SZNYH v Minister for Immigration - [2010] FMCA 108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYH v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 108

MIGRATION – Relocation – where Tribunal considered matters required.

Migration Act 1958, ss.91R(2), 424A

MIMA v Respondents S152/2003 (2004) 205 ALR 487
VAF v Minister for Immigration (2004) FCAFC 123
SZBYR v Minister for Immigration (2007) HCA 26

Applicant:

SZNYH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2336 of 2009

Judgment of:

Raphael FM

Hearing date:

10 February 2010

Date of Last Submission:

10 February 2010

Delivered at:

Sydney

Delivered on:

10 February 2010

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2336 of 2009

SZNYH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on 20 February 2009 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 16 March 2009. On 12 June 2009 a delegate of the Minister refused to grant the protection visa and on 9 July 2009 the applicant replied for a review of that decision from the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal and responded to questions put to him. On 27 August 2009 the Tribunal determined to affirm the decision not to grant a protection visa.
The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were those of religion/political opinion. The applicant told that he was a Muslim involved with a political group known as the TMMK. He stated that he had participated in money raising campaigns for the construction of a mosque and that, as a result, he incurred hostility from Hindi fundamentalists in the RSS. This occurred in his home town in southern India. He said that in mid 2008 he was attacked by six people. He was saved when a bus came and persons in the bus came to his aid. He said that he was in hospital for some three months thereafter. He subsequently fled to Chennai and then spent time in Singapore and Malaysia before coming to Australia.
Although the applicant had difficulty in identifying the people who had attacked him the Tribunal was prepared to accept that he was an active member of the TMMK in his home town and that as a consequence of his activities he attracted the adverse interests of Hindu extremists. The Tribunal accepted that in mid 2008 he was attacked and injured by those extremists. And although he had reported the matter to the authorities they did not seek to find and punish the extremists, although there was some suggestion that this was not unreasonable given that the applicant was unable to identify them, [41] [CB 84]. The Tribunal accepted that as a result of these activities the applicant found it necessary to relocate to Chennai.
Given the findings of the Tribunal about the applicant’s statement and his claims, the Tribunal decision revolved around the question of whether or not it was reasonable for the applicant to relocate because the Tribunal came to the conclusion that the difficulties which he faced were very localised and would not exist outside his home town. The applicant disputed this but the Tribunal commented at [44] [CB 84]:
“The Tribunal is satisfied that despite the applicant’s previous difficulties in A, he can avoid the harm he anticipates there in the future by relocating within the country, as he did previously when he moved to Chennai. The applicant claims that relocation within India is not reasonable for him because there are Hindu extremists throughout India and those extremists will seek to harm him as they did before. He claims they will seek to kill him for his religious and political activities. However, the Tribunal is not satisfied that the applicant’s fear in this regard is well founded. The Tribunal is satisfied that the applicant was able to express his religious and political views in Chennai without apparent interests from Hindu extremists or other opponents. It is satisfied that he can safely express his views in the future, and avoid harm by the persons he fears in the A area, by relocating within India. The Tribunal is satisfied that the applicant has the resources, knowledge and skills, to relocate within India as he did previously when he moved to Chennai.”
The Tribunal also considered whether its views concerning relocation would in any way be changed by the submission of the applicant that he would continue his Muslim activities in any place in which he relocated. The Tribunal considered the relevant law relating to relocation [45 to 47] [CB 84-85]. Before concluding at [48] [CB 85]:
“The Tribunal is satisfied that the applicant’s personal circumstances, including his education, language skills and training will assist him to relocate and support himself in India. The Tribunal is satisfied that by relocating within India he can avoid the harm he anticipates in A. The Tribunal further finds that a reasonable level of protection provided by the State will be available to the applicant when he relocates within India. Accordingly, it finds that it is reasonable for the applicant to relocate within India.”
The Tribunal also found at [49] [CB 85] that whilst there were continuing tensions between religious groups in India, Indian citizens have access to a reasonable level of protection, as that phrase was properly understood, in decisions such as MIMA v Respondents S152/2003 (2004) 205 ALR 487. In the light of the Tribunal’s findings in relation to relocation, it concluded that the applicant was not a person to whom Australia owed protection obligations.
On 24 September 2009 the applicant applied to this court for a review of the decision with the Tribunal, and on 19 November 2009, he filed an amended application. There were two grounds in that amended application. The first was:
“The Tribunal failed to consider properly the test whether the applicant would suffer serious harm per s.91R(2) of the Migration Act (which is a mandatory jurisdiction or requirement for the Tribunal to do) if he asked to relocate in India. The Tribunal failure, so to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.”
Without setting out s.91R(2) of the Migration Act 1958 (the “Act”), which is a familiar section, I would say that it is one which provides some non-exhaustive examples of what serious harm is for the purposes of consideration of that requirement heard by a decision-maker. I am satisfied from my reading of the Tribunal’s decision that when it came to consider whether or not the applicant could relocate, it did consider whether if he did relocate, he would be the subject of serious harm. The Tribunal concluded that he would not, for reasons which it gave, basically because the Tribunal felt that reasonable state protection could be provided to the applicant.
The second ground is:
“My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority judge of the High Court in SAAP.”
As Ms Knight for the Minister notes, the information which is alleged to have engaged s.424A is unparticularised. She submits that any information that was given is information of the type that is excluded from the requirements of s.424A. My reading of the ground is a bit different. I think that what the applicant was saying was that he wanted the Tribunal to provide him with its subjective appraisals, thought processes, or determinations. He wanted the Tribunal to identify gaps, defects, or lack of detail or specificity in his evidence, or to provide him with conclusions arrived at by it in weighing up the evidence in reference to those gaps; VAF v Minister for Immigration (2004) FCAFC 123. As the High Court said in SZBYR v Minister for Immigration (2007) HCA 26, if those matters were not excluded:
“[18] …s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”
Before me today the applicant said that he had explained to the Tribunal that his life was in danger, that he had answered its question and that he explained that he could not relocate. But he did not think that those things had been taken into consideration when his case was decided. He also told me that he had suffered considerably in the year before he came to Australia and in the year in which he has been here. He said that he was married but he has never seen his son. He said that he suffers from a number of medical problems caused by his separation from his home and family. I am unable to agree with the applicant that the Tribunal did not take into consideration the matters that he raised as to why it was not reasonable for him to relocate. That is the true basis of the decision which the Tribunal made. It is dealt with over a number of paragraphs.
The fact that an applicant does not agree with the Tribunal’s conclusions concerning his claims is not indicative of a jurisdictional error on the part of the Tribunal. The others matters raised by the applicant are, of course, highly relevant to him and should not be made light of but they do not really constitute grounds for the grant of a protection visa.
In the light of the above I am unable to find any ground upon which the tribunal made an error of law in the manner on which it reached its conclusions. I dismiss the application. I order that the applicant pay the first respondent’s costs assessed in the sum of $4,500.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 18 February 2010