SZRVM v Minister for Immigration

[2013] FCCA 775

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRVM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 775

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Legislation:  

Migration Act 1958 (Cth), ss.36, 424, 424A, 425

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253

SZATV v Minister for Immigration and Citizenship andAnother (2007) 233 CLR 18; [2007] HCA 40
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

SZFDV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 51; [2007] HCA 41

Applicant: SZRVM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2133 of 2012

Judgment of: Judge Barnes

Hearing date: 28 June 2013

Delivered at: Sydney

Delivered on: 28 June 2013

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The Application is dismissed. 

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2133 of 2012

SZRVM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 27 August 2012.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of India, arrived in Australia in May 2008 as the holder of a student visa.  He applied for a protection visa on 20 September 2011.  He claimed to fear that as a member of a particular Sikh community in the Punjab he would be killed because he had married his girlfriend, a Hindu woman, in Australia in February 2010. He claimed he would be the victim of an honour killing.  He also claimed to fear that his uncle may hire someone to kill him and that the authorities could not protect him as they were powerless to prevent honour killings and his uncle had a good position in the government. The Applicant provided some limited documentation in support of his application.

3. The delegate refused the application on the basis that the Applicant was not in a genuine, committed or meaningful relationship, that in any event the authorities did not endorse honour killing and that it would be reasonable for the Applicant to relocate if he were in danger in his home State.  While finding that the Applicant was not in a genuine ongoing marital relationship (and therefore would not be subject to persecution from non-state actors), the delegate nonetheless addressed his relocation options and the Applicant’s contentions that he would not be able to relocate for various reasons. 

4. The Applicant sought review by the Tribunal.  He was invited to attend a Tribunal hearing.  After adjournments, the Tribunal hearing was held on 21 and 3 May 2012.  The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal account in its reasons for decision.  I will return to the details of what occurred at the Tribunal hearing in considering the grounds relied on by the Applicant, but I note that the Tribunal took evidence from the Applicant and from the Applicant’s wife and that at the end of the hearing, at the request of the Applicant’s then representative, it gave the Applicant until 6 June 2012 to provide evidence and further submissions.

5. On 29 May 2012 the Tribunal wrote to the Applicant pursuant to ss.424 and 424A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on information provided orally at the Departmental interview and his wife’s evidence at the Tribunal hearing. He was also invited to provide evidence to support his claim that he and his wife were in a genuine and ongoing marital relationship. The Tribunal indicated the kind of evidence that may be provided. He was given until 12 June 2012 to provide such comments, response and information.

6. It appears that there was no response until 14 June 2012, when the Applicant provided additional material which addressed factors relevant to his relationship with his wife.  On 24 August 2012 he provided a statutory declaration sworn by his wife addressing aspects of her evidence and providing further information. 

7. As indicated, in its decision of 27 August 2012 the Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.  In its findings and reasons the Tribunal referred to the substantial further evidence it had received about the Applicant’s relationship that had not been available to the delegate.  It accepted that the Applicant, a Sikh, was in a genuine and ongoing marital relationship with his wife, a Hindu.  In reaching that conclusion it addressed some issues of concern, referred to evidence provided by the Applicant and his wife and concluded that, notwithstanding that they were not living together in Australia, it accepted that they were in a genuine and continuing marital relationship.

8. Hence, the Tribunal went on to consider the Applicant’s claimed fear of persecution for reasons of being in an inter-religious marriage.  The Tribunal accepted that there was credible country information indicating a prevalence and, indeed, an increase in honour killings and family violence in the Punjab, (the part of India from which the Applicant came) in recent years, that the attitude to inter-religious married couples was not favourable and there was a “high incidence of violent attacks … against mixed marriage couples and ineffective police protection against those who perpetrat[ed] such crimes”.  In light of such information, the Tribunal was unable to discount the possibility “that there [was] a chance, that would be more than remote, the applicant [would] face serious harm amounting to persecution as a result of the adverse reaction to his marriage from his family should he return to Punjab”.  It also accepted that the reasons for such potential persecution fell within the Convention grounds of religion or membership of a particular social group, that such reasons would be the essential and significant motivation for the persecution feared and that on the country information before it, protection from the state was not likely to be effective against such harm in the state of Punjab.

