SZNUY v Minister for Immigration - [2009] FMCA 1138

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNUY v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1138

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered whether relocation was reasonable in the sense of practicable – whether there was evidence to support the Refugee Review Tribunal’s findings.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2

SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18

Applicant:

SZNUY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1880 of 2009

Judgment of:

Emmett FM

Hearing date:

18 November 2009

Date of Last Submission:

18 November 2009

Delivered at:

Sydney

Delivered on:

18 November 2009

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones

Counsel for the Respondent:

Mr D. Tynan

Solicitors for the Respondent:

Mr R. White, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1880 of 2009

SZNUY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 July 2009 and handed down the same day.
The applicant claims to be a citizen of India and a supporter of the Bharatiya Janata Party (“the BJP”) in India (“the Applicant”).
The issue before this Court relates to whether, in finding that the Applicant could relocate within India, the Tribunal considered if it was reasonable, in the sense of practicable, for the Applicant to do so.
The Applicant arrived in Australia on 9 September 2008 having departed legally from Chennai on a passport issued in his own name and a subclass 456 visa issued on 3 September 2008.
On 17 October 2008, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 5 January 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa.
On 28 January 2009, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 14 July 2009, the Tribunal affirmed decision of the Delegate not to grant a protection visa.
On 6 August 2009, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

In his protection visa application, the Applicant claimed that he feared persecution by members of the Communist Party of India (Marxist) (“the CPIM”). The Applicant claimed that, on 27 February 2002, Muslim extremists torched two train cars carrying BJP activists at Godhra which escalated into a “communal riot in all over India.” The Applicant claimed that he was arrested and tortured at a police station and accused of arson attacks on Muslims. He claimed that, whilst he was in police custody, Muslims set fire to his business. The Applicant claimed that he was released on bail and was required to attend the police station once a week for one year.
The Applicant claimed that, in 1993, he became actively involved in politics, in particular with the BJP. The Applicant claimed that because he was “working openly against the CPIM” he became well-known to members of the CPIM.
The Applicant claimed that, in 2006, he started a new business and during the elections a local CPIM leader demanded donations from him. The Applicant claimed that he refused to give any donations and reported the incident to the police. He claimed he was subsequently threatened over the phone and received no assistance from the police.
The Applicant claimed that, having sold his business, “they came to house and tortured me brutally in front of my family” and his wife promised to pay money into their account “so that they will stop beating me”. However, the Applicant claimed that, ultimately, he did not pay them any money, as a result of which “they were looking for [the Applicant] everywhere”. The Applicant claimed that he then moved his family to different addresses until he left for Australia.
The Applicant claimed that “whenever… a clash occurred” he was “constantly questioned by police and tortured”.

The Delegate’s decision

On 22 December 2008, the Applicant attended an interview with the Delegate, at which his claims were explored. The Delegate was not satisfied that the Applicant had suffered past persecution as claimed and found his evidence to be evasive, contradictory and uncorroborated.
On 5 January 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

