SZSQH v Minister for Immigration and Border Protection

[2013] FCA 1195

FEDERAL COURT OF AUSTRALIA

SZSQH v Minister for Immigration and Border Protection [2013] FCA 1195

Citation:	SZSQH  v Minister for Immigration and Border Protection [2013] FCA 1195
Appeal from:	SZSQH v Minister for Immigration [2013] FCCA 817
Parties:	SZSQH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1481 of 2013
Judge:	TRACEY J
Date of judgment:	8 November 2013
Catchwords:	MIGRATION – application for leave to appeal – decision of Refugee Review Tribunal refusing protection visa – decision affirmed by the Federal Circuit Court – failed to establish appealable error – application refused
Legislation:	Federal Circuit Court Rules 2001 (Cth) r 44.12 Migration Act 1958 (Cth) s 36
Cases cited:	Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 – cited SZOJV v Minister for Immigration (No 2) [2012] FMCA 29 – considered SZSQH v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 817 – cited
Date of hearing:	8 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	24
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First and Second Respondent:	Ms L Buchanan
Solicitor for the First and Second Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1481 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSQH
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	8 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.

2.The title of the first respondent be amended to Minister for Immigration and Border Protection.

3.The applicant pay the first respondent’s costs of the application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1481 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSQH
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	8 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against a decision of the Federal Circuit Court of Australia (“the FCC”) handed down on 15 July 2013:  see SZSQH v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 817. The Court dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). Leave is required because the FCC’s decision was made under Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and was, therefore interlocutory in nature: see Rule 44.12(2).

   BACKGROUND

2. The applicant is a citizen of India who arrived in Australia on 15 November 2008 as a dependent on his wife’s student visa.  The visa had been granted on 30 October 2008 and expired on 2 March 2010.  The applicant remained in Australia without a valid visa for approximately 23 months before lodging an application for a protection visa on 13 February 2012.  A delegate of the first respondent made a decision to refuse the application on 17 September 2012.

   CLAIMS BEFORE THE TRIBUNAL

3. The applicant claimed to have separated from his wife after they arrived in Australia and to be living in a de facto relationship with another woman.  He claimed to be a Sunni Muslim and that his de facto partner was a Sikh.  Their decision to live together attracted criticism from the Indian community and the applicant alleged that he had been threatened by his de facto wife’s ex-husband and some of her family members, particularly her brother.  He claimed that they had “bothered” his family members in India and threatened him with death if he ever returned.  The applicant claimed to have been disowned by his family in India who felt betrayed by him because they were now not safe.

4. The applicant claimed that his de facto wife’s ex-husband falsely told the Sikh community that she had converted to Islam.  Conversion was not accepted in the Sikh religion.  The applicant claimed that Sikh religious leaders had declared that the applicant should be punished by death.

   THE TRIBUNAL’S DECISION

5. The Tribunal accepted that the applicant was a Muslim in a de facto relationship with a Sikh woman.  It did not accept that his de facto wife’s ex-husband would harm him, nor that a religious leader had said that the applicant should be killed.

6. The Tribunal accepted that the applicant’s de facto wife’s brother had threatened to kill the couple.  It noted that most reported cases of violence in response to mixed-marriages take place in villages and small towns in northern and western India, and that the Punjab had a high rate of honour killings.  The Tribunal accepted that, should the applicant live with his partner in the Punjab, they would face violent and verbal abuse from some members of the community.  The Tribunal was satisfied that the applicant was a member of the social group ‘spouses in mixed marriages in Punjab’ who had a well-founded fear of being persecuted.

7. The Tribunal considered the applicant’s claim that, if he moved to an urban area outside the Punjab, he might be seen by a person who knew him and that this would put him at risk of harm.  Referring to information provided by the Department of Foreign Affairs and Trade in 2011, the Tribunal held that this was highly unlikely given India’s size and population.  The Tribunal noted the applicant’s language skills, education and personal characteristics and found his opportunities for employment and income in India to be reasonable.  The Tribunal found that the applicant could reasonably relocate within India and therefore did not have a well‑founded fear of persecution for a Convention reason.

8. For the same reasons, the Tribunal did not consider that the criteria for complementary protection had been established.  The application was dismissed.

   THE FEDERAL CIRCUIT COURT’S DECISION

9. The applicant sought judicial review of the Tribunal’s decision in the FCC.  He relied on a single ground.  It was that:

   “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 complementary protection provisions of the Act.”