9. However the Tribunal considered whether it would be reasonable for the Applicant to relocate to a part of India where he would not face persecution.  In that context it referred to relevant authorities, in particular the decisions in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253 and the High Court decisions in SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40 and SZFDV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 51; [2007] HCA 41 setting out the law in relation to relocation and the reasonableness of relocation.

10. The Tribunal addressed the Applicant’s claim that he would not be safe anywhere in India because his uncle had political power and contacts and his family would be able to find him.  It referred to the Applicant’s evidence in this respect at the hearing, including the fact that when it asked the Applicant to elaborate on his uncle’s political connections, he had referred to him being known in Amritsar and influential when it came to voting and when asked how this was relevant to his uncle’s ability to find him elsewhere in India, the Applicant had said his uncle had good links to the police and could inform them to find him.  The Tribunal found the Applicant’s evidence about the uncle’s political connections was “vague and lacking in detail such as not to be credible”.  It had regard to the fact that it had raised the lack of detail about such claimed political connections at the hearing and that the Applicant had not then or thereafter, given any further details, that would allow the Tribunal to test the veracity of such a claim.

11. On the evidence before it, the Tribunal did not accept that the Applicant’s uncle had the political power claimed that would enable the Applicant’s family to locate him outside Punjab.  It found that there was not a real chance of harm to him on this basis from his family or local community were he to live elsewhere in India. 

12. In addition, the Tribunal did not accept that there was real chance of harm to the Applicant from members of the Sikh or Hindu community, in particular extremists in those communities, outside the Punjab.  It considered this issue notwithstanding that the Applicant had not made specific claims to suggest he feared harm from such sources or, indeed, from his wife or her family.  The Tribunal concluded that independent information before it did not support the conclusion that there would be a real chance of harm to the Applicant outside the Punjab from the Sikh community generally or from extremist Hindu or Sikh groups for reasons of his inter-religious marriage.

13. The Tribunal concluded that on the evidence before it that “relocation by the applicant would be reasonable, in the sense that it would be practical”.  The Tribunal specifically addressed the Applicant’s claim that he could not relocate because he would live in fear anywhere he went in India and would never have freedom, but having concluded that there was not a real chance he would face serious harm from his family or extremist Sikh or Hindu groups outside the Punjab, found that relocation would not be unreasonable simply because an Applicant had a subjective fear that was not well-founded.

14. The Tribunal considered the Applicant’s age and personal circumstances, finding that he was young, educated, spoke, read and wrote Punjabi, Hindi and English and that he “had accumulated life experiences of living independently from his family, including supporting himself and his wife, for the past 4 years in Australia”.  Taking into account the Applicant’s particular circumstances, the Tribunal was “satisfied it [wa]s objectively reasonable to expect [him] to relocate to another part of India where there [wa]s not a real chance he [would] face persecution”.

15. Accordingly the Tribunal was not satisfied the Applicant had a well-founded fear of persecution for any Convention reason now or in the reasonably foreseeable future if he returned to India.

16. The Tribunal also considered the complementary protection criterion on the basis of the claims and evidence put forward by the Applicant. It considered relocation in this context in light of s.36(2B)(a) of the Act under which there is taken not to be a real risk an applicant will suffer significant harm in a country if the Tribunal is satisfied it would be reasonable for the Applicant to relocate to an area of the country where there would not be a real risk that the Applicant would suffer significant harm. It found, for the reasons given, that it would be reasonable for the Applicant to relocate to another part of India outside the Punjab where there would not be a real risk that he would suffer significant harm. Based on its findings in that respect the Tribunal was not satisfied there were substantial grounds for believing there was a real risk the Applicant would suffer significant harm if he returned to India now or in the foreseeable future.

17. The Applicant sought review of the Tribunal decision by application filed in this court on 28 September 2012.  The only ground in his application is an unparticularised claim that he believed that the decision by the Tribunal was “wrong”.  He reiterated this claim in his supporting affidavit, without explanation.  The Applicant was given the opportunity to file an amended application, further evidence, including any transcript of the Tribunal hearing and written submissions.  He did not do so.