On 28 January 2009, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Applicant provided no further documents in support of his application other than a copy of his passport.
On 12 February 2009, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 16 March 2009 to give oral evidence and present arguments.
On 16 March 2009, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in his written submissions as follows:
“In its decision record, the Tribunal summarised the claims made by the applicant to the Minister’s delegate and the evidence given by him during the Tribunal hearing: CB 68-72 and 81-98. The Tribunal also referred to independent country information: CB 72-81.
In its decision dated 14 July 2009, the Tribunal affirmed the decision of the delegate of the first respondent: CB 65.
The Tribunal made the following findings in relation to the applicant:
(a) He is a citizen of India: CB 100 [150].
(b) He joined the BJP in 1992 or 1993 and actively spoke out against the CPI’s leaders: CB 98 [138-139];
(c) He was arrested on 3 March 2002 and detained by the police for four days: CB 99 [140];
(d) Members of the CPI destroyed his business whilst he was in prison: CB 99 [140];
(e) After his release, he was required to report to the police once a week for one year: CB 99 [140];
(f) He was unemployed in the period 2002-2006: CB 99 [141];
(g) In January 2006 he started a garment business: CB 99 [142];
(h) In March 2006, he sold his business because: he had been approached by the CPI for a donation; the CPI would not allow him to stay; and because he was subject to assault: CB 99 [142];
(i) When members of the CPI found out he had sold his business, they came to his house, assaulted him in front of his family and only ceased when his wife said to the assailants he would pay the ‘donation’: CB 99 [144];
(j) He was hospitalised for two days following the assault: CB 99 [145];
(k) Members of the CPI came to his home three or four times and phoned his home threatening him about his non-payment of the donation: CB 99 [146];
(l) In the period 2006-2008, he was unable to live at home with his family and they continued to move around: CB 99 [147] - 100 [148];
(m) He was constantly questioned and detained by the police: CB 100 [149].
The Tribunal also accepted that the applicant decided to leave India after he was assaulted in 2006 and that it took him two years to get the necessary documents to travel to Australia: CB 101 [159].
In the result, the Tribunal found that the applicant had a well-founded fear of persecution because of his political opinions: CB 100 [150].
However, the Tribunal also found that the persecution to which the applicant had been subjected was localized to the region in which he lived and that it was reasonable for he and his family to seek relocate to a safer part of India: CB 100 [150]-[151] and CB 101-102 [161].
In respect of the Tribunal’s ultimate conclusion that he (and his family) could safely and reasonably relocate to another location in India (CB 100 [150]), the Tribunal made a number of findings:
(a) Citizens of India enjoy freedom of movement (except in Kashmir and Jammu): CB 100 [150];
(b) He and his family could relocate to a safer location in India, such as Gujarat (CB 100 [151) or another place in India within a Hindu community (CB 100 [153]) where the BJP is represented in government and a significant proportion of the population speak Malayalam: CB 100 [151];
(c) Gujarat is considered to be a bastion of the BJP; the BJP has an overwhelming influence on the police force there; and the CPI has very little influence: CB 100 [151];
(d) He has the capacity to run his own business or find employment in manufacturing or retail to support his family in a new location: CB 100 [152];
(e) It is preferable that he learns Hindi rather than learning to speak English because of all the other changes that would occur with relocation to Australia, including distance from relatives and friends, a different culture and overall a changed world: CB 101 [155];
(f) The applicant’s wife could remain in Kerala with their children or move with her husband to Gujarat. The applicant’s wife would be required to learn to speak Hindi in Gujarat. If the applicant’s wife and children all moved to Australia, they would all need to learn to speak English and would experience the same issues set out in 12(e) above: CB 101 [156];
(g) It is preferable for the applicant and his family to remain in India where their family and friends are located, where they are familiar with Indian tradition and customs and where there is a world they know rather than experiencing a world that is foreign to them: CB 101 [156]; and
(h) He could take his family with him to Gujarat or they could remain in Kerala and complete their studies and live with relatives. The applicant was not able to live with his children between 2006 and 2008: CB 101 [157].
The Tribunal did not accept that the applicant did not want to move to Gujarat because he does not speak the language spoken there. The Tribunal also did not accept that the applicant was too old to learn to speak a new language because if remained in Australia he would have to learn to speak English: CB 101 [154].
Finally, the Tribunal did not accept the applicant’s claim that he would be killed if he returned to India: CB 101 [161].”

