SZOCW v Minister for Immigration
[2010] FMCA 655
•27 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOCW v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 655 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – issue in dispute is relocation within India – did the Tribunal address the essential elements to avoid possible future persecution by relocation – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZOCW”. |
| Migration Act 1958 (Cth), ss.91X, 476 Aboriginal and Torres Straight Islander’s Heritage Protection Act 1984 (Cth), s.10 |
| Abram v Bank of New Zealand & Anor [1996] ATPR 41 - 507 NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 Neil v Nott (1994) 121 ALR 148 Randhawa v Minister for Immigration, Local Government and Ethnic affairs (1994) 52 FCR 437 Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40 SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216 SZFDV v Minister for Immigration & Citizenship & Anor [2007] HCA 41 SZMGW v Minister for Immigration and Citizenship & Anor [2009] FMCA 88 SZOCA v Minister for Immigration and Citizenship & Anor [2010] FMCA 520 Tickner & Ors v Chapman & Ors (1995) 57 FCR 451 WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 |
| Applicant: | SZOCW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG170 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 7 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2010 |
REPRESENTATION
| The Applicant: | The applicant appeared in person with the assistance of a Hindi interpreter. |
| Solicitors for the first Respondent: | Ms Weston (solicitor) |
| Solicitors for the second Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 1 February 2010 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements, of and incidental to, this application fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG170 of 2010
| SZOCW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant was born on 19 January 1968 in Mumbai, India. He is Muslim and speaks, reads and writes Hindi and English. Attached to the applicant’s Protection (Class XA) visa, the applicant claimed the following sequence of events.
i)The applicant’s house was ransacked during the Babri Masjid demolition in the Thane area of Mumbai. Since the outbreak of this dispute in 1993, ethnic violence was directed at Muslims;
ii)The applicant and his neighbours were forced to leave their homes, farms and business;
iii)The applicant worked with the Congress Party until 1998 when he realised that some of the Congress leaders were involved with Sev Sena and other extremist groups;
iv)The applicant joined the Bhaujan Samaj Party (“BSP”). After the elections and he claims that he was threatened by Hindu extremist groups;
v)BJP supporters attacked his restaurant and ransacked his business;
vi)The applicant claims that several of his relatives and neighbours were attacked, robbed and many women were raped by Hindu extremists;
vii)The applicant decided not to stay in India due to safety concerns and sought protection in Australia;
viii)He claims he was very depressed and traumatised by the violence and unrest that prevailed in India and suffers from panic attacks when he thinks about returning there.
The applicant arrived in Australia on 30 May 2009 with a Subclass 676 (Visitors) visa. He applied for a Protection (Class XA) visa on 10 July 2009. By a decision dated 23 September 2009, the application was refused and then the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision on 19 October 2009. The Tribunal sent the applicant an invitation to appear before it, to give evidence and present arguments, on 2 November 2009. The applicant made a number of requests for different dates and locations prior to eventually appearing before the Tribunal on 8 January 2010. By a decision dated 14 January 2010, the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa. It is this decision, RRT case number 0908395 of Tribunal member Shahyar Roushan dated 14 January 2010, that is the decision presently under review.
A Court Book (“CB”) was prepared by the first respondent’s solicitors and marked “Exhibit A” and is the only evidence before the Court.
At the First Court Date directions hearing, the applicant indicated that he wished to participate in the Court sponsored Legal Advice Scheme and a panel advisor was allocated to him. The panel advisor provided the applicant with written advice. The applicant was also granted leave to file an Amended Application and he availed himself of this opportunity and filed a document containing the following ground:
The Tribunal constructively failed to exercise its jurisdiction:
Particulars:
i. The applicant provided information to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process in respect of the applicant claims. The Tribunal ultimately gave no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the Applicant’s claim without engaging in an active intellectual process as to the contents of the claim. It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether or not a liberal Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection in India.
ii. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s91R(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 failed to satisfy the statutory obligation was a serious jurisdictional [error] caused by the Tribunal
Tribunal decision
The Tribunal accepted that the applicant supported the Congress Party from 1992 until 2000 and that he may have angered supporters of rival parties in his locality, in the lead up to the election (CB 103 at [56]). It was prepared to accept that the applicant was threatened and assaulted and that his business was damaged in the lead up to the elections (CB 103 at [57]). Consequently, the Tribunal concluded that the applicant had suffered a well founded fear of harm in his locality and that his political opinion was the essential and significant reason for the harm suffered. However, that fear of harm was localised and confined to the Thane area of Mumbai. It concluded that it would be reasonable for the applicant to relocate to a different locality in India in light of the following considerations (CB 103 at [58]):
a)There was no evidence in the independent country information that the BSP supporters (with high or low profiles) would be persecuted across India (CB103 at [60]).
b)On the applicant’s own evidence, he was a literate and successful businessman who has proved his resilience and capacity to survive (CB104 at [60]).
c)There was no evidence before the Tribunal to suggest that if the applicant returned to India, his level of involvement in politics would change (CB 104 at [61]).
