SZOIG v Minister for Immigration
[2012] FMCA 600
•3 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 600 |
| MIGRATION – Review of decision of Refugee Review Tribunal – where applicant claimed fear of persecution for political belief and religion – where Tribunal found concerns not sufficient to establish protection obligations – where Tribunal found applicant could relocate to avoid any harm – whether Tribunal correctly applied relocation test – whether applicant provided proper hearing – whether Tribunal otherwise fell into jurisdictional error. |
| Migration Act 1958 (Cth) s.91R(1)(b) |
| Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 SZIED v Minister for Immigration and Citizenship [2007] FCA 1347 |
| First Applicant: | SZOIG |
| Second Applicant: | SZOIH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 791 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 3 July 2012 |
| Date of Last Submission: | 3 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2012 |
REPRESENTATION
| For the Applicants: | In person |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 791 of 2010
| SZOIG |
First Applicant
| SZOIH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are citizens of India who arrived in Australia on 4 July 2009 and applied to the DIAC for protection (Class XA) visas on 17 August 2009. A delegate of the Minister refused to grant the visas on 25 November 2009. On 21 December 2009 the applicants applied for review of that decision from the Refugee Review Tribunal. The Tribunal invited the applicants to a hearing which took place on 12 March 2010. On 17 March 2010 the Tribunal concluded that it should affirm the decision not to grant a protection visa. The applicants are husband and wife, the substantive applicant is the husband; the wife has claimed that she is a member of his family unit who has no independent claim to be a refugee.
The applicant is a Sikh who lived in Haryana for most of his life. He claimed that he had never attended school but that he worked as a self-employed truck driver. The grounds upon which he claimed that he was a person to whom Australia owed protection obligations were: that in 2008 he was involved in protecting a Sikh religious congregation in Bhuna from attacks by Hindu fundamentalists; he was injured; he claims that the Hindu aggressors believed that he was responsible for the injuries sustained by Hindus in the altercation and as a result he was targeted by them. The applicant also claimed that he was a supporter of the Lok Dal Party, which was helpful to Sikh people. This caused problems with local Hindus who were supporters of the Congress Party, and before the 2009 elections, Congress thugs targeted Sikhs. The applicant claimed that the Congress Party candidate, who was eventually declared the victor in the elections, caused oppression against him and threats to be made to kill his wife and children. He claimed that his truck had been damaged when it was parked in the market place and that the police did not help him. The applicant said that he ran away for fear of his life, after selling his truck.
The Tribunal questioned the applicant upon his claims. He told that he transported crops locally from Haryana to Delhi. In regard to his political life, he stated that he had participated in political rallies once or twice but stopped when trouble started. He confirmed that he was a Lok Dal supporter. When asked what he did at the rallies he said he did not do very much he just walked around with twenty to twenty-five other people. He could not remember the name of the Lok Dal candidate in his area. He told the Tribunal that he still feared that if he returned to India, he would be hurt by Congress Party members because he would not vote for that party. He told that two or three months before he came to Australia Congress Party members swerved their car in front of his truck and he managed to maintain control of his vehicle and escaped. The applicant told the Tribunal that there were no further incidents.
The Tribunal questioned the applicant about the possibility of him relocating. The Tribunal suggested that the applicant’s concerns were merely local, and that as he was young and had extensive experience as a truck driver and had been able to support himself by working in Australia, it would be reasonable to expect him to relocate within India where there was a large number of Sikhs. The applicant told the Tribunal that he had no problems just because of his Sikh religion.
In its findings and reasons the Tribunal, whilst noting some discrepancies in the applicant’s story, gave him the benefit of the doubt, and accepted that he was a witness of truth. It concluded that he was involved in politics at a very low level, but he was not an actual member of Lok Dal and he did not know who the party candidate was during the elections:
“[H]is activities were confined to attending one or two rallies, during the course of which he had done nothing. He expressly denied having participated in any meetings or to having been involved in any other activities as claimed in his written statement. It is therefore difficult to see why local members and supporters of the Congress may have targeted or singled him out for harm. …he was unable to off a persuasive explanation. The applicant’s evidence was also at odds with the fate that the Tribunal was unable to find any information in the sources consulted to suggest that Lok Dal supporters in Haryana had been targeted by Congress party supporters in the weeks which followed the national elections in May 2009.” [72 CB-83-84]
Notwithstanding that finding, the Tribunal did accept that the applicant’s support for Lok Dal may have angered members of the Congress party in his locality, and it was possible that some attempt was made to run him off the road in his truck. It noted that apart from threats he had not suffered any other harm including being attacked or injured or suffered any financial loss. The Tribunal considered the threats which the applicant had told it about and came to the conclusion that based upon the evidence before it, those threats did not fall under s.91R(1)(b) of the Migration Act 1958 (Cth)[1] and did not give rise to any real chance of persecution in the reasonably foreseeable future.
