SZHEP v Minister for Immigration and Citizenship [2007] FCA 1219 (13 August 2007)

Last Updated: 16 August 2007

FEDERAL COURT OF AUSTRALIA

SZHEP v Minister for Immigration and Citizenship [2007] FCA 1219

SZHEP, SZHEQ, SZHER AND SZHES v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

No NSD 714 of 2007






FINN J
13 AUGUST 2007
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 714 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHEP First Appellant SZHEQ Second Appellant SZHER Third Appellant SZHES Fourth Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FINN J
DATE OF ORDER:	13 AUGUST 2007
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 714 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHEP First Appellant SZHEQ Second Appellant SZHER Third Appellant SZHES Fourth Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FINN J
DATE:	13 AUGUST 2007
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal. The appeal falls within a quite small compass. The appellants who are husband, wife and their two children are citizens of India who have spent most of their respective lives in Bangladesh. Facing religious harassment in that country they returned to India in late 2001 or 2002 to live in the area of Kolkata just over the border in West Bengal. The Tribunal accepted their personal history of harassment for reasons of their imputed or perceived Bangladeshi origin and found that that harassment was for a Convention reason. The particular social group that appeared to be relied upon was their imputed membership of "Bangladeshis Illegally in India". The Tribunal found that the chance was not remote that they would again be targeted by violent members of the Communist Party of India (Marxist) in West Bengal were they to return there.

2 The Tribunal then addressed the question whether their well founded fear related to the country as a whole. It dealt with this matter as follows:

"However the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-1.

I am satisfied that it is reasonable for the applicants to relocate to a different part of India. Their fear of harm is localised in nature. I do not accept that the men who threatened and assaulted them, or people associated with them, would be able to find them anywhere in a densely populated country like India, or would be motivated to do so. I am satisfied that the CPIM is not the ruling party in the majority of India’s states, and that societal or official discrimination against ‘migrants’ from Bangladesh does not occur in much of the country. As to whether it would be reasonable for the applicants to relocate, I appreciate that the family have suffered considerable hardship in recent years and that to again have to re-establish themselves in another unfamiliar area will pose further challenges. However I am satisfied that [the applicant’s] employment experience as a chef is one which would enable him to find appropriate employment in many parts of India. I also rely on evidence that while Hindi is the national language and primary language for 30% of Indians, Bengali (which is spoken by all the applicants) is another of the official languages, and English (which is spoken well by three of the applicants, including [the applicant]) is the most important language for national, political and commercial communication. For these reasons I find it reasonable for the applicants to relocate internally in India."

3 I would note in passing that it would appear to be the case that the Tribunal in its description of the hearing referred only at one place to questioning the appellant husband about relocation. That description was as follows:

"I asked him why he and his family could not move elsewhere in India, as the independent evidence indicated that there were Christian communities in many places. He responded that he was scared to go somewhere else in case the same thing happened again. I suggested to him that he had a ‘portable’ skill as a chef, so it seemed he could find employment in some other part of West Bengal, particularly as this area’s population was Bengali-speaking, as he was. He responded that he was afraid."

4 The only explicit reference made to country information concerning relocation that is of present relevance was as follows:

"DFAT Country Information Report No 83/00 of 25 February 2000 states that well educated and readily employable applicants, putting to one side family or financial considerations, could relocate to another part of India. There were no controls on movement within the country (Danish Immigration Service and the Danish Refugee Council 2000, Section 8.7.1). DFAT continued on relocation:

Indian citizens have the freedom to relocate from one area of India to another, with two exceptions: in the state of Jammu and Kashmir, Indian citizens from other states are not allowed to buy property, but can stay in any part of the state without seeking official permission. Indian citizens who are not residents of the particular area are required to obtain a permit to visit some border areas of Jammu and Kashmir, and border areas in the north-eastern states of India. The permits are valid for six months. Indian citizens who have been arrested and released on bail are required to report regularly to local police authorities. In these instances judicial permission is required to relocate to another part of the country (DFAT 2003, E-mail to RRT, RRT Information Request: IND16042, 13 October)."

5 I should also emphasise that under the heading "Bangladeshi Migrants in India" the Tribunal devoted almost three pages of its reasons to country information concerned with harassment, discrimination and violence against such migrants. It is clear from the information quoted that the description "migrants" encompassed both legal and illegal immigrants. The inference that could reasonably be drawn from the country information discussed was that while there may have been some tens of millions of illegal Bangladeshi immigrants in India, it was in the eastern states of that country that they encountered difficulties. The information to which reference was made did not suggest such was the case elsewhere in India. There is nothing in the material before me to suggest there was country evidence to the contrary and, as with the Federal Magistrate, I would note that I have not been provided with the body of the country information cited by the Tribunal in the course of its judgment. I would also note that the Tribunal in its "findings" made the following two observations:

"1. It is clear that the number of migrants from neighbouring Bangladesh in Kolkata, and West Bengal generally, is very high, and that many reside legally there. However I also accept that a number of them, perceived to be residing in India illegally, have borne the brunt of a backlash because they have been recently perceived to threaten the economic interests of Indians in West Bengal and neighbouring states. Having considered the independent evidence, I am satisfied that a small minority of people of Bangladeshi background have been so targeted, and thus do not accept that all individuals perceived to be migrants from Bangladesh face a real chance of some serious harm in these states.

2. I have regard to more recent evidence of harassment of Indian citizens who have been mistaken for illegal Bangladeshi nationals (IRNA 2005) and accept that the applicants fell into this category. There are many millions of Bangladeshi nationals residing, whether legally or illegally, in India (ABC 2003). There is no evidence that merely falling into this category leads to a real chance of persecution. However, I do accept that the applicants were the target of a very vicious campaign of harassment."

