SZNYB v Minister for Immigration - [2010] FMCA 107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYB & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 107

MIGRATION – Relocation – where Tribunal considered relevant factors.

Migration Act 1958, ss.424AA, 477(1)

Randhawa v Minister for Immigration (1994) 52 FCR 437
SZDBP v Minister for Immigration (2006) FCAFC 110
SZATV v Minister for Immigration (2007) HCA 40

First Applicant:

SZNYB

Second Applicant:

SZNYC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2323 of 2009

Judgment of:

Raphael FM

Hearing date:

11 February 2010

Date of Last Submission:

11 February 2010

Delivered at:

Sydney

Delivered on:

11 February 2010

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicants to pay the First Respondent’s costs assessed in the sum of $4,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2323 of 2009

SZNYB

First Applicant

SZNYC

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are citizens of India. They arrived in Australia on 20 September 2008 and applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 31 October 2008. On 21 January 2009 a delegate of the Minister refused to grant protection visas and the applicants applied to the Refugee Review Tribunal for review of that decision on 19 February 2009. They attended a hearing before the Tribunal. During the course of that hearing the Tribunal provided them with certain information from what is now colloquially known as a “dob in” letter. It was explained to the applicants that they could respond to that information at the hearing or they could seek further time and attend a new hearing after they had had an opportunity to consider the information that was given to them by the Tribunal. This is what they decided to do. The Tribunal fixed a further hearing for 1 May and advised the applicants through their migration agent.
The male applicant arrived at the Tribunal an hour after the scheduled time, by which time the interpreter who had been retained had been dismissed. The Tribunal therefore (although it was not obliged to) made a further appointment for a hearing, this time at 2.30 pm on 8 May and advised the applicants. But they did not appear at that hearing. The Tribunal then proceeded to make its decision, which it did on 25 May 2009, handing it down on 26 May. The Tribunal affirmed the decision under review.
The grounds upon which the applicants claimed they were persons to whom Australia owed protection obligations were the convention grounds of political opinion and religion. They are a young couple who lived in Kashmir and the male applicant claimed that he was a prominent member of the BJP. He claimed that his father before him had also been prominent in Kashmiri politics and that he had suffered considerably as a result. The male applicant provided information indicating that he was a senior member of the BJP and that he was involved in protests with regard to a parcel of land which had been owned by his community for the purposes of a Hindu temple.
It would appear that the local Muslims asked the government to hand this land over to them and that was agreed to. There was a demonstration, the police were called. Apparently shots were fired and people were arrested and detained. The applicant claimed that he actively participated in this movement and on 10 June 2008 was attacked by a group of Muslims on his way home from work. He was injured in the attack and required hospitalisation. He told that his wife was also attacked at her home. At the time she was two months pregnant. As a result of a physical assault she suffered a miscarriage. Both the applicant and his wife were threatened by Muslims and he claims that they were severely traumatised and devastated mentally. They moved around, their business was interrupted and their life became insecure. When the applicant told his father about this arrangements were made for him to depart India.
The Tribunal questioned the applicant and his wife (who is also an applicant in these proceedings) about these matters and also put to them the contents of a “dob in” letter which related more to their activities in India, in particular their tax situation, than to the veracity of the statements they had made about their alleged persecution. The Tribunal made it clear to the applicants that they had the right to respond to this information and it did this by speaking individually to both the husband and the wife. The conversations between the Tribunal and the applicants are set out in detail in the decision record and I am satisfied that the manner in which the Tribunal acted complied with the provisions of s.424AA of the Migration Act 1958 (the “Act”), although as things transpired, this is not really particularly relevant. By the end of the first hearing the Tribunal had obtained all the information that it needed from the applicants concerning their claims and their responses to the suggestion by the Tribunal that they would be able to relocate within India.
This was specifically, that they would be able to relocate to the Punjab, where, as the Tribunal explained, there were a very significant number of Sikh persons and that the BJP, which was the political party to which the male applicant claimed to have association, was in power. The Tribunal also pointed out to the applicant that the previous and then proposed Prime Minister of India was also a Sikh. The only matters which were to be raised at a rescheduled hearing were the matters contained in the “dob in” letter.
In the Tribunal’s findings and reasons, it noted:
“The applicant’s evidence at the hearing was reasonably straightforward and his wife corroborated important parts of it, such as his membership of the BJP and that he had been attacked and injured.
The Tribunal accepts the handwritten note from Prof. G.R. Bhagat M.L.A. stating that the applicant is a senior member of the BJP.
