SZOCB v Minister for Immigration - [2010] FMCA 350

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOCB v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 350

MIGRATION – RRT decision – Indian claiming persecution as Hindu in Muslim area – Tribunal found no risk in relocation – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.91R, 91R(1)(b), 424AA, 424A, 424A(1)

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18
SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26
SZFDV v Minister for Immigration & Citizenship (2007) 233 CLR 51
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415, [2009] FCAFC 46

Applicant:

SZOCB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 12 of 2010

Judgment of:

Smith FM

Hearing date:

10 May 2010

Delivered at:

Sydney

Delivered on:

10 May 2010

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms J Dinihan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 12 of 2010

SZOCB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia on a temporary business visa in May 2009. On 12 June 2009, he applied for a protection visa. The application disclosed no person assisting him, and it set out brief reasons for his claims that he feared persecution if he returned to India.
The applicant said that his family had moved from Bihar to Kolkata, where the applicant was born and raised. He referred to discrimination against people with a Bihari background, and said that his father was forced to pay money to “the CPI‑M thugs”. Demands were also made to the applicant in the course of running their electronic business, and the applicant claimed that he was beaten badly. After the police arrested one of the thugs they “become very angry”, and came to his house looking for him. He was not at home, but they threatened his family. He said: “since then I don’t go back to [his location] for my safety”.
No supporting evidence for his claims was presented to the Department of Immigration, nor subsequently to the Tribunal. A delegate interviewed the applicant on 28 August 2009, and the delegate made a decision on 2 September 2009, refusing the visa application. The delegate referred to various matters, including inconsistent evidence given by the applicant, as the reason for not accepting the applicant’s claims that he had been extorted for money or attacked. The delegate was not satisfied the applicant had a genuine fear of harm on returning to India.
On appeal, the applicant attended a hearing on 3 December 2009, which was held by video link from Griffith. The applicant told the Tribunal that he had not been discriminated against because he came from Bihar, and that he only had problems because he lived in a Muslim majority area. He told the Tribunal that he had begun experiencing problems about two months before his departure for Australia, when “some local Muslim members of the CPI‑M extorting money from the business for their own personal use” had come to his shop, and there had been a scuffle when he refused to pay them. He told the Tribunal that he had been “‘lightly’ injured and did not require hospital treatment”. The people had returned the following day, and verbally abused his family and threatened to kill the applicant. The applicant had then left home and stayed with relations. His electronics business had been continued in his absence in Australia by his father. The applicant later claimed that his problems had started in December 2008.
The Tribunal made a decision on 8 December 2009, affirming the delegate’s decision. Despite some significant discrepancies in the applicant’s claims presented to the Department and to the Tribunal, the Tribunal made findings generally accepting what it had been told at the hearing.
The Tribunal said that it was satisfied that the incident described by the applicant included harm amounting to serious harm as required by s.91R(1)(b) of the Migration Act 1958 (Cth), and it accepted that if he were “to return to his locality and continued his involvement with his father’s business he may face similar treatment”. The Tribunal accepted that the treatment “would amount to serious harm for the purposes of s.91R(1)(b) of the Act” and satisfy other aspects of s.91R. The Tribunal accepted that the applicant’s Hindu religion might have played a significant role in singling him out as a target in a Muslim majority locality.
The reason given by the Tribunal for deciding that Australia did not owe protection obligations to the applicant was:
56.That said, the Tribunal is of the view that it would be reasonable for the applicant to safely relocate to a different locality or a different part of India well away from his locality or the state of West Bengal.
57.The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well‑founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440‑1.
58.The applicant’s evidence clearly suggests that his fears are localised and confined to his locality in Kolkata. He did not claim that relocation would adversely affect members of his family and, indeed, indicated at the hearing that he and his family were prepared to move their home and business elsewhere, but it would take time. The applicant is a Hindi speaking Hindu. He managed his father’s business for a number of years and is well travelled, having travelled to Hong Kong and China on numerous occasions. He has proven his resilience and capacity to survive in an alien environment and away from his father and the rest of his family by being able to reside in Australia over the past few months. He provided no satisfactory reason as to why it would be unreasonable for him to relocate and find a source of income elsewhere in India, until at least the rest of his family is in a position to move. Indeed, the applicant stated at the hearing that his problem was not the business, his home or family. Rather, he was fearful that his local opponents would find him anywhere in India. The Tribunal does not accept this claim. Apart from having embarrassed and angered his local extorters by refusing their demand for money, he has provided no acceptable reason as to why he would be followed by these people from his locality if he were to relocate to a Hindu majority area ruled by the Congress in a densely populated and vast country like India.
