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SZGEO v Minister for Immigration & Anor [2008] FMCA 999 (1 July 2008)

Last Updated: 12 November 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGEO v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant the applicant a protection visa – applicant is a citizen of India claiming fear of persecution for reasons of his political opinion and involvement and his religion – relocation – no reviewable error.


Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) FCR 437 followed.
SZBOV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1407 cited.
SZBQJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 143 cited.
SZIGC v Minister for Immigration & Citizenship [2007] FCA 1725 cited.
VBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 60 cited.
SZATV v Minister for Immigration & Citizenship & Anor [2007] HCA 40; 237 ALR 634 followed.

Applicant:
SZGEO

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 909 of 2008

Judgment of:
Scarlett FM

Hearing date:
1 July 2008

Date of Last Submission:
1 July 2008

Delivered at:
Sydney

Delivered on:
1 July 2008

REPRESENTATION

The Applicant:
Appeared in person

Solicitors for the Applicant:
Not legally represented

Appearance for the Respondents:
Mr Johnson

Solicitors for the Respondents:
DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs fixed in the sum of $3,500.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 909 of 2008

SZGEO

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

(Revised from transcript)

Application

  1. The applicant, who is a citizen of India, asks the Court to review a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 4th March 2008 and handed that decision down on
    25th March. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the applicant a protection (Class XA) visa.
  2. The applicant now seeks a declaration of the decision of the Refugee Review Tribunal is now null and void. He also seeks the following writs:
    1. a writ of mandamus requiring the Tribunal to rehear and redetermine his application according to law.
    2. a writ of certiorari quashing the Tribunal's decision.
    3. a writ of prohibition directed to the Minister preventing the Minister from acting upon or given effect to the decision.
  3. The applicant claims that the Tribunal, first, fell into jurisdictional error in its wrong application of the law to the facts and misunderstood the provisions of s.91R(1)(b) and (c) of the Migration Act. The applicant also claims that the Tribunal failed to apply a correct test in accordance with subsection 424A(1) of the Migration Act. Finally, the applicant claims the Tribunal did not apply the correct test of relocation principles and, thereby, fell into jurisdictional error.
  4. The background to this matter is that the applicant arrived in Australia on 5th November 2004. He applied for a Protection (Class XA) visa on 29th November in that year. His application for a visa was refused on 13th December 2004, so the applicant sought a review of that decision from the Refugee Review Tribunal. The Tribunal, differently constituted, affirmed the delegate's decision on 11th March 2005.
  5. The applicant then sought decision review of the Tribunal's decision from the Federal Magistrates Court and, in a decision delivered on
    5th February 2007, O'Sullivan FM granted the application and issued writs of certiorari and mandamus.
  6. The applicant's application was remitted to the Refugee Review Tribunal and the Tribunal then contacted the applicant and invited him to another hearing. The Tribunal, differently constituted, affirmed the delegate's decision on 21st May 2007.
  7. The applicant again sought judicial review of that decision from the Federal Magistrates Court.
  8. On 27th November 2007, Turner FM made orders by consent issuing writs of certiorari and mandamus and the applicant's application for a visa was returned to the Tribunal.
  9. The Tribunal wrote to the applicant on 17th December 2007 and invited him to attend a hearing to take place on 23rd January 2008.
    That hearing was to be conducted by video conference. However, the hearing did not take place. It was rescheduled for 13th February 2008. That hearing was to be conducted by videoconference with the applicant at Griffith and the Tribunal Member and the interpreter in Sydney.
  10. The Tribunal received a request that the hearing take place in Sydney rather than Griffith and the Tribunal, on 11th February agreed to that request. The applicant attending the hearing in Sydney and gave evidence.
  11. The Tribunal handed down its decision on 25th March 2008 affirming the decision of the delegate not to grant the applicant a protection (Class XA) visa. The Tribunal noted that the applicant was an Indian national of the Hindu faith who was a businessman. He owned a shop and refers to difficulties in his home area from 2002 when political riots broke out and many Hindus and Muslims were killed.
    The applicant claimed to have been a member of the BJP in India and that party lost power in the elections in the elections in June 2004. Afterwards, the applicant claimed that he had been attacked a few times by supporters of the Congress Party. He claimed riots between Muslims and Hindus were ongoing in Gujarat.
  12. The Tribunal considered the applicant's oral evidence to the first Tribunal at the hearing of 2nd March 2005 when the applicant gave evidence to the effect that his shop had been burnt on three different occasions between 27th February 2002 and April 2004. The applicant had given evidence of having been threatened over the phone and he told the Tribunal he was fearful of being killed if he were to return to India.
