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SZNMS v Minister for Immigration & Anor [2009] FMCA 809 (24 August 2009)
Last Updated: 25 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZNMS v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION – Review of decision of Refugee
Review Tribunal – whether Tribunal erred in making relocation finding
without
finding as to Convention – related harm – no need for
Tribunal to do so where proceeds on assumption that applicant
satisfies
definition of “refugee” – Tribunal considered all claims and
integers – applicant seeking merits
review – no jurisdictional error
– application dismissed. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Date of Last Submission:
|
30 June 2009
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|
Delivered on:
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24 August 2009
|
REPRESENTATION
Appearing for the
Applicant: |
In person
|
Solicitors for the Applicant: |
Nil
|
Appearing for the Respondents: |
Mr R Baird
|
Solicitors for the Respondents: |
Clayton Utz
|
ORDERS
(1) The application made on 21 April 2009 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of
$3,800.
FEDERAL MAGISTRATESCOURT OF AUSTRALIA
ATSYDNEY
|
SYG 929 of 2009
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
- This
is an application made on 21 April 2009 under the Migration Act 1958
(Cth) (“the Act”), seeking review of the decision of the Refugee
Review Tribunal (“the Tribunal”) made on
12 January 2009, which
affirmed the decision of a delegate of the respondent Minister to refuse a
protection visa to the applicant.
Background
- The
applicant is a citizen of India who arrived in Australia on
12 August 2008. He applied for a protection visa on
18 September 2008
(reproduced at Court Book – “CB”
at CB 1 to CB 31 with annexures). This application was refused on
12 December
2008 (CB 49 to CB 52). The applicant applied for review by
the Tribunal on 12 January 2009 (CB 53 to CB 56).
The applicant’s claims to protection
- The
applicant’s claims to protection in Australia were that he owned a farm in
the Pilibhit area in India. In August 2007 one
of his employees, a citizen
of Nepal, died on the farm. The applicant claimed that while the
employee’s father accepted that
his death occurred because of natural
causes, the employee’s brother, who was a member of a terrorist group in
Nepal, blamed
the applicant for the death. The applicant claimed that the
brother, and others, had attempted to kill him on two occasions. Further,
that
the police told him that they were unable to assist him because the person
making threats against him was a citizen of Nepal,
who was residing in Nepal,
and that this was outside India’s jurisdiction.
The delegate
- The
delegate accepted that the applicant had come into conflict with the brother of
his deceased employee. However, he found that
there was no link between the harm
that he feared and any of the reasons stated in the Refugees Convention. He
refused the application
protection visa on this basis. (See CB 49 to CB 52
and, in particular, CB 52.4.)
The Tribunal
- The
applicant applied for review by the Tribunal on 12 January 2009. (See CB 53 to
CB 56). The applicant appeared at a hearing before
the Tribunal on 19 March
2009. (See CB 62 to CB 63, and CB 69.) The Tribunal’s account of what
occurred at the hearing is set
out in its decision record. (See CB 91.)
- The
Tribunal accepted the applicant’s factual account of what he said,
relevantly, had occurred. That is, it accepted his claim
that his employee died,
and that the employee’s brother blamed the applicant for his death, and
had been seeking to harm or
kill the applicant. The Tribunal accepted that
attempts had been made on the applicant’s life in the past, and accepted
that
further attempts “may be made on the applicant’s life by the
same persons if he returns to live in the Pilibhit area”.
(See [31] at CB
92.)
- The
Tribunal “formed the view” that the applicant’s difficulties
in India were confined to his local area, and that
the difficulties he
anticipates in the future were also confined to that area of India. Further, the
Tribunal found that the applicant
could avoid difficulties if he were to
relocate within India. (See [32] at CB 92.) The Tribunal found that it was
reasonable for
the applicant to relocate (see [33]), and that an adequate level
of protection would be provided to him by the Indian State if he
were to
relocate on return to India. (See [34].)
- It
was on this basis that the Tribunal found that the applicant did not have a
well-founded fear of persecution in India for a Convention
reason, and affirmed
the delegate’s decision.
Application to the Court
- The
application to the Court puts forward the following grounds:
- “(1)
The applicant satisfies the four key elements of the Convention definition as
detailed in page 2 and 3 of the Tribunal
decision. The Tribunal had not
considered the aspect and therefore committed factual and legal error.
- (2) That
the decision of the Refugee Review Tribunal was effected by jurisdictional error
in that [the] Tribunal did not take in
to account certain relevant consideration
or ‘integers’ central to the applicant’s
claim.”
