SZQMR v Minister for Immigration

[2011] FMCA 992

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQMR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 992

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India on the basis of his wife’s sexual orientation – Tribunal finding that the applicant had a well-founded fear of harm for a Convention reason in his local area but that he could relocate within India to avoid that harm – no reviewable error found.

PRACTICE AND PROCEDURE – Observations on the undesirability of the Tribunal resorting to the relocation principle in preference to the harder task of rigorously testing and resolving claims for protection.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 91R, 425

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZATV v Minister for Immigration & Anor (2007) 233 CLR 18
SZBEL v Minister for Immigration (2006) 231 ALR 592
SZJUB v Minister for Immigration [2007] FCA 1486
SZMCD v Minister for Immigration & Anor (2009) 174 FCR 415

Applicant: SZQMR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1668 of 2011

Judgment of: Driver FM

Hearing date: 12 December 2011

Delivered at: Sydney

Delivered on: 12 December 2011

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1668 of 2011

SZQMR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 8 July 2011.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and had made claims of persecution connected to his wife’s sexual orientation.  There was also a political element in his claims.  The applicant’s claims emerged in a review application made by the applicant following the rejection by the Minister’s delegate of a protection visa claim made by the applicant’s wife, in respect of which he was identified as a member of her family unit.

2. The following statement of background facts relating to the protection visa claims and the Tribunal’s and the delegate’s decision on them, are derived from the Minister’s written submissions filed on 6 December 2011. 

3. The applicant is a citizen of India who arrived in Australia with his wife on 24 May 2010.[1] At the time of his arrival, the applicant held a Class TK (Subclass 771) transit visa which permitted him to remain in Australia for three days from the date of each arrival.[2]

   [1] Court Book (“CB”) pages 25, 27, 30, 33

   [2] CB page 37

4. On 25 May 2010 the applicant's wife lodged an application for a protection (Class XA) visa.[3] A completed form 866D was provided with the application which indicated that the applicant wished to be included in that application as a member of his wife's family unit and did not raise his own substantive claims.[4]

   [3] CB pages 1-38

   [4] CB pages 39-44

5. The applicant's wife's claims for protection were set out in a statement provided to the Minister’s Department with the protection visa application.[5] Her claims were centred on her sexuality as a lesbian. The applicant and his wife were interviewed by a delegate of the Minister on 2 September 2010.[6]

   [5] CB pages 59-62

   [6] CB pages 63-65 and 77-79

6. By decision dated 5 November 2010 the delegate refused to grant the applicant and his wife protection (Class XA) visas.[7]  The delegate was not satisfied that the applicant's wife was a person to whom protection obligations were owed and, accordingly, the delegate refused to grant a protection (Class XA) visa to the applicant on the basis of his membership of his wife's family unit.[8]

   [7] CB pages 76-87

   [8] CB page 87

7. The applicant applied to the Tribunal for review of the delegate's decision on 3 December 2010.[9]  The applicant's wife was not included in the application and she lodged her own application for review.[10]

   [9] CB pages 88-91

   [10] See 1010965 [2011] RRTA 560 (8 July 2011)

8. The applicant sent the Tribunal a letter on 14 February 2011 in which he set out his own claims for protection.[11] In that letter the applicant raised the following claims:

   a)he was born into a traditional Latin Catholic family and believes in his religion and Christian activists;[12]

   b)although he had not known that his wife was a lesbian when they married he had agreed to support her for as long as she needed;[13]

   c)he had been threatened with violence by Christian and Hindu activists and the Kerala Christian Youth Movement (KCYM) had tried to kill himself and his wife;[14] and

   d)he was at risk of being killed by religious extremists if he returned to India because of his relationship with his wife and  because he had helped her leave the country.[15]

   [11] CB pages 105-106

   [12] CB page 105

   [13] CB page 105

   [14] CB pages 105-106

   [15] CB page 106

9. The applicant attended a hearing before the Tribunal on 22 February 2011.[16] However, because the applicant's wife had raised concerns about the specific Malayalam interpreter present at the applicant's hearing during her own hearing earlier on the same day the Tribunal adjourned the hearing to a later date.[17]

