SZNXH v Minister for Immigration
[2009] FMCA 1280
•30 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNXH v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1280 |
| MIGRATION – Review of decision of Refugee Review Tribunal – impermissible merits review – findings of fact include findings as to credibility – Tribunal did not fail to consider claims – test for relocation one of reasonableness – no jurisdictional error. |
| Migration Act 1958 (Cth), s.91R |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 SZATV v Minister for Immigration and Citizenship [2007] HCA 40 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 |
| Applicant: | SZNXH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2252 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 November 2009 |
| Date of Last Submission: | 30 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2009 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondents: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 16 September 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2252 of 2009
| SZNXH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made on 16 September 2009, under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 August 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The Minister has filed a bundle of relevant documents (Court Book, “CB”) from which the relevant background may be discerned.
The applicant is a citizen of India. He arrived in Australia on 10 February 2009. He applied for a protection visa on 25 March 2009. (The application is reproduced at CB 1 to CB 33.) The applicant was assisted by a registered migration agent in the making of that application (CB 31). His claims were set out, at least initially, in a statutory declaration as a part of his application (CB 5 to CB 7).
Claims to Protection
The applicant claimed to fear persecutory harm in India because of his religious and political beliefs. He claimed to be a Sikh from the Indian state of Haryana. He claimed that his family had migrated there from Pakistan in 1947, and was known as “Muhajir”, which I understand to mean broadly “migrant”.
He claimed that his family suffered discrimination from local Hindus, a situation that deteriorated after the assassination of the then Prime Minister Indira Gandhi (I can take judicial note of the fact that she was assassinated by members of her bodyguard, who were Sikhs). He claimed to have experienced: “… religious violence, assault and harassment” at the hands of Hindus in his area.
He said he was an activist in the political party known as the BJP and thereby became the target of opponent political activists, in particular members of (the) Congress (Party). He claimed to have come to the attention of political activists, in particular, because of his active involvement in elections.
The applicant claimed to have left India in 1994 for his safety, and worked in Lebanon for some 9 or, as he told me today, 10 years. While he visited his family during this period, he was at risk. In particular, the applicant claimed that he returned to India in 2003 after his grandfather’s death following an attack on his family by militant Hindus.
He claimed that, while he engaged in farm activities, the Hindus would not leave him alone. He continued to be threatened, including a threat to kidnap his son for ransom. He claimed that he was not able to meet their demands, and he continued to be threatened by: “Hindus and Congress activists”.
The Delegate
The Minister’s delegate expressed some concerns with the lack of supporting material and what was said to be the “generalised information” in the applicant’s claims, and some inconsistency in his claims. Nonetheless, the delegate accepted that some of the claimed threats, in particular the claimed extortion, may have occurred.
But the delegate found that, in these circumstances, adequate state protection would be available to the applicant, and further, that the applicant could reasonably and safely relocate to another part of India. Accordingly the delegate refused the application for the protection visa.
The Tribunal
The applicant applied for review by the Tribunal on 28 June 2009 (CB 55 to CB 58). He attended a hearing before the Tribunal on 14 August 2009 (CB 86). The Tribunal’s account of what occurred at the hearing is set out in its decision record at [45] to [64] (CB 94 to CB 97). From the Tribunal’s account it can be seen that the applicant provided further details about his claims.
The applicant also provided a letter, said to be signed by the local chairman of the BJP in his home constituency (CB 64).
It is clear, in reading the applicant’s grounds as set out in the application, that, with respect to the applicant and to his “friend” who assisted him, neither the applicant nor his friend truly understood what the Tribunal has done. (See further below.)
The Tribunal accepted the applicant’s historical claims relating to his family’s move to India ([65]). While the Tribunal found that there were some discrepancies in the applicant’s claims, it gave him the benefit of the doubt, and accepted his evidence as it was presented at hearing. The Tribunal specifically said that it drew no adverse inference from the inconsistencies in the applicant’s claims ([66]). In this regard, the Tribunal accepted that the applicant’s family were part of a handful of Sikhs living in his home village, in which the population was mainly Hindu ([68]).