- [Errors
in original.]
Hearing Before the Court
- At
the hearing before the Court the applicant appeared in person. He was assisted
by an interpreter in the Hindi language. Mr R Baird
appeared for the first
respondent.
- At
the hearing, the applicant submitted that he wanted a “bit more
time”, that his problems in his home country would
be solved if he were to
spend more time in Australia, and further, that it was not safe for him anywhere
in India as police protection
was not available to him elsewhere in India. He
emphasised that he needed “more time”. He did not directly address
the
grounds in the application.
Consideration
Ground one
- The
first ground of the application asserts that the applicant satisfies the four
key elements of the Convention definition, as detailed
in the Tribunal’s
decision record, and that the Tribunal’s failure to consider this means
that it committed “factual
and legal” error.
- The
relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to
reach a requisite level of satisfaction as to the criterion set out, relevantly,
in s.36(2). That is, effectively, that the applicant meets the definition of
“refugee” as set out in the UN Refugees Convention,
such that in
these circumstances a protection visa must be granted (SJSB v Minister for
Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at
[15] to [16], NAST v Minister for Immigration and Multicultural and
Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for
Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005]
FCAFC 73).
- In
doing this, the Tribunal is not required to uncritically accept any, or all, of
the applicant’s claims. Nor is it required
to find evidence to
“disprove” an applicant’s claims (Randhawa v Minister for
Immigration and Ethnic Affairs [1994] FCA 1253; [1994] FCA 1253; (1994) 52 FCR 437 at 451).
- It
must be said that the wording of ground one (and for that matter, ground two as
well) in the application is strikingly similar,
if not identical to grounds
advanced in a number of other cases seen before this Court. However, I operate
on the assumption that
whatever the drafting genesis of the words in this
ground, or whoever drafted it, the applicant has adopted this as his complaint
about this Tribunal’s decision.
- Whatever
the situation to have prompted the inclusion of this ground in his application
to this Court, in the circumstances of the
current case, it is perhaps
understandable that some confusion may have arisen on the part of the
applicant.
- The
ground refers to the four key elements of the Convention “as detailed in
pages 2 and 3 of the Tribunal decision”.
What appears at pages 2 and 3
(reproduced at CB 88 and 89) of the Tribunal’s decision record is the
usual statement as to the
“Definition of ‘refugee’”
regularly found in Tribunal decision records.
- Two
aspects of this particular Tribunal decision, however, may give rise to
confusion on the part of the applicant (or whoever drafted
or provided the
ground for him) in view of what is set out at the pages 2 and 3 of the
Tribunal’s decision record, and the
factual findings made by the
Tribunal.
- The
first is that at paragraph [15] of the Tribunal’s decision record (part of
“pages 2 and 3”), the Tribunal sets
out the following proposition
(at CB 89):
- “Third,
the persecution which the applicant fears must be for one or more of the reasons
enumerated in the Convention definition
- race, religion, nationality,
membership of a particular social group or political opinion. The phrase
‘for reasons of’
serves to identify the motivation for the
infliction of the persecution ... persecution for multiple motivations will not
satisfy
the relevant test unless a Convention reason or reasons constitute at
least the essential and significant motivation for the persecution
feared:
s.91R(1)(a) of the Act.”
- In
the current case the delegate plainly refused the application for a protection
visa because he found that there was no link between
the harm feared by the
applicant, and any of the reasons enumerated in the Convention definition of
“refugee”.
- The
Tribunal, however, does not appear to have made any such a finding. While both
the delegate and the Tribunal accepted the factual
basis for the
applicant’s claims (that is, that the applicant was threatened by his
deceased employee’s brother, and
that he had been harmed by this person),
unlike the delegate, the Tribunal found against the applicant, without appearing
to make
any finding in relation to any Convention nexus. But rather by finding
that the applicant could reasonably, and safely, relocate
away from his local
area to another part of India.
- The
second source of possible confusion for the applicant is that the
Tribunal’s exposition of the “definition of refugee”
makes no
reference to what ultimately turned out to be the determinative issue in the
Tribunal’s decision. Namely, that the
applicant could reasonably and
safely relocate away from his home area to another part of India, such as to
avoid harm.
- Dealing
with the first matter, in Syan v Refugee Review Tribunal & Minister for
Immigration & Ethnic Affairs (1995) 61 FCR 284 (per Beazley J)
(“Syan”) the appellant in that case contended, amongst other
things, that the Tribunal: “adopted a wrong approach in law in
dealing
with the issue of internal flight without first having determined whether the
applicant satisfied the Convention definition
of refugee...”