   [16] CB page 109

   [17] CB pages 174-175

10. At a further hearing on 30 March 2011 the applicant objected to the presence of the female Malayalam interpreter who had been retained to assist the applicant.[18]  The Tribunal secured the services of a male Malayalam interpreter and the hearing proceeded later in the day.[19]

    [18] CB pages 175

    [19] CB pages 134-135

11. On 24 March 2011 the Tribunal received a letter from the applicant with corroborative documents.[20] The attached documents included records of educational achievements and an untranslated document from the Indian National Trade Union Congress.[21]

    [20] CB pages 137-142

    [21] CB pages 137-142

12. By letter dated 6 April 2011 the Tribunal wrote to the applicant inviting him to comment on or respond to information which it considered might form the reason or part of the reason for affirming the decision under review.[22] The applicant responded to the information at an interview on 3 May 2011.[23]

    [22] CB pages 151-154

    [23] CB page 190

13. After the interview the Tribunal conducted a brief further hearing.[24] The Tribunal’s decision record indicates that the purpose of the hearing was to discuss the written material provided by him on 24 March 2011 and, in particular, to learn the contents of the untranslated document.[25]

    [24] CB page 190 at [94]

    [25] CB page 190 at [94]

14. By decision dated 8 July 2011 the Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.[26] The Tribunal formed the view that the applicant was not entirely truthful in his evidence.[27] Nevertheless, in reaching its decision the Tribunal accepted a number of the applicant's claims.  In particular, the Tribunal accepted that:

    a)the applicant was a devout and practising Latin Catholic and an active worker for the Congress Party in his local area;[28]

    b)the applicant married his wife on 17 February 2009[29] and that they continued to live together in an interdependent relationship;[30]

    c)the applicant had become less active in the Congress Party after his marriage;[31]

    d)members of the party had told him that he should address his personal issues and that, if the problems were related to his wife, he should divorce her;[32]

    e)the applicant had experienced harassment from Congress Party members in his area (Thumba) when he lost interest in party matters;[33]

    f)there were rumours in the community about his wife's sexuality before they married and that there was an ongoing perception by some in the Church community and Congress Party that his wife is a lesbian;[34]

    g)for this reason the applicant had been stopped, challenged and physically harmed when riding his motorbike and that his wife had been harassed by the KCYM in her area and by Congress Party Members. [35]

    [26] CB pages 170-200

    [27] CB page 192 at [105]

    [28] CB page 193 at [108] and 195 at [117] and [121]

    [29] CB page 193 at [108] and 195 at [118]

    [30] CB page 193 at [109] and 195 at [119]

    [31] CB page 195 at [121]

    [32] CB page 195 at [121]

    [33] CB page 196 at [127]

    [34] CB page 196 at [127]

    [35] CB page 196 at [127]

15. The Tribunal did not accept that the applicant was cast out by his and his wife's family or that he had been threatened by Hindu activists.[36] Nevertheless, the Tribunal accepted that the treatment of the applicant in his area amounted to serious harm for the purposes of s.91R(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”) and that his membership of a particular social group (being membership of the family of his wife) was the essential and significant reason for the harm suffered.[37]

    [36] CB page 196 at [129]

    [37] CB pages 196-197 at [130]

16. The Tribunal accepted that if the applicant returned to his area (described as Valiya Veli or Thumba[38]) as the spouse of, or in the company of, his wife there was a reasonable chance that he would face significant harassment or serious physical harm at the hands of members of the Congress Party.[39]  The Tribunal accepted that the applicant would not return to Trivandrum without his wife.[40]

    [38] Apparently within the city area of Trivandrum, which is also known as Thiruvananthapurain

    [39] CB page 197 at [131]

    [40] CB page 197 at [132]