The Tribunal also accepted that the applicant had been an ordinary member of the BJP. But, based on the applicant’s own evidence to it at the hearing, it was not satisfied that he had been active during election campaigns. The Tribunal found his evidence, in this regard, to be unpersuasive and unconvincing ([69]).
The Tribunal relied on the letter from the BJP, which the applicant had provided to it, and the applicant’s own evidence at the hearing, to find that it did not accept that he was actively involved in BJP related activities. It therefore rejected the applicant’s claim, made at the hearing, that he had been detained and mistreated by the police ([70]).
On the other hand, the Tribunal did accept that, in his village, he was frequently targeted by other villagers. The Tribunal accepted the applicant’s claims of harm to his family and property. It found that his religion, political opinion and membership of a particular social group, which was said to be “Sikhs who had migrated from Pakistan to India”, would lead to persecutory harm if he were to return to his home village. It found that this would be serious harm for the purposes of s.91R(1)(b) of the Act ([71]).
However, the Tribunal found it would be safe and reasonable for the applicant to relocate to another part of India given that the fears, which were nonetheless well founded, were localised. The Tribunal found that, in addition to Punjab where Sikhs were in the majority, and where the BJP was in government, there were a number of other states in India where the applicant could reasonably and safely relocate ([72] to [77]).
On this basis, therefore, the Tribunal found that the applicant’s fear was not well founded as having regard to the situation in India as a whole. It therefore affirmed the delegate’s decision ([78] to [79]).
Application to the Court
The applicant’s grounds, as set out in his application are that:
“1. The Tribunal failed to consider that I am a victim of political persecution as an activist of BJP. The Tribunal ignored my persecution that I experienced and also I shall be experiencing on my return back to India for my political belief and the Tribunal made errors of jurisdiction.
2. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to accept me as credible witness for my claims and refused my application. The Tribunal failed to consider that Muhajirs are differently treated in India.
3. The Tribunal failed to take into consideration my well founded fear of persecution, discrimination, assault and torture, which I experienced in India prior to my departure. I shall experience the similar situation on my return back. The Tribunal’s failure to consider my fear of persecution is an error of jurisdiction.
4. The Tribunal found relocation to different area will help me to escape persecution which is not feasible for a person like me for my religious and ethnic background as I am a Sikh and also a Muhajir. Accordingly the Tribunal made errors of jurisdiction.
Before the Court
The applicant appeared in person. He was assisted by an interpreter in the Punjabi language. Ms E Warner Knight appeared for the first respondent. I note that in addition to the Court Book, I also have before me written submissions filed on behalf of the Minister.
The applicant submitted:
1)That the Tribunal did not give proper consideration to his case. I did not see this as being in essence any different from much of what is asserted in the grounds.
2)That he took issue with the Tribunal’s finding that he could relocate elsewhere in India, and that it was impossible for him to do so because the Congress Party was everywhere in India. In this regard, I did not see this submission as going any further than what is asserted in ground 4 of the application.
3)That there is a “political problem” in India and there is rivalry between the BJP and the Congress Party, and that, given that elections are held every five years, an attempt can only be made to address those difficulties once every five years.
4)The applicant appears to have been assisted by a friend in the drafting of his grounds.
In light of the applicant’s submissions, I sought to explain to the applicant the nature of the proceedings before this Court, as compared with the task facing the Tribunal. It is clear that much of what the applicant complained about before this Court, and much of what is contained in the grounds in the application, is about the factual findings made by the Tribunal. Simply, the applicant, to the extent that he properly understood what the Tribunal found, sought to challenge these factual findings.
