SZNYS v Minister for Immigration - [2010] FMCA 155

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNYS & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 155

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424, 424A, 424B, 425

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 489; [2009] HCA 30
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109
SZATV vMinister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40
SZMCD Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46
SZMZV v Minister for Immigration and Citizenship [2009] FCA 1380

Applicants:

SZNYS & SYNYT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2427 of 2009

Judgment of:

Barnes FM

Hearing date:

24 February 2010

Delivered at:

Sydney

Delivered on:

24 February 2010

REPRESENTATION

Applicants:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2427 of 2009

SZNYS & SZNYT

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 8 September 2009 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, who are citizens of India, arrived in Australia in August 2008 and applied for protection visas. The first applicant claimed to have a well-founded fear of persecution. The second applicant applied on the basis of her membership of the first applicant’s family. For convenience the first applicant is referred to hereafter as the applicant.
The applicant’s claims were set out in a statutory declaration submitted with his protection visa application. He provided various documents in support of the application.
The applicant claimed to fear persecution on the basis that between 2004 and 2008 he had been a follower of a named guru, whom he claimed was politically well-connected. He claimed that he left the guru’s ashram after the deaths of two children in 2008 were linked to the guru and his followers. He claimed that, fearing he would expose the group, members of the ashram had assaulted him, damaged his shop and threatened to kill him and his wife. He also claimed that in Australia he had become aware that terrorists had issued a threat to bomb the bus stop in front of his shop in his home town in India, that there had been bomb blasts near another city and that he feared other such attacks.
The delegate of the first respondent refused the applications and the applicants sought review by the Tribunal. The applicants were invited to Tribunal hearings. The applicant attended hearings on 17 March 2009 and 23 July 2009. In addition, after the second hearing, the Tribunal wrote to the applicants by letter of 6 August 2009, referring to independent country information relevant to the issue of relocation and to the fact that at the hearing the applicant had responded to this information, advised that there was nowhere in India that would be safe for him and that he could support this claim with evidence. The Tribunal noted that at the hearing it was agreed that the applicant would provide comments or a response in writing within four weeks. The Tribunal confirmed that, as discussed, the applicant’s comments or response should be received within four weeks from the date of the hearing.
In its reasons for decision the Tribunal set out the applicant’s written and oral claims, evidence and country information relevant to his claims and to the issue of relocation. The Tribunal recorded that the applicant had not provided a response to its letter of 6 August 2009.
In its findings and reasons, the Tribunal found that the applicant’s written and oral evidence was “consistent” and that he was a “reliable witness” in relation to his claims based on past involvement with the guru and the ashram, not withstanding that he appeared to rely on knowledge of information that had been widely publicised. The Tribunal accepted that between 2004 and July 2008 the applicant and his wife were involved with the ashram, that he had left the ashram and was opposed to the activities of the guru, his son and the ashram and that he had been assaulted and threatened by followers of the ashram because he refused to return to the ashram and because it was feared he could reveal information about their activities to the authorities.
The Tribunal also accepted that due to these incidents, the applicant and his wife had moved 150 kilometres from his home to stay with relatives, and later to Mumbai, before coming to Australia. It accepted that since the applicant had left India, followers of the ashram had made inquiries about the applicant’s whereabouts with friends, that the threats may continue and that the applicant had a well-founded fear of persecution for a Convention reason, being his political opinions. The Tribunal also accepted that the guru, his son and the ashram had political connections capable of providing those entities with protection.
The Tribunal accepted that the applicant may fear harm arising from a terrorist attack, but did not accept that such an attack affecting the applicant would be due to discriminatory conduct constituting persecution.
However, the Tribunal found that while the applicant had a well-founded fear of persecution for reasons of his political opinion, the persecution to which he had been subjected was localised to the region where he lived and worked. While it accepted (based on the fact that followers of the ashram had approached the applicant’s friends seeking information about his whereabouts) that the threats and harm to which he had been subjected were likely to continue, it was satisfied that any future harm the applicant feared was as a result of events which occurred in his local area and was localised to the region where he lived and worked.