  13. The Tribunal Member at that hearing asked the applicant whether he thought he could relocate to another part of India which was predominantly Hindu rather than reside in the area that was predominantly Muslim but the applicant said that he did have the money to do so. The Tribunal also pointed out to the applicant that his family were currently living safely in India but the applicant said that he still worries about his family. He did not think it would be possible to relocate because he did not have the money to relocate his family. When asked if it was cheaper to come to Australia, he said that all he had to do was pay his airfare.
  14. The Tribunal considered the applicant's evidence to the second Tribunal hearing of 14th May 2007 and the applicant had told the Tribunal that he was going somewhere with a friend when a person shot his friend dead and hurt the applicant with a knife. The Tribunal member on that occasion asked the applicant why he feared persecution in India if he returned and the applicant said bluntly that he would not be persecuted, he would be killed. He said that Muslim people who worked around his shop would be targeting him and he could not go there and he could not do business there.
  15. The Tribunal asked the applicant about his home village in India and the applicant said that the majority of people in the village were Muslim and that his family had been living in an area of Rajpur, close to Kadi, in Gujarat State. The Tribunal considered the applicant's evidence to the hearing of 13th February 2008. The applicant had said that he had run a sari shop in Kadi and that business had operated since 1987 until the shop was burnt in April 2004.
  16. The applicant told the Tribunal that he was a member of the BJP in India and he said that members of the BJP tended to be Hindu.
    The Tribunal asked the applicant about his activities related to his membership of the party and the Tribunal asked the applicant about the circumstances in the extent of the applicant's shop having been damaged. The Tribunal's findings and reasons are set out at pages 196 through to 201 of the Court Book.
  17. The Tribunal accepted that the applicant is a national of India based on the applicant's Indian passport which the Tribunal sighted.
    The Tribunal noted that the applicant's case was based on the Convention on grounds of religion and political opinion and noted the applicant claimed that he was stabbed, threatened and slapped and his shop was burnt down on three separate occasions by Muslims and political opponents. The Tribunal was prepared to accept that the applicant's shop had been burnt down in February 2002, February 2004 and April 2004. The Tribunal noted that the applicant had suffered financial loss, but was not satisfied that the burning of the applicant's shop in 2002 and twice in 2004 had caused the applicant to suffer significant economic hardened or threatened his capacity to subsist.
  18. The Tribunal accepted that the applicant lived in a predominantly Muslim area and was surrounded by Muslim shopkeepers.
    The Tribunal also accepted that the applicant was a member of the BJP and that his shop was frequented by other BJP members. The Tribunal was prepared to accept that Muslims in the applicant's area may have generally supported the Congress Party as opposed to the BJP.
    The Tribunal went on to find:
  19. The Tribunal considered other aspects of the applicant's claims and found that it had serious reservations about the applicant's claim that he had been stabbed in the attack that took place at the time of the applicant's friend's murder.
  20. The Tribunal found the applicant's explanations of being scared or uninformed were unsatisfactory explanations for not having raised the claim of that matter at the first Tribunal hearing.
  21. The Tribunal found that the applicant did not suffer serious harm in Kadi in the past but the Tribunal did accept that the applicant lived in a predominantly Muslim area, was a member of the BJP, supported the local BJP candidate and associated with other BJP members. It is for those reasons that the Tribunal went on to find:
  22. However, having made that finding, the Tribunal then went on to consider the feasibility and the reasonableness of relocation to a different locality within India. The Tribunal said:
  23. The Tribunal considered the question of relocation and stated that, even if an applicant has a well-founded fear of persecution in the applicant's home region, that the Refugees Convention did not provide protection if the applicant could, nevertheless, avail himself or herself of the real protection of the applicant's country of nationality elsewhere within that county and referred to the decision of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs.[4]
  24. The Tribunal also considered independent country information from the Department of Foreign Affairs and Trade which stated that Indian citizens have the freedom to relocate from one area of India to another, although with exceptions of Jammu and Kashmir which are irrelevant to these proceedings. The Tribunal then went on to give this consideration to the question of the reasonableness of relocation:
  25. The Tribunal went on to consider the situation in India generally and noted the applicant's claim at the first hearing that he had no money to relocate his family and his claim at the second hearing that he would have to establish a whole new life for himself if he moved to another State and established a new business. However, the Tribunal noted the applicant's evidence showed that he was literate and a successful businessman in India who had proven his resilience and capacity to survive in an alien environment by being able to live and survive in Australia over the past four years.
