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SZNBZ & Anor v Minister for Immigration & Anor [2010] FMCA 77 (12 February 2010)

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SZNBZ & Anor v Minister for Immigration & Anor [2010] FMCA 77 (12 February 2010)

Last Updated: 16 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBZ & ANOR v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The Applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZNBZ” and “SZMUD”.


NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41
Walt v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2

First Applicant:
SZNBZ

Second Applicant:
SZMUD

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 1323 of 2009

Judgment of:
Lloyd-Jones FM

Hearing date:
1 February 2010

Delivered at:
Sydney

Delivered on:
12 February 2010

REPRESENTATION

The Applicant:
The Applicant appeared in person with the assistance of a Malayalam interpreter.

Counsel for the Respondents:
Ms Warner-Knight (solicitor)

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) The application filed on 2 June 2009 is dismissed.
(2) The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the application.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1323 of 2009

SZNBZ

First Applicant


SZMUD

Second Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

The proceedings

  1. The Applicants are husband and wife. The First Applicant has made specific claims for a Protection (Class XA) visa and the Second Applicant relies on these claims as a result of her family membership. For the purposes of this judgment, the First Applicant will be referred to as “Applicant”.
  2. The Applicant was born in Kerala, India on 1 January 1972. He is Muslim and is fluent in the Malayalam language with some English reading and writing skills. The Applicant has had 15 years education and has worked in managerial positions from 1993 until 2008. The First and Second Applicants were married on 6 January 2008.
  3. On the Applicant’s Protection (Class XA) visa application, he claims he is an active member of the Communist party of India (CPI)(M) and was targeted by political opponents in the RSS (Rashtriya Swayamsevak Sangh) and the BJP (Bharatiya Janata Party). The Applicant claims he faced numerous difficulties with his opponents between 1994 and 1997 and as a consequence fled to Saudi Arabia between 1997 and 2002. During his time in Saudi Arabia the Applicant continued to provide financial support to the CPI (M).
  4. On his return to Kerala in 2002, the Applicant was targeted by a radical Muslim group, the NDF (National Development Front) because he did not support the group. The Applicant claims his house was attacked by NDF supporters and he was also facing difficulties with the RSS in his village. The Applicant went into hiding at his uncle’s house until his father organised a visa for him to go to Singapore in 2005.
  5. The Applicant returned to visit India in February 2006 and claims he continued to provide financial support to the CPI (M) during his time in Singapore.
  6. The Applicant returned to India to marry in January 2008. Shortly after his return, violence erupted between RSS and CPI (M) supporters which led to many deaths and the Applicant was forced into hiding at his uncle’s house. The Applicant was attacked and received threatening letters from the RSS because they believed that he was involved in the murder of RSS members. The Applicant claims he went to the police but was attacked by two members of the RSS on 24 April 2008. The Applicant stated that he was “victimized and vilified by BJP and RSS fanatic’s associates”. The Applicant stated that he feared he could have been killed in India and upon his release from hospital, he fled to Singapore.
  7. The Applicant claims he applied to become a permanent resident in Singapore but the company he was working for was going bankrupt and his application was rejected. He further states that the RRS continued threatening him and he was fearful that he could also be attacked in Singapore. The Applicant stated that he then decided to come to Australia where he could be safe from the persons he feared.
  8. The Applicant arrived in Australia on 21 November 2008 and applied for a Protection (Class XA) visa on 30 December 2008. On 3 March 2009 a delegate of the Minister for Immigration & Citizenship refused the application for a Protection visa and the Applicant was notified of this decision by way of letter on 3 March 2009. The Applicant applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on 19 March 2009 and the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa on 8 May 2009. It is this decision, RRT case number 0901974, a decision of Andrew Jacovides that is the subject of these proceedings.
  9. A Court Book (“CB”) prepared by the first Respondent’s solicitors and marked Exhibit “A” is the only evidence before the Court.
  10. At the first court date directions hearing, the Applicant was granted leave to file an amended application. Consequently, the Applicant filed an amended application on 9 September 2009 which contains the following grounds:

1. The Tribunal failed to consider properly the test whether the Applicants would suffer serious harm as per s.91R(2)(a) of the Migration 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.