The Tribunal then found that it was “reasonable” for the applicant and his wife to relocate within India. It accepted the applicant’s claims that he had ceased his activities with the guru and ashram and was satisfied that he would not engage in any similar activities in future and therefore there was no real chance that he would experience harm in the future on relocation.
The Tribunal considered whether it was reasonable for the applicant to relocate, having regard to factors such as country information, the applicant’s personal circumstances and the objections that he raised in relation to the issue of relocation.
It outlined in some detail the relevance of the size and population of India, the fact that the applicant was a Hindu, that Hindus comprised approximately 80 per cent of the population of India and that citizens of India enjoyed freedom of movement in most states and territories. The Tribunal also had regard to the applicant’s personal circumstances, including the fact that he and the wife spoke more than one language, that he read and wrote English, that he had the ability to manage a children’s clothing retail outlet on his own, that he had a previous demonstrated ability to relocate within India for 25 days, that he had previously travelled to Thailand, that he and his wife had travelled to and relocated to Australia and that he had been able to raise the funds for such travel and relocation. The Tribunal concluded that it was safe and reasonable for the applicant to relocate to another place in India.
In addition to addressing the applicant’s personal attributes, employment and financial capacity, the Tribunal had regard to the position of the applicant’s wife, the fact that they had no children, that she was a housewife and that she had accompanied him when he did relocate 150 kilometres from their home within India and to Australia. The Tribunal found that the applicant’s wife “could relocate within India with her husband as she ha[d] done in the past”.
The Tribunal also addressed issues raised by the applicant at the hearing when the question of relocation was put to him, including the fact that on relocation he and his wife may have to live away from their relatives and friends. However it found that they had demonstrated the “personal characteristics” that were “required to live away from their relatives and friends” by relocating to Australia and that they had maintained contact by phone with friends in India and could continue to do so.
The Tribunal did not accept the applicant’s claim that if he went back to India he would be killed. It found that followers of the ashram had “accessed” him twice and not killed him, that the harassment to which he had been subjected was localised to his current place of residence in India and that on relocation he would be “lost to those harassing him”.
Nor did the Tribunal accept the applicant’s claim that wherever he went in India he would be located by associates of the ashram and that he and his wife would be killed. The Tribunal did not accept his suggestion that followers of the ashram would be advised of his new location by his relatives or friends by accident. It again addressed information in relation to freedom of movement in India, the fact that the applicant was a Hindu and spoke Hindi and the size of India. The Tribunal found that it would be “possible for the applicant to relocate to a safer place and be lost with the vast population living within that safer place”. It found that he “must inform friends and relatives of his circumstances to ensure that they [did] not reveal his whereabouts to any persons seeking such information and therefore they [would] not reveal his whereabouts”.
As the Tribunal concluded that the applicant could safely relocate within India, on that basis it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention. Nor was it satisfied that such obligations were owed to the second applicant whose claim was based on her membership of the first applicant’s family unit.
The applicants sought review by application filed in this court on 7 October 2009. There are two grounds in the application. The first is that the Tribunal “failed to honour” an “undertaking”. It refers to the requirement to put information to an applicant under s.424A of the Migration Act1958 (Cth).
The applicants did not file written submissions. When given the opportunity to make oral submissions the applicant did not address the substance of this ground (or the other ground in the application).
Insofar as the reference in ground one to a Tribunal “undertaking” is intended to refer to the Tribunal’s agreement that the applicant could provide it with documents after the hearing, it is the case that, according to the Tribunal, in the second hearing the applicant sought to produce documents in relation to whether he could relocate. He indicated that he required three to four weeks. The Tribunal agreed that he could have four weeks and wrote to him on 6 August 2009 confirming this and again putting to him independent country information suggesting that he could move to another place in India and be safe.
It has not been established that the Tribunal failed in any way to honour an “undertaking”, let alone that it did so in a manner constituting jurisdictional error.
