SZNBB v Minister for Immigration & Anor [2009] FMCA 409 (20 April 2009)

Last Updated: 6 May 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBB v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 409

MIGRATION – RRT decision – Indian fearing persecution by Assam independence group – Tribunal found reasonable to relocate outside Assam – no jurisdictional error found – application dismissed.

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 270 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 SZFDV v Minister for Immigration & Citizenship [2007] HCA 41; (2007) 233 CLR 51 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46

Applicant:

SZNBB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3244 of 2008

Judgment of:

Smith FM

Hearing date:

20 April 2009

Delivered at:

Sydney

Delivered on:

20 April 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 3244 of 2008

SZNBB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant came to Australia in May 2008, and on 27 June 2008 he applied for a protection visa. His claims were obscurely indicated in the application, which was filled out without the assistance of a migration agent. He explained them further in an interview with the delegate. He presented a document confirming his connection with a political party in India, and explained his fears to return to his home district in the state of Assam. He also explained to the delegate why he had come to Australia for refuge after a period of residence in Calcutta.
2. He repeated and expanded upon his claims at a hearing held by the Refugee Review Tribunal, after the delegate refused the protection visa on 15 August 2008. The Tribunal essentially accepted the history which he presented to it, and in my opinion, correctly summarised his refugee claims at the start of its findings and reasons:
   • The applicant claims that he has over twenty years of involvement with the Congress Party in Assam state. The applicant claims that in 2006 he had a dispute with a former Congress Party member, who was subsequently elected as an independent MLA, and following the dispute he began to be harassed by ULFA, a terrorist organization. He claims that ULFA demanded money from him. He claims that when he refused to pay the second installment he was kidnapped by ULFA on 1 January 2007 and kept for seven days until his brother paid the ransom and he was released. He claims that in August 2007 he received a further demand for money from ULFA. He stated that he did not pay it and he fled to Kolkata. He claims that he lived in Kolkata from August 2007 until he came to Australia in May 2008. He claims that while in Kolkata he received a threatening call on his mobile phone from ULFA. He claims he was told that he faced life-threatening harm if he did not comply with ULFA’s demands. The Tribunal accepts these claims.
3. The delegate had referred, in her decision, to the option available to the applicant of relocating to other areas of India, away from Assam. She gave her opinion that: “There is nothing before the Department to indicate that relocation would not be a viable option”.
4. This issue was further explored with the applicant at the hearing held by the Tribunal on 4 November 2008. It is clear from the Tribunal’s description, that it presented to the applicant information from its own researches which suggested that the threatening activities of the ULFA had occurred within Assam only. For example, in the Tribunal’s description of the hearing it said:
   • 33. The applicant stated that internal relocation was not reasonable for him because he would have difficulties finding employment and he would experience language difficulties. He stated that he was also fearful that ULFA will find and kill him. He claimed that the group has agents throughout the country. He stated that there was no place he could live in India which will be out of reach of ULFA. The Tribunal commented that ULFA was active in Assam, and it had camps in surrounding countries, but it was not active outside of Assam and it did not target anyone outside the state. The Tribunal noted that the group had connections with other similar groups within India but its range of influence was confined to Assam state. The Tribunal commented that the applicant appeared to be safe in Kolkata, despite his claim that ULFA was seeking to find and harm him, and he could return there in the future if he did not wish to return to Assam. The applicant stated that sooner or later he will be found by ULFA and killed for not paying the 200,000 rupees.
   • ...
   • 36. The Tribunal referred to the applicant’s claim that if he relocates he will have employment and language difficulties. The Tribunal commented that he faced similar difficulties when he went to Kolkata but he appeared to have settled there. The Tribunal commented that he appeared to have the ability, resources, and knowledge, to relocate and settle successfully within India. The Tribunal commented that it was reasonable for him to relocate internally in India. He stated that his situation the relocation in India will be difficult for him because of language and employment issues. The Tribunal commented that he came to Australia where he faced similar issues. He stated that in Australia he is able to work in an Indian restaurant, his co-workers speak his language, and he does not fear ULFA. The Tribunal commented that ULFA did not demonstrate any real interest in him or the ability to harm him after he left Assam. He stated that it was a matter of time before they found him.
   • ...
   • 39. The Tribunal commented that ULFA’s area of operation is Assam. The Tribunal stated that the South Asian Terrorism Portal indicates that they have bases in Pakistan, Bhutan, and Bangladesh, but their activities in India have been in Assam state where they are seeking to establish an independent state. The applicant stated that they have agents throughout India.
   • 40. The Tribunal commented that the applicant lived in Kolkata for nine months before he came to Australia and the group did not harm him. The Tribunal commented that he was not harmed in Kolkata because he was beyond ULFA’s area of activity and they did not have the ability or the interest to pursue him beyond Assam state. The applicant stated that sooner or later they will find and kill him.
5. It is clear from these paragraphs that the Tribunal also explored with the applicant the difficulties which he claimed to have faced in Kolkata, and his preference for settling in Australia.
