SZNMG v Minister for Immigration and Citizenship [2010] FCA 93 (18 February 2010)

Last Updated: 22 February 2010

FEDERAL COURT OF AUSTRALIA

SZNMG v Minister for Immigration and Citizenship [2010] FCA 93

Citation:		SZNMG v Minister for Immigration and Citizenship [2010] FCA 93
Appeal from:		SZNMG & Ors v Minister for Immigration & Anor [2009] FMCA 1253
Parties:		SZNMG, SZNMH and SZNMI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 12 of 2010
Judge:		NICHOLAS J
Date of judgment:		18 February 2010
Legislation:		Federal Court Rules O 43 r 1(1) Migration Act 1958 (Cth) s 91R(1)(a) and (b)
Cases cited:		SZNMG & Ors v Minister for Immigration & Anor [2009] FMCA 1253 affirmed Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 cited SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40; (2007) 233 CLR 18 cited SBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426; (2002) 126 FCR 552 cited
Date of hearing:	17 February 2010
Date of last submissions:	17 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	29
Counsel for the Appellants:	The first appellant appeared in person and on behalf of the second and third appellants
Solicitor for the First Respondent:	Clayton Utz
Counsel for the First Respondent:	Ms R Francois

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 12 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNMG First Appellant SZNMH Second Appellant SZNMI Third Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLAS J
DATE OF ORDER:	18 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The first appellant be appointed the third appellant’s next friend for the purposes of this appeal.
2. The appeal be dismissed.
3. The first and second appellants pay the first respondent’s costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 12 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZNMG First Appellant SZNMH Second Appellant SZNMI Third Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	NICHOLAS J
DATE:	18 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of Federal Magistrate Lloyd-Jones delivered on 18 December 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 March 2009 (see SZNMG & Ors v Minister for Immigration & Anor [2009] FMCA 1253). The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellants.

BACKGROUND

2. The appellants, husband and wife and their son, are citizens of India who arrived in Australia on 7 May 2008. On 19 June 2008 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 16 September 2008. On 13 October 2008 the appellants applied to the Tribunal for a review of that decision.
3. The relevant facts were summarised in the decision of the federal magistrate, and I have adopted his account. The first and second appellants claimed to be members of the Dera Sacha Sauda (DSS) and the guru Baba Ram Ji. The first appellant claimed that he was harassed by members of the Akali Dal because of his beliefs. He claimed to have organised gatherings at his home to discuss Baba Ji’s philosophies. In November 2006, he was contacted by the main organiser of the local Gurudwara who said pejorative things about his guru and warned the first appellant for dividing the community. From January 2007 he was threatened a few times by Akali Dal members. In March 2007 a group went to his shop and broke things in it. The police refused to write a report about the incident and the appellant later received a threat against the shop.
4. In May 2007 during a gathering at his home, a group of 20 entered the house and the appellant recognised them as workers of Akali Dal and Gurudwara. In December 2007 when returning home from a meeting, he was attacked and beaten with an iron rod. He heard one of the attackers say that he was preaching against their Guru. After he was released from hospital, he tried to lodge a police report but instead was threatened by the police. When he reopened his shop, he found letters threatening him; including one which threatened to kidnap his young son. The family moved to the second appellant’s family home in Karnal as a result. The first appellant claims that during this time he found out that the Akali Dal and Gurudwara members knew they were hiding in Karnal. Out of fear for their safety, the appellants left India for Australia.

THE REFUGEE REVIEW TRIBUNAL

5. The Tribunal accepted that the appellants had been affected by incidents of intimidation and harm in the past as claimed and that this had given rise to reasonable fears about remaining in the part of India where they formerly resided. However, the Tribunal also found that the threat to the appellants did not extend to India as a whole and they would be able to access real and effective protection from harm by returning to another area of India to live.
6. The Tribunal stated in its statement of decision and reasons at [78]-[81]:

[78] In the Tribunal’s view, however, the real threat to the applicants does not extend to India as whole and they are able to access real and effective protection from harm by returning to another area of India to live.