The applicant also provided newspaper reports relating to the Amarnath Shrine, or Temple. The applicant stated at the hearing that the newspaper articles were proof of his claims. He stated that the newspaper articles were proof that a person like him was the victim of persecution. Concerns about the situation of minorities in Jammu were expressed. The newspaper also referred to land dispute going on at that time, referring to the Amarnath Shrine board. The Tribunal accepts the information in the newspaper articles provided by the applicant. The Tribunal finds that the evidence generally corroborates the background of what was happening in Jammu around the time of the applicant’s claims.
The Tribunal accepts the medical report of Dr Gupta dated 26 June 2008 which indicates that the applicant was admitted from 10 June 2008 to 25 June 2008 to his private clinic for treatment. The Tribunal accepts that the applicant suffered knee pain due to the attack on him around 10 June 2008, causing his admission to the clinic.
The Tribunal also accepts the medical report of Dr Gupta dated 23 June 2008 relating to the applicant’s wife.” [119 to 122] [CB 134]
The Tribunal then proceeded to consider the “dob in” letter. For the reasons given at [124 to 125] [CB 134-135] the Tribunal:
“…places no weight on the “dob in” letter. In these circumstances, the Tribunal considers it was unnecessary to disclose the nature of the source of the “dob in” letter.”
Having concluded that the applicants suffered the persecution which they have claimed, the Tribunal proceeded to consider whether or not this was peculiar to their home areas of Jammu and Kashmir and if so whether or not they could relocate to another part of India.
For the reasons given at [132 to 142] [CB 136-137] the Tribunal concluded that it was reasonable for the applicants to relocate. At [132] the Tribunal concluded:
“The applicant is 33 and his wife is 22 or 23. They have no children, which would make it easier to move to relocate in India. Both are educated. The applicant’s wife is a teacher, and the applicant is an electrician. He has also run a business. This may indicate that he has the skills to set up a business somewhere else. Both the applicant and the applicant’s wife have good language skills. Both can speak, read and write Punjabi. Both can speak, read and write Hindi, which is the Indian national language. Both these languages are spoken in the Punjab, (Punjabi 92% and Hindi 7.3%. Both read and write English to some extent. Both have had experience travelling overseas, and living in an English-speaking country. This background indicates that the applicant is reasonably well-educated; has some business skill, aptitude and work experience, and is versatile. The Tribunal also finds that because of these skills, the applicant is readily employable. The Tribunal also finds that the applicant and his wife will have no difficulty communicating in the Punjab. The Tribunal is satisfied that language proficiency, education and work experience would not be barriers to both the applicant and his wife relocating to the Punjab.”
The Tribunal dealt with other concerns about relocation that had been raised by the applicants, in particular, his association with the BJP and his wish not to relocate away from his parents. It concluded that these were not matters that stood in the way of it coming to a conclusion that a relocation in India was a viable alternative for the applicants.
On 23 September 2009 the applicants filed an application for review with this court. The first point that should be made is that the application was out of time by some 85 days; s.477(1). In the affidavit filed with the application the applicants acknowledge that they are out of time. They say they are unrepresented and were not aware of the deadline to lodge the application; “The total situation was completely beyond my control.” At paragraph 15 of the affidavit the deponent male applicant says that he is “psychologically devastated for my circumstances I experienced in India”.
The court has a discretion whether or not to waive the provisions of s.477(1). The Minister argues that it should not do that on the basis that there is no arguable claim for relief raised and that no proper explanation for the delay has been given. As the first ground really requires the court to consider the application, it seems to me that little is lost by allowing the extension of time and considering the matter on its merits which were fully argued before me by Ms Knight in her usual competent manner. The grounds of application are set out in the form. The first ground is that:
“The Tribunal failed to perform the duty imposed on it by the Migration Act s424(1).”
The applicant told me today that the application form and the affidavit were written for him by a “friend” and it may well be that the friend mistook s.424(1) for s.424A because it is not suggested in any particulars or anywhere else that the Tribunal did not have regard to the information that it obtained when making its decision. If what is meant by this ground, that is that the Tribunal failed to perform the duties imposed upon it by s.424A, it is to be remembered that the provisions of s.424A can be complied with by way of adopting the requirements of s.424AA.
These sections are ones to which any person dealing regularly with these matters will be familiar. I do not believe it is necessary to repeat them in these reasons. Suffice it to say, as I already have, I believe that when the Tribunal dealt with the “dob in” letter, which is the only piece of information not provided by the applicant himself or information obtained from independent country information, the Tribunal acted in accordance with the provisions of s.424AA. The applicants were invited to comment or respond to the information. They were told that they would be given additional time to comment and, having asked for that, the review was adjourned so that a further hearing could take place. I am unable to see that there is any merit in ground 1.
Ground 2 of the application is that:
“The Tribunal failed to accord procedural fairness.”