As I explained to the applicant, such a challenge, without anything else, will not assist him before this Court because, as it is well established, for example Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, this Court cannot engage in what is described as impermissible merits review. As to the last part of the applicant’s submissions relating to the problems between BJP and Congress Party, and in particular as to how this related to his complaint about the Tribunal’s relocation finding, I will address that when I address ground 4.
Consideration
Ground 1
This ground asserts that the Tribunal failed to consider that he was a victim of political persecution because he was an activist of the BJP. The applicant complains that the Tribunal ignored that he would be persecuted for his political beliefs.
As I have already said, the Tribunal found that the applicant was an ordinary member of the BJP. It was not satisfied, however, that he was active in political activities such as to have attracted harm from political opponents.
These findings, and the other related findings to which I have already previously referred, were open to the Tribunal to make on what was before it (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). The Tribunal, on any plain reading of its decision record, gave cogent reasons for these findings. I note that the Tribunal rejected this particular aspect of the applicant’s claims, that is to have been involved in elections, largely on what it found to be the unsatisfactory nature of the applicant’s own evidence. To the extent therefore that ground 1 challenges the factual findings of the Tribunal, this Court cannot substitute its own findings for those of the Tribunal.
The applicant has not put any evidence (for example by way of transcript of the Tribunal hearing) before the Court to challenge the Tribunal’s account of what occurred. In these circumstances the Court is left with the Tribunal’s record, and is unable to draw assumptions or speculate as to what may otherwise have been said (NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241)
To the extent that the wording used in the application is that the Tribunal failed to “consider”, and that perhaps this may be understood as some assertion that the Tribunal failed to deal with the applicant’s claims, this also must be rejected given what is plainly set out in its decision record.
In all, therefore, ground 1 does not assist the applicant in showing jurisdictional error in the Tribunal’s decision.
Ground 2
In ground 2, the applicant asserts jurisdictional error on the part of the Tribunal because it failed to find him to be a credible witness. Further, it is asserted that it failed to consider that Muhajirs are treated differently in India.
Contrary to what is asserted in ground 2, it is clear that the Tribunal did not make any general adverse finding as to the applicant’s credibility. It did not find him not to be a credible witness. It accepted much of what he had said. But it must also be said that, even if the Tribunal had made such a finding, without anything further to that which is just baldly asserted in the application, the complaint would not succeed.
It is the case that the Tribunal is the relevant finder of fact and, as was said by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405, the finder of fact “par excellence”. This includes findings as to credibility. The Tribunal’s findings in rejecting those parts of the applicant’s claims dealing with his degree of involvement in the activities of the BJP were all open to it to make on what was before it.
It is the case that the Tribunal is not bound to uncritically accept everything that the applicant says. Just because the Tribunal accepted some, or, indeed, much of what the applicant said, does not mean it is then bound to accept each and every piece of other evidence provided by the applicant (Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 (“Randhawa”) at 451(E)).
As to the applicant’s complaint that the Tribunal failed to consider that Muhajirs are treated differently in India, this also must be rejected. The plainest of readings of the Tribunal’s decision reveals that it accepted that the applicant was a Muhajir, and that for this and other reasons would suffer serious harm if he were to return to his local village ([71]).
It is the case, as I have already said, that the Tribunal, in these circumstances, found, however, that the applicant could nonetheless safely and reasonably relocate elsewhere in India. In this regard, and included in this conclusion, was a finding, as set out at paragraph 76, that: “There was no information before the Tribunal to suggest that Sikh muhajirs are treated differently, discriminated against or persecuted by Hindus or other Sikhs in Punjab or any of these states…” ([76]).
I will return to this particular complaint when I address ground 4. But for the moment, ground 2 does not succeed.
Ground 3
The third ground asserts that the Tribunal failed to take into consideration the persecution that the applicant experienced in India, and that he would experience a similar situation if he were to return.
It must be said that the applicant, or whoever this “friend” was that assisted in the drafting of these grounds on his behalf, either has not read the Tribunal’s decision or, with respect, has a serious comprehension problem. In the alternative, it may be that this is simply yet another, albeit clumsy, attempt at seeking impermissible merits review.
