SZOCB v Minister for Immigration and Citizenship

[2010] FCA 825

FEDERAL COURT OF AUSTRALIA

SZOCB v Minister for Immigration & Citizenship [2010] FCA 825

Citation:		SZOCB v Minister for Immigration and Citizenship [2010] FCA 825
Appeal from:		SZOCB v Minister for Immigration & Anor [2010] FMCA 350
Parties:		SZOCB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 589 of 2010
Judge:		MARSHALL J
Date of judgment:		5 August 2010
Legislation:		Migration Act 1958 (Cth) s 424AA
Cases cited:		SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZFDV Minister for Immigration and Citizenship (2007) 233 CLR 51
Date of hearing:	3 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	18
Counsel for the Appellant:	Self represented
Solicitor for the First Respondent:	Clayton Utz
Counsel for the First Respondent:	Mr R Baird

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 589 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOCB
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	3 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal, fixed at $2,100.

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 589 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOCB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	5 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of a Federal Magistrate dismissing his application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse to grant the appellant a protection visa.

2. The appellant is a citizen of India.  He entered Australia in late May 2009 as the holder of a temporary business visa.  About two weeks later he applied for a protection visa.  He claimed to fear persecution if returned to India in the reasonably foreseeable future by reason of his political opinion.  He claimed before the delegate that members of the Communist Party of India – Marxist (“CPI-M”) would kill him because he did not pay them money.

3. The appellant attended an interview before the delegate in which he expanded on his written claims concerning his alleged fears.  He also attended an oral hearing, by video link, before the Tribunal.  Before the Tribunal the appellant claimed to be targeted by local thugs because of his religion and his perceived financial status.

4. The Tribunal accepted that the appellant worked with his father in running an electronics store attached to their house in Kolkata.  It accepted that the appellant and his father were subject to threats of extortion by some locals.  The Tribunal accepted that the appellant was harmed seriously by the thugs for failure to pay money to them.  The Tribunal also accepted that the thugs were members of the CPI-M which was the ruling party in West Bengal.

5. Importantly, the Tribunal did not accept that the appellant’s political opinion was an essential and significant reason for the serious harm.  Apart from a brief association with the Congress Party by attending some meetings, the appellant did not associate with any political party or join any political party.  The Tribunal found that the appellant did not claim to have been harmed because of his brief association with the Congress Party and did not claim to fear the thugs for that reason.

6. The Tribunal accepted that the appellant’s Hindu religion may have played a significant role in singling him out as a target in a Muslim majority locality.  As a result, it found that the appellant’s religion was an essential and significant reason for the harm he suffered.  It also accepted that there was a real chance that the appellant would suffer serious harm from Muslims in Kolkata should he return there.

7. However, the Tribunal considered that it would be reasonable for the appellant to relocate safely away from Kolkata or the state of West Bengal.  It found that the appellant’s fears are localised and confined to his locality in Kolkata.  It noted that he and his family were prepared to move their home and business elsewhere, but that it would take time.  The Tribunal further found that the appellant had provided no satisfactory reason why it would be unreasonable for him to relocate and find a source of income elsewhere in India, until his family is in a position to move.  The difficulty expressed by the appellant with that course was confined to his fear that his harassers would find him anywhere in India.

8. The Tribunal did not accept that those from whom the appellant feared serious harm would follow him if he relocated to a Hindu majority area ruled by the Congress Party in a densely populated country.  It was satisfied that it would be reasonable and practicable for the appellant to safely relocate to a different part of India than Kolkata or West Bengal.

9. The Federal Magistrate dealt with a submission by the appellant that the Tribunal had failed to comply with s 424AA of the Migration Act 1958 (Cth). His Honour observed that the appellant had failed to identify the information which he says the Tribunal should have put to him. The Federal Magistrate rejected the submission based on s 424AA and was correct to do so. His Honour also rejected a submission that the appellant was denied procedural fairness by the Tribunal on the relocation issue. As the Federal Magistrate observed, the Tribunal raised with the appellant the reasons why the appellant could relocate to a Hindu majority area elsewhere in India. This is further reinforced by the appellant’s concession before the Tribunal that he was prepared to move but that it would take time for his family to follow.

10. The Court below rightly dismissed an allegation of actual bias made against the Tribunal in the absence of any cogent argument in support.

11. The grounds of appeal before this Court take issue with the failure of the Court below, to find jurisdictional error in the Tribunal’s decision without identifying that error.  They also refer to unidentified alleged legal and factual errors.  There is a final ground which alleges that the Tribunal decision was unjust.

12. The appellant has prepared his grounds of appeal without legal assistance and has provided no argument in support of them.  I consider that the real issue before this Court is whether the Tribunal approached the relocation issue in the correct manner and whether the Federal Magistrate was right to affirm that aspect of the Tribunal’s decision.

13. The central issue for the Tribunal was whether it was “reasonable, in the sense of being practicable, for the appellant to relocate to a region where objectively there is no appreciable risk of the feared persecution”; see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (SZATV) at [23], per Gummow, Hayne and Crennan JJ. As said at [24] by the plurality in SZATV, this depends on the particular circumstances of the applicant for refugee status and the impact upon that person of the relocation of his place of residence, in this case, within India.

14. At [26] their Honours said:

    …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. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.

1. In SZFDV Minister for Immigration and Citizenship (2007) 233 CLR 51, the High Court considered the situation of an Indian citizen from Tamil Nadu, in India, who was a communist. The relevant Tribunal had found that it was reasonable for the appellant to safely relocate to and reside in another part of India. The plurality at [14] restated the test it propounded in SZATV at [23].

2. The Tribunal, in the current matter, was satisfied that it was reasonable for the appellant to relocate to a Hindu majority area ruled by the Congress Party.  The appellant has not identified any basis to challenge that finding.  It was a finding which was open to the Tribunal on the evidence before it.  That is particularly so, in light of the appellant’s evidence that he was prepared to move.  Further, the Tribunal observed that the appellant speaks Hindi and is well travelled with a proven capacity to survive in a foreign environment.

3. It was open to the Tribunal to consider, as it did, that it was reasonable and practicable for the appellant to relocate to a region in India, where objectively there was no appreciable risk of persecution on the ground of the appellant’s religion.

4. The Tribunal did not thereby engage in any jurisdictional error.  The Federal Magistrate committed no appealable error in dismissing the application before him.  The appeal is dismissed, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        3 August 2010