18. However at the hearing today he raised what would appear to be two issues in relation to the Tribunal decision.  First he appeared to take issue with the manner in which the Tribunal dealt with evidence provided by him and his wife after the Tribunal hearing, insofar as the Tribunal appeared to accept such documents, but went on to find that he could relocate.  In addition, the Applicant complained about the Tribunal’s relocation finding.  He claimed that the Tribunal did not explore with him the issue that he could relocate elsewhere in India and that he was surprised to see that the decision was based on relocation.

19. Before turning to those issues, I note in relation to the ground as expressed in the application that insofar as the Applicant seeks to cavil with the factual findings of the Tribunal, factual findings are a matter for the Tribunal.  The Tribunal’s findings were open to it on the material before it for the reasons that it gave.  Merits review is not available in this court. 

20. In written submissions the solicitor for the First Respondent quite properly considered the Tribunal’s decision independently of the pleaded ground in circumstances where the Applicant was unrepresented.

21. I accept the submissions for the First Respondent that the Tribunal has not been shown to have erred in the manner in which it considered relocation in its reasons for decision.  It correctly identified the relevant law in relation to the issue of reasonableness of relocation and followed the approach to determining the reasonableness of relocation discussed in Randhawa, SZATV and SZFDV observing, in particular, that what is reasonable in the sense of practicable must depend upon the particular circumstances of the Applicant and the impact on that person of relocation within his country and that whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights, the Refugees Convention being concerned with persecution in the defined sense, not with living conditions in a broader sense.  

22. The Tribunal addressed the issue of whether outside the Punjab there would be any appreciable risk of the occurrence of the feared persecution. In that context it considered the issues raised by the Applicant, in particular about his uncle’s claimed political power and that his family would be able to find him.  However it found vagueness and lack of detail in that respect.  The Tribunal did not accept on the evidence before it that the Applicant’s uncle had political power in India such as to enable his family to locate the Applicant outside the Punjab.  It therefore found that there was not a real chance of harm to the Applicant on this basis from his family or local community were he to live elsewhere in India.  The Tribunal also considered whether there was a real chance of harm to the Applicant from members of the Sikh or Hindu communities outside the Punjab.  It addressed the issue of whether relocation would be reasonable in the sense of practical.  In that context the Tribunal considered the obstacles to relocation raised by the Applicant as set out above.  It considered the Applicant’s particular circumstances in concluding that it was objectively reasonable to expect him to relocate to another part of India where there was not a real chance he would face persecution.  No jurisdictional error is apparent in the manner in which the Tribunal dealt with the issue of relocation in its reasons for decision. 

23. Turning then to the issues raised by the Applicant at the hearing today, insofar as there is a contention that the Tribunal did not consider or did not give sufficient consideration to the material provided by the Applicant after the Tribunal hearing such claim is not made out. The Tribunal wrote to the Applicant under s.424A and s.424 of the Act raising issues and seeking comment and information in relation to the genuineness of the Applicant’s relationship with his wife. It is apparent that the information provided by the Applicant in response on 14 June 2012 was information that addressed the issue of whether he and his wife were in a genuine and ongoing marital relationship in circumstances where he had been invited to provide evidence on matters such as financial and social aspects of the relationship, evidence of cohabitation and the nature of their commitment. In addition, evidence was subsequently provided by the Applicant addressing specific concerns the Tribunal had raised in relation to aspects of and inconsistencies in the evidence provided by the Applicant’s wife.

24. In its reasons for decision the Tribunal referred to the evidence provided by the Applicant after the hearing, summarising the documents provided in some detail.  In its findings and reasons the Tribunal made the point that it had substantial further evidence about the issue of the Applicant’s relationship that had not been available to the delegate.  It referred specifically to the evidence provided after the hearing, which it described as including phone records, photographs and bank statements evidencing various aspects of the relationship, as supporting the existence of the relationship.  The Tribunal also referred to various aspects of the evidence of the Applicant and his wife in relation to their relationship.  It addressed particular concerns it had and referred to the responses it had received in that respect.  Indeed, the Tribunal considered the response to its letter of 24 May 2012 notwithstanding that it was received outside the time provided for in that letter.  While it expressed concern in relation to the Applicant’s wife’s lack of knowledge and some inconsistencies in the evidence, nonetheless the Tribunal, on balance, accepted that the Applicant and his wife were in a genuine and continuing marital relationship. In reaching this conclusion it referred in particular to aspects of the relationship demonstrated by the information provided after the hearing.

