SZNVX v Minister for Immigration and Citizenship
[2010] FCA 523
FEDERAL COURT OF AUSTRALIA
SZNVX v Minister for Immigration and Citizenship [2010] FCA 523
Citation: SZNVX v Minister for Immigration and Citizenship [2010] FCA 523 Appeal from: SZNVX & Anor v Minister for Immigration & Citizenship [2010] FMCA 59 Parties: SZNVX and SZNVY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 127 of 2010 Judge: TRACEY J Date of judgment: 27 May 2010 Legislation: Migration Act 1958 (Cth), ss 424, 91R(2)(a) Cases cited: SZNVX & Anor v Minister for Immigration & Citizenship & Anor [2010] FMCA 59
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18Date of hearing: 27 May 2010 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 20 The First Appellant appeared in person Counsel for the First and Second Respondents: W S Mosley Solicitor for the First and Second Respondents: DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 127 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNVX
First AppellantSZNVY
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
27 MAY 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs of the proceeding.
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
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 127 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNVX
First AppellantSZNVY
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
27 MAY 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal against a judgment of a Federal Magistrate delivered on 9 February 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 30 July 2009: see SZNVX & Anor v Minister for Immigration & Citizenship & Anor [2010] FMCA 59. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant protection visas to the appellants.
BACKGROUND
The appellants, husband and wife, are citizens of India who arrived in Australia on 11 August 2008. They entered on visitors’ visas. On 18 September 2008 the appellants lodged an application for protection visas with the Department of Immigration and Citizenship. In that application, the appellant wife relied on the claims of her husband (“the appellant”) as part of the family unit. A delegate of the first respondent refused the application for a protection visa on 20 November 2008. On 16 December 2008 the appellant applied to the Tribunal for a review of that decision.
In his application for a protection visa, the appellant claimed that he became involved in politics in India in 1992, joining the Rashtriya Swayamsevak (“RSS”) to protect his family and community from Muslim extremists. Later on he became a local leader of the BJP political party. He decided to quit politics, and spoke against the party leader. He was threatened by supporters from both sides, and his business was ransacked. He decided to leave the country to avoid being killed by extremists.
REFUGEE REVIEW TRIBUNAL
The Tribunal conducted two lengthy oral hearings and considered a large range of documentation. It delivered lengthy and comprehensive reasons for its decision. It accepted that the appellant had a well founded fear of persecution due to his political opinion. It further found, however, that:
“… the past harm is localised to the regions where the applicant lived and worked. The applicant claims that following the invasion of his house assault of his parents in 2000, and the destruction of his business in 2004, that he was very scared and that he believes that it is possible that these things could happen again in the future. The Tribunal is satisfied any future harm the applicant fears is as a result of the events which occurred within his local area and it is satisfied that harm he may fear in the future is localize (sic) to the region where he lived and worked. The Tribunal accepts the applicant’s claims that he has ceased his political activities and is satisfied that the applicant will not engage in any similar activities in the future on relocation therefore the Tribunal finds there is no real change the applicant will experience harm in the future as claimed on relocation.
The Tribunal find that it is reasonable for the applicant to seek refuge in another part of India. He is a citizen of India. India is comprised of a population of approximately 1.12 billon (reported in 2007). The applicant is a Hindu and Hindus comprise approximately 80% of the population in India. The detail provided in evidence from other sources advises that citizens of India enjoy the freedom of movement in its 28 states and seven territories with the exception of Kashmir and Jammu. … The Tribunal finds the applicant’s personal characteristics which include, his ability to set up and manage small clothing manufacturing businesses, his previous demonstrated ability to relocate within India and to travel to Australia, his ability to raise funds by borrowing from friends and relatives and in addition the applicant made no claims that he has a problem with relocation. Based on this evidence the Tribunal finds that it is safe and reasonable for the applicant to relocate to another place in India.”
The Tribunal also noted that the language spoken by the applicant – Gujarati – is widely spoken in India, including in Maharashatra and Tamil Nadu.
The Tribunal was not satisfied that the appellant was a person to whom Australia owes protection obligations under the Refugee Convention and affirmed the decision under review.