[79] The Tribunal believes that by moving to a new area they would reduce the risk of harm coming to them arising from their religious or political opinion to one which was remote. In the Tribunal’s view, it is notable that after leaving their local area in January or February 2008, they were not again located or harmed in India at any time before their departure from India in May 2008. This was despite being aware that the group that wanted to harm them knew they were in Karnal from shortly after their departure from their home village, and them moving to an area where their presence could be anticipated as a result of having family there. In the Tribunal’s view, this indicates that the intention or desire to harm them is one which can be described as localised and there is very little likelihood of threats being acted upon should they relocate to a new area, away from their former home.

[80] The Tribunal is also of the view that it could be expected that the applicants would receive proper protection from security authorities in India should they now move to a new area. While there were claims initially that the Punjab Government did not act to protect Dera Sacha Sauda followers in the wake of attacked [sic] during 2008, it is notable that the Prime Minister of India took an active interest in the protection and subsequently security authorities did act to protect Dera Sacha Sauda followers. This included direct action in confronting Sikh protests, mobilising officers in anticipation of protests and the active investigation and prosecution of Sikh protesters where harms were identified. In the Tribunal’s view, while the antipathy between the Punjab Akali Dal Government and the Dera Sacha Sauda and the first named applicant’s past experiences may give rise to concerns about future protection in Punjab, this would not be the case outside that state. The central Government and Prime Ministership is dominated by the Congress Party, of which the first named applicant is an active member, and the evidence indicates that security authorities have taken appropriate steps to protect Dera Sacha Sauda followers when harms are threatened elsewhere in India and would do so for the foreseeable future.

[81] The Tribunal also believes that the couple can reasonably access protection elsewhere in India. There is no doubt that it is difficult for the family to contemplate their lives in India after the events of 2007 and 2008, however, in the Tribunal’s view they possess the attributes, resources, support and capacity to settle successfully elsewhere in India and away from their former home.

7. Thus, the Tribunal was of the view that the appellants could be expected to receive proper protection from security authorities elsewhere in India and found that the appellants possess the attributes, resources, support and capacity to settle successfully elsewhere in India and away from their former home.
8. The Tribunal therefore concluded that the appellants were not persons to whom Australia owed protection obligations under the Convention. It affirmed the decision under review.

THE FEDERAL MAGISTRATES COURT

9. By application filed in the Federal Magistrates Court of Australia on 17 April 2009 the appellants sought judicial review of the Tribunal’s decision.
10. Before the federal magistrate the appellants raised the following grounds:

1. The Refugee Review Tribunal erred in law in understanding my claim.

2. The Refugee Review Tribunal accepted my serious harm but misapplied s.91R(a)(b).
   
3. The Tribunal failed to understand the difficulties and impossibilities of relocation.
11. As to ground 1, the federal magistrate found that there was nothing in the material before the Court to suggest that the Tribunal misunderstood the appellants’ claims. His Honour noted that the Tribunal accepted that the appellants were victims of intimidation and harm as claimed, however, it also found that the appellants could reasonably relocate, and if they did, they would secure effective state protection.
12. As to ground 2, the federal magistrate interpreted the ground as a reference to s 91R(1)(a) and (b) of the Migration Act 1958 (Cth) (the Act). In this regard, his Honour found that the Tribunal correctly applied the law, and did not misunderstand the notion of persecution or serious harm.
13. As to ground 3, the federal magistrate found that the Tribunal applied the correct test in determining whether it was reasonable for the appellants to relocate. His Honour noted that the Tribunal’s relocation finding was a factual matter for it, that its conclusions were open to it on the evidence, and were not reached in a capricious or arbitrary way.
14. Having found no jurisdictional error in the Tribunal decision, the federal magistrate dismissed the application.

APPEAL TO THIS COURT

15. On 6 January 2010 the appellants filed in this Court a notice of appeal from the decision of the federal magistrate. The appellants raise the following grounds of appeal:
    1. His Honour erred in accepting that the appellant’s risk of harm may be reduced by relocation. There is no evidence as to avoiding persecution because of religious and political opinion.
       
