SZNVX & Anor v Minister for Immigration & Anor [2010] FMCA 59 (9 February 2010)

Last Updated: 16 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNVX & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 59

MIGRATION – Alleged jurisdictional error – RRT findings of fact favourable to applicants – consideration of Tribunal’s reasoning on issue of relocation.

Migration Act 1958, ss.91R(2)(a), 424

SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40; (2007) 233 CLR 18

First Applicant:

SZNVX

Second Applicant:

SZNVY

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2025 of 2009

Judgment of:

Burchardt FM

Hearing date:

21 December 2009

Date of Last Submission:

21 December 2009

Delivered at:

Melbourne

Delivered on:

9 February 2010

REPRESENTATION

The First Applicant:

In person (via video-link from Brisbane)

The Second Applicant:

No appearance

Counsel for the Respondents:

Ms S. Koya

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application filed 21 August 2009 be dismissed.
(2) The Applicants pay the First Respondent’s costs.
(3) On or before 16 February 2010 the First Respondent file and serve submissions with respect to the quantum of costs.
(4) On or before 23 February 2010 the First Applicant file and serve a response to the submissions referred to in Order 3 herein.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

SYG 2025 of 2009

SZNVX

First Applicant

SZNVY

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 July 2009.
2. The applicants’ application filed on 21 August 2009 lists six grounds, none of which address in terms the relocation issue which stood at the heart of the Tribunal’s decision.
3. For the reasons that follow, I do not think the grounds of application are made out, rather that the Tribunal’s decision was correct and the application should be dismissed.
4. On 4 November 2009, Registrar Caporale made a number of orders, including orders that the applicants file and serve a supplementary court book, if any, and written submissions by 30 November 2009. The applicants have not done so, no doubt because of difficulties with the English language, and also because of a lack of legal representation. Nonetheless, this means that this Court is confronted only by the grounds set out in the originating application to which I have referred.

The Tribunal’s decision

5. The Tribunal’s decision was, in large part, favourable to the first applicant (“applicant”). The second applicant has only ever sought to qualify for visa protection on the footing that she is married to the first applicant.
6. Having set out, in a compendious way, the applicant’s claims, and having referred to a substantial amount of country information, the Tribunal found at CB105 and following that the applicant was a reliable witness and that his claims should be accepted. The Tribunal found, at paragraph 173 (CB107), that:
   • “The Tribunal accepts that the applicant has a well founded fear of persecution for a Convention reason, his political opinions. In 2000, Muslim members of the Congress Party invaded his home and assaulted his parents ... The Tribunal finds that the events to which the applicant has been subjected to in the past and that he maybe subjected to in the future are localized to the region where he lives ... The Tribunal is satisfied any future harm the applicant fears is as a result of the events which occurred within his local area and it is satisfied that harm he may fear in the future is localize to the region where he lived and worked. The Tribunal accepts the applicant’s claims that he has ceased his political activities and is satisfied that the applicant will not engage in any similar activities in the future on relocation therefore the Tribunal finds there is no real chance that the applicant will experience harm in the future as claimed on relocation.”
7. The Tribunal went on to find, at paragraph 175, that it was reasonably open to the applicant to seek refuge in another part of India.
8. As counsel for the first respondent correctly submitted, the extracts of the interchanges between the Tribunal and the applicant at CB96 and CB104 supported such a finding.
9. The Tribunal found that the applicant was able to live apart from his family, and had indeed relocated to another village in 2004 and again to Australia in 2008.
10. Thus, looking at the decision as a whole, it is clear that the Tribunal accepted the applicant’s claims as to issues of fact, but in the ultimate decided he could relocate within India and that it was reasonable for him to do so.

The applicant’s grounds of application

Alleged breach of section 424

11. The applicant has asserted in his application that the Tribunal failed to comply with s.424 of the Migration Act 1958 (“the Act”). I accept the submission of the first respondent that the applicant was indeed afforded an opportunity to make his claims and put any information before the Tribunal, both generally and at the two hearings that the Tribunal conducted.