Whatever the situation, however, the Tribunal plainly did consider and indeed, as I have repeatedly said, accepted many of the applicant’s claims. It bears repeating again, that the Tribunal found that he did experience serious harm in the past which amounted to persecution in his local area. It accepted that he faced a real chance of persecution if he were to return to his home village. But it found that this fear of harm was localised, and that he could reasonably and safely relocate elsewhere in India.
The ground therefore, as pleaded, that the Tribunal failed to take into consideration certain claims, or factors relevant to the applicant’s claims, is simply not made out.
Ground 4
The fourth ground really encapsulates, in my view, what the applicant and his friend misconceive about the true nature of the Tribunal’s analysis and its decision. It is the case that the first three grounds would suggest that the applicant, and his friend, failed to understand the Tribunal’s critical reasoning, and that is that the Tribunal accepted that there was a fear of persecutory harm in his local area. But that the applicant could reasonably and safely relocate elsewhere in India.
In any event, the fourth ground does not reveal error on the part of the Tribunal. The Tribunal found that, given the applicant’s relevant evidence, which it accepted, and country information before it, the applicant could reasonably and safely relocate to any one of a number of other Indian states. In reaching this conclusion, the Tribunal acted consistently with what was set out by Black CJ in Randhawa).
Nor did the Tribunal’s analysis require the applicant to modify his behaviour to avoid harm. I cannot see that the Tribunal, bearing in mind what was said in Randhawa, and by the High Court in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (“SZATV”), misunderstood or misapplied any of the relevant legal principles in its analysis.
What the applicant, and more particularly his friend who drafted the application, fails to appreciate is that it is now quite settled in Australian law, in relation to the Refugees Convention, that a person is not in need of international protection if protection is available in another part of his home country.
In short, having found that the applicant’s fear of serious harm was localised, the Tribunal was compelled to consider the availability of protection in the remainder of the country as a whole, and the reasonableness of any such relocation in the applicant’s circumstances. In this regard in particular see what was said by Black CJ in Randhawa, with whom Whitlam J agreed ([7] to [16]).
As was said, in relevant authorities (SZATV, Randhawa, and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”)), the relevant test is one of reasonableness. In the current case, the Tribunal considered that, as a Sikh, and indeed even as a Muhajir, the applicant could reasonably and safely relocate to any one of a number of states where Sikhs are found in large numbers, and the BJP is in power.
Further, that a number of factors relevant and personal to the applicant, such as education, language proficiency, his proven ability to live in an alien environment, that is Lebanon for nine years, and his family’s circumstances, would all underscore that relocation was reasonable.
As to the range of circumstances that the Tribunal is required to consider, recent direction was provided by a Full Federal Court in SZMCD. The Full Federal Court said, at [123] and [124], as follows:
“123. The Tribunal considered relocation in a framework dictated by the evidence and claims advanced to it by the appellant. It was not obliged to consider all theoretical possibilities including the question of whether or not the appellant would continue to behave in a way which might attract persecution from different [in that case] Islamic fundamentalists.
124. The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa [1994] FCA 1253; 52 FCR 437 at 442-443, especially at 443C-D.”
In the current case, the Tribunal’s account of what occurred at the hearing is unchallenged by any evidence to the contrary brought by the applicant. I note that the issue of relocation was a live issue before the Tribunal, as a result of the delegate’s decision. Further, the Tribunal raised this issue with the applicant at the hearing, and gave him the opportunity to put his objections, his arguments, and difficulties with relocating (see in particular [64]).
The Tribunal’s analysis, and its findings, squarely dealt with the objections to relocation raised by the applicant. In particular the applicant’s fear that Hindus would pursue him elsewhere in India.
The Tribunal squarely dealt with the objection that the applicant would be followed by not only villagers and Hindus, but by the Congress Party to other parts of India, or that he would be found by Congress Party members in other parts of India.