17. However, the Tribunal concluded that it would be reasonable for the applicant to safely relocate to another area.[41]  The Tribunal found that if the applicant relocated there was no real chance that he would face harm by members of the Congress Party or anyone else, by reason of his membership of a particular social group, his political opinion or any other reason.[42] In reaching this conclusion the Tribunal noted that the applicant was “young, well educated and resourceful,” that he had worked abroad in Qatar and had shown a certain resourcefulness in managing the transition from India to Australia.[43] It concluded that it was reasonable and appropriate for the applicant to relocate to a different part of India.[44]

    [41] CB page 197 at [133]

    [42] CB pages 197-198 at [135]-[138]

    [43] CB page 197

    [44] CB pages 197-198 at [136]

18. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom “Australia has protection obligations under the Refugees Convention” and therefore concluded that he did not satisfy the criterion set out in s.36(2)(a) of the Migration Act for a protection (Class XA) visa.

19. These proceedings began with a show cause application filed on 3 August 2011.  The applicant now relies on an amended application filed on 2 November 2011.  Although that application was filed late by reference to procedural orders made by me on 1 September 2011, the Minister does not object to it.  There are two grounds in that application:

    That the decision of the second respondent was affected by jurisdictional error in that:

    1. The second respondent (the Tribunal) failed to take into account a relevant consideration in determining the reasonableness of relocation.

    Particulars

    ·   In considering the reasonableness of the applicant’s relocation to another part of India the Tribunal failed to take into account that on the Tribunal’s findings the applicant would be accompanied by his wife in his relocation.

    2. The Tribunal did not comply with s.425 Migration Act 1958 in that it did not accord the applicants procedural fairness.

    Particulars

    ·    It was a requirement of procedural fairness that the Tribunal inform the applicant of its intention to consider his relocation in the company of his wife and to allow the applicant to address the reasonableness of this.

20. The application is supported by a short affidavit filed on 3 August 2011 with the original application.  I receive paragraph 1 of that affidavit as evidence and paragraph 2 as a submission.

21. I have before me as evidence the Court book filed on 15 September 2011. 

22. Only the Minister filed written submissions.  The applicant made oral submissions.  He focused his attention on his concern that his political enemies would find him anywhere in India and that he and his wife would remain under pressure because of their family circumstances wherever they lived in India.

23. The Minister’s submissions deal with the relevant legal principles relating to a relocation decision.  I agree generally with those submissions but I have some additional observations to make.

Ground 1

1. The first ground of the amended application is founded on a misconstruction of the Tribunal’s reasons. A fair reading of the decision record as a whole shows that the Tribunal’s assessment of the reasonableness of relocation was premised on the understanding that the applicant may be accompanied by his wife if he returns to India.

2. Counsel for the Minister referred to the following aspects of the Tribunal’s decision record particularly:

   a)at [132] of the decision record the Tribunal accepted that the applicant would not return to Trivandrum without his wife. This conclusion was premised on the applicant's evidence that he did not intend to leave the marriage;[45]

   b)at [135] of the decision record, in the context of assessing the reasonableness of relocation within India, the Tribunal found that the applicant had not provided any persuasive reason why he would be unable to safely relocate in India “alone or with the applicant” (emphasis added);[46] and

   c)the conclusion that the applicant could relocate within India was made on the basis of the evidence before the Tribunal and having regard to “the applicant's circumstances overall.”  [47] The reference to the “applicant's circumstances overall” plainly included the applicant’s relationship with his wife, which formed the basis of his claims.[48]

   [45] CB page 197 at [132]

   [46] CB page 197 at [135]

   [47] CB page 198 at [136]

   [48] CB page 198 at [136]

3. As was noted by Black CJ in the seminal case on what is often referred to as the “internal relocation principle”, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Randhawa), the extent of the decision maker’s task in assessing whether a person can reasonably relocate:

   ... 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.[49]

   [49] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Black at 443 with whom Whitlam J agreed

4. Moreover, as was found by Tracey and Foster JJ in SZMCD v Minister for Immigration & Anor (2009) 174 FCR 415 (SZMCD) at [123]-[123]:

   The Tribunal considered relocation in a framework dictated by the evidence and claims advanced to it by the appellant. It was not obliged to consider all theoretical possibilities including the question of whether or not the appellant would continue to behave in a way which might attract persecution from different Islamic fundamentalists.

