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 21 April 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 929 of 2009
| SZNMS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 21 April 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 January 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of India who arrived in Australia on 12 August 2008. He applied for a protection visa on 18 September 2008 (reproduced at Court Book – “CB” at CB 1 to CB 31 with annexures). This application was refused on 12 December 2008 (CB 49 to CB 52). The applicant applied for review by the Tribunal on 12 January 2009 (CB 53 to CB 56).
The applicant’s claims to protection
The applicant’s claims to protection in Australia were that he owned a farm in the Pilibhit area in India. In August 2007 one of his employees, a citizen of Nepal, died on the farm. The applicant claimed that while the employee’s father accepted that his death occurred because of natural causes, the employee’s brother, who was a member of a terrorist group in Nepal, blamed the applicant for the death. The applicant claimed that the brother, and others, had attempted to kill him on two occasions. Further, that the police told him that they were unable to assist him because the person making threats against him was a citizen of Nepal, who was residing in Nepal, and that this was outside India’s jurisdiction.
The delegate
The delegate accepted that the applicant had come into conflict with the brother of his deceased employee. However, he found that there was no link between the harm that he feared and any of the reasons stated in the Refugees Convention. He refused the application protection visa on this basis. (See CB 49 to CB 52 and, in particular, CB 52.4.)
The Tribunal
The applicant applied for review by the Tribunal on 12 January 2009. (See CB 53 to CB 56). The applicant appeared at a hearing before the Tribunal on 19 March 2009. (See CB 62 to CB 63, and CB 69.) The Tribunal’s account of what occurred at the hearing is set out in its decision record. (See CB 91.)
The Tribunal accepted the applicant’s factual account of what he said, relevantly, had occurred. That is, it accepted his claim that his employee died, and that the employee’s brother blamed the applicant for his death, and had been seeking to harm or kill the applicant. The Tribunal accepted that attempts had been made on the applicant’s life in the past, and accepted that further attempts “may be made on the applicant’s life by the same persons if he returns to live in the Pilibhit area”. (See [31] at CB 92.)
The Tribunal “formed the view” that the applicant’s difficulties in India were confined to his local area, and that the difficulties he anticipates in the future were also confined to that area of India. Further, the Tribunal found that the applicant could avoid difficulties if he were to relocate within India. (See [32] at CB 92.) The Tribunal found that it was reasonable for the applicant to relocate (see [33]), and that an adequate level of protection would be provided to him by the Indian State if he were to relocate on return to India. (See [34].)
It was on this basis that the Tribunal found that the applicant did not have a well-founded fear of persecution in India for a Convention reason, and affirmed the delegate’s decision.
Application to the Court
The application to the Court puts forward the following grounds:
“(1) The applicant satisfies the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal had not considered the aspect and therefore committed factual and legal error.
(2) That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that [the] Tribunal did not take in to account certain relevant consideration or ‘integers’ central to the applicant’s claim.”
[Errors in original.]
Hearing Before the Court
At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Hindi language. Mr R Baird appeared for the first respondent.
At the hearing, the applicant submitted that he wanted a “bit more time”, that his problems in his home country would be solved if he were to spend more time in Australia, and further, that it was not safe for him anywhere in India as police protection was not available to him elsewhere in India. He emphasised that he needed “more time”. He did not directly address the grounds in the application.
Consideration
Ground one
The first ground of the application asserts that the applicant satisfies the four key elements of the Convention definition, as detailed in the Tribunal’s decision record, and that the Tribunal’s failure to consider this means that it committed “factual and legal” error.
The relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). That is, effectively, that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention, such that in these circumstances a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In doing this, the Tribunal is not required to uncritically accept any, or all, of the applicant’s claims. Nor is it required to find evidence to “disprove” an applicant’s claims (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
It must be said that the wording of ground one (and for that matter, ground two as well) in the application is strikingly similar, if not identical to grounds advanced in a number of other cases seen before this Court. However, I operate on the assumption that whatever the drafting genesis of the words in this ground, or whoever drafted it, the applicant has adopted this as his complaint about this Tribunal’s decision.
Whatever the situation to have prompted the inclusion of this ground in his application to this Court, in the circumstances of the current case, it is perhaps understandable that some confusion may have arisen on the part of the applicant.
The ground refers to the four key elements of the Convention “as detailed in pages 2 and 3 of the Tribunal decision”. What appears at pages 2 and 3 (reproduced at CB 88 and 89) of the Tribunal’s decision record is the usual statement as to the “Definition of ‘refugee’” regularly found in Tribunal decision records.
