SZQMT v Minister for Immigration - [2012] FMCA 101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQMT v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 101

MIGRATION – RRT decision – Indian woman claiming fear of persecution as lesbian – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.36(2), 91R, 91R(1)(b), 91R(2)(a)

SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18

Applicant:

SZQMT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1675 of 2011

Judgment of:

Smith FM

Hearing date:

9 February 2012

Delivered at:

Sydney

Delivered on:

9 February 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1675 of 2011

SZQMT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for judicial review of a decision of the Tribunal made on 8 July 2011. The Tribunal affirmed a decision of a delegate of the Minister to refuse protection visas to the applicant and her husband. The husband’s matter has proceeded separately in the Tribunal, and then in this Court.
The applicant’s application to the Court was listed at a first court date before me on 23 August 2011, and I set the matter down for hearing today. The applicant was referred for free legal advice and it is unclear from the file whether she availed herself of that opportunity. However, she has not filed an amended application for further arguments to explain the grounds in her application which I shall address below.
The hearing today was preceded by a communication to the Registry from the applicant two days ago, in which the applicant appeared to seek an adjournment of her case because she was pregnant. Her pregnancy was confirmed by a medical certificate indicating an expected date of delivery in April 2012, but the certificate only said that she was “unable to perform Jurry duty”. An officer of the Registry communicated to the applicant that her adjournment application would be addressed at the start of the hearing, and that her certificate might not be adequate. The applicant did attend this morning, and has not appeared to have encountered any difficulties in the course of the short hearing. Unfortunately, we had the benefit of an interpreter only by telephone, but this procedure did not suffer any difficulties. I am satisfied that the applicant has had the fullest opportunity today to present her case to the Court.
The applicant and her husband arrived in Melbourne on transit visas on 24 May 2010, their passports having visas to travel to New Zealand. On the day after their arrival, they lodged applications for protection visas in Sydney. The applicant wife presented herself as the primary applicant, and her husband appeared as secondary applicant with no separate claims to be a refugee. Her application said only that she had left her country of nationality, India, for “political issues”.

It suggested that she might be harmed or mistreated by “communist party & RSS”, and “we have already faced the attacks several times”. However, these claims were unexplained and unsupported.
Subsequently, on 5 July 2010 an unsworn unsigned statement of the applicant wife was forwarded to the Department of Immigration.

