SZOLC v Minister for Immigration - [2010] FMCA 640

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOLC v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 640

MIGRATION – Applicant a citizen of Thailand who identified as a Pakistani Muslim – relocation – where applicant had run a shop and mail order business and claimed he would have difficulty relocating to an area with a majority of ethnic Thais – whether Tribunal failed to take into account relevant considerations being his British education and his inability to read or write Thai.

Randhawa v Ministerfor Immigration (1994) 52 FCR 437
SZATV v Ministerfor Immigration (2007) 233 CLR 18

Applicant:

SZOLC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1143 of 2010

Judgment of:

Raphael FM

Hearing date:

13 August 2010

Date of Last Submission:

13 August 2010

Delivered at:

Sydney

Delivered on:

13 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr J Gormly

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1143 of 2010

SZOLC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Thailand who arrived in Australia on 6 July 2009 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 17 August 2009. A delegate of the Minister refused to grant a protection visa on 12 October 2009 and, on 5 November, the applicant applied for review of the delegate’s decision from the Refugee Review Tribunal. The applicant, who was assisted by a Thai interpreter, attended a hearing before the Tribunal. On 29 April 2010 the Tribunal determined to affirm the decision not to grant the visa and handed that decision down on 30 April.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that he was a person defined as a “Pakistani” Muslim living in the southern states of Thailand where there had been considerable ethnic violence against Muslim persons, some of whom were ethnic Thais and some of whom, like him, had originated from the subcontinent. The applicant, who was a businessman with a shop and mail order business selling sarongs, claimed that his business was attacked and ransacked by Buddhists in April 2009, again in May 2009, and for a third time on 9 June 2009. He was an organiser for an association, Muslim Youth, in his area and claimed that he was harassed and humiliated by Buddhist fundamentalists.
The manner in which the Tribunal dealt with the applicant’s claims, both in its interview with him and in its decision record, was to obtain details of his claimed fear of persecution and then discuss with him, in particular, the possibility of relocation. The Tribunal essentially accepted that things were difficult for persons such as the applicant in his home area and said that it gave weight to his claims that he was attacked on three occasions and his shop was fire bombed because he was a “Pakistani” Muslim, and that he was a leader of a Muslim community group which tried to defend property. However:
“The Tribunal noted that the applicant’s claim was significantly weakened by his evidence that he was unable to identify any other Muslim Thais of “Pakistani” origin who had suffered a similar fate. Nor was the applicant able to identify any other members of his community who had left Southern Thailand through fear of persecution. The Tribunal would have expected that a person who claimed to be a leader of the “Pakistani” Muslim community in his city would have been aware of the movements of his fellow Muslims, and whether they suffered similar persecution. Nevertheless, the applicant has been given the benefit of the doubt.” [66] [CB 108-109]
It was on this basis that the Tribunal looked at the question of relocation. In its interview with the applicant the Tribunal first raises this matter at [T5] (affidavit of Sue Archer dated 30 July 2010):
“T: Now it’s up to him to explain to me as a single man with no dependants why   couldn’t he relocate elsewhere in Thailand.
A: Because of these problems and these issues, one of the issues is I have no money left, all the money has been lost because of this problem, and the other issue is like in Australia you can go from one city to another and you can find a job. It doesn’t work like that in Thailand because I haven’t been educated in Thailand and my education is basically from a British school in “Pakistani” and that’s why for me to relocate from this area is very difficult.
T:   My question was why can’t you relocate in Thailand, and you replied, “Because he lost most of his funds in the destruction of his shop,” right?
A: Yes.
T:   And what was the second reason?
A: The system in Thailand is not like the system here where you can easily move to another place and get a place for rent. It doesn’t work over there like that, and because they ask you when you move from this area to another area and they look at your background that you’re moving from that area where the problem is and that’s why they don’t let you settle there and they treat you, you know, if you move from one area to another and they know you’re coming from this area, they think you’re like a terrorist or just a troublemaker and that’s why you are moving from that area into their area.
T:   Well, that hardly applies in Bangkok which is a huge city.
A: Because as I explained earlier that I have nothing left. To even move to Bangkok you need something to start your business, to do something, and because of my background it would be very hard for me to find a job there.”
The Tribunal questioned the applicant further about the possibility of moving to Bangkok and suggested that, as he was from a second generation Thai/Pakistani family, his family must have some friends or connections in Bangkok. The applicant responded that they did and those persons had been asked to help but had refused. The Tribunal refers again to the question of relocation in the transcript at [T10], but at that page the discussion is mostly about the possibility of further persecution should the applicant relocate.
The Tribunal deals with the questioning of the applicant concerning relocation at [56] [CB 107]. The Tribunal paraphrases that discussion in a way which I consider to be reasonably accurate. The emphasis is on the applicant’s concern that he could not obtain a job if he moved, and the Tribunal’s questioning of his ability to use family assistance to move to Bangkok.
The Tribunal deals with the question of relocation in its findings and reasons commencing at [67] [CB 109]. It notes at [67]:
“The issue of his relocation will be enlivened provided the Tribunal could be satisfied that elsewhere in Thailand, such as Bangkok or Chiang Mai which are cosmopolitan and racially religious mixed communities, it would be safe and reasonable for him to relocate.”
