SZSQH v Minister for Immigration
[2013] FCCA 817
•15 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSQH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 817 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – applicant believed but Tribunal finding that the applicant could relocate within India to avoid the harm – Tribunal found that the risk of harm was limited to Punjab and that the applicant and his partner could practicably live elsewhere in India – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.36 |
| CZAY v Minister for Immigration & Anor [2012] FMCA 50 Minister for Immigration v CZAY [2013] FCA 244 Plaintiff M13/2011 v Minister for Immigration (2011) 121 ALD 466 SZOJV & Ors v Minister for Immigration & Anor (No.2) [2012] FMCA 29 SZOJV & Ors v Minister for Immigration [2012] FCA 459 SZQBC v Minister for Immigration & Anor [2011] FMCA 563 |
| Applicant: | SZSQH |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 434 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2013 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms S Given |
| Solicitors for the Respondents: | Minter Ellison |
INTERLOCUTORY ORDERS
The name of the first respondent be amended to the Minister for Immigration, Multicultural Affairs and Citizenship.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 434 of 2013
| SZSQH |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 7 February 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims based upon his relationship formed in Australia to a Sikh woman, whereas he is a Muslim. He feared harm from members of his partner’s family in India.
The applicant applied to the Minister’s Department for a protection visa on 13 February 2012. That application was rejected by the delegate on 17 September 2012 and the applicant sought review before the Tribunal. The Tribunal was unable to make a favourable decision on the papers and invited the applicant and his partner to a hearing. The applicant and his partner attended that hearing and presented arguments and answered questions.
The Tribunal accepted that the applicant is a Muslim and that his partner is a Sikh. At [107] of its reasons[1], the Tribunal found, having regard to evidence about so called honour killings in Punjab, that the applicant’s partner’s brother had made threats to kill the couple. The Tribunal found at [108][2] that the applicant did face a well-founded fear of harm in Punjab because of his membership of a particular social group of spouses in mixed marriages in Punjab.
[1] court book (CB) 123
[2] CB 123
However, the Tribunal then turned its attention to the possibility of relocation. The Tribunal dealt with that issue at [109]-[112] of its reasons:
The evidence from other sources, which was discussed with him, indicates that couples in mixed marriages move from conservative rural areas to the cities for protection because urban areas are more liberal. The applicant has expressed the intention of finalising his divorce, marrying Ms … and possibly converting to Christianity. He does not claim to have any fear of harm for converting. He also does not claim that he would have to tell his family of his return to India, or that he would wish to travel to Punjab, particularly as he is estranged from his family. His fear is that if he moves to an urban area outside Punjab he might be seen by a person who knows his history, and that this would put him at risk. In my view, given India’s size and population, it is highly unlikely this will occur.
Further, even if he did not convert but remained in a relationship that was perceived to be a Sikh/Moslem marriage, the evidence from DFAT (2011) that people in such marriages choose to move to the cities, presumably because they are safe there from any serious harm, satisfies me that the chance would be remote that he would face any serious harm by members of the local community as a result.
As to his fear [that] he would be killed in other parts of India because he is a Muslim, I am satisfied, and he did not dispute, that the vast majority of citizens of all religious groups in India live in peaceful coexistence and are conscious of religious freedom and minority rights, despite at time there being violence between religious groups and organised communal attacks against religious minorities. This evidence does not indicate that being Muslim gives rise to a well-founded fear of being persecuted in India. I find that the applicant does not have a well-founded fear of being persecuted for the Convention reason of religion in India.
As to whether it would be reasonable for him to relocate within India, I have had regard to several factors. Firstly, he has completed 12 years of education and his partner … has a university degree. Their opportunities for employment and thus and income are reasonable. Secondly, he said on the protection visa application form that he speaks, reads and write Punjabi, and reads and writes English. Thirdly, he has personal characteristics that will help him to relocate within India, having shown independence and determination in moving between cities in a new country, finding work at times, and establishing a new relationship under difficult circumstances.
The Tribunal concluded that because he could relocate within India, the applicant did not have a well-founded fear of being persecuted for a Convention reason. That finding enlivened the Tribunal’s obligation to consider complementary protection pursuant to s.36(1)(aa) of the Migration Act 1958 (Cth) (Migration Act). The Tribunal considered the complementary protection criterion briefly at [114] and [115][3] and again found that the risk of significant harm could be avoided by relocating away from Punjab.