THE DECISION OF THE FEDERAL MAGISTRATE

6 The issue of relocation was the subject of the order of review application. His Honour observed that the amended application before his was uninformative as to the argument upon which the Tribunal’s finding of reasonable relocation was attacked. It would appear that two oral submissions on this matter were made. The first challenged the Tribunal’s finding of fact that societal or official discrimination against "migrants from Bangladesh" did not occur in much of the country. Counsel submitted that evidence before the Tribunal did not, as a matter of law, allow the finding that there were safe parts of India for people who might be perceived as such "migrants". The Federal Magistrate rejected this ground, his Honour not being satisfied that there was no evidence before the Tribunal which allowed it to make its fact finding. His Honour noted that the Court was not provided with the body of material specifically cited by the Tribunal in its judgment. It equally observed that the Tribunal can be expected "to bring its to judgment on such questions a broad experience and knowledge of country circumstances".

7 The second submission made was that the Tribunal failed to address matters said to be made essential when a finding of internal safe refuge was relied upon by the Tribunal. Referring to the decision of Black CJ on relocation in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442, it was said that there was a need under the Randhawa principles to address whether relocation was reasonable "in a practical sense" in the circumstances of the particular applicants. Of this the Federal Magistrate concluded:

"Although the Tribunal’s discussion did not enter into the consideration of all the details relating to the lives of each of the applicants, which they would face in re-establishing themselves in India in a State away from West Bengal, I am not persuaded that the Tribunal failed to consider all the evidence concerning their personal situation which was relevant to that issue. I am not prepared to infer in this case that there was any relevant evidence concerning the issue of relocation which was not addressed by the Tribunal, nor that it addressed the issue upon a misconception as to legal principle."

8 The two grounds of appeal to this Court are not particularly illuminating. They are:

"1. The Court erred in affirming the Tribunal’s decision because the Tribunal did not consider whether the Appellants could reasonably be expected to live in some other part of India.

2. That it was not reasonable to expect Appellants to relocate themselves in West Bengal which was the particular area they sought to escape from."

9 The second of these is quite misconceived in that it is obvious on a fair reading of the Tribunal’s decision, as also that of the Federal Magistrate, that the relocation being considered was a relocation, not in West Bengal, but away from West Bengal.

10 The written submissions put on by the applicant’s legal counsel in support of the appeal after referring to Randhawa noted that:

(i) the country information DFAT report relied on by the Tribunal (which I earlier quoted) did not refer to "Bangladeshi’s illegally in India", the particular social group by virtue of membership of which the appellants were persecuted;
(ii) the Tribunal did not discuss the practical realities with all of the appellants as to whether other parts of India would be reasonably accessible to them;
(iii) the Tribunal was not entitled on the material before it, to conclude that the appellants could reasonably be expected to relocate in India, the more so as the country reports on the treatment of Bangladeshis illegally in India coincided with the time that the appellants were attempting to re-settle in India from Bangladesh; and
(iv) there is a real chance of persecution of the appellants were they to return to India, given that their imputed status would follow them wherever they went in India.

11 The respondent’s submissions assert the correctness of his Honour’s conclusions which are said to be wholly consistent with the Tribunal’s reasons. Insofar as the first ground of appeal is concerned, they say it is simply incorrect to contend that the Tribunal did not consider whether the appellants could reasonably be expected to live in some other part of India and they refer to the section of the reasons which I have quoted above and to his Honour’s treatment of them. It is equally said that the Tribunal was not "jurisdictionally obliged" to list each of the areas of India to which it considered the appellants could reasonably relocate. It was sufficient for the Tribunal to be satisfied that there was a part or were parts of India where the appellants would have no well founded fear of persecution for a Convention reason and to find it would be reasonable for the appellants to relocate to that or any of those places.

12 My own view on this matter is that even though the decision of the Tribunal on the question of relocation is parsimonious in detail, I am not satisfied that it committed any jurisdictional error in arriving at the conclusion it did or that the Federal Magistrate erred in the view he took of the Tribunal’s decision and of the no evidence challenge to it.

13 It is quite understandable that the appellants have no wish at all to relocate in India and I accept that it is probable that, in light of past experience, they will carry with them some apprehension of the prospect of persecution no matter where they reside in India. Their past experience has been a cruel one. They have suffered harassment in Bangladesh and felt compelled to relocate to West Bengal. Now again they are being asked to relocate within India.

14 Despite the appellants’ submission to the contrary, it could not be said that there was no evidence that there were not parts of India in which adequate State protection would be accessible by the appellants. While the Tribunal did not consider the circumstances of each of the appellants individually, it was in my view reasonable for it to proceed upon the premise that if there were no practical impediments to the husband relocating it would be unlikely that there were impediments to the relocation of the rest of his family. It has not been suggested that there were barriers in the present case which would prevent the appellants from reaching a position of internal safety elsewhere in India where they could generally access domestic protection: cf the quotation from Prof Hathaway at p 442 of Randhawa. In these circumstances, to expect the parties to relocate is consistent with the limits of the obligations imposed by the Convention in relation to persons claiming to have a well founded fear of persecution in an area within their country of origin. I do not consider, as I have indicated, that either the Tribunal or the Federal Magistrate on review erred in taking the view they respectively did of this matter. I would, though, add this observation. If the question of relocation arises in a given instance, a Tribunal should reasonably be expected to take this matter up in an appropriate way with the applicant concerned.

15 While I have come to the conclusion that the appeal ought be dismissed, I do consider that this is one of those cases where consideration should properly be given to the circumstances of the appellants on humanitarian grounds. The requirement that they again relocate is likely, in the circumstances, to be more than simply disruptive of their lives.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 13 August 2007

Counsel for the Appellant:	Mr J Eyeson-Annan
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 August 2007
Date of Judgment:	13 August 2007