6. The applicant did not request the Tribunal to give him an opportunity to present more general information about the situation concerning the ULFA’s activities, although he did present a newspaper report from the New York Times, in October 2008. This referring to some bombings in “the troubled state of Assam”. It referred to the activities of the ULFA “which demands independence for this region of some 26 million people and is often blamed by the authorities for bombings”. The report also referred to the possible involvement of militant Jihadist groups and radical Hindu groups in terrorist attacks in Assam and other places in India.
7. According to the Tribunal’s description of the hearing, the applicant requested more time only to submit the originals of four letters of demand from the ULFA, which he had presented to the Tribunal without translations and had explained to the Tribunal. The Tribunal said:
   • 42. The applicant indicated to the Tribunal that he wanted more time to obtain and submit the original letters from ULFA. He stated he could arrange for translations. The Tribunal indicated to the applicant that the Tribunal accepted his claim that the letters were sent to him. The Tribunal asked him if he wanted time to make further submissions on any other matters discussed during the hearing. He stated that as the Tribunal had accepted the claim that he received four letters of demand from ULFA he did not need to provide further evidence.
8. The Tribunal made its decision on 13 November 2008. It affirmed the delegate’s decision.
9. In its statement of reasons, it set out the applicant’s claims and his evidence of it. It noted the applicant’s claim that the authorities would not have been able to protect him if he had approached them, which he had not. It noted his objections to relocating in Kolkata, in particular. The Tribunal’s consideration of these issues, and of the reasonableness of his being expected to relocate himself in India outside Assam is contained in two paragraphs:
   • 46. The Tribunal has formed the view that the applicant’s difficulties with ULFA and the MLA were, and continue to be, confined to the Dalgaon region of Assam state where the applicant lived before he moved to Kolkata in August 2007. The Tribunal finds that in Kolkata the applicant was not harmed by either ULFA or the MLA because he was not in Assam. The Tribunal is satisfied by information from external sources referred to above that ULFA is not active beyond Assam state and it does not accept the applicant’s claim that ULFA has the ability or interest to pursue and target individuals outside of Assam state. The Tribunal finds that the MLA’s range of influence is also restricted to Assam state and the MLA did not demonstrate any apparent interest in the applicant after he left the Dalgaon region of Assam. The Tribunal finds that the applicant was not at risk of harm by ULFA, the MLA, or their associates, once he left Dalgaon on 15 August 2007. The Tribunal is satisfied that the applicant can avoid further difficulties with ULFA and the MLA in Assam by relocating within India. The Tribunal finds that the applicant’s fear that he is at risk of harm by ULFA and the MLA throughout India is not well-founded. Accordingly, the Tribunal is not satisfied that the applicant faces a real chance of serious harm in India, beyond the state of Assam, by ULFA or any person or group associated with ULFA, for a Convention reason such that he has a well-founded fear of persecution.
   • 47. The Tribunal considered whether it is reasonable for the applicant to relocate within India. The applicant claims that it is not reasonable because, in addition to his fear that he will be pursued and harmed by ULFA, he is fearful that he will have language and employment difficulties outside of Assam state. The applicant claims that in Kolkata he relied on relatives to support him because he could not find employment. The Tribunal accepts the applicant’s claim that he experienced employment difficulties in Kolkata but finds that in time he will settle and find employment outside of Assam state. The Tribunal has formed the view that the applicant has the personal circumstances, skills, knowledge, and resources, which would enable him to relocate successfully within India. The Tribunal is satisfied that by relocating within India the applicant can avoid the difficulties he experienced in Assam state with ULFA and the MLA. It finds that it is reasonable for him to relocate within India to avoid the harm he anticipates in Assam state by ULFA and persons associated with ULFA.
10. Applying these findings, the Tribunal held that the applicant did not have a well founded fear of persecution in India for a reason protected by the Refugees Convention.
11. The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant faces a real chance of persecution if he returns to India, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
12. The applicant has been unrepresented, although he was referred for free legal advice. His original application contains four grounds which make unparticularised assertions of failure of natural justice, failure by the Tribunal to give weight to relevant facts and documents, reliance on irrelevant materials, and questioning the applicant “with unnecessary matters”. There is also an unparticularised assertion of excess of jurisdiction.
13. I have considered all of these general contentions, but am unable to identify any substance which can be given to them in the material before me. The Tribunal followed the procedures required by the Migration Act. It gave the applicant an opportunity to present his case to it, and to address the critical issues. It has taken into account his evidence and the documents he presented, and I do not consider that it relied on any irrelevant information or considerations.
14. The applicant’s amended application has two grounds. The first ground contends that the Tribunal failed to follow procedures required by section 424A(1) of the Migration Act, because:
    • The Tribunal did not disclose to me or did not ask my comment about its finding that:
    • (i) The Tribunal is satisfied by information from external sources referred to above that ULFA is not active beyond Assam state and it does not accept the applicant’s claim that ULFA has the ability or interest to pursue and target individuals outside Assam state.
15. However, as the Minister’s counsel points out, the Migration Act does not require the Tribunal to invite the applicant to give written comments, or to follow procedures at a hearing under section 424AA, where it proposes to rely upon information based on general country information. Any such obligation is excluded by s.424A(3)(a) and s.422B(1) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572). The subordination of section 424AA in this respect has recently been confirmed by the Full Court (see SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46).