Nor has it been established that there was a failure to comply with a.424A of the Migration Act. The Tribunal made its decision based on material provided to by the applicants through the review process and on country information. Such material is excluded from the operation of s.424A(1) by s.424A(3). The letter that the Tribunal sent to the applicant after the hearing did not purport to be a s.424A letter. It related to independent country information outside s.424A(1). The fact that the Tribunal chose to put such information to the applicant does not in any way give rise to a failure to comply with s.424A.
I also note that this information and the issue of relocation were discussed with the applicant at the hearing and no s.425 issue is apparent. Ground one is not made out.
Ground two is that the Tribunal failed to comply with s.424 of the Migration Act and that the “invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act.” There was no identification of the invitation to which this claim is said to relate. It may be that it is intended to relate to the Tribunal’s acknowledgment of receipt of the application for review, which is in the form considered by the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109. However, if that is the case, no jurisdictional error is established on that basis, consistent with the decision in SZNAV and in light of the High Court’s decision in Minister for Immigration and Citizenship v SZKTI and Another (2009) 238 CLR 489; [2009] HCA 30. No adverse consequence flowed to the applicant from his failure to provide material or written arguments in response to the Tribunal’s letter acknowledging receipt of the review application and on that basis neither s.424 nor s.424B would be engaged.
Nor is it apparent on the material before the court, that there is in any other material that gives rise to an issue of whether there was a breach of s. 424 of the Act. This ground is not made out.
In his affidavit the applicant claimed that the “Tribunal decision was unjust and was made without taking into account the full gravity of [his] circumstances”. I asked the applicant if he wished to elaborate on this claim and he expressed the review that the Tribunal did not actually look into his case, but just gave him the decision. Insofar as this is a suggestion that the Tribunal failed to have regard to the applicant’s claims, it is not made out in the material before the court. Rather, it is apparent that the Tribunal considered the claims put before it by the applicant on the basis of his evidence and also independent country information.
Moreover, there is nothing in the material before the court to suggest that the Tribunal was under an obligation to make an obvious inquiry about a critical fact such as could give to a constructive failure to exercise jurisdiction, as considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.
Insofar as the applicant may have intended to take issue with whether the Tribunal considered his personal circumstances in assessing relocation, the Tribunal did consider the applicant’s personal circumstances, the objections he raised to relocation and also country information in relation to the reasonableness of relocation.
In that respect, I note that, as considered in SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40, the test for relocation is whether it is reasonable, in the sense of being practicable in the particular circumstances of the particular applicant. The answer to that question depends upon the framework set by the particular objections raised to relocation (see SZMCD Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46). In SZMZV v Minister for Immigration and Citizenship [2009] FCA 1380 (at [20]), Bennett J indicated that the Tribunal has no obligation to make its own further inquiries about the reasonableness of relocation in circumstances where there were no obvious impediments to relocation other than the objections raised by an applicant, which had to be considered and dealt with by the Tribunal. In this case, the Tribunal considered not only the objections raised by the applicant, but also issues in relation to his wife and the reasonableness of relocation having regard to his personal circumstances, employment history and financial capacity, his wife’s situation and country information. No jurisdictional error is established in the Tribunal’s consideration of relocation.
Moreover, the Tribunal also properly considered that the applicant had ceased his activities with the guru. On that basis it was satisfied he would not engage in similar activities in the future and hence would not experience harm on that basis in the future. That finding deals with the possibility that the applicant might be giving up any fundamental rights as a price of relocation (see SZMZV).
In oral submissions the applicant reiterated his claims to have a fear of persecution and contended that what he said to the Tribunal was true. As set out above, the Tribunal accepted that the applicant was a credible witness and accepted his claims about what had occurred in the past. However it found that it was reasonable for him to relocate to another part of India. Insofar as the applicant seeks merits review, as I endeavoured to explain to him, merits review is not available in this court.
As no jurisdictional error has been established, the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicants have been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that unsuccessful applicants should meet the costs of the respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 15 March 2010