    2. His Honour misunderstood that the appellant is unable to reasonably relocate elsewhere in India.
       
    3. The Refugee Review Tribunal erred in law by forming the belief that the appellant is able to move to a new area of India. Such conclusion is not based on probative evidence.
16. Before turning to the substance of the appeal, I should note that neither the second nor the third appellant appeared before me. The first appellant, who is the father of the third appellant, made submissions with the assistance of an interpreter on his own behalf and also on behalf of his son and wife. I raised with counsel for the Minister the fact that neither of the third appellant’s parents has been appointed his next friend under Order 43 r 1(1) of the Federal Court Rules. That does not mean the third appellant’s appeal is a nullity but it does mean that he would not be bound by the result of his appeal if that state of affairs continues: SBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 426; (2002) 126 FCR 552 at para [32] and [33] per Emmett and Conti JJ.
17. The first respondent has asked me to make an order appointing a next friend for the third appellant. I do not understand the first appellant to oppose the making of an order appointing him as the third appellant’s next friend. I propose to make such an order.

SUBMISSIONS OF THE APPELLANT

18. The appellants did not file any written submissions. The first appellant read from a statement which, in substance, argued that it was not possible for the appellants to return to India because their personal security and well being was at risk throughout all parts of that country.
19. I explained to the first appellant that it was necessary for him to identify jurisdictional error on the part of the Tribunal and that it was not sufficient for him merely to dispute the findings made by the Tribunal.
20. The first appellant did not attempt to identify any jurisdictional error. He sought to argue that the conclusions reached by the Tribunal in relation to the geographical dimensions of the threat of intimidation and harm facing the appellants in India and the protection available to them in other parts of that country were simply wrong.

CONSIDERATION OF THE GROUNDS OF APPEAL

21. There are two observations I make in relation to the form of the notice of appeal.
22. First, the grounds in the notice of appeal to this Court appear to raise different grounds of review to those which were relied upon before the federal magistrate. The first respondent does not oppose leave being granted to the appellants to rely upon grounds of review not raised below. In the circumstances I propose to determine the appeal on the basis that leave should be given if I am persuaded that any of the grounds of appeal now relied upon should be upheld.
23. Secondly, as counsel for the Minister correctly points out, the federal magistrate made no relevant findings of fact. To the extent that the grounds of appeal seek to challenge factual findings I treat it as referring to the Tribunal’s findings including, in particular, those that I have quoted at para [6] above.
24. Against that background I now turn to the grounds of appeal. While there are three grounds set out in the notice of appeal, they all involve a challenge to the findings made by the Tribunal on the basis that there was no evidence to support such findings or that the Tribunal misunderstood evidence relevant to such findings. It is convenient to deal with the three grounds of appeal collectively.
25. In reaching its conclusion that the appellants could reasonably be expected to relocate, the Tribunal relied upon the following:

(a) the independent country information about the police and government response to violence between members of DSS and other groups which indicated that there was effective protection in India;

(b) the appellants’ party, the Congress Party, dominates the central Government and Prime Ministership of India;

(c) the appellants had not been harmed in the three months after they left their local area despite moving to an area where their presence would be known or expected due to them having family there;

(d) the appellants’ resilience and resourcefulness as demonstrated in their coming to Australia and coping with the difficulties this presented; and

(e) the appellants’ business experience, ownership of property in India and the fact that they had family in India and Australia who had shown they were willing to assist them.

26. The Tribunal clearly considered the “practical realities” confronting the appellants if they relocated and also the impact upon the appellants of relocating: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 442; SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40; (2007) 233 CLR 18 at [24].
27. There was nothing about the Tribunal’s findings or the circumstances in which they were made which would have entitled the federal magistrate to set aside the Tribunal’s decision. The Tribunal’s findings on the issue of relocation are recounted in its reasons in considerable detail. There does not appear to be anything irrational or illogical about the findings. They appear to be the product of a careful weighing up of the evidence before it. There is nothing to suggest that the Tribunal’s findings were the product of jurisdictional error.
28. The appellants have not demonstrated any error on the part of the federal magistrate in dismissing their application for review of the Tribunal’s decision. Nor have the appellants demonstrated any error by the Tribunal that would lead to the conclusion that it failed to exercise or exceeded its jurisdiction.
29. The appeal is dismissed. The first and second appellants are to pay the first respondent’s costs.
    

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

Associate:

Dated: 18 February 2010