59.On the basis of the evidence before it and having regard to the applicant’s circumstances overall, the Tribunal is satisfied that it would be reasonable and practicable for the applicant to safely relocate to a different part of India.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter. I am empowered to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant would face a material risk of harm if he returned to India and lived elsewhere than in his previous locality, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s application contains the following grounds:
1.The ground of the application are that the Tribunal failed to comply with a mandatory procedure prescribed by the Act, in failing to comply with section 424AA (b)(iv) of the Act.
(a)The member of the Tribunal made error in law and jurisdiction error in relation to relief under section 424A of the Migration Act.
(b)The further error in establishing relief under SZATV Vs Minister for Immigration and Citizenship [2007] HCA [sic] principles of relocation principles. Failing to accord proper procedural fairness in accordance with internal relocation within the country.
(c)The Tribunal did not consider UNHCR section 4,5,8,9,10 and did not consider at all cruelty against the humanity and therefore made error of law and jurisdiction error.
2.The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
3.The RRT has failed to investigate applicants claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 8 December 2009 was effected by actual bias constituting judicial error.
Ground 1(a) is garbled and misconceived in its references to the Migration Act. It is now well established that obligations under s.424AA do not arise unless the Tribunal is under obligations under s.424A(1) (see SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415, [2009] FCAFC 46). The ground does not identify any ‘information’ required to have been put to the applicant under s.424A(1), and I am unable to identify any such information for myself. The applicant’s amended application seems to submit that the Tribunal was required under s.424A to invite written comment on every reason it adopted for affirming the delegates’ decision, but the section as interpreted by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 is plainly narrower than that. I can find no substance in this ground.
Particular (b) of Ground 1 raises a completely separate ground. However, I am unable to identify any failure by the Tribunal to apply relocation principles in accordance with established jurisprudence, both in the Federal Court following Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, or in the recent decisions of the High Court in SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 and SZFDV v Minister for Immigration & Citizenship (2007) 233 CLR 51. The applicant did not attempt to explain any such error to me today, nor has he filed any written submission explaining this ground.
There is no substance to the contention that the Tribunal failed to afford procedural fairness in relation to this issue, since the Tribunal, according to its description of the hearing, canvassed with the applicant reasons why he would be able to relocate to a Hindu majority area in Kolkata or elsewhere in India.
Particular (c) of Ground 1, I find particularly obscure, and the applicant has not given any meaning to it in any written or oral submissions.
Grounds 2 and 3 adopt a precedent commonly seen in this Court in relation to Indian applicants, but they have not been explained to me by the applicant so as to allow me to give them any application to the circumstances of the present case. The reasoning upon which the Tribunal found that Australia did not owe protection obligations to the applicant quite clearly provided a legally sufficient reason. The Tribunal did investigate the applicant’s claims by considering all of the applicant’s evidence. It was not required to investigate beyond that. There is no substance whatsoever in the evidence before me for alleging that the Tribunal was affected by “actual bias”.
The applicant’s amended application contains the following three grounds:
1.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 s424A as decided by the majority judge of the High Court in SAAP.
2.The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
As I have explained above, I am unable to identify any jurisdictional error concerning the application of s.424A(1).
In relation to the second ground in the amended application, as I have indicated above, the Tribunal made findings which accepted that the applicant would face a risk of serious harm if he returned to his locality and continued his involvement in his father’s electronic business. In my opinion, its reasons for then concluding that this risk would not arise in other locations in India showed a correct appreciation of the law. I therefore do not consider that Ground 2 is made out.
Ground 3 is so obscure in its particulars as to be meaningless as a ground of review, and it has not been explained to me by the applicant in any written or oral submissions.
For the above reasons, I have not been satisfied that the Tribunal’s decision is affected by any jurisdictional error, and I must therefore dismiss the application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 24 May 2010