The proceeding before this Court

The Applicant was represented before this Court by Mr Jones, solicitor.
On 24 August 2009, the Applicant attended a directions hearing before a Registrar of this Court and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit and submissions in support. The Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice.
At the commencement of the hearing before this Court, Mr Jones confirmed that the Applicant relied on the ground contained in an amended application, filed on 6 October 2009, as follows:
“The Tribunal erred by failing to properly consider the option of relocation within the Applicant’s country of nationality.
Particulars
The Tribunal found that “the applicant and his family would be safe in Gujarat or in another location in India where the BJP is represented in government and where a significant proportion of the population speak Malayalam (see supporting documentation above in evidence from other sources)” CB 100 [151].
By finding only that the Applicant and his family “would be safe”, the Tribunal failed to direct its mind to the question of whether relocation was a reasonable or practical option.
Alternatively, if the Tribunal did turn its mind to that question, it relied on evidence that was incapable of supporting its conclusion that there were places in India outside the Applicants home State where a “significant proportion” of the population speak Malayalam. The census figures it relied on were raw statistics of the total number of Malayalam speakers in each State, irrespective of their proportion of the total population, socio-economic status, distribution, social organisation or other factors relevant to whether it would be reasonable or practical for the Applicant to relocate to those areas.”
The ground of the amended application contends that the Tribunal failed to consider whether relocation was a reasonable or practical option for the Applicant; or, alternatively, that there was no evidence to support its conclusion that there were places in India outside the Applicant’s home State where a “significant proportion” of the population speak Malayalam. For the reasons below, neither contention is made out.
Whilst the Tribunal accepted that the Applicant has a well-founded fear of persecution for the Convention reason of his political opinions, the Tribunal found that the persecution to which the Applicant was subjected is localised to the region where he lives. The Applicant does not suggest that that finding was not open to the Tribunal on the evidence and material before it, and indeed it was. It is the manner in which the Tribunal considered the issue of relocation with which the ground in the amended application is concerned.
At the heart of Mr Jones’ submissions was that, in considering whether it was reasonable for the Applicant to relocate, the Tribunal had regard only to locations in India where the BJP is represented in government and where a significant proportion of the population speak Malayalam. Mr Jones submitted that, in fact, the Tribunal had not considered whether a significant proportion of the population in other locations speak Malayalam. Rather, the country evidence before it, and to which it had regard, reflected only the total number of Malayalam speakers outside Kerala where the BJP was in power.
In its decision record, relevantly, the Tribunal stated as follows:
“The Tribunal finds that the applicant and his family could move to a safer location in India. The Tribunal finds the applicant could relocate with his family state or territory where the BJP is in power. For example the applicant could move to Gujarat because it is considered to be a bastion of the BJP and where the BJP has an overwhelming influence over the running of the state’s police force and the CPI has very little influence. The Tribunal finds the applicant and his family would be safe in Gujarat or in another location in India where the BJP is represented in government and where a significant proportion of the population speak Malayalam.”
Mr Jones submitted that ‘language’ was one of two determining practical factors which it considered in relation to the reasonableness of the Applicant relocating within India; those being ‘language’ and ‘the existence of the BJP government’.
Mr Jones submitted that the Tribunal, having identified the existence of the Malayalam language in any such area to which the Applicant could relocate, considered the proportion of the Malayalam speaking population as relevant. Mr Jones submitted that, despite having identified the importance of the existence of “a significant proportion” of Malayalam speakers, there was no evidence before the Tribunal to allow it to conclude that a significant proportion of Malayalam speakers existed in other areas.
The Tribunal noted that areas, such as Karnataka, where the BJP is in power, had a significant population of Malayalam speakers. Yet, Mr Jones submitted that the Tribunal found that the Applicant could relocate to such an area because of the existence of a significant proportion of Malayalam speakers. The Tribunal noted that country information before it disclosed that Karnataka had 701,673 Malayalam speakers which it found to be “a significant population of Malayalam speakers” [Emphasis added]. Mr Jones submitted that the population of Karnataka is many millions and I am prepared to take judicial notice of the fact.
However, a fair reading of the Tribunal’s decision record as a whole makes clear that the existence of a significant proportion of Malayalam speakers was not a matter which the Tribunal found to be as critical as submitted by Mr Jones to the Tribunal in its consideration of the practicalities for the Applicant in relocating. Rather, the Tribunal found that the Applicant could relocate to Gujarat where the Tribunal accepted the Applicant and his family would have language difficulties because the people in Gujarat predominantly speak Hindi, whereas none of the Applicant or his family speaks Hindi. The Tribunal’s reference to other areas where the BJP was in power and a significant proportion of Malayalam speakers may exist does not affect its finding that it was reasonable, in the sense of practicable, for the Applicant to relocate to Gujarat.
In considering relocation, the Tribunal’s decision record makes clear that language was a matter to which the Tribunal specifically turned its mind. The Tribunal Member’s findings must be considered in the context of all the matters that the Tribunal Member took into consideration. I accept the submission of counsel for the First Respondent that the Tribunal considered a range of relevant matters in considering whether it was reasonable, in the sense of practicable, to require the Applicant to relocate. As is apparent from the reasons below, these matters included the Applicant’s ability to find work, the Applicant’s and his family’s ability to adjust to new cultures, the impact on his family of having to learn a new language, whether state protection was available to the Applicant, whether the Applicant could live within a Hindu community and whether the BJP is in power.
Ultimately, the Tribunal found that the Applicant could relocate to Gujarat, even though Hindi is the language spoken in Gujarat. The Tribunal’s decision record makes clear that it explored the language in Gujarat with the Applicant at hearing and had regard to the Applicant’s concern that he did not want to move to Gujarat because he did not speak Hindi.