The Tribunal was satisfied that if the applicant relocated within India and continued to engage in political activities at the same level, there was “no real chance” that he would face a well founded fear of harm (CB104 at [61]). Moreover, it would be reasonable and practicable for the applicant to relocate. The Tribunal also considered the applicant’s claim regarding his religion, but was not satisfied that he would face a real chance of persecution because of his Muslim faith (CB 104 at [62]).
Consideration
At the First Court Date directions hearing, the applicant was requested to file and serve a short written outline of submissions and a list of authorities 14 days prior to the hearing. This direction was not complied with. When the applicant was invited to make oral submissions in support of his application, he declined indicating that he relied on the Amended Application and the material already before the Court.
I note that the applicant is a self-represented litigant and in these circumstances, I am guided by the decision of Abram v Bank of New Zealand & Anor [1996] ATPR 41 – 507, where the Full Federal Court applied the decision of the High Court of Australia in Neil v Nott (1994) 121 ALR 148 at 150, to the effect that where a party is not represented, the Court must assume a burden endeavouring to ascertain the rights of the party that are obfuscated by their own advocacy. In these circumstances, what a judicial officer must do to assist a litigant in person depends on the litigant, the nature of the case, the litigant’s intelligence and understanding of the case.
In this matter, the applicant, who does not wish to advance any submissions or argument in support of his application, is relying totally on the contents of his Amended Application. Unlike many of the formulaic applications seen in this Court, the Amended Application does address the central issue of the Tribunal’s decision. The Tribunal acknowledged that the applicant had suffered a well founded fear of harm in his location and that his political opinion was the essential and significant reason for the harm that he had suffered. The Tribunal had formed the view that this could be resolved by the applicant relocating to another part of India. The applicant has challenged that element of the decision in his grounds of review, indicating that he, with some identified assistance, is acutely aware of the nature of the Tribunal’s reasoning and decision. In these circumstances, I will primarily focus on the ground of review contained in the Amended Application.
The first issue raised is the failure of the Tribunal to engage in an active intellectual process. In the written submissions provided by the Minister’s representative, it suggests that this alleged failure appears to have its genesis in Tickner & Ors v Chapman & Ors (1995) 57 FCR 451 which concerns s.10 of the Aboriginal and Torres Straight Islander’s Heritage Protection Act 1984 (Cth). However, Her Honour Barnes FM in SZMGW v Minister for Immigration and Citizenship & Anor [2009] FMCA 88 considered this same allegation in the context of migration law and found that a more relevant analogous authority is Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152. The decision in Singh concerned the requirement that the Tribunal “must have regard to” certain information.
Although the present applicant’s claim is contained within his explanatory particular, the particular does not identify or explain what aspects of the Tribunal hearing could be construed as a failure by the Tribunal to engage in an active intellectual process. There is no transcript or recording of the Tribunal hearing before the Court. The only material available is the contents of the decision record itself. Within that record, under the sub-heading “Claims and Evidence” the Tribunal has reproduced a substantial part of the written statement that was attached to the applicant’s visa application form. Then, the Tribunal records a summary of the oral evidence given by the applicant at the hearing on 8 January 2010, which occurred via a video-link between Canberra and Sydney.
The Tribunal hearing was conducted with the assistance of an interpreter of the Hindi and English language. However, a significant part of the applicant’s evidence was given in English, bypassing the interpreter function. The decision record contains the applicant’s statements concerning the incidents in Mumbai, his political affiliations, the resulting hostility concerning his change of allegiance due to the alleged political hypocrisy of the various political leaders, as well as the consequences of that change of allegiance and the harm that he suffered. The Tribunal then questions the applicant on a number of the details in respect of his claims. The Tribunal goes on to explore the various regions in India that have large Muslim populations. It examines with the applicant which of these areas would offer safety and others that would not.
The representative of the Minister, in her written submissions, suggests that irrespective of whether the applicant’s contention is construed as an allegation that the Tribunal “failed to engage in an active intellectual process” or “failed to have regard to” the applicant’s claims or evidence, it is submitted that it is unsubstantiated for the following reasons:
a)The decision record shows that the Tribunal considered the applicant’s claims at [21] and oral evidence at [33] – [52] in detail.
b)The Tribunal accepted that the majority of the applicant’s claims pertaining to harm allegedly suffered in Thane prior to coming to Australia (at [56] – 57]) to the extent that it is inaccurate for the applicant to allege that “the Tribunal placed no weight on the applicant’s claims”.
c)It also follows that the applicant’s claim that no weight was given because the Tribunal did not engage in an active intellectual process, as to the contents of his claim, is “inaccurate”.
d)The Tribunal also considered the applicant’s explanation as to why he could not relocate in India, but it ultimately found that it would be reasonable for him to do so and that he would not face a well founded fear of harm. The Minister’s representative submits that this conclusion was open to the Tribunal on the evidence before it, and that it is apparent from the decision record that the Tribunal engaged in “an active intellectual process” with respect to the issue.