2. The Tribunal member had failed to honour his undertaking. The requirement to put information to an Applicant contained in s.424A which relevantly states:

424A Applicant must be given certain information
1. Subject to subsection (3), the Tribunal must:
a) Give to the Applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
b) Ensure, as far as is reasonably practicable, that the Applicant understand why it is relevant to the review and
c) Invite the Applicant to comment on it.
It is my case that the Tribunal ignore[d] its undertaking to give me an opportunity to make written submission[s] to clear [the] Tribunal doubt about my prominent role as [a] CPI(M) activist; therefore the Tribunal erred by denying me procedural fairness in respect of this issue.
Therefore I submit that the Tribunal failed to analyse properly the “future harm” that I may face if I have to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claim.
  1. Further orders made at the first court date hearing were for the Applicant to file and serve in the Registry a short written outline of submissions and a list of authorities 14 days before the hearing. This order was apparently misunderstood by the Applicant. The Applicant prepared written submissions together with a bundle of additional documents relating to an incident that occurred involving his father at some time subsequent to the Tribunal hearing in addition to an album containing colour photographs of victims of recent violence. All this material was posted directly to my Associate and not filed at the Court Registry. A copy of the written submissions was provided by my Associate to the Respondent’s solicitors and there was no objection made in respect of this document. The Applicant was informed that as the additional press clippings and photographs was not evidence placed before the Tribunal this material was inadmissible in respect of this hearing.

Tribunal decision

  1. The Applicant wife initially indicated that she did not have a separate refugee claim and she was relying upon her husband’s application as the basis for the granting of a protection visa. However, during the Tribunal hearing, the applicant wife indicated that she felt at risk of harm by her husband’s political opponents and that this fear existed both in India and in Singapore. She stated that if she had to return to India she feared harm by her husband’s political opponents.
  2. The Tribunal accepted the Applicant’s claim of involvement with the CPI(M) in Kerala which caused him to suffer other difficulties with political opponents including the RSS the BJP and the NDF. The Tribunal accepted that the Applicant was attacked on 24 April 2008 by RSS members for the reasons that he presented. It accepted the Applicant’s anticipated further difficulties with these groups if they returned to the state of Kerala in India.
  3. The Tribunal found that the Applicant’s difficulties with political opponents were confined to their local area and they could relocate within India to avoid the groups they feared. The Tribunal considered it was reasonable for the Applicants to relocate because the Applicant had an educational background and the skills and knowledge that would enable him and his wife to relocate successfully within India. The Tribunal considered independent country information relating to human rights conditions in India and the availability of State protection for citizens of India. The Tribunal was satisfied that if the Applicants required protection after relocating, reasonable levels of State protection within India were available. The Tribunal was satisfied that after relocation the Applicants would be able to avoid further harm from their political opponents in Kerala and they would not face persecution for reason of political opinion or any other Convention reason.

Consideration

  1. The Applicant’s written submissions, dated 2 November 2009 and subsequently filed in Court on 1 February 2010, were prepared in response to a direction of this Court to prepare written submissions prior to the hearing and do not appear to address the Applicant’s original ground of review or in subsequent amended application but rather address two new issues being:
    1. that the Tribunal failed to properly consider the evidence about his situation being implicated in the murder of a RSS member; and
    2. that the Tribunal member did not allow time for collecting and translating of further documentation that supported his claims.

The remainder of the document raises a number of factual claims regarding his circumstances in India which in effect is an expansion or elaboration of the Applicant’s claim for protection but does not identify or address the issue of jurisdictional error in the Tribunal’s proceedings or decision.

