SZTKB v Minister for Immigration - [2014] FCCA 558

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKB & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 558

Catchwords:
MIGRATION – Application to show cause – whether applicants have raised an arguable case for relief – no arguable case demonstrated – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

First Applicant:

SZTKB

Second Applicant:

SZTKC

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2501 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

18 March 2014

Delivered at:

Sydney

Delivered on:

18 March 2014

REPRESENTATION

First applicant appeared by telephone and on behalf of the Second Applicant.

Counsel for the First Respondent:

Mr O’Donnell

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed;
The applicants pay the first respondent’s costs of the proceeding in the amount of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2501 of 2013

SZTKB

First Applicant

SZTKC

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The first respondent, who I will refer to as the Minister, seeks an order under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Rules) that the application for judicial review filed in these proceedings be dismissed. That rule provides that at a hearing of an application for an order to show cause, the Court may dismiss the application “if it is not satisfied that the application has raised an arguable case for the relief claimed”.
The Minister’s application was initially set down for hearing on 18 February 2014. But the matter was adjourned to today because the first applicant was unable to attend for medical reasons. The first applicant, representing himself and his wife, appeared today by telephone. The application for judicial review relates to a decision of the second respondent, which affirmed a decision of the delegate of the Minister, rejecting an application for a protection visa.
In their application for a protection visa, and before the Tribunal, the applicants, who are citizens of India, claimed fear of persecution because of the first applicant’s being a supporter of the Congress Party. The first applicant claimed he was threatened with death and he and his family were assaulted and intimidated by BJP supporters. The applicants also claimed fear of harm from employees and students of a hospital and from politicians, following the closure of a hospital. The claimed basis of this fear was the fact that the first applicant occupied a senior management position with the hospital.
The Tribunal found “[t]here was no real chance or risk of harm to the first applicant emanating from employees or ex-employees of the hospital”.[1] The Tribunal found, however, there was a real chance of serious harm to the first applicant in his home area from students who had not been refunded fees they had paid for attending the medical college that was attached to the hospital. The Tribunal found, however, that it was reasonable for the applicants to relocate to some other place in India where there is no real chance of risk of harm.[2]
[1] CB231, [67]
[2] CB238, [102]
I was initially concerned that the Tribunal may not have considered the claimed fear of persecution or harm based on the applicant’s asserted fear of assault and injury from members of the BJP. I raised these concerns with counsel for the Minister. Counsel directed my attention to paragraph 94 of the Tribunal’s reasons for decisions. On the basis of that paragraph, the Tribunal did consider the applicant’s claim to the extent that it was based on fear of persecution from members or supporters of the BJP.
The application for review does not state any grounds for the relief which it seeks. The applicants filed with the application an affidavit sworn by the first applicant but that affidavit only annexes the decision of the Tribunal and the decision of the delegate, together with ancillary documents relevant to those decisions, which are to be found in exhibit CB. The affidavit otherwise does not state any grounds or contain any material from which any grounds may be inferred. At the hearing, I invited the applicant to make submissions in support of the proposition that his application for judicial review raised an arguable claim for the relief the applicants seek in the application.
The first applicant made two submissions. The first relates to the Tribunal’s conclusion that it was reasonable for the applicants to relocate within India. The submission was put in the form of a rhetorical question. The first applicant submitted that the Tribunal accepted that there was a risk of significant harm at the place the applicants lived. It also expressed the possibility that if the applicants go to some other parts of India, there would be no fear of violence. The applicant then asked: “Looking at my age and circumstances, how can I relocate to another part of India?”
The Minister, by his counsel, submitted that the applicant’s submission was, in effect, seeking, impermissibly, a review of the merits. Counsel submitted something which is not apparent to some, perhaps many applicants for judicial review, but which is obviously apparent to courts who administer judicial review jurisdiction that the role of the Court when exercising judicial review jurisdiction is not to venture into the merits of the decision the Tribunal arrived at. Stated in terms which may be better understood by the applicants, it is not the role of this Court for itself to determine whether or not it is reasonable to expect the applicants, in order to avoid harm where they live, to relocate to another part of India where that risk of harm is not present.
Counsel for the Minister accepted that the Tribunal did not explicitly mention or deal as a separate factor the age of the applicants in determining whether it was reasonable for the applicants to relocate in India. Counsel directed my attention to paragraph 95 of the Tribunal’s reasons for decision which sets out the Tribunal’s conclusions on the issue of the reasonableness of the relocation:
“The applicants placed little reliance on factors that would render their relocation unreasonable. The only factor I can identify in the evidence is the assertion that in a place of relocation, Congress would not help the applicant buy a house or get a job. On his own evidence, he said he had property and assets. I have considered his long professional career and qualifications as a law graduate. I have considered that he and his wife lived for 15 years in Rajasthan, where he held a professional job and worked in the Hindi language. On the evidence I can identify no reason why it would not be reasonable to expect the applicants to do what they had already done in Rajasthan for 15 years, again. The applicant said that relocating was not ‘child’s play’. He and his wife had voluntarily undertaken such a relocation in Rajasthan for the apparent purpose of his employment or professional career. Relocating is a significant undertaking. In his written material, the applicant wrote that he would not be able to cope with interrogation and torture due to his fragile state of mind and health. He did not refer to [and] rely on this claim at hearing. I understand this written claim to refer to a situation where he had to confront students in his home area. For the sake of completeness, I find that the applicant will face neither torture nor interrogation in the context of relocation. His written claim to be of fragile mind and health remains vague and lacks details and I reject it for those reasons.”