As indicated above, in the absence of submission or argument in respect to this alleged failure and on a fair reading of the decision record, it is not apparent on its face that the Tribunal failed in its task. Consequently, this issue in respect of this ground cannot be sustained and should be dismissed.
The second issue raised in this application is the alleged failure of the Tribunal to properly consider whether the applicant could relocate within India. In the decision of SZOCA v Minister for Immigration and Citizenship & Anor [2010] FMCA 520 I reviewed a number of decisions that considered the practical realities that would face an applicant if he or she was required to relocate: Randhawa v Minister for Immigration, Local Government and Ethnic affairs (1994) 52 FCR 437, SZATV v Minister for Immigration & Citizenship & Anor [2007] HCA 40, SZFDV v Minister for Immigration & Citizenship & Anor [2007] HCA 41, NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 at [22] per Branson J and [73] per North J, WALT v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 2 at [45], SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 and SZBJI v Minister for Immigration & Multicultural Affairs [2006] FCA 216.
These decisions state that the matter of relocation entails the Tribunal considering the applicant’s personal history, including his language, skills, age, education, health, family connections, employment and demonstrating an ability to live independently elsewhere than in locality of origin (WALT (supra) at [45]).
In SZATV v Minister (supra) their Honours Gummow, Heyne and Crennan JJ at [24] considered the issue of relocation:
· What is ‘reasonable’ in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
· This test was not directed to living conditions generally, but rather to the circumstances of the individual and matters such as differential treatment in the matters of race, religion or political opinion (SZAVT at [26]).
At paragraph [51] of the Tribunal decision it states:
51. The Tribunal noted that the applicant’s evidence suggests that his problems were confined to his locality. He was reminded that in his evidence that he had indicated that others in the locality had relocated and was asked why he would be unable to relocate internally. He said others had relocated by moving back to their “native” states. The Tribunal noted he speaks Hindi and English and asked why he would be unable to relocate to a Muslim majority area in India. He said language was not a problem, but it would be difficult for him to establish himself elsewhere as he needs money. It was put to him that it appears that he had the finances to come here, has extensive business skills and has been able to survive in Australia by finding employment. He said he cannot settle elsewhere. He had to borrow money to come to Australia and he is not safe. His life is at risk and his opponents still ask about him and his whereabouts.
Then at paragraph [52] of the Tribunal decision:
52. The Tribunal put to the applicant that the information before it suggests that although Muslims are a minority, India has the world’s third largest Muslim population. There are large Muslim populations in the state of Uttar Pradesh, Bihar, Maharashtra, West Bengal, Andhra Pradesh, Karnataka Kerala. The sources consulted do not indicate that Muslims are generally not safe in India. There are many enclaves in areas dominated by Muslims. He said that this was true, but those in the ruling party are Hindus and authority is in their hands. It was put to him that Uttar Pradesh is ruled by the BSP and the state has a large Muslim population. He said even women are not safe in Uttar Pradesh and many people move to Mumbai from Uttar Pradesh so he would not be safe there.
In its findings and reasons at paragraph [58] the Tribunal states:
58… The applicant’s evidence clearly suggests that his fears are localised and confined to the district of Thane. 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.
59. The focus of the Convention definition is not upon the protection that a 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 with real protection can be found within those boarders. 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 real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-1.
Then at [61]:
The applicant’s evidence indicates that he is literate and he was a successful businessman in India. He has proven his resilience and capacity to survive in an alien environment by being able to live and survive in Australia over the past few months. He was able to find work in Yanco and has now successfully relocated to Goulburn where he manages a take-away food store. There was no evidence before the Tribunal to suggest that if the applicant were to return to India the level of his involvement with politics would change. The Tribunal is satisfied that if the applicant relocated to a different part of India and continues to engage in political activities at the same level as he has in the past there is no real chance he would face harm by Hindu groups or anyone else for the reason of his religion, political opinion, membership of a particular social group or any other Convention reason.
On the basis of the evidence before it, and having regard to the applicant’s circumstances overall, the Tribunal was satisfied that it would be reasonable and practicable to safely relocate to a different part of India (CB 104).