(at 285).
- Her
Honour ultimately found in relation to this issue (at 288):
- “...
However, I am of the opinion that the Tribunal in the present case did not apply
a wrong test. Rather, it approached the
matter on the basis of an assumption,
namely that the applicant would otherwise satisfy the Convention definition of
refugee. On
that assumption, it considered the question of internal flight. Had
it determined that matter in favour of the applicant, it would
have been
necessary to determine whether the applicant had a well-founded fear of
persecution for a Convention reason. However, having
found against the applicant
on the question of internal flight, it was not necessary to determine whether
the applicant had a well-founded
fear of persecution based on a Convention
reason. In my opinion, it was open to the Tribunal to consider the matter in
that way.”
- Further,
in relation to this issue, in Ravind Chand v Minister for Immigration &
Ethnic Affairs [1997] FCA 138 (per Moore J) at [6]:
- “The
approach the Tribunal took was to assume that the applicant had a well founded
fear of persecution having regard to the
applicant's account of his
circumstances. Having made that assumption the Tribunal went on to consider the
matter I earlier referred
to, namely whether the applicant was unable or, or
owing to a well-founded fear of persecution, unwilling to avail himself of the
protection of his country of nationality. This approach finds support in the
judgment of Beazley J in Syan v Refugee Review Tribunal
(1995) 61 FCR 284 which
was a case in which the Tribunal had assumed the existence of a well founded
fear of persecution and had then considered whether
the applicant might
reasonably be expected to relocate within the country of nationality. Her Honour
concluded that this approach
involved no error of law. No contrary submission
was made in this matter and I proceed on the basis that the approach adopted by
the Tribunal in considering the circumstances of the applicant was open to
it.”
- The
approach of the Court in Syan was said to be “clearly
correct” in Sinan Aras v Minister for Immigration & Ethnic
Affairs [1998] FCA 254 per Finkelstein J.:
- “This
issue was considered in Syan v Refugee Review Tribunal & Anor (1995) 61 FCR
284. That was a case where the Tribunal considered the issue of relocation
having assumed as true everything the applicant claimed had
happened to him in
the Punjab being an assumption that would ordinarily result in a finding that
the applicant had a well founded
fear of persecution if he was required to
return to India. However, the Tribunal decided that the applicant did not have
such a fear
because he was able to live in some other part of India. The
applicant sought to challenge this decision on a number of grounds one
of which
was that the Tribunal adopted a wrong approach in dealing with the possibility
of relocation without first having determined
whether the applicant satisfied
the Convention definition of refugee. Beazley J rejected this argument. Her
Honour said that it was
open for the Tribunal to proceed on the basis of an
assumption that apart from the issue of relocation the applicant would satisfy
the definition of refugee and on that assumption consider the question of
relocation. This approach is clearly
correct.”
(See also SZENJ v Minister for
Immigration and Citizenship [2007] FCA 734 at [29] (per Downes J), and the
reference to Syan there.)
- I
am satisfied that on a plain reading of the decision record in the current case,
the Tribunal accepted the applicant’s factual
claims of past harm and, in
view of what had been put before the Tribunal, it was open to it to find that
the applicant’s difficulties
were confined to his local area (Pilibhit),
which was near the Nepal-Indian border. Further, it was open to the Tribunal, in
view
of what was before it, to also find that the difficulties which the
applicant anticipated in the future were also confined to that
area of
India.
-
Although the Tribunal made no finding of any nexus between the harm feared and
the Convention grounds, as set out in its own exposition
of the definition of
“refugee”, it was not in error for the Tribunal to proceed on the
assumption that (apart from the
issue of relocation) the applicant would satisfy
the “definition of refugee” in relation to what had occurred, and
what
was likely to occur, in the Pilibhit area, and on that assumption, to then
consider the question of relocation.
- The
second source of possible confusion for the applicant derives also from what is
set out under the heading: “Definition of
‘refugee’” in
the Tribunal’s decision record. This exposition makes no reference to the
issue of internal
flight or relocation.
- For
those considerations, the applicant would need to be referred to such cases as
Harjit Singh Randhawa v the Minister of Immigration, Local Government and
Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 (per Black CJ at [8],
with whom Whitlam J agreed):
- “...
Although it is true that the Convention definition of refugee does not refer to
parts or regions of a country, that provides
no warrant for construing the
definition so that it would give refugee status to those who, although having a
well-founded fear of
persecution in their home region, could nevertheless avail
themselves of the real protection of their country of nationality elsewhere
within that country. 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.