The challenge to the relocation finding

12. The complaint made here is that “the Tribunal failed to consider properly the test whether the applicants would suffer serious harm as per s.91R(2)(a) of the Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal”.
13. The claim as expressed in the grounds in my view misses the point. The Tribunal in fact quite clearly thought that the applicant might face serious harm if he returned to where he had originally lived. The Tribunal, in my view quite appropriately, considered whether relocation was a reasonable and practicable possibility. As the Minister submits, the Tribunal considered the applicant’s religion, language spoken, previous demonstrated ability to relocate, to raise finance, to establish a business and his particular family circumstances (CB108-9). A person will be excluded from refugee status if, under all the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country (SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40; (2007) 233 CLR 18).
14. The Tribunal found that the matters giving rise to the applicant’s fear of persecution were localised and that it was reasonable in all the circumstances for the applicant to relocate. In my view, that does not give rise to jurisdictional error in the circumstances of this case.

A failure to achieve a reasonable state of satisfaction in accordance with the Act

15. This matter has not been particularised and in my view, is misconceived.

The Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and the consequences of the claim

16. Once again, I accept the submission for the first respondent that the Tribunal was required to consider, and did consider, whether the applicant satisfied the criteria for the grant of a protection visa. I accept the submission that the Tribunal’s findings were open to it on the material before it, and that the Tribunal gave cogent reasons in support of its findings.

The applicant satisfies the four key elements of the Convention definition as detailed in pages 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error

17. Again, I accept the first respondent’s submission that the Tribunal did consider the relevant test and correctly summarised the relevant law. It is important to note that the Tribunal accepted that the applicant had a fear of persecution in his home state by reason of his political opinion but decided against the applicant on the relocation case. There is no question of the Tribunal failing to consider the Convention test.

The RRT has failed to investigate applicant’s claim, specifically the grounds of persecution, in India. Therefore, the Tribunal decision dated 30 July 2009 was affected by actual bias constituting judicial error

18. There can be no question of bias in this case. The Tribunal expressly found that the applicant was a believable witness and accepted his assertions as to fact. It cannot be said that the Tribunal had some prejudgment prejudicial to the applicant in the circumstances.
19. In the circumstances of this case, I accept that the Tribunal was under no obligation further to investigate the applicant’s claims. The applicant’s claims of persecution were, after all, fully accepted by the Tribunal. The only issue where the applicant failed was in the extent of locality in which such fears were reasonably held.
20. In the face of the materials before the Court and in particular the country information set out by the Tribunal, in my view it cannot be said that the Tribunal was required to investigate further.

Matters raised at the hearing before the Court

21. The applicant appeared on his own behalf. He was provided with an interpreter in Brisbane from where he was appearing by video-link. Notwithstanding some apparent initial confusion, to which I paid careful attention given the difficulties that the applicant had at the first hearing before the Tribunal, it seemed to me that the applicant and the interpreter were in fact able properly to communicate. The applicant gave a number of answers that did not seem to me to directly address the issues I had raised, but in the end he did seem to understand the purport of the proceedings.
22. The applicant confirmed that his wife was ill in response to my question as to whether his wife was going to appear. It is clear that the second applicant’s application has always been wholly dependent upon the outcome of the first applicant’s claim.
23. When invited to address me as to the merits of the application, the applicant said words to the effect that there were a lot of difficulties in India, and that if he was required to return there was the possibility he might be murdered. He said the fighting between the two major parties could lead to his murder, and that this was why he came to Australia. He went on to say that if he was allowed to stay here for a short time, he could organise his life.
24. In reply, the applicant said that he had borrowed a lot of money from family and friends and needed time to stay here to earn money and pay them back. He referred to his grandmother in India being alone and that he was the one supporting her.
25. It should be noted that the claims of possible murder upon return to India were not raised in terms by the applicant’s original statutory declaration at CB33 to 34.
26. Likewise, so far as I can see, the applicant did not raise in terms the possibility of his being murdered if he were to return to India.
27. In the ultimate, however, the force of these assertions (to the extent that they can properly be entertained, bearing in mind that if they were not raised before the Tribunal, they cannot be pressed before the Court) is that the applicant was found by the Tribunal to face serious risk of persecution on the basis of his politics if he returned to India. In a sense, the assertion of possible murder adds nothing to that finding and in my view, it is not a matter that suggests that the Tribunal fell into any error about in any event.

Conclusion

28. For these reasons, I find that the application cannot succeed and must be dismissed, and I will so order.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Ms B. Evans

Date: 9 February 2010