25. In these circumstances there is nothing in the material before the Court to support any contention that the Tribunal failed to have regard to the information provided after the hearing, let alone that it did so in any manner constituting jurisdictional error.  On the contrary, the Tribunal reached a conclusion in relation to the genuineness of the marriage and the relationship between the Applicant and his wife consistent with the evidence provided after the hearing.  No jurisdictional error is established arising out of the manner in which the Tribunal addressed the information provided after the Tribunal hearing.

26. As to the issue of relocation, I have considered whether, on the material before me, there is any indication that dispositive issues were not raised at the Tribunal hearing in relation to relocation, whether it was necessary for the Tribunal to raise the issue of relocation or any aspect thereof with the Applicant in the s.424A letter as well as the issue of whether there is any jurisdictional error apparent in the manner in which the Tribunal approached the issue of relocation discussed above.

27. As indicated, the only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.  The Applicant was given, but did not take, the opportunity to file a transcript of the Tribunal hearing.

28. In relation to any claim of a failure to raise the issue of relocation as a dispositive issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]), I note first that the relevance of relocation was made apparent by the delegate, notwithstanding the conclusion the delegate reached about the Applicant’s relationship.

29. The Tribunal set out in detail what occurred at the Tribunal hearing, including the fact that when it first took evidence from the Applicant it asked him whether he could live elsewhere in India, referred in some detail to what independent country information suggested and discussed with the Applicant the claim he made about his uncle’s political power and contacts being such that he would be found and would be at risk anywhere he went.

1. The Tribunal also asked the Applicant’s wife if she had discussed the possibility of living elsewhere in India and recorded her response.  At what appears to be the conclusion of the hearing the Tribunal again put to the Applicant country information about the relocation option and explained that it must consider whether, if there was a real chance of harm in Punjab from his family, it was reasonable to expect him to live elsewhere in India where he would not be at risk of such harsh, unjust or unreasonable treatment.  Thus it clearly raised the issue of relocation.  When the Applicant claimed he could not relocate because he would live in fear anywhere he went and would not have freedom, the Tribunal recorded that it raised with the Applicant that while he had said he believed his uncle could find him anywhere, he had not provided any specific information about why he believed his uncle could or would do this.  The Tribunal then asked the Applicant if he wanted to say anything further, but he had nothing to add.  The Tribunal invited his representative to make submissions.  The representative asked for, and was given, additional time to make submissions. 

2. In these circumstances, there is simply no basis for any contention that the Tribunal failed to raise as a dispositive issue the issue of relocation outside the Punjab, including the reasonableness of relocation, any obstacles to relocation and the concerns it had with the Applicant’s evidence in that respect. There is nothing to support the Applicant’s claim that the point that he could relocate was never explored with him, insofar as he intended to make such a claim in relation to the hearing. There is no substance in any contention that there was a failure to comply with s.425 of the Act.

3. Insofar as the Applicant’s claim may be seen as a contention that the Tribunal should have raised the issue of relocation, independent evidence about relocation or concerns about relocation in its s.424A letter, such claim is not made out. There is nothing to suggest that there was any information within s.424A(1) of the Act that the Tribunal was obliged to put to the Applicant. It is well-established that Tribunal reasoning and thought processes do not constitute information within s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26).

4. Insofar as the Tribunal relied on independent information in relation to relocation, such independent information would be within the exception in s.424A(3)(a) of the Act. The Tribunal was not obliged under s.424A to raise with the Applicant its concerns about the inadequacy of the Applicant’s explanations or, indeed, to give the Applicant a further opportunity in writing to provide further information in relation to the issue of relocation. No failure to comply with s.424A or s.424 is apparent in the circumstances of this case.

5. As no jurisdictional error has been established on any of the bases contended for, or apparently contended for, by the Applicant the application must be dismissed.

6. The Applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant departure from the normal principle that the unsuccessful Applicant should meet the costs of the First Respondent. In the particular circumstances of this case, including the last minute adjournment of the originally scheduled hearing, I am satisfied that it is appropriate that costs be fixed in accordance with the amount provided for in the Federal Circuit Court Rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Barnes.

Associate: 

Date: 22 July 2013