  26. The Tribunal noted that, at the third hearing, the applicant confirmed that he had been able to assist his family financially and had managed to save money which would no doubt assist him with any financial challenges associated with relocation or establishing a new business in India. The Tribunal then found:
  27. Accordingly, the Tribunal was satisfied that the applicant's fear of persecution in India for reason of his political opinion or his religion or any other Convention reason was not well-founded and affirmed the decision not to grant the applicant a Protection (Class XA) visa.
  28. The applicant commenced proceedings in this Court for judicial review by filing an application and an affidavit in support on 14th April 2008. He filed an amended application on 27th May 2008. In that amended application, he sets out the two grounds to which I have previously referred. It appears to me that ground 1 is effectively two separate grounds.
  29. Ground 1A claims the Tribunal has wrongly applied the law to the facts in relation to the seriousness of harm that constitutes persecution and refers to s.91R(1)(b) and (c).
  30. Ground 1B claims that the Tribunal failed for not providing more opportunities to the applicant and, amongst other things, failed to apply the correct test in accordance with s.424A(1) of the Migration Act.
  31. Ground 2, whilst confusingly written, is, in effect, a challenge to the Tribunal's conclusion that the applicant could successfully relocate to another part of India and claimed that the Tribunal did not apply the correct test of relocation principles. The ground goes on to say:
  32. If that ground suggests that, where an applicant for a protection visa has already left his or her country of nationality and is already residing in Australia, then it is inappropriate or wrong in law for the Tribunal to consider the reasonableness of relocation within the applicant's home country. That proposition is plainly wrong. It is quite misconceived.
  33. Dealing with the applicant's grounds, the applicant has not filed any written outline of submissions. He attended Court and elected to rely on his written material rather than making any oral submissions.
    That, of course, is his right to do so, although he was offered the opportunity of making oral submissions to the Court if he chose to do so.
  34. The lawyers for the Minister, referring to ground 1A or ground 1, para.1, which is a claim that the Tribunal wrongly applied the law to the facts, have submitted that, if this ground is intended to refer to the Tribunal's finding that the burning of the applicant's shop in 2002 and 2004 did not cause the applicant to suffer significant economic hardship that threatened his capacity to subsist, that, they say, was a factual finding reasonably open to the Tribunal and based upon the applicant's own evidence.
  35. I am referred to the decision of SZBOV v Minister for Immigration & Multicultural & Indigenous Affairs.[7] That, of course, is an appeal from the Federal Magistrates Court.
  36. The question of significant economic hardship that threatens a person's capacity to subsist has been said by Tamberlin J is SZBQJ v Minister for Immigration & Multicultural & Indigenous Affairs[8] to reflect an emphasis which denotes the ability to continue to exist or remain in being.[9] The level of threat must be such as to challenge the individual's capacity to exist or remain in being, (see SZIGC v Minister for Immigration and Citizenship).[10] The Tribunal was not satisfied that the applicant had suffered serious harm in the sense contemplated by
    sub-s.91R(2). This is a conclusion based on applying the law to the facts as found by the Tribunal. It is a factual decision upon which there was evidence which would enable the Tribunal to arrive at those facts and, of course, it is well known that fact finding is a task for the Tribunal, not for the Court conducting judicial review.
  37. I see nothing to suggest that the Tribunal wrongly applied the law to the facts and that it misinterpreted the test for serious harm in respect of the finding of economic hardship.
  38. The Tribunal also considered threats which the applicant had claimed to have received but found that they did not give rise to a real chance of further persecution. This is also a factual finding and one that was open to the Tribunal.
  39. The lawyers for the Minister have submitted - and I believe correctly - that the Tribunal's reason was in accordance with the decision of the High Court in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs.[11] The Tribunal's reasoning comprised two elements: first, it did not accept that the threats amounted to serious harm and, second, did not accept that they gave rise to any real chance of further persecution within the meaning of the Convention. It is, of course, clear that s.91R(1)(b) of the Act requires persecution feared for a Convention reason to involve serious harm to the person.
  40. I am satisfied that the Tribunal did not fall into error when it found that the threats that the applicant claimed were not evidence of a likelihood of harm to the applicant and by themselves did not amount to serious harm.
  41. Ground 1A claims:
  42. Section 424A(1) does not arise.
  43. The Tribunal's decision was based largely on the applicant's own evidence and in one instance on independent country information from the Department of Foreign Affairs and Trade. Both the applicant's own evidence to the Tribunal and independent country information are excluded from s.424A(1) by s.424A(3).