That ground is particularised in particulars (a), (b) and (c). The first particular refers back to the information provided at the hearing on 1 April 2009. As I have said, insofar as the “dob in” letter information was concerned, the applicants were given a full opportunity to respond to it. So far as any other information is concerned, that has not been particularised, but it would appear only to be information provided by the applicant at the hearing or in his documents or information generally available as independent country information.
Particular (b) suggests that the Tribunal erred in law in making the relocation finding. It is said that the relocation finding is contrary to the Tribunal’s own findings about the applicant, including his membership of the BJP, and that he had been attacked and injured. I am unable to see that a finding of the availability of relocation is necessarily inconsistent with finding that a person has been persecuted in another place. To the extent that the persecution may have arisen out of the applicant’s membership of the BJP, the Tribunal dealt with this. It pointed out that in the Punjab, the BJP is in power and therefore concluded that he was unlikely to suffer any persecution as a result of his membership of that party if he moved to that state.
The third particular says that the Tribunal failed to find that the applicants faced and continue to face significant threats to their lives in India. That is perfectly correct. The Tribunal did fail to come to that conclusion. However, it is the Tribunal’s duty to come to conclusions such as that and there is no jurisdictional error in not agreeing with an applicant.
The third ground, although labelled number 2, is:
“The Tribunal failed to have regard or failed to have appropriate regard, to the applicants’ personal circumstances and the practical realities in the event of such relocation; thereby the Tribunal fell into jurisdictional error.”
This claim is particularised. The first particular suggesting that because of the applicants’ age and absence of family or ethnic community support, relocation for them is unreasonable.
Questions about reasonableness of relocation have been considered by the full bench of the Full Court and by the High Court. The seminal decision is that of Randhawa v Minister for Immigration (1994) 52 FCR 437 per Black CJ at [440-442]. His Honour said:
“Given the humanitarian aims of the Convention, this question was not to be approached in a narrow way and, in her further analysis, the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.
…
In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.”
In the instant case the Tribunal took into account the age, education and language abilities of the applicants and also the fact that they had successfully relocated to Australia. That was considered by a Full Bench Spender, French and Cowdroy JJ in SZDBP v Minister for Immigration (2006) FCAFC 110 as a matter that could be relevantly taken into account. In SZATV v Minister for Immigration (2007) HCA 40, Gummow, Hayne and Crennan JJ said at [24-26]:
“(24)What is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
(25)It is true that the Convention is concerned with persecution in the defined sense, not with living conditions in a broader sense. The distinction was emphasised by Lord Bingham in Januzi as follows:
"[T]he thrust of the Convention is to ensure the fair and equal treatment of refugees in countries of asylum, so as to provide effective protection against persecution for Convention reasons. It was not directed (persecution apart) to the level of rights prevailing in the country of nationality.”
The reasoning in the last sentence might be applied to such matters as differential living standards in various areas of the country of nationality, whether attributable to climactic, economic or political conditions. In Januzi, Lord Hope of Craighead added:
“I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights.”
(26)Nevertheless, in particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution.”
If the matters to which I have just referred from the decision in SZATV are those which it is appropriate to take into consideration it is my view that the Tribunal has done that in this particular case and I do not accept the suggestion by the applicants that it did not give real consideration to the specific impediments “namely their different faces and languages in other states and there would be a problem of employment”. The Tribunal did give those matters its consideration. Likewise, it cannot be said, as it was in the particular, that the Tribunal failed to ask the applicants whether they could be relocated.
It is suggested that the Tribunal failed to consider whether it is inconsistent with the purpose of the convention to require the applicants to relocate within India given their asserted fear of persecution on the basis of political opinion, religion and ethnicity. I am satisfied that as the law presently stands it is not inconsistent and the Tribunal was not wrong to ignore that consideration.
The final particular is that:
“The Tribunal considered that the political activity that was relevant and important for the appellant in India is in the state of Jammu and Kashmir and imposed a demand on the applicants to live discreetly.”
The first part of that sentence is no more than a statement of the Tribunal’s findings; it is not a criticism of it. The Tribunal did not impose a demand on the applicants to live discreetly; quite the contrary. It suggested that the male applicant could continue his political activities in the Punjab because in that state the party which he supported was in power.
The applicants appeared before me today. The male applicant confirmed that the matters raised in his affidavit and in the application were those matters which he believed constituted his grounds for saying that the Tribunal made an error of law in the manner in which it reached its decision. He was given opportunities to add to those, but apart from raising argumentative matters about the Tribunal’s findings, no substantive submissions were made. In all the circumstances I am unable to find that the Tribunal fell into jurisdictional error. I dismiss the application. I order that the applicants pay the first respondent’s costs which I assess in the sum of $4,700.00.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 18 February 2010