Two aspects of this particular Tribunal decision, however, may give rise to confusion on the part of the applicant (or whoever drafted or provided the ground for him) in view of what is set out at the pages 2 and 3 of the Tribunal’s decision record, and the factual findings made by the Tribunal.
The first is that at paragraph [15] of the Tribunal’s decision record (part of “pages 2 and 3”), the Tribunal sets out the following proposition (at CB 89):
“Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution … persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.”
In the current case the delegate plainly refused the application for a protection visa because he found that there was no link between the harm feared by the applicant, and any of the reasons enumerated in the Convention definition of “refugee”.
The Tribunal, however, does not appear to have made any such a finding. While both the delegate and the Tribunal accepted the factual basis for the applicant’s claims (that is, that the applicant was threatened by his deceased employee’s brother, and that he had been harmed by this person), unlike the delegate, the Tribunal found against the applicant, without appearing to make any finding in relation to any Convention nexus. But rather by finding that the applicant could reasonably, and safely, relocate away from his local area to another part of India.
The second source of possible confusion for the applicant is that the Tribunal’s exposition of the “definition of refugee” makes no reference to what ultimately turned out to be the determinative issue in the Tribunal’s decision. Namely, that the applicant could reasonably and safely relocate away from his home area to another part of India, such as to avoid harm.
Dealing with the first matter, in Syan v Refugee Review Tribunal & Minister for Immigration & Ethnic Affairs (1995) 61 FCR 284 (per Beazley J) (“Syan”) the appellant in that case contended, amongst other things, that the Tribunal: “adopted a wrong approach in law in dealing with the issue of internal flight without first having determined whether the applicant satisfied the Convention definition of refugee…” (at 285).
Her Honour ultimately found in relation to this issue (at 288):
“… However, I am of the opinion that the Tribunal in the present case did not apply a wrong test. Rather, it approached the matter on the basis of an assumption, namely that the applicant would otherwise satisfy the Convention definition of refugee. On that assumption, it considered the question of internal flight. Had it determined that matter in favour of the applicant, it would have been necessary to determine whether the applicant had a well-founded fear of persecution for a Convention reason. However, having found against the applicant on the question of internal flight, it was not necessary to determine whether the applicant had a well-founded fear of persecution based on a Convention reason. In my opinion, it was open to the Tribunal to consider the matter in that way.”
Further, in relation to this issue, in Ravind Chand v Minister for Immigration & Ethnic Affairs [1997] FCA 138 (per Moore J) at [6]:
“The approach the Tribunal took was to assume that the applicant had a well founded fear of persecution having regard to the applicant's account of his circumstances. Having made that assumption the Tribunal went on to consider the matter I earlier referred to, namely whether the applicant was unable or, or owing to a well-founded fear of persecution, unwilling to avail himself of the protection of his country of nationality. This approach finds support in the judgment of Beazley J in Syan v Refugee Review Tribunal (1995) 61 FCR 284 which was a case in which the Tribunal had assumed the existence of a well founded fear of persecution and had then considered whether the applicant might reasonably be expected to relocate within the country of nationality. Her Honour concluded that this approach involved no error of law. No contrary submission was made in this matter and I proceed on the basis that the approach adopted by the Tribunal in considering the circumstances of the applicant was open to it.”
The approach of the Court in Syan was said to be “clearly correct” in Sinan Aras v Minister for Immigration & Ethnic Affairs [1998] FCA 254 per Finkelstein J.:
“This issue was considered in Syan v Refugee Review Tribunal & Anor (1995) 61 FCR 284. That was a case where the Tribunal considered the issue of relocation having assumed as true everything the applicant claimed had happened to him in the Punjab being an assumption that would ordinarily result in a finding that the applicant had a well founded fear of persecution if he was required to return to India. However, the Tribunal decided that the applicant did not have such a fear because he was able to live in some other part of India. The applicant sought to challenge this decision on a number of grounds one of which was that the Tribunal adopted a wrong approach in dealing with the possibility of relocation without first having determined whether the applicant satisfied the Convention definition of refugee. Beazley J rejected this argument. Her Honour said that it was open for the Tribunal to proceed on the basis of an assumption that apart from the issue of relocation the applicant would satisfy the definition of refugee and on that assumption consider the question of relocation. This approach is clearly correct.”
(See also SZENJ v Minister for Immigration and Citizenship [2007] FCA 734 at [29] (per Downes J), and the reference to Syan there.)
I am satisfied that on a plain reading of the decision record in the current case, the Tribunal accepted the applicant’s factual claims of past harm and, in view of what had been put before the Tribunal, it was open to it to find that the applicant’s difficulties were confined to his local area (Pilibhit), which was near the Nepal-Indian border. Further, it was open to the Tribunal, in view of what was before it, to also find that the difficulties which the applicant anticipated in the future were also confined to that area of India.