FEDERAL MAGISTRATES COURT
The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 21 August 2009. That application contained the following grounds:
1.The Tribunal failed to comply with s 424 of the Migration Act 1958 (Cth) (“the Act”).
2.The Tribunal failed to consider properly the test whether the appellant would suffer serious harm as per s 91R(2)(a) of the Act, if they relocated in India.
3.The Tribunal failed to achieve a reasonable state of satisfaction in accordance with the Act.
4.The Tribunal’s decision was unjust and was made without taking into account the full gravity of the appellant’s circumstances and the consequences of his claims.
5.The appellant satisfies the four key elements of the Convention definition as detailed in pages two and three of the Tribunal decision. The Tribunal did not consider this aspect and therefore committed factual and legal error.
6.The Tribunal failed to investigate the appellant’s claim, specifically the grounds of persecution, in India. Therefore, the Tribunal decision dated 30 July 2009 was affected by actual bias constituting judicial error.
In respect of ground 1, the Federal Magistrate accepted the submission of the Minister that the appellant was afforded an opportunity to make his claims and put any information before the Tribunal, both generally and at the two hearings that the Tribunal conducted.
In respect of ground 2, the Federal Magistrate found that the Tribunal, in making the finding that it would be reasonable for the appellant to relocate, considered his religion, his language, his previously demonstrated ability to relocate, his ability to raise finance and to establish a business and his particular family circumstances. No jurisdictional error had been made: cf SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.
In respect of ground 3, the Federal Magistrate held that this complaint had not been particularised, and was, in any event, misconceived.
In respect of ground 4, the Federal Magistrate found that the Tribunal’s findings were open to it on the material before it, and that the Tribunal gave cogent reasons in support of its findings.
In respect of ground 5, the Federal Magistrate found that the Tribunal did consider the relevant test and correctly summarised the relevant law. His Honour further noted that the Tribunal accepted that the appellant had a fear of persecution in his home state by reason of his political opinion, but also found that it would be reasonable for him to relocate.
In respect of ground 6 the Federal Magistrate found that there was no evidence of bias in the material before the Court. Nor was the Tribunal under an obligation to further investigate the appellant’s claims.
Having found that no jurisdictional error had been made by the Tribunal, the Federal Magistrate dismissed the application.
APPEAL TO THIS COURT
The notice of appeal to this Court was filed on 1 March 2010. The following grounds were raised:
“1. His honors (sic) judgment delivered on the 9 February 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.
2. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.
3. The Hon. FM failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences.”
No particulars were supplied under any of these grounds.
SUBMISSIONS OF THE APPELLANT
The appellant appeared before the Court this morning by video link from Brisbane. He had the assistance of an interpreter.
The appellant advised the Court that he had no understanding of the basis upon which the Tribunal and the Federal Magistrates Court had made their decisions. I asked him how it was that, if he lacked such understanding, he was able to prepare an application for judicial review and a notice of appeal from the Federal Magistrate’s decision. He said that a friend who had knowledge of the proceedings had prepared the documents on his behalf and that he had little understanding of the contents of those documents.
I stood the hearing down so that the Minister’s submissions could be translated for the appellant. When the hearing resumed the appellant said that the Minister’s submissions had been translated for him. He accepted those submissions both as to matters of fact and law. He said that all he wanted was some time in Australia so that he could work and earn money before returning to India.
The Minister’s submissions outlined the factual background to the appellants’ claims and summarised what had transpired before the Tribunal and the Federal Magistrates Court. The Minister submitted that the Federal Magistrate’s reasons disclosed no error and that the Tribunal had not committed any jurisdictional error in reaching its decision.
FINDINGS
I have read the reasons for decision of the Tribunal and the Federal Magistrate. I can detect no appellable error in the decision of the Federal Magistrate. None of the grounds of appeal pursued by the appellant in this Court has been made out. I note, in particular, that the Tribunal approached the issue of relocation within India consistently with the decision of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.
ORDERS
The appeal should be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 27 May 2010
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