SZOCA v Minister for Immigration and Citizenship

[2010] FCA 1237

FEDERAL COURT OF AUSTRALIA

SZOCA v Minister for Immigration and Citizenship [2010] FCA 1237

Citation:		SZOCA v Minister for Immigration and Citizenship [2010] FCA 1237
Appeal from:		SZOCA v Minister for Immigration and Citizenship [2010] FMCA 520
Parties:		SZOCA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1021 of 2010
Judge:		SIOPIS J
Date of judgment:		12 November 2010
Date of hearing:	10 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Ms A Nanson
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1021 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOCA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	12 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

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
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1021 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOCA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	12 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India, and a Sikh.  He arrived in Australia on 7 June 2009.  On 20 July 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

2. In his protection visa application, the appellant claimed to be a resident of Simbal, in Jammu, and that his home is located four kilometres from the “line of control/international border”.  He claimed that Jammu and Kashmir was “a totally disturbed state with insurgency all over it”, and that his home was subjected to militant attacks.  He claimed he was harassed by the Khalistan Zindabad Force (KZF) and that the group’s head, Ranjeet Singh Neeta, was a terrorist on the Indian Government’s most wanted list.  He claimed that the KZF threatened to kill him and his parents as he refused to join the KZF.  He claimed that fearing death, he left India on 25 August 2005 for Singapore, and returned to India on 9 November 2005, when he believed the situation in Jammu had returned to normal.

3. The appellant claimed that on 23 May 2006, his father was killed and his house was attacked by terrorists from the KZF.  At this time he left his home and went to live with relatives.  He then obtained a Korean visa on 16 December 2007 and remained in Korea until 25 August 2008 “hesitatingly”.  He returned to India after learning from relatives that the situation had returned to normal.

4. The appellant claimed that he cannot return to India in the current circumstances.  He applied for an Australian visa on 14 May 2009, and left India on 6 June 2009.  He claimed that he also wants to avoid the stigma of being associated with “antinationalistic elements”.

5. On 2 September 2009, a delegate of the first respondent refused the appellant’s application for a protection visa on the basis that the harm the appellant feared was not for a Convention reason, but as a result of generalised and indiscriminate violence in India.  The delegate also considered that protection in another region within India, was reasonably accessible to the appellant.

   THE TRIBUNAL

6. On 5 October 2009, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.  In its decision dated 30 November 2009, the Tribunal referred to country information which stated that the KZF was an organisation whose members largely comprise Jammu-based Sikhs and whose aim is to establish a sovereign Khalistan state.  The Tribunal treated the appellant as contending that he feared harm on the ground of imputed political opinion – that is, that the KZF may infer that he opposed their political ideals when he refused to join them, and also that the Indian authorities might suspect him of being affiliated with the KZF.

7. The Tribunal did not accept the appellant’s claim that the KZF had threatened him or his family, nor that they had killed his father.  Although the Tribunal accepted the appellant may have had contact with the KZF, it considered this contact to be minimal.  The Tribunal also considered that KZF had no adverse interest in the appellant, either as a potential recruit, or on the basis of his past refusal to join them.  Further, the Tribunal placed considerable weight on the fact that the appellant returned to India in 2005 and 2008.  The Tribunal found that his return on these occasions to Simbal itself - being an area in which the KZF were active - was inconsistent with his claimed fear; and this suggested that he was not, in fact, wanted by the KZF or anyone else.  The Tribunal also found that the appellant’s account of the death of his father was confused and uncertain.  In addition, the Tribunal said that appellant had given a confused picture of his employment, income and particulars of his alleged hiding in India.

8. Further, the Tribunal found that the appellant had inadequately explained the delay of three weeks between the receipt of his Australian visa and leaving India.

9. The Tribunal, accordingly, found that the KZF did not target the appellant because of his refusal to join them or for any other reason that might lead them to infer that he was opposed to their political aims.  The Tribunal also found that the appellant did not approach police in India for protection because the need did not arise.  The Tribunal found the appellant did not depart India for fear of persecution and found that he fabricated his claims of past harm.

10. However, the Tribunal went onto state that despite its rejection of the appellant’s claims of past harm and its adverse view of his credibility, it could not with confidence, rule out all possibility of prospective harm.  The Tribunal considered that if he were to return to Simbal, there remained “a very small, but nonetheless real, chance that he may be subject to Convention-related persecution”.  The Tribunal, therefore, proceeded to consider whether the appellant might reasonably be expected to relocate to another part of India.