However, the Tribunal had regard to the fact that the Applicant reads and writes English and could learn how to speak English. However, the Tribunal found that learning Hindi was preferable for the Applicant because it would enable the Applicant not to have to relocate to Australia where he would be affected by the “distance from relatives and friends, a different culture and overall a changed world”.
In finding that the Applicant could take his family to Gujarat, the Tribunal also considered the fact that the Applicant has two teenage children who speak Malayalam and presently live with relatives in Kerala. However, the Tribunal found that the children could remain in Kerala and complete their studies and visit their father in Gujarat during school holidays. The Tribunal based that finding on the Applicant’s evidence that he was unable to live with his children between 2006 and 2008 in India, nor is he living with them today.
The Tribunal also found that the Applicant’s wife could remain in Kerala caring for the children or could move to Gujarat to be with the Applicant. The Tribunal noted that the Applicant said his wife knew only Malayalam and could not learn. The Tribunal acknowledged that, if she was to move to Gujarat, she would need to learn to speak Hindi. Similarly, if she was to follow the Applicant to Australia, she would also have to learn to speak English, and therefore the same problem relating to learning a new language would exist for the Applicant’s wife. Having regard to that difficulty, the Tribunal found that it would be preferable for the Applicant’s wife and children to remain in India where they have family and friends and where they are familiar with Indian tradition and customs and where there is a world they know, rather than Australia which would be foreign to them.
In the circumstances, it is clear that the existence of a Malayalam speaking population was by no means the factor upon which the Tribunal found that the Applicant could relocate. To read the Tribunal’s reasons in the manner contended for by Mr Jones, would be to scrutinise those reasons with an eye keenly attuned to error (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641, their Honours (French, Sackville and Hely JJ) stated at [46] and [47]).
The Tribunal also had regard to the Applicant’s ability to set up and manage a business and to generate his own income stream in a new location and noted that he had “the financial and other attributes to travel to Australia”. The Tribunal found that the Applicant and his family had the capacity to relocate in India within a Hindu community and where the BJP is in power and where state protection would be available to the Applicant.
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that, in considering the issue of relocation, the Tribunal considered what is reasonable, in the sense of practicable, having regard to the Applicant’s particular circumstances and the impact upon the Applicant and his family of such relocation (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [23]-[24] per Gummow, Hayne and Crennan JJ (Kirby and Callinan JJ agreeing)).
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, the ground of the application is not made out.
Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also identified independent country information to which it had regard and which it explored with the Applicant. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: E. Maconachie

Date: 18 November 2009