In answer to the applicant, Ms Warner Knight also drew the Court’s attention to the Minister’s submissions in this regard, and, in particular, to what is set out in paragraph 8.6 of the Minister’s submissions:
“8.6 The Tribunal rejected the applicant’s claim that he would be followed or found by members of the Congress Party or his fellow villagers in such a vast and densely populated country as India. There was no independent evidence that ordinary members of the BJP, or activists whether of high or low profile are persecuted across India by Congress Party members or officials”.
I can only say that I agree with Ms Warner Knight’s submissions in this regard. The applicant’s complaint is not supported by what is set out in the Tribunal’s decision record.
In addition to addressing the objections raised to relocation, it was clearly not wrong of the Tribunal to have also gone and considered other factors arising from the applicant’s circumstances, which also went to the issue of whether relocation was reasonable in the circumstances.
I note that, while it is generally not necessary for the Tribunal to identify a specific area to which relocation can safely and reasonably be made, the specific objections to relocation raised by the applicant in this case, that is, that Hindus would pursue him anywhere in India and that the Congress Party had agents in every corner of India, and that the villagers would pursue him, did, in my view, require the Tribunal to identify those parts of India where the applicant could reasonably relocate in safety, or at least to consider the situation or conditions in these other parts of India.
That is precisely what this Tribunal did. It identified those states of India where, because of prevailing conditions, any such pursuit would be highly unlikely, or would not result in a well founded fear of Convention-related persecution.
In all, therefore, ground 4 is not made out.
Conclusions
I have already dealt with what the applicant has said to the Court today. Despite opportunity provided to him at the first Court date, the applicant has not put anything else before the Court. I do not say that in any critical way, but merely to note that there is nothing further before the Court put by the applicant, to which the Court is compelled to have regard.
In conclusion, therefore, having regard to the Tribunal’s decision record, this reveals, on any plain reading, that the Tribunal did consider all aspects of the applicant’s claims. In my view, it engaged in a comprehensive analysis of these claims, and made findings for which it gave cogent reasons, and which were open to it on what was before it.
For the applicant to succeed today, the Court, at the very least, would need to find jurisdictional error on the part of the Tribunal. I cannot discern such error, and the application should therefore be dismissed.
Post Script
I should just note that this is yet another example, an unfortunate example, of an applicant who already faces all of the many difficulties that are faced by people who come newly arrived to this country, and make applications ultimately before this Court, who are assisted by well-meaning friends who have no real understanding of the relevant law, and who, in this case, plainly failed to understand or comprehend the very clear and simple distinction that the Tribunal found between the situation in the applicant’s local area and the situation in India as a whole.
It must be said that, even if well intentioned, these friends do their friends, applicants before the Court, a great disservice in intervening in matters of a serious nature, when clearly they lack knowledge, and in this case, even the simplest of relevant comprehension. Even if well intentioned, I say to the applicant, this is not the act of a true “friend”.
Costs
There is nothing before the Court to indicate that an order for costs should not be made. I understand that the applicant, in saying that he does not have the amount the Minister seeks, that he would need to look for work, and that he could possibly pay by instalments, to be really saying that he does not have sufficient funds. In my view, that is not a sufficient reason for the order not to be made. I will make such as order.
As Ms Warner Knight submitted, the amount sought is within the amount that the Minister could have sought pursuant to the relevant Schedule to the Rules of this Court. I take the Schedule as being a good general guide as to what may be reasonable in the general sense. I am also of the view that, quite independently, having regard to the work that has been done in this case by the Minister’s legal representatives, the multiple copies of the Court Book, the filing and serving of a formal response, the preparation, filing and serving of written submissions, and the attendance, on at least two occasions, by a Senior Solicitor representing the Minister, that the amount sought is a reasonable amount. I will make an order in that amount.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Nicholls FM
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