At [68]:
“The Tribunal can only make a finding that relocation is reasonable if it can be shown that the applicant would not have to take steps which avoided offending his persecutors.”
There is country evidence available to the Tribunal:
“…Today Chang Mai is home to Muslims from Pakistan, Malaysia, Myanmar, China and India, all of whom integrated successfully into Buddhist Thailand.”
[69]. This supports the view that if the applicant moved to say, Bangkok or Chang Mai, he would not face persecution on the grounds of his race or religion.” [CB 109]
The Tribunal then refers to the applicant’s assertion that he would be treated as an outsider in Thailand because of his Pakistani origin, and that that was a reason why he could not relocate. The Tribunal noted at [71] [CB 109] that the applicant had produced no evidence of other incidents where citizens were persecuted by other Thai communities or Thai authorities. It then concluded that it did not accept the applicant’s claims that, because the predominant religion of Thailand is Buddhism, as a Muslim he would be in fear of persecution wherever he went in the country, and said that it was satisfied that he could relocate because:
“The applicant is single without the difficulties of relocating his entire family;
His claim that he could not relocate because he had lost all his funds in the shop fire. Later he claimed that he gave his stock of sarongs away to other dealers. If so he could surely ask them to recompense him financially. Under the circumstances, the Tribunal does not accept this claim as credible. As his occupation was selling sarongs both wholesale and on a mail order basis and retail, he could continue to supply his clients throughout Thailand from his source in Indonesia or open a new shop in another part of Thailand which is not affected by the ethnic and or religious disputes prevalent in the three southern Thai provinces…
The Tribunal has found no country information which would suggest there is a blanket anti-Pakistani or anti-Moslem sentiment throughout Thailand.” [72] [CB 109]
On 24 May 2010 the applicant filed an application to this Court seeking review of the decision of the Refugee Review Tribunal. He has had the able assistance of Mr Gormly of counsel who, on 13 August 2010, filed in Court a further amended application. That application had one ground:
“Failure to take into account relevant considerations
In considering the reasonableness of relocation from a Muslim dominated area to an area with a majority of ethnic Thais the Tribunal failed to take into account that:
· the applicant could not read or write Thai
· the applicant was educated in a British school in Pakistan.”
In his helpful written submissions, Mr Gormly says that the Tribunal fell into jurisdictional error in that it failed to take into account relevant matters considering the reasonableness of relocation, and the two maters that he referred to were those that were contained in the amended application.
It is well accepted that reasonableness of relocation has been a constituent requirement for those adjudicating refugee claims for a considerable time. The matter was referred to in Randhawa v Ministerfor Immigration (1994) 52 FCR 437 (“Randhawa”) where Black CJ made reference to it in that part of his judgment commencing at 440, but his Honour also said at [443]:
“In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant's Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant.”
In the present case, the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these.
Accepting for the purposes of this case that the privilege of an English education is an impediment to relocation, the question that the Court must ask itself is whether it could be said that this matter was not considered by the Tribunal. I have some difficulty with making such a finding because it is important always to read a Tribunal’s decision in its fullest context and not to try and isolate bits and pieces from a transcript and utilise those in support of a claim of jurisdictional error.
Certainly the applicant made reference to his education at the British school, but when he was asked again by the Tribunal to effectively explain what that meant for his relocation difficulties he did so in a manner that made reference to the “outsider” nature of his position, and that nature was dealt with by the Tribunal in the interview at some length, as I have extracted, and was considered in the findings and reasons of the Tribunal in the manner to which I have referred.
Mr Gormly seeks to argue that there are other aspects of the applicant’s education that would cause him difficulties should he be required to relocate. In particular, he refers to the fact that the applicant does not claim to be literate in Thai. This was not a matter that was examined by the Tribunal, but then it does not seem to me to have been a matter that was raised by the applicant, and would thus fall within that class of issues referred to by the Chief Justice in the extract from Randhawa adumbrated above.
To my mind, the applicant’s major objection to relocation was what he felt was his inability to obtain employment in any new place; by which I would infer he also meant the inability to continue with his business of selling sarongs by mail order, by wholesale and by retail. It is not necessary in this case for the Court to opine upon the extent of reasonableness in a relocation context, although I note that the judgment of the High Court in SZATV v Ministerfor Immigration (2007) 233 CLR 18 would tend to indicate a narrow approach. See [24-27] per Gummow, Hayne, Crennan JJ and [79-81] per Kirby J.
What the Court is required to do in investigating whether or not the Tribunal has fallen into jurisdictional error is to assess the Tribunal’s decision in the light of the application. The application suggests that the Tribunal did not consider the applicant’s education and his illiteracy. In my view, as explained in these reasons, the concern that the applicant raised with the Tribunal associated with his education and illiteracy was mostly relevant to his ability to find employment, and that was a matter which the Tribunal considered. Insofar as it related to his position as “outsider” that too was considered.
It is not for this Court to replace its views of those matters with those of the Tribunal. That would be providing the applicant with impermissible merits review. In those circumstances, I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,500.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 25 August 2010