  1. Contrary to the Applicant’s written submissions, the Tribunal did not predict the factual claims of the Applicant as to the harm he feared from certain RSS members as they wrongly implicated him in the killing of an RSS member. The Tribunal accepted this claim but found that it was reasonable for the Applicants to relocate within India and thereby avoid a real chance of any such harm. The Tribunal found that a reasonable level of State protection was available in India so that even if a real chance of such harm could not be avoided the Applicants could avail themselves of that protection.
  2. The Applicant cavils with the Tribunal’s factual finding that there is effective State protection in India. In support of this contention, the Applicant refers to two instances where violence took place in the presence of police. In one of these the Applicant alleges that his father was attacked by RSS local committee members in the presence of police however, his father received serious injuries requiring hospitalisation. In support of this claim the Applicant refers to a report filed at Narasimharja police station, Mysore, on 21 August 2009.
  3. The Applicant also claims that his father has been missing since the 17 October 2009 that has caused him to forward a complaint to the Director General of Police for Kerala. These issues were discussed with the Applicant during the Tribunal hearing (CB 188 at [35]) where it states
  4. In respect of the second issue raised in these submissions, there is nothing to support the complaint that the Tribunal did not allow time for collection and translation of his evidence. The Tribunal decision records that the Applicant submitted various documents at the hearing (CB 190 at [40]) but does not indicate that the Applicant foreshadowed obtaining or translating additional evidence or made any request for further time to file additional evidence. The decision record is the only evidence before the Court which is silent on this issue and in the absence of a transcript there is no indication that this issue was ever ventilated before the Tribunal.
  5. I am satisfied that these new issues raised in the written submissions have not identified jurisdictional error on the part of the Tribunal when dealing with this matter. In the circumstances the Applicant is not conversant with the procedures of this Court and does not fully understand the formal steps in presenting his case. I believe that the issues he wished to raise are contained in his written submissions and do not identify jurisdictional error on the part of the Tribunal.

Ground 1

  1. Contrary to the claim made in this ground, the Tribunal acknowledges that in the past the Applicant has been subjected to violence due to disputes with political opponents. However, the Tribunal found that this conflict was confined to the area of his local village and that he had previously been able to avoid this by moving to his uncle’s house which was in the vicinity of eight kilometres from his home village. The Tribunal also found that there was a reasonable level of State protection available to the Applicants at (CB 191 at [52]).
  2. The Tribunal found that the Applicant was educated and possessed skills and knowledge that would enable him and his wife to relocate successfully within India and therefore avoid a real chance of further harm. In particular, the Tribunal expressly found that such protection would be available to the Applicants if they were to face harm from their political opponents in another location within India.
  3. I am satisfied that the Tribunal has adequately and appropriately assessed the issue of relocation considered in the context of recent country information on this issue and the Tribunal’s determination is not subject to jurisdictional error. This ground should be dismissed.

Ground 2

  1. The Applicant in this ground raises three issues where it is claimed that the Tribunal failed:
    1. to comply with the requirements of s. 424A or otherwise deny the Applicant procedural fairness
    2. to analyse “future harm”; and
    1. to carry out the “real chance test”.
  2. All the information relied upon by the Tribunal in its decision making process was information that:
    1. the Applicant gave during the process that led to the decision that is under review (sub-s.3 (b)(a)) or;
    2. the Applicant gave for the purposes of the application for review (sub-s. 3(b)); or
    1. is not specifically about the Applicant or any other person and is just about a class of persons which the Applicant or other person is a member (sub-s.3(a)).

Consequently, no duty arose pursuant to s.424A by virtue of the exclusions in s.424(3).

  1. The decision record and the contents of the Court Book indicate that both Applicants attended the hearing before the Tribunal on 4 May 2009 and were assisted by a Malayalam – English interpreter. After reviewing with the Applicants the nature of their claim of persecution the Tribunal member discussed some recent reliable assessments of the human rights situation in India and that citizens of India commonly had access to a reasonable level of protection by the State. This was placed in the context that no State could offer an absolute guarantee it can protect all of its citizens all of the time and in all situations. However, the Tribunal indicated to the Applicants that as a citizen of India they will have access to reasonable levels of State protection if requiring protection from political opponents.
  2. When the Tribunal invited the Applicants to the hearing in a letter dated 3 April 2009, the Tribunal invited the Applicants to forward any new information which they wished the Tribunal to consider as part of their application. Several documents were tendered and these were considered by the Tribunal in addition to the material previously supplied in the original application. Further, during the hearing, the Tribunal member asked the Applicants whether there were any other reasons which led to his decision to leave Singapore when he had, in effect, established himself there and had been able to obtain employment that would be appropriate for his educational background skills and knowledge.
  3. The Applicant alleges that the Tribunal failed to analyse properly ‘future harm’ that he may face if he had to go back to India. However, the Tribunal did consider the possibility that the Applicant could face harm from his political opponents in India and found that such harm was localised to the Applicant’s village. These issues are canvassed in the decision and the Tribunal notes that moving to a relative’s house only eight kilometres from his home, the Applicants were able to avoid their political enemies. The Tribunal clearly analyses these circumstances and was satisfied that the Applicants could successfully relocate internally and it was reasonable for the Applicant to do this (CB 189 at [36]). The Tribunal also considered the possibility of harm from the Applicant’s political opponents in another state of India and found that effective State protection was available from such harm.
  4. The Applicant alleges that the Tribunal failed to assess or carry out the “real chance” test before dismissing his claim. The Tribunal found that the Applicants could avoid a “real chance” of future harm by relocating within India and that there was a reasonable level of State protection offered to its citizens and that its citizens can have access to that protection.
  5. I am satisfied that the four issues of complaint raised in this ground of review have been appropriately and adequately addressed by the Tribunal and that this ground cannot be sustained.