[1] The “Act”.
The Tribunal went on to consider whether, if it had been wrong about the threats, the applicant could in any event relocate within India. The Tribunal noted the decision of the Full Bench of the Federal Court in Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 and the views expressed by Black J at [440-441]. The Tribunal considered that the applicant’s fears were local and noted that he claimed that he had no resources to relocate.
“As it was put to him, despite his lack of education, he is relatively young, had extensive experience as a truck driver, and has been able to temporary [sic] settle himself in Australia and support himself and his wife by working in a farm. This demonstrated his capacity to work and continue to earn a living to support his family elsewhere in India. The applicant responded by stating he did not want to go back and get into trouble again. The applicant did not offer a satisfactory reason as to why it would be unreasonable for him to internally relocate.”
The Tribunal concluded that if the applicant did not locate elsewhere in India and continued his political activity at the level that it accepted, he would not face harm from the Congress Party for reasons of his political opinion. The Tribunal concluded that it would be reasonable and practicable for him to safely relocate to a different part of India.
On 12 April 2010 the applicant sought review of the Tribunal’s decision from this court. Delay in hearing his application was due to the fact that he had suffered some medical conditions that he claimed prevented him from taking part in a proceeding. He was, however, in court today assisted by an interpreter. He told the court that he understood what was happening at the hearing. His medical condition was related to his physical condition and not to his mental condition.
The grounds of the application were threefold. The first was,
“The Tribunal made jurisdictional errors to find that I, the first named applicant was not persecuted for my political belief and my fear of persecution in India for the reason of my political belief, religion, or any other Convention reason is not well-founded. I shall not be persecuted if I return back to India.”
The applicant does not explain what the jurisdictional error was that caused the Tribunal to make these findings. It is fair to say that the Tribunal did not find that he was not persecuted; it found that any persecution that he had suffered did not constitute serious harm for the purposes of the Act.
The second ground of application was that,
“The Tribunal did not consider me as a credible witness and decided not to approve our claim for a protection visa and made errors of jurisdiction.”
This claim also evidences a mistaken reading of the Tribunal’s decision, the Tribunal did consider the applicant a credible witness, but it did not consider that the concerns which he felt were sufficient to make him a person to whom Australia owed protection obligations.
The third ground was,
“The Tribunal did not give me opportunity to place my explation [sic] before the Tribunal of the adverse information and also the country information [sic] which suggested the Tribunal that a person like me was not persecuted or discriminated for his political or religious belief and all other [sic] related information [sic] the Tribunal considered at the time of refusing my application for a protection visa and the Tribunal made jurisdictional error.”
There is no evidence in the Tribunal’s decision record that the applicant was ever prevented from providing a full explanation of his claims. The applicant has not produced a transcript and so there is no evidence before this court to suggest that the Tribunal acted in the manner alleged.
The Tribunal acted in compliance with Division 4 of the Act in relation to the natural justice hearing rule, it discussed any independent country information with the applicant and considered his claims on the basis of the evidence that he had given to it. I am unable to see that there was any jurisdictional error as suggested in the application. The applicant appeared before me today. He argued that he was unable to relocate as suggested by the Tribunal. I have considered the Tribunal’s approach to the question of relocation and it would appear that the Tribunal had in mind the requirement that any relocation had to be reasonable in the sense of “practicable”. The Tribunal took into account the applicant’s ability to earn a living in some other part of India and the fact that there was no general discrimination against Sikhs. In SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18 the majority Gummow, Hay and Crennan JJ said at [36]:
“[T]erritorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. 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.”
In this particular case, the Tribunal concluded that as the applicant’s concerns were local it would be possible for him to move outside that locality and he would not suffer persecution even if he continued his low-level political activity. I am satisfied that the evaluation the Tribunal made was proper, realistic and fair and that all the circumstances were taken into account as required by the Federal Court in SZIED v Minister for Immigration and Citizenship [2007] FCA 1347 per Moore J.
I would also note that the decision on relocation was contingent upon the Tribunal’s view that the alleged persecution the applicant had suffered not amounting to serious harm was incorrect. That is a matter of fact that the Tribunal did find, and no grounds have been provided that would suggest that it was in jurisdictional error in so finding. The applicant has merely argued for merits review of that conclusion. In these circumstances I am unable to say that the Tribunal made an error of law in the manner in which it reached its conclusion.
The application must be dismissed and the applicant must pay the respondent’s costs which I assess in the sum of $7,000.00. This is a large sum of money for what appears, at first sight, to be a simple case but the matter has been called on for hearing on three occasions and been put off because of the applicant’s non-attendance due to his medical condition.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 6 July 2012
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