Counsel particularly drew my attention to the fact that in that passage the Tribunal referred to the applicant’s own evidence that he had property and assets, and also to the fact that the applicant had a long professional career. Particularly the reference to the words “long professional career” carried with it the implication, so counsel submitted, that the age of the applicant was indeed considered. I accept that submission. Paragraph 95 of the Tribunal’s reasons, in my opinion, indicates that the Tribunal took into account all that was relevant for it to take into account in determining whether it was reasonable for the applicants to relocate.
Although there is no transcript, the only submission that the Tribunal notes was said about the topic of relocation or at any rate its reasonableness was the passage beginning with the words “the applicant said” up to the end of the words “employment or professional career” which appears on the first line of page 237 of the Court Book. Also relevant is the first sentence of paragraph 95, the accuracy of which I have no reason to doubt, where the Tribunal noted that the applicants placed little reliance on factors that would render their relocation unreasonable.
I am also satisfied in a more general sense that the Tribunal understood correctly the test in determining whether relocation was an answer to the applicant’s claim for protection. I am also satisfied the Tribunal appears to have considered all the relevant facts which would enable it to properly apply that test. So, in my opinion, the applicant’s submissions in relation to the Tribunal’s treatment of relocation, and its conclusion of its reasonableness in this case raises no arguable claim for the relief sought in the application for judicial review.
I now turn to the second submission made by the applicant. That submission concerns a letter, a copy of which is at Court Book or exhibit CB, page 132. The submission was that the Tribunal considered that letter, but did not do so properly. It was claimed that the Tribunal found that the letter had been received by the applicant where he was residing at the campus of the college, and the Tribunal saw it as significant that the letter had come to the attention of the first applicant’s son. The applicant submitted that the Tribunal should have checked the letter and confirmed that it was, in fact, sent to the home address of the applicant.
The significance that the applicant seemed to attach to this letter is that it proved significant harm or the risk of significant harm to the applicants. The Minister through his counsel made three submissions in response to the applicant’s submissions. The first is that which the letter was evidence of was accepted as being true by the Tribunal for the purposes of the application for review. That is to say, the Tribunal accepted that the applicant faced a real chance of serious harm to the applicant in his home area. That conclusion is set out in paragraph 78 of the Tribunal’s reasons for decision. Counsel submits, therefore, that whether or not the Tribunal understood or did not understand the evidence had no consequences to the validity of the decision the Tribunal reached.
The second submission counsel for the Minister made is that the Tribunal did not, in fact, misunderstand the evidence. Counsel directed my attention to paragraph 64(e) of the Tribunal’s reasons for decision. That paragraph states:
[A]fter coming to Australia the applicant received the letter…at his Indian home address.
The submission is that, although it is not entirely clear, the letter referred to in that paragraph is the letter which is set out at page 132 of the Court Book, and which the applicant submits the Tribunal did not properly consider. Counsel also submitted that although there might be an ambiguity in the expression “his Indian home address” in paragraph 64(e) in that it could also include the address where the applicant resided on campus, if I understood counsel correctly, the submission is I should read that letter as, in fact, referring to the applicant’s home address. The third submission counsel for the Minister makes, relying on the Full Federal Court authorities of WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[3] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[4], is that ignoring a piece of evidence without more does not constitute jurisdictional error.
[3] [2003] FCAFC 184
[4] (2004) 144 FCR 1
Turning to the first of these three submissions, I accept that the letter at page 132 is evidence of a fact or state of affairs which the Tribunal accepted as true for the purposes of its determination of the application before it. I therefore agree that, even if the Tribunal misinterpreted the letter, it could not have had any bearing on the validity of the Tribunal’s decision. In any event, I find, given that the Tribunal did find or assume that the first applicant faced a real chance of harm in his home town, that the Tribunal did not in fact misinterpret the letter.
As to the second submission of counsel for the Minister, I agree there is a basis for interpreting section 64(e) of the reasons for decision as referring to the letter at Court Book page 132. Having regard to the fact that the Tribunal did accept that the first applicant faced a real chance of harm in his home town, the probabilities are that paragraph 64(e) did refer to that letter.
In relation to the third submission, I do not propose to accept, for the purposes of this application, a principle to the effect stated by counsel for the Minister, principally because it is not asserted by the first applicant that the Tribunal ignored the letter. The complaint is that the Tribunal did not properly consider it, and it is not for this Court to determine whether the Tribunal properly considered evidence, if that is the only complaint made about what the Tribunal did with a particular piece of evidence. What the Tribunal did with this letter, subject to the Tribunal not making any jurisdictional error, was a matter solely within its jurisdiction to determine.
For these reasons, in my opinion, the second ground advanced by the applicant does not disclose any reasonable argument that the applicants have a claim for the relief they seek.
In my opinion, by way of general conclusion, the applicants cannot demonstrate an arguable case for the relief which they seek. I accordingly propose to dismiss the application.
The applicant submitted that I should not make an order for costs, because he is not in good health and he will be unable to pay them. I regret and I am sorry that the applicant is not in good health, and may not have the wherewithal to pay any costs which may be ordered against him. I regret to say that these grounds advanced by the applicant are not grounds which would lead the Court to exercise its discretion to not make an order for costs. Accordingly, the second order I make today is the applicants pay the first respondent’s costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 21 March 2014