Relocation

  1. It is acknowledged that the Applicant is a self-represented litigant, not conversant in the English language, with no knowledge of the administrative or judicial system in which he was attempting to protect his legal position and being forced to deal through an interpreter service in this process. Although the Applicant has not specifically pleaded this issue, it appears that he is attempting to submit that the Tribunal was required to address the practical realities that he and his wife would face if they were to relocate: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, SZATV v Minister for Immigration and Citizenship [2007] HCA 40, SZFDV v Minister for Immigration and Citizenship [2007] HCA 41, NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC per Branson J at [22] and North J at [73], Walt v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [45], SZAIX v Minister for Immigration, and Multicultural and Indigenous Affairs [2006] FCA 3, SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216. This substantial body of judicial authority established that a Tribunal must give consideration to an Applicant’s personal history including his language skills, age, education, health, family connections and employment and demonstrate an ability to live independently elsewhere than in the location of origin.
  2. The High Court in SZATV v Minister for Immigration and Citizenship (supra) per Gummow, Hayne and Crennan JJ when considering the issue of relocation stated at [24]

In effect this test was not directed at living conditions generally, but rather to the circumstances of an individual and matters such as differential treatment in matters of race, religion or political opinion: SZATV (supra) at [26].

  1. The Tribunal, when considering the issue of relocation, noted that the incident of harassment and threats from the Applicant’s political opponents appeared to be confined to the limited area of his village in which he was resident. On the material before the Tribunal it formed the view that this violence towards the Applicants was restricted to this particular location. The Applicants claimed that they would be pursued throughout India and to Singapore however the Tribunal was satisfied on recent human rights briefings, that adequate State protection was available to it’s citizens in the circumstances of violence perpetrated for political reasons.
  2. The Tribunal was also satisfied that the Applicant was well educated and possessed the skills and knowledge to enable him to find employment readily. This was demonstrated by his ability to find suitable employment in Singapore in a relatively short period of time after moving there.
  3. In these circumstances and in the absence of any submissions or particulars, the evaluation by the Tribunal member of the ability of the Applicants to relocate does not indicate any jurisdictional error and has been conducted in the appropriate manner.

Conclusion

  1. The Applicant in these proceedings is a self-represented litigant and was assisted at the hearing by a Malayalam interpreter. The grounds of review in the original and amended application cover no more than general aspects of judicial review and bear little relevance to this particular Tribunal decision. There is no particularisation or any form of supporting evidence to elaborate on these very general terms of review.
  2. The Tribunal readily accepted that the Applicants had been subjected to persecution in their local village by rival political activists. This harassment appears to only have occurred in a very localised area and the Tribunal pursued the issue of relocation as a means of the Applicants avoiding any future violence. This process from the material available, which in effect is the contents of the Tribunal decision itself, has been adequately performed for the relevant considerations in respect of the approach being followed.
  3. In the circumstances I am satisfied that there is no judicial error apparent in the Tribunal decision and that this application should be dismissed with costs.

I certify that the preceding 38Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-eightthirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM


Associate:


Date: 12 February 2010

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