[3] CB 124
These proceedings began with a show cause application filed on 6 March 2013. The applicant now relies upon an amended application filed on 21 May 2013. That application has one particularised ground:
1. The Tribunal’s decision was affected by jurisdictional error in that the Tribunal misunderstood, or failed to correctly apply the test in s.36(2B)(a) of the Migration Act 1958.
Particulars
Having been satisfied that there was a real risk of significant harm to the Applicant in the Punjab, the Tribunal was required to consider whether it was reasonable for him to relocate to an area of the country where there would not be a real risk that he would suffer such harm.
The Tribunal failed to identify any specific area of the country, other than “the cities”. The clear intention of the Act is that the Tribunal must consider the situation of at least one specific area of the country in order to determine whether the person could reasonably relocate there and whether there would be no real risk of harm to the person in that place.
The Tribunal relied on DFAT advice from 2011, which was not relevant to the determination of the complementary protection provisions of the Act.
I note that the amended application was prepared by Mr Michael Jones, a solicitor who provided advice to the applicant pursuant to the Minister’s panel advice scheme. Mr Jones wrote to the Court on 21 May 2013 to inform the Court of the action that he had taken and noting that he did not have instructions from either the applicant or his partner to represent them further in the matter.
The applicant attended court today but was not in a position to make any submissions on the legal issues raised in the amended application. I received oral submissions from the solicitor for the Minister who, in reliance upon the Minister’s response filed on 19 March 2013, put to me that there was no arguable case of error by the Tribunal.
It is not clear whether the ground in the amended application is intended to rely upon any particular authority. The Minister’s solicitor speculated that it might have been intended to rely upon a decision of this Court in CZAY v Minister for Immigration & Anor[4]. That decision was, however, overturned by the Federal Court in Minister for Immigration v CZAY[5]. It is also possible that the ground might have been intended to draw support from the judgment of Hayne J in Plaintiff M13/2011 v Minister for Immigration[6]. The issue is whether a decision-maker in making a relocation finding needs to consider the practicability of relocating to a particular location or locations. The Minister’s solicitor took me to the decision of this Court in SZQBC v Minister for Immigration & Anor[7]. There, at [36] in particular Smith FM, in considering the judgment of Hayne J in M13, took the view that where a risk is localised it is open to a decision-maker to make a finding that the risk could be avoided by relocation away from the local area.
[4] [2012] FMCA 50
[5] [2013] FCA 244
[6] (2011) 121 ALD 466
[7] [2011] FMCA 563
I note that that decision was followed by Judge Nicholls in SZOJV & Ors v Minister for Immigration & Anor (No.2)[8], in particular at [64] and [65]. I agree with that analysis. In considering the possibility of relocation, depending on the circumstances, a decision-maker may take several approaches. A decision-maker may find that an applicant would face a well-founded fear of persecution in some areas of a country but that risk could be avoided by relocating to one or more specific safe locations. In such an analysis the decision-maker is drawing the boundaries of safety in particular locations in a country.
[8] [2012] FMCA 29, affirmed on appeal in SZOJV v Minister for Immigration [2012] FCA 459
In other circumstances, however, where the risk is localised, it is in my view open to a decision-maker to draw the boundaries of safety around the local area so that potentially the whole of a country may be safe outside the risk area. That is not to say that a decision-maker can avoid considering the practicalities of relocation but in the present case the tribunal did give adequate regard to that issue.
The amended application refers specifically to s.36(2B)(a) of the Migration Act. That section is only relevant to the consideration of relocation in respect of the complementary protection criterion. What is of potential significance here is that the Migration Act says nothing about relocation for the purposes of the Refugees Convention criterion. Parliament has, however, provided specific guidance to decision-makers on relocation for the purposes of dealing with the complementary protection criterion. Paragraph (a) of section 36(2B) states relevantly that there will not be a real risk to a person if the Minister is satisfied that:
it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm.
Those words suggest that some area needs to be identified. However, I see no reason why the area cannot be identified in one of the two ways I have described, namely, either the identification of particular safe localities or the delimiting of a local area of risk which results in the conclusion that the rest of the country is safe. In the present case the Tribunal had to make two relocation findings. That was because the Tribunal’s power and obligation to consider complementary protection was only enlivened if the applicant was not found to be a person entitled to protection under the refugee criterion.
The first relocation finding was a necessary prerequisite to the consideration of complementary protection. The complementary protection assessment depended upon the same facts and considerations as the refugee assessment. In the circumstances of this matter, I see no arguable case of jurisdictional error by the Tribunal in relation to either of the two assessments.
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application the Minister seeks an order for costs. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 July 2013
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