16. The Tribunal is obliged to ensure that an applicant has a reasonable opportunity to be aware of and to address the issues upon which the review will be decided (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152). However, it appears to me that the applicant was sufficiently on notice of the issue of whether he could relocate outside Assam without a significant risk of persecution. This issue should have been apparent to the applicant from the proceedings before the delegate, including the delegate’s decision, and from the course of the Tribunal’s questioning at the hearing.
17. I can understand that the applicant now regrets not presenting information in support of his contention that the ULFA makes and carries out threats outside Assam. However, I do not consider that he was prevented from appreciating that information showing this would be relevant to his claims, and from presenting any such information at the time of the Tribunal’s hearing, if not earlier. The Tribunal certainly has taken into account his personal opinion about the risk he faced outside Assam, which it thought was contrary to the country information which the Tribunal identified. At the end of the day, it was the Tribunal’s task to make an assessment of that risk, and I consider that it made a decision which was open to it on the material which was in front of it.
18. The applicant’s second ground of his amended application criticises its conclusion in that respect. It contends:
    • The Refugee Review Tribunal failed to realise that the relocation was not a solution in the context of applicant’s particular circumstances:
    • Particulars:
    • A. the Tribunal made a wrong assumption about the relocation that:
    • (i) The Tribunal is satisfied that the applicant can avoid further difficulties with ULFA and the MLA in Assam by relocating within India.
19. For the reasons which I have explained above, in my opinion, this contention only expresses disagreement with an assessment by the Tribunal of the risk of persecution which was made within the Tribunal’s jurisdiction, and was open to it on the material before it. I do not consider that the applicant has raised any jurisdictional error in his criticisms of the Tribunal’s conclusion about relocation.
20. In his oral submissions to me today, the applicant made three points. His first point was that “the member of BJP in my area is also against me”, apparently referring to a present member of a Parliament. However, the applicant accepted that this was not a claim which he had previously presented to the Tribunal. If it was part of the history which the applicant forgot to present to the Tribunal, then unfortunately I do not have power to give him that opportunity to expand upon his claims. If it arises from circumstances occurring after the Tribunal made his decision, then I still would not have power to remit that matter to the Tribunal for further consideration. I cannot find any jurisdictional error affecting the decision of the Tribunal arising from the raising of this new claim.
21. The applicant’s second point repeated his criticism that the Tribunal was wrong to form the opinion that the ULFA was confined to the state of Assam in its area of threat. He argued that if the Tribunal had given him further opportunities to present material, he could have presented more documents to show this.
22. However, as I have indicated above, I consider that the Tribunal followed procedures which sufficiently allowed the applicant to present such documents. In the absence of jurisdictional error, the Court cannot order the Tribunal to give him a further opportunity. On the evidence now before me as to what was said at the hearing of the Tribunal, the applicant did not request more time to present that information, and I do not consider that the Tribunal was obliged to invite him to present additional general information.
23. The applicant’s third point was that the Tribunal wrongly assessed the reasonableness of expecting him to relocate to a place such as Kolkata. He made the point that throughout all India neighbourhoods were very suspicious of strangers moving into their area, as a result of terrorist outrages. He argued that the Tribunal did not appreciate that this would prevent his settling anywhere outside his home district.
24. Under established authorities, the Tribunal was obliged to consider the practical impediments which might face a possible relocation within a country of nationality to avoid a localised risk of persecution (see Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, and NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 270). The recent judgments of the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 and SZFDV v Minister for Immigration & Citizenship [2007] HCA 41; (2007) 233 CLR 51 appear to endorse the requirement of addressing the practical reasonableness of a relocation, although in SZATV at [25] there is a suggestion that this does not require the decision-maker to be satisfied that there would not be deterioration in the quality of life in the course of relocating. The High Court emphasised that it is necessary for the decision-maker to be satisfied that the applicant would not face in the ‘safe’ location an appreciable risk of the occurrence of the feared persecution (see SZFDV at [14]).
25. However, there is no doubt in my opinion that the Tribunal did address the issue of relocation with a correct appreciation of legal principles. In relation to the practicality of the applicant relocating outside Assam, it appears to me that the Tribunal did consider relevant issues, including the objections which the applicant specifically raised with the Tribunal as to language and the availability of employment. The applicant does not appear to quarrel with the fact that he would not have language problems in a state where he could speak Bangla. The Tribunal did address his concerns about finding employment. On the material before me, it does not appear that he presented the ‘neighbourhood hostility’ contention to the Tribunal in the manner that he has now presented it to the Court. I am not satisfied, particularly in the absence of a transcript, that the Tribunal did not sufficiently consider all the objections raised by the applicant to the suggestion made to him by the Tribunal, that he could reasonably avoid a risk of persecution by living and working outside Assam.
26. For all the above reasons, I have not been persuaded that the Tribunal’s decision is affected by any jurisdictional error, and I must therefore dismiss the application.

I certify that the preceding 26Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-sixtwenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 4 May 2009