If it were otherwise, the anomalous
situation would exist that the international
community would be under an obligation to provide protection outside the borders
of
the country of nationality even though real protection could be found within
those borders.”
(See also per Beaumont J at
[20].)
- In
all, therefore, having accepted the applicant’s claims to fear harm from
the brother of the deceased employee, and having
found that the fear of harm in
the past was confined to the applicant’s local area (and that it would be
in the foreseeable
future), which was near the Nepal-Indian border, it was open
to the Tribunal to proceed to consider whether it was reasonable, and
safe, for
the applicant to relocate to another part of India to avoid any such harm in the
future.
- The
Tribunal’s finding that it was reasonable in the circumstances for the
applicant to relocate elsewhere in India was consistent
with relevant authority.
(See SZATV v Minister for Immigration and Citizenship [2007] HCA 40 and
Randhawa.)
- Further,
with reference to independent information available to it (which the Tribunal
specifically raised with the applicant at the
hearing – see [26] at CB 91)
it found that the Indian State would provide a reasonable level of protection to
the applicant
if he were to require protection in the reasonably foreseeable
future. I agree with the Minister that there is no error attending
this finding
(Minister for Immigration and Multicultural Affairs v Respondents
S152/2003 [2004] HCA 18; (2004) 222 CLR 1).
- In
light of the above, therefore, the applicant’s complaint set out in ground
one does not succeed.
Ground two
- Ground
two of the application asserts that the Tribunal did not take into account
certain relevant considerations or integers central
to the applicant’s
claim.
- No
particulars whatsoever are provided in the application. Nor, despite opportunity
provided by orders made at the first Court date
in this matter, and his
participation in the Court’s legal advice scheme, has the applicant put an
amended application providing
particulars before the Court. Nor was he able to
assist in this regard at the hearing before the Court.
- The
Tribunal reports that at the hearing before it, when it raised the issue of
levels of protection provided by the Indian State,
the applicant responded to
the effect that he could not be protected from the persons that he feared
because “his (political)
party is not in power”.
- To
the extent, therefore, that it may be said that an “integer” of the
applicant’s claim was that adequate state
protection would be denied to
him because of his political affiliation, then I agree with Mr Baird’s
submission that, when
paragraphs [30] and [34] (CB 91 to 92) of the
Tribunal’s reasons are properly read together, the Tribunal understood
this aspect
of the applicant’s claims, but preferred information from
external sources that all citizens of India have access to a reasonable
level of
protection provided by the state. That the applicant would therefore have a
reasonable level of protection, even in the
circumstances put forward by him as
to his political affiliations. This was a finding that was open to the Tribunal
to make. I cannot
see error in this regard.
- The
applicant made claims to fear harm based on past events in his home district
where the death of an employee brought him into conflict,
and generated threats
from the employee’s brother, who lived across the border in Nepal. The
Tribunal accepted all of the factual
claims made by the applicant in this
regard. It found, however, for reasons which were open to it on the material
before it that,
notwithstanding that these events had occurred in the past (and
that, indeed, similar events may occur in the future), the applicant
could avoid
any harm feared in this regard by relocating to another area in India, away from
his local area, that it was reasonable
for him to do so in all the
circumstances, and that an adequate level of protection would be afforded to him
by the Indian State.
- Ground
two asserts that the Tribunal failed to take into account relevant
considerations or integers central to his claims. On what
is before the Court, I
cannot see that this can be seriously suggested, let alone made out. I cannot
see error in the Tribunal’s
decision as asserted.
- I
am left with the view that, in reality, the applicant seeks merits review before
this Court. That avenue is not open to this Court
to provide (Minister for
Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR
259).
Complaints Before the Court
- From
what the applicant submitted before the Court, it may be discerned that merits
review is what the applicant really seeks from
this Court. (See [11]
above.)
- This
Court has no power to extend the applicant’s time in Australia merely
because he seeks it. Such requests should properly
be put to the Minister at his
Department.
Conclusion
- For
the applicant to succeed before the Court, the Court would need to discern
jurisdictional error (at least) in the Tribunals decision.
The applicant's
grounds do not reveal any such error, and nor did anything that the applicant
said to the Court during the course
of the hearing assist in finding any such
error. I cannot otherwise find such error in what is before me. In these
circumstances,
therefore, the application is dismissed.
I
certify that the preceding 44Error! Style not
defined.!Syntax Error, !Error! Style not defined.Error! Style not
defined.!Syntax Error, !forty-fourforty-four (44) paragraphs are a true copy
of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 24 August 2009
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