   The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR 437 at 442–443, especially at 443C-D.

5. The Minister submits that the Tribunal considered the applicant's objections to relocation within India in accordance with the principles established by Randhawa and SZMCD.

6. The only evidence before the Court as to what transpired at the hearings before the Tribunal is the detailed account provided in the Tribunal’s decision record.[50] That account indicates that the Tribunal raised the issue of whether the applicant could relocate with him at hearing on 10 March 2011.[51]  The applicant is recorded as having said that:

   ... India is ruled by Congress and Congress has a large network. He said it is not possible to escape them. He said that the Christian community and the KCYM, likewise, are all over India and it is possible that they would always have a chance to locate him. He said that his wife's lesbian character created a problem for him.

   [50] CB pages 123-191

   [51] CB page 186 at [87]-[88]

7. The Tribunal found that the interest in the applicant by the Congress Party and its supporters was localised and did not extend beyond the specific areas of Trivandrum which had been identified.[52]  The Minister submits that, in so finding, the Tribunal dealt with the issues or “impediments to relocation”[53] raised by the applicant.

   [52] CB page 198  at [136]

   [53] This is the terminology used by Black CJ of Randhawa at 443

8. In concluding that the applicant could relocate, the Tribunal found that that the applicant had provided “no persuasive reason” as to why he would be unable to safely relocate within India and noted that he was “young, well educated and resourceful”, that he has worked abroad previously in Qatar and had shown a certain resourcefulness in managing the transition from India to Australia.[54] Accordingly, the Tribunal considered what was reasonable in the sense of “practicable” in the applicant's particular circumstances in the sense considered by the High Court in SZATV v Minister for Immigration & Anor (2007) 233 CLR 18.[55]

   [54] CB page 197 at [135]-[136]

   [55] See the joint judgment of Gummow, Hayne and Crennan JJ at [24].

9. I find that the first ground of the amended application has not been made out.

Ground 2

1. As is noted above, the only evidence before the Court as to what transpired at the hearings before the Tribunal is the detailed account provided in the Tribunal’s decision record.[56] I accept that the account provided by the Tribunal as good evidence of what was said by the applicant and the presiding member at the three hearings.

   [56] CB pages 123-191

2. The Tribunal’s account of those hearings indicates that it raised the issue of whether the applicant could relocate within India him at hearing on 10 March 2011.[57] In his response to the Tribunal’s query, among other things, the applicant reiterated that he feared harm in India because of his wife.[58] Moreover, the Tribunal discussed the future of the applicant’s marriage to his wife with him at length – both in the context of he and his wife remaining in Australia and upon their return to India.[59]

   [57] CB page 186 at [87]-[88]

   [58] CB page 186 at [87]

   [59] CB pages 180 at [53] and [57]-[58], 181 at [59], 183 at [69] and [71], 184 at [79], 185 at [83], 186 at [87]-[88] and 187 at [90]

3. Section 425 of the Migration Act obliges the Tribunal to invite an applicant to appear before it to give evidence and present arguments with respect to “determinative issues”, but in doing so, it is not required to descend into subsidiary findings.[60]  Counsel for the Minister referred to the judgment of Bennett J in SZJUB v Minister for Immigration [2007] FCA 1486 at [25] where her Honour noted that “the Tribunal is obliged to inform [the applicant] of the issue but not of each fact that relates to it.”

   [60] SZBEL v Minister for Immigration (2006) 231 ALR 592 at 47

4. I find that the applicant was on notice of the “determinative issue”, being the reasonableness of relocation within India (whether with or without his wife) by reason of the discussion at the hearing before the Tribunal.

1. It follows that there was no breach of s.425 of the Migration Act it that regard.

The Tribunal should not be too quick to resort to the internal relocation principle.