  44. The claim of a breach of s.424A of the Migration Act fails.
  45. The second ground is somewhat difficult to deal with due to its dense and rather turgid style. In effect, it is a challenge to the Tribunal's relocation finding. The ground says:
  46. Firs of all, this ground assumes that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. That, of course, is a misconception. It is up to the applicant to establish that he is a person to whom Australia has protection obligations.
    The Tribunal did conclude that it could not exclude as remote and insubstantial the chance that, if the applicant returned to Kadi, he would, in the reasonably foreseeable future face mistreatment serious enough to amount to persecution for reasons of his religion and/or political opinion.
  47. Having made that finding, it was appropriate for the Tribunal to consider whether the applicant could avoid the harm that he feared by relocating to another place within his country of nationality. The fact that the applicant had already voluntarily travelled to Australia does not, as I have already made it clear, mean that the Tribunal should not have considered the question of relocation within India and, indeed, it is quite clear from the decision in Randhawa (supra) that that is exactly what the Tribunal should have done. I am referred, of course, to the recent decision of the High Court of Australia in SZATV v Minister for Immigration and Citizenship & Anor.[12]
  48. The High Court looked again at the question of relocation and considered the test was set out in Randhawa. In their joint judgment, Gummow, Hayne and Crennan JJ said at [23]:
  49. In this case, the Tribunal considered the question of relocation within India in some detail at pages 199 and 200 of the Court Book.
    The Tribunal considered the decision of Randhawa and considered the applicant's own evidence about the question of relocation. It referred to the applicant's evidence which the Tribunal considered suggested that his fears were confined to his locality and district.
  50. The Tribunal noted that the applicant's wife and sons had successfully relocated. The Tribunal noted that the threatening phone calls stopped after the wife and sons relocated and came to the conclusion that the applicant could move to another area in India either where his family were currently living or to relocate with his family to a different State in order to avoid his political opponents, his Muslim business rivals or any instances of harm directed at him by the Muslim majority in the area of Kadi as a result of any incidents of communal violence.
  51. The Tribunal considered independent country information about India and considered the applicant's evidence and claims that both the first Tribunal hearing and the second Tribunal hearing as to why he said he could not relocate with his family within India. In my view, the Tribunal has considered in some detail the entire question of relocation. It has considered the threats of persecution which the applicant claims and it has considered the applicant's explanations as to why he could not reasonably relocate.
  52. In my view, the Tribunal has correctly considered the question of relocation and has considered the reasonableness of relocation in the way set out by the High Court in SZATV, being the particular circumstances of the applicant and the impact upon the applicant of relocation within the country of nationality. In my view, the applicant's grounds of review have not been made out and have not shown any jurisdictional error.
  53. I am mindful of the fact that the applicant is not legally represented in these proceedings. He was, however, referred to a barrister on the Refugee Review Tribunal Legal Advice Scheme panel. I nevertheless have looked at the Tribunal decision and supporting materials in some detail independently of the applicant's claims or the Minister's submissions, and I am satisfied that no arguable case of jurisdictional error can be discerned.
  54. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. Because it is a privative clause decision, it is final and conclusive and it is not, therefore, subject to the orders in the nature of mandamus, certiorari or prohibition that the applicant claims and it not subject to a declaration that the Tribunal decision is null and void. It follows that the application must be dismissed with costs.
  55. Where an applicant is not successful, the Minister will normally ask the Court to make an order that the applicant should be responsible for the Minister's legal costs of defending the application. They are estimated at $3,500.00 which is a figure comfortably within the scale allowed by the Federal Magistrates Court Rules. I am satisfied that the sum of $3,500.00 is an appropriate figure for costs.
  56. I would comment also that, in my view, the vast majority of matters that this Court hears under the Migration Act are ones which are appropriate for a fixed costs order to be made.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Scarlett FM


Associate: S.Polley


Date: 15 July 2008

[1] See Court Book page 197.
[2] See Court Book page 199.
[3] See Court Book page 199.
[4] [1994] FCA 1253; (1994) 52 FCR 437 per Black CJ at [440] and [441]
[5] See Court Book page 199.
[6] See Court Book page 200.
[7] [2004] FCA 1407 at [19]
[8] [2005] FCA 143
[9] ibid at [11].
[10] [2007] FCA 1725 at [23], per Greenwood J.
[11] [2006] HCA 60.
[12] [2007] HCA 40; 237 ALR 634.

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