In this, the applicant said she was an active member of the KCSL (Kerala Catholic Students League), and became the school chairman. She referred to having a sexual encounter with a fellow school girl, and said that at college she was “addicted in homosexuality. I could not control myself. Slowly I had a relationship with one of my previous friends”. She said that her activities caused concern in her friend’s family, and came to the attention of her own father. She claimed that:
In order to convince the people he forced me to marry a person … who is my husband even without a single percentage of interest. My husband was a strong activist in Indian National Congress Party (INC). After marriage only he came to know all the stories about me. I never had a sexual relationship with him. I myself feel that I am a man.
She claimed that the Congress Party and the KCYM people had been involved in an attempt to injure the applicant and her husband in a motor traffic incident. She claimed:
If I go back to India definitely I will be killed, also they will attack my family and my father who already had a heart attack because of the KCYM people. The Indian authorities cannot protect me. Even when the people attacked me I couldn’t go to the police why because if I go to them I must tell the reason behind if I reveal that I am Lesbian, they will put me in the jail, because I know it’s a great crime in India and I will be imprisoned for long time.
I cannot move to any of the other parts in India because the people who targeted me is KCYM, who have the great influence around India through ICYM, and also the political party that my husband belongs to have a great revenge on me.
Once I reach here I feel very happy, I don’t want to fear any one, I don’t want to be a lesbian. If I go back no on can protect me, so please protect my life.
The applicant and her husband were interviewed by the Minister’s delegate, who made a decision to refuse the visas on 5 November 2010. The delegate thought that the applicant’s claims were implausible because they were inconsistent with the conduct of the applicant and her husband and with their evidence to the delegate. The delegate also said that “even if the applicant is lesbian”, she could live separately from her husband elsewhere in India.
The applicant and her husband appealed separately to the Tribunal, although it was constituted by the same member in each review. I am today dealing only with the Tribunal’s decision in relation to the applicant wife.
The Tribunal member held separate hearings involving both of the applicants. On 22 February 2011, it conducted a hearing with the applicant wife, which appears to have lasted three hours. On 10 and 11 March 2011, it held a hearing in the husband’s application. After these interviews, it sent a letter to the two applicants raising issues arising from their evidence. It then received their responses at a further hearing held on 3 May 2011.
The Tribunal’s decision was made on 8 July 2011, in which it affirmed the delegate’s decision. In her statement of reasons, the Tribunal member recounted in detail the course of the interviews and hearings.
In her “Findings and Reasons”, the Tribunal accepted parts of the applicant’s claims, but not others. The Tribunal accepted that the applicant had had sexual encounters with people of her gender as a schoolgirl and at college. After considering the evidence of the applicant and her husband as to their living arrangements in Australia and India, the Tribunal said:
The Tribunal has formed the view that the parties, whilst they currently live under the same roof do not share a marital relationship. In their own words they live as good friends and the applicant husband seeks to support and assist the applicant.
However, the Tribunal said that it “does not make a finding that the applicant is lesbian”. I think it meant that it found that she was not an active lesbian, because it accepted that the applicant preferred to live with her husband and had not sought to pursue any lesbian relationships in Australia. The Tribunal member concluded:
114.On the basis of all of the evidence before it the Tribunal has formed the view that the applicant will not seek to engage in same sex relationships in the future if she returns to India. It finds that, as in Australia she will continue to live with the applicant husband as she has done in the past in India and for some of the time she has been in Australia. The Tribunal finds that the essential and significant reason for this conduct on the part of the applicant is not attributable to any Convention ground. She told the Tribunal and the Tribunal accepts that she has remained in the marriage because she wants to act in what she sees as her father’s best interests giving the impression that the marriage is sound. At the hearing the applicant said that she could not safely relocate in India because the KCYM and Congress Party are represented outside Kerala and throughout India. The Tribunal finds that the source of the applicant’s difficulties in [location] was specifically the KCYM membership in her parish. Likewise the Congress Party people were those from [location] and [location]. Their interest was such, only because the applicant husband had formerly been active there for the Party and ceased to be so after his marriage. In such circumstances the Tribunal finds that the interest of these particular groups will not extend beyond the localised areas mentioned.
Although the Tribunal accepted that the applicant had suffered harassment arising from gossip derived from the applicant’s school and college life, and that the harassment had amounted to “serious harm for the purposes of s.91R(1)(b) of the Act”, it was satisfied that the applicant could “safety relocate elsewhere in India removed from her local area”.
In relation to the practicality of such a move and the risks of persecution in other locations, the Tribunal concluded:
115.The applicant has provided no persuasive reason as to why she would be unable to safely relocate elsewhere in India. As the Tribunal discussed with her at the hearing she is young, well‑educated and resourceful. Furthermore, she has the support of the applicant husband who has shown himself willing to assist and support her from the time of the marriage. Nothing in the evidence of the parties at their hearings suggested that this will not continue if they return to India.
116.The Tribunal finds that if the applicant relocates to a different part of India there is no real chance that she will face harm by members of the KCYM or members and supporters of the Congress Party or indeed anyone else, for the reason that she is perceived to be a member of a particular social group or indeed for any other Convention related reason. On the basis of the evidence before it and having regard to the applicant’s circumstances overall the Tribunal is satisfied that it would be reasonable and practicable for the applicant to safely relocate to a different part of India.
The applicant’s grounds of review set out in her original application are:
1.The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if she asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.
3.The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.
As I have noted, these grounds have not been amplified or explained in any amended application or written submissions. Today the applicant had no arguments to explain them, although she made clear that she disagreed with the Tribunal’s assessment that she could live safely in India away from her local area.
Doing the best I can with the assistance of counsel for the Minister, I do not think that any of these grounds has substance.
The Tribunal showed clearly that it was alive to the requirements of s.91R in relation to the test of serious harm. In my opinion, it has made clear findings that the risk of encountering that harm if the applicant returned to India would be localised. Its finding in paragraph 116 as to the absence of a real chance of persecution in other locations is clearly framed by reference to the real chance test. In my opinion this reasoning shows that the Tribunal has properly addressed the question whether territorial distinctions could be made in relation to the risks of persecution, before considering the reasonableness and practicability of relocation elsewhere (compare SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at [25], [26] and [32]).
I can find nothing in the Tribunal’s reasoning that it misunderstood or misapplied s.91R(2)(a) or any other provision of the Migration Act 1958 (Cth), nor am I able to discern any error by the Tribunal in how it has arrived at and framed its conclusions as to the risks of Convention‑related persecution faced by the applicant in India away from her local area. Ground 1 has not been made out.
I am unable to discern any other point which might be raised by Ground 2.
Without further explanation I am unable to read Ground 3 as doing anything more than raising for the Court’s consideration the merits of the Tribunal’s factual conclusions as to the applicant’s refugee status for the purposes of s.36(2) of the Migration Act. However, it is not the Court’s function to decide the merits of the applicant’s refugee claims for itself.
For the above reasons, I am unable to uphold any of the grounds raised by the applicant, and I am unable to identify any other basis for finding jurisdictional error affecting the Tribunal’s decision.
The decision is therefore a privative clause decision, and I must dismiss the application.

I certify that the preceding twenty‑two (22) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 17 February 2012