Although the Tribunal made no finding of any nexus between the harm feared and the Convention grounds, as set out in its own exposition of the definition of “refugee”, it was not in error for the Tribunal to proceed on the assumption that (apart from the issue of relocation) the applicant would satisfy the “definition of refugee” in relation to what had occurred, and what was likely to occur, in the Pilibhit area, and on that assumption, to then consider the question of relocation.
The second source of possible confusion for the applicant derives also from what is set out under the heading: “Definition of ‘refugee’” in the Tribunal’s decision record. This exposition makes no reference to the issue of internal flight or relocation.
For those considerations, the applicant would need to be referred to such cases as Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 (per Black CJ at [8], with whom Whitlam J agreed):
“… Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.”
(See also per Beaumont J at [20].)
In all, therefore, having accepted the applicant’s claims to fear harm from the brother of the deceased employee, and having found that the fear of harm in the past was confined to the applicant’s local area (and that it would be in the foreseeable future), which was near the Nepal-Indian border, it was open to the Tribunal to proceed to consider whether it was reasonable, and safe, for the applicant to relocate to another part of India to avoid any such harm in the future.
The Tribunal’s finding that it was reasonable in the circumstances for the applicant to relocate elsewhere in India was consistent with relevant authority. (See SZATV v Minister for Immigration and Citizenship [2007] HCA 40 and Randhawa.)
Further, with reference to independent information available to it (which the Tribunal specifically raised with the applicant at the hearing – see [26] at CB 91) it found that the Indian State would provide a reasonable level of protection to the applicant if he were to require protection in the reasonably foreseeable future. I agree with the Minister that there is no error attending this finding (Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1).
In light of the above, therefore, the applicant’s complaint set out in ground one does not succeed.
Ground two
Ground two of the application asserts that the Tribunal did not take into account certain relevant considerations or integers central to the applicant’s claim.
No particulars whatsoever are provided in the application. Nor, despite opportunity provided by orders made at the first Court date in this matter, and his participation in the Court’s legal advice scheme, has the applicant put an amended application providing particulars before the Court. Nor was he able to assist in this regard at the hearing before the Court.
The Tribunal reports that at the hearing before it, when it raised the issue of levels of protection provided by the Indian State, the applicant responded to the effect that he could not be protected from the persons that he feared because “his (political) party is not in power”.
To the extent, therefore, that it may be said that an “integer” of the applicant’s claim was that adequate state protection would be denied to him because of his political affiliation, then I agree with Mr Baird’s submission that, when paragraphs [30] and [34] (CB 91 to 92) of the Tribunal’s reasons are properly read together, the Tribunal understood this aspect of the applicant’s claims, but preferred information from external sources that all citizens of India have access to a reasonable level of protection provided by the state. That the applicant would therefore have a reasonable level of protection, even in the circumstances put forward by him as to his political affiliations. This was a finding that was open to the Tribunal to make. I cannot see error in this regard.
The applicant made claims to fear harm based on past events in his home district where the death of an employee brought him into conflict, and generated threats from the employee’s brother, who lived across the border in Nepal. The Tribunal accepted all of the factual claims made by the applicant in this regard. It found, however, for reasons which were open to it on the material before it that, notwithstanding that these events had occurred in the past (and that, indeed, similar events may occur in the future), the applicant could avoid any harm feared in this regard by relocating to another area in India, away from his local area, that it was reasonable for him to do so in all the circumstances, and that an adequate level of protection would be afforded to him by the Indian State.
Ground two asserts that the Tribunal failed to take into account relevant considerations or integers central to his claims. On what is before the Court, I cannot see that this can be seriously suggested, let alone made out. I cannot see error in the Tribunal’s decision as asserted.
I am left with the view that, in reality, the applicant seeks merits review before this Court. That avenue is not open to this Court to provide (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Complaints Before the Court
From what the applicant submitted before the Court, it may be discerned that merits review is what the applicant really seeks from this Court. (See [11] above.)
This Court has no power to extend the applicant’s time in Australia merely because he seeks it. Such requests should properly be put to the Minister at his Department.
Conclusion
For the applicant to succeed before the Court, the Court would need to discern jurisdictional error (at least) in the Tribunals decision. The applicant's grounds do not reveal any such error, and nor did anything that the applicant said to the Court during the course of the hearing assist in finding any such error. I cannot otherwise find such error in what is before me. In these circumstances, therefore, the application is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 24 August 2009
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