1. The case before the Tribunal was unusual in that the separate protection claims of this applicant emerged on his review application following the rejection of his wife’s claims.  In effect, therefore, the Tribunal was required to address particular factual claims for the first time on review.  The Tribunal appears to have had some difficulty in addressing those claims.

2. There is a stark difference of approach between that of the delegate in relation to the applicant’s wife’s claims[61], and those of the Tribunal[62].

   [61] Commencing at CB 76

   [62] CB 170

3. In reading the Tribunal’s findings and reasons[63], it is noteworthy that the Tribunal had serious and substantial credibility concerns about the applicant’s claims.  The Tribunal was concerned about significant inconsistencies and implausibilities in those claims.

   [63] From CB 191

4. The Tribunal decision substantially reads as a decision which is likely to result in a rejection based on those credibility concerns.  Nevertheless, the Tribunal accepted, at [130] and [131] of its reasons[64], some important factual elements of the applicant’s claims.

   [64] CB 196-197

5. There is some awkwardness in that acceptance in the light of the Tribunal’s credibility concerns and further awkwardness in the Tribunal’s resort to the issue of relocation, which is dealt with relatively briefly.

6. Relocation should not be thought of as a general answer to difficult claims.  The Court notes that relocation is relatively commonly used by decision-makers to deal with claimants from India.  The obligation on decision-makers is to consider protection claims as put.  It is only when a well-founded fear of serious harm for a Convention reason is established that the issue of relocation arises.  Decision-makers need to be careful not to put the cart before the horse.

7. The Tribunal does not appear to have had regard to country information on the issue of relocation.  It is not clear from the reasons whether the Tribunal envisaged that the applicant would relocate within his home state of Kerala or elsewhere in India.  There appears to be an implication in the Tribunal’s reasons that the applicant would only need to relocate away from his local area.

8. The applicant’s statements to the Tribunal, at the hearing conducted by it, focused on his fear of the Congress party in respect of relocation.  If he had raised claims of practical difficulties in relocation, for example, because of language or religion or some other factor, then the Tribunal would have had to consider those issues.  It does not appear, however, that the applicant raised any particular practical concerns about relocation.

9. The Tribunal reasoned, at [135] of its reasons[65], that the applicant was young, well-educated and resourceful.  He has also lived and worked abroad on several occasions.  That may well be the case with many claimants from India.  Nevertheless, it would be a concern if it appeared that the Tribunal was too quick to resort to the relocation principle as an easier option than rigorously testing and resolving protection claims.

   [65] CB 197

Conclusions

1. The applicant’s concern that the Tribunal did not consider that he would return to India with his wife and that she would be a partner in any relocation is not borne out by the Tribunal’s reasons.  The Tribunal appears to have accepted, [132] of its reasons,[66] that if the applicant returns to India he will go there with his wife.  At [135][67] the Tribunal dealt with the issue of relocation on the bases of either the applicant being alone or with his wife.  The evidence does not, therefore, support the first ground of review.

   [66] CB 197

   [67] CB 197

2. Likewise, the evidence does not support the second ground of review.

3. It is apparent, from the Tribunal’s record of what occurred at the Tribunal hearing, that the Tribunal put the applicant on notice that an issue in the review would be the issue of relocation.  The applicant put submissions to the Tribunal on that issue.

4. These are adversarial proceedings and the applicant has had the benefit of some legal advice and assistance in preparing his amended application.

5. I do not rule out the possibility that other legal issues might hypothetically have been raised in relation to the Tribunal’s approach to the issue of relocation.  However, on the basis of the grounds advanced in the amended application and on the basis of the material available before me, I am not persuaded that there is any jurisdictional error in the decision of the Tribunal.

6. The decision is therefore a privative clause decision and the application must be dismissed.  I so order.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs in the scale amount of $6,240.  The applicant claims impecuniosity but it has been repeated stated, that is not a reason for the Court to refrain from making a costs order.  I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  16 December 2011