11. The Tribunal had regard to country information regarding the capacity for Sikhs to live in other parts of India.  The Tribunal referred specifically to the United Kingdom Home Office Country of Origin Information Report, India, 12 May 2009.  The general tenor of the report was that Sikhs are able to live in localities outside of Punjab state and that many millions of Sikhs live in different parts of India where they have access to housing and employment.  The Tribunal noted that Sikhs may be subjected to some discriminatory conduct but that conduct was not persecutory.  In considering whether it was reasonable for the appellant to relocate within India, the Tribunal also took into account the appellant’s circumstances.  The Tribunal referred to the fact that the appellant was unmarried, relatively young, had completed high school, spoke Hindi as well as Punjabi and appeared to have only one relative, his mother, living in Simbal.  Further, the Tribunal said that his past travel suggested that he was resourceful and mobile.  The Tribunal also observed that there was nothing to suggest that the KZF had resources or motivation to pursue the appellant throughout India.  The Tribunal found that the appellant could relocate to places in India other than Simbal, if he so chose.  The Tribunal concluded that, in relation to India as a whole, there was no real chance of the appellant being at risk from the KZF or any other militant group, or from the Indian authorities.  The Tribunal said that it would be reasonable for the appellant to relocate to another part of India.

12. Based on the above, the Tribunal concluded that the appellant’s claimed fears of persecution were not well-founded and affirmed the delegate’s decision.

    THE FEDERAL MAGISTRATES COURT

13. The appellant brought an application for judicial review of the Tribunal’s decision.  The grounds of review were set out in the appellant’s amended application for review, filed on 26 March 2010.  The Federal Magistrate dismissed the appellant’s application for judicial review.

    THE APPEAL

14. The appellant filed a notice of appeal on 10 August 2010 in this Court, which contained three grounds of appeal.  Those grounds are repeated below:

    1.His Honour Federal Magistrate failed to hold that Refugee Review Tribunal made a jurisdictional error when it wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution.

    2.The appellant was denied procedural fairness in connection with the making of the decision.

    3.Making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported.

15. At the hearing before me, the appellant was not able to provide any particulars in support of each ground of appeal.  The appellant said that he had not drafted the notice of appeal.  However, the appellant, in his submissions, took issue with the Tribunal’s finding that it was reasonable for him to relocate in India.

16. As to the first ground of appeal, the gravamen of the complaint appears to relate to the finding of the Tribunal that the discrimination to which Sikhs in India are subjected, was not persecutory.  At para 75 of its reasons for decision, the Tribunal refers to the fact that there are reported instances of discrimination against Sikhs but that Sikhs enjoy equal rights in India, and that the Tribunal was satisfied that the reported instances of discrimination were not persecutory, as they did not involve serious harm and systematic conduct (s 91R(1)(b) and s 91R(1)(c) of the Act).  This conclusion was based on the country information to which the Tribunal referred to in its reasons for decision.  The country information that a Tribunal relies upon is a matter for it.  As mentioned, the country information relied upon by the Tribunal was a recent UK Home Office report.  On the basis of the information contained in that report, it was open to the Tribunal to come to the view that it did.  In reaching that conclusion, the Tribunal did not fall into jurisdictional error.

17. It is not apparent that this point was squarely raised, in this form, before the Federal Magistrate.  However, insofar as it was raised, the Federal Magistrate did not err in rejecting the contention.  Ground one of the appeal is rejected.

18. As to ground two of the appeal, the appellant contended before the Federal Magistrate, that he was pressured to continue the hearing before the Tribunal, despite the fact he was nervous and could not understand what the interpreter was talking about.  The Federal Magistrate found that the Tribunal was aware of the fact that the appellant was apparently nervous and uncertain, and that the Tribunal had referred to this in its decision record.  Further, the Federal Magistrate observed that the Tribunal had said that it had taken the appellant’s nervousness into account in assessing his application.  The Federal Magistrate went on to observe that there was no transcript of the Tribunal hearing before him and the appellant’s contention was unsupported by any details or evidence, except for the reference by the Tribunal in its decision record to the appellant’s nervousness.  The Federal Magistrate said that the fact that the Tribunal was aware of the appellant’s nervousness and took it into account “speaks against the Tribunal acting in an unfair manner” or as “placing him under pressure”.  In my view, the Federal Magistrate did not err in coming to that decision.  Ground two of the appeal is rejected.

19. Ground three of the appeal is in very general terms.  In essence, the Tribunal rejected the appellant’s claim on two grounds.  First, the Tribunal, on credibility grounds, did not accept that the appellant had been subjected to the harm that he claimed.  Secondly, the Tribunal found that, in any event, it would be reasonable for the appellant to relocate to another part of India, where the appellant would not be subject to the circumstances which gave rise to the fear which he claimed.  The Tribunal gave detailed and earnest consideration to the question of whether Sikhs could live in other parts of India and the personal characteristics of the appellant in assessing whether, having regard to the practical realities, it would be reasonable for the appellant to relocate to another part of India.  The Federal Magistrate also gave detailed and earnest consideration to those questions.  In my view, it cannot be said that the decision made by the Tribunal was an improper exercise of power.  The Tribunal addressed in detail the claims made by the appellant, properly understood and applied the law, accorded the appellant procedural fairness, and made findings that were within its jurisdiction, to make.  Ground three of the appeal is rejected.

20. It follows that the appeal is dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        12 November 2010