10. The FCC considered the terms and operation of s 36(2B)(a) of the Migration Act 1958 (Cth) (“the Act”). Judge Driver accepted that, when giving effect to this provision, the Tribunal is required to identify some geographic area. He saw no reason why that area could not be identified, either by reference to particular safe localities or by fixing on a local area of risk such as the Punjab thereby effectively identifying the rest of the country as an area in which an applicant could be safe.

11. His Honour agreed with Judge Nicholls’ analysis in SZOJV v Minister for Immigration (No 2) [2012] FMCA 29 at [64] and [65]. Judge Nicholls had held that, if the Tribunal is satisfied that the risk is localised to a particular area, it is open to it to draw the boundaries of safety around that local area so that, potentially, the rest of a country may be regarded as safe. In such a case, it was held, the Tribunal is not required to identify with any particular degree of precision an area of lesser risk in a country.

12. The trial judge emphasised that the Tribunal must still consider the practicalities of relocation.  It had done so.

13. His Honour found no arguable case of jurisdictional error by the Tribunal in relation to its relocation determinations and dismissed the application.

    THE APPEAL PROCEEDINGS

14. The applicant now seeks to appeal to this Court from the FCC’s decision.  His application for leave contained the following grounds:

    “1.The FM (sic) failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

    2.The learned Judge dismissed the application without considering the legal and factual errors contained in the decision of RRT.”

15. He also filed a draft notice of appeal in which the grounds were:

    “1.The FM (sic) failed to consider that the Tribunal had denied the applicant procedural fairness reaching adverse conclusions that applicant (sic) claims were implausible, being conclusions that were not obviously open on the known material.

    2.The learned Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.  The Tribunal has failed to investigate Applicant claims, specially the grounds of persecution in India.”

16. Although, strictly speaking, separate grounds are relied on in support of the leave application and the appeal, I am prepared to proceed on the basis that, were the matter to proceed to a full appeal hearing, the applicant would wish to rely on all grounds in support of that appeal.

17. The grounds would appear to be four in number.  Those contained in paragraph 1 of the application for leave and paragraph 1 of the draft notice of appeal, that contained in the first sentence of both grounds 2 and that contained in the additional sentence which appears in ground 2 of the draft notice of appeal.

18. The legal and factual errors, referred to in ground 2 of the application for leave, were not identified.  Particularity was also lacking in ground 2 of the draft notice of appeal.  The complaint that the Tribunal had failed to investigate the applicant’s claims was, effectively, a separate ground.  It did not identify any legal or factual errors made by the Tribunal.   

19. Unless they included the error identified in the single ground advanced in the FCC, none of the proposed grounds of appeal to this Court was raised or argued before the FCC. 

20. The applicant appeared in person.  He had the assistance of an interpreter.

21. The applicant advised the Court that he had not prepared the application and the supporting documents.  This had been done for him by “a friend”.  The friend was not a lawyer.  The applicant was unable to explain or elaborate on any of the grounds.  When invited to make submissions in support of his application and proposed appeal he reasserted the claims which he had made before the Tribunal.  He said that neither he nor his partner would be safe in India.  They would be persecuted and killed whether they were in the Punjab or anywhere else in that country.  He stressed that both he and his partner had had “problems” with their families.  There was also an issue as to where they might stay in India.

22. When leave to appeal from a judgment of the FCC is sought the applicant must persuade the Court that the impugned judgment is attended by sufficient doubt as to warrant the grant of leave to appeal:  see Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 at 399. The Court is thus required to form a judgment as to whether any arguably appealable error has been identified. The applicant has failed to satisfy this criterion. The trial judge dealt with the single ground of review which was argued before him. His reasons for rejecting the application disclosed no error. On the contrary, they are, in my respectful view, plainly correct. The applicant has not sought to argue otherwise. Rather, what he has sought to do, in his application and draft notice of appeal, is to raise grounds which were not argued in the FCC. No proper basis for doing so has been established.

23. In any event, the applicant failed to advance any arguments of substance in support of these grounds.  The Tribunal accorded the applicant a long hearing.  It did not ignore his claims.  It accepted many of them.  The reason it affirmed the decision under review was that it considered that the applicant could safely relocate within India.  That view was open on the evidence.  The hearing before the Tribunal was fairly conducted.  No submission to the contrary was advanced before the FCC.  The Tribunal was under no obligation to investigate the applicant’s claims; what it was required to do was consider them.  It did.

    DISPOSITION

24. The application must be refused with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:       8 November 2013