In WALT (supra) their Honours Mansfield, Jacobson and Siopis JJ confirmed at [45] that the Tribunal was required to address the practical realities facing the applicant if he were to relocate, consistent with the approach taken by Black CJ in Randhawa (supra). In the particular circumstances of that case, the Court was satisfied that the Tribunal did not properly address those particular realities. In that context, the Tribunal had regard to the fact that the applicant’s country information was predominantly Christian and that the State protection against family incited violence and other non-State actors was available. It also had regard to the applicant’s personal history, treating his language, skills, age and employment whilst in another country, the skills he thereby acquired and his demonstrated ability to live independently in another country. It was those circumstances, that their Honours found that the Tribunal’s view that the applicant’s employment and language skills were transportable and likely to be used in his home country, was reasonably available to it. Again, this case illustrates the relevance of the applicant’s personal circumstances and the reasonableness of relocation.
In the matter presently before this Court, the Tribunal considered, with the assistance of independent country information, whether the Applicant could move and relocate in another part of India. The applicant speaks Hindi and English and Hindi is widely understood throughout India. Employment is dependent on the individual’s skill levels and the applicant indicated to the Tribunal that he had completed ten years of education and describes his profession before coming to Australia as “business”. He owned and operated a number of businesses from 1982 – 2009, which required a number of different skills as the businesses covered a number of industries. The applicant has a wife and children in India which he has left to pursue his protection opportunities in Australia. It will be assumed that a return to India would permit a family reunion.
In determining whether the Tribunal has asked the right questions, it is important to keep in mind the nature of the enquiry in issue. In SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216, the Tribunal accepted that the applicant, who was from Nepal and had Maoist political involvement with a low profile, would have placed him at some risk in his hometown of Kathmandu. The Tribunal addressed the possibility of a short term move outside of Kathmandu. However, His Honour Allsop J found that the Tribunal did not liaise with the applicant or broach in its reasons the practicality and reasonableness in all circumstances of the applicant relocating outside Kathmandu for the foreseeable future. His Honour found that the Tribunal failed to address an essential element of avoidance of possible future persecution by relocation. While His Honour accepted that the Tribunal was not required to address relocation and elaborate on every aspect of its practical application, His Honour found that if, for the reasons and the material before the Court, it did not appear that the practical application of relocation had been addressed, it would be wrong to assume that it had. His Honour found that, as part of the analysis of relocation, the issue of the applicant’s Maoist adherence had to be addressed by the Tribunal and its failure to do so resulted in a failure to complete its jurisdictional task. SZJBI (supra) illustrates the scope and nature of the obligation on the Tribunal to address the practicalities and the reasonableness in all circumstances of relocation for the foreseeable future.
In paragraph [60] of the Tribunal decision it indicates that independent country information was discussed with the applicant which indicated that in the 2009 general election, the Congress Party was able to gain a majority and form a government of a coalition of allies called the United Progressive Alliance (UPA), giving Congress and the UPA a clear mandate. During the course of the election campaign the central figures with the Congress Party courted the Muslim vote, emphasising that the Congress vote was truly secular against the “Hindutva” driven BSP. This in turn led to prominent Muslims speaking out in favour of Congress. Following the election, the BSP extended its “unconditional support” to the UPA government announcing that the party would support the secular congress-led UPA. In relation to the present applicant, there is no suggestion that any of the Indian authorities regard the applicant as a person of political interest. There is no material in the Tribunal’s decision, nor any provided by the applicant before this Court, that raises any objection or practical reason why relocation was not a viable option for the applicant. I am satisfied that the Tribunal has considered all of the relevant factors required to be addressed in the evaluation of the relocation decision, and no jurisdictional error in its approach to that issue is apparent.
The Tribunal expressly avoided the area discussed in SZATV v Minister for Immigration and Citizenship (supra) per Gummow, Heyne and Crennan JJ at [32] where the Tribunal’s conclusion that the applicant could relocate was contingent upon him living “discretely after relocation”. Although the applicant claims that he had no money and that it would be difficult for him to relocate, it is clear that a difference in living conditions is not relevant to the determination of whether it is reasonable for a person to relocate: SZATV v Minister for Immigration and Citizenship (supra) per Gummow, Heyne and Crennan JJ at [27].
Conclusion
The substantial finding of the Tribunal was that the applicant could relocate in India. The Tribunal, in reaching that conclusion, examined the personal circumstances of the applicant in line with the authorities addressing this issue. I am satisfied that the Tribunal has adopted the correct approach to this evaluation in accordance with the appropriate authorities. The reasons contained in the decision record do not reveal any jurisdictional error in the Tribunal’s approach. As the Applicant is self-represented, I am aware of the difficulties that he is facing by not having legal representation. I have consequently paid particular attention to relocation as this is the central issue in the Tribunal’s decision and the aspect which the applicant is endeavouring to challenge. I am satisfied that no jurisdictional error has occurred in the Tribunal’s approach and the application should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 27 August 2010
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