SZDPE v Minister For Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2005-05-20|Before: Edmonds J

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court [Scarlett FM] delivered on 16 November, 2004 dismissing an application for a review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 27 April 2004 affirming a decision of the delegate of the Minister not to grant a protection visa to the appellant. The appellant seeks a writ of certiorari quashing the Tribunal's decision and a writ of mandamus compelling the Tribunal to rehear and redetermine the matter according to law.

Background 2 The background facts are not in dispute:

(a) The appellant is a 36 year old (born 1 August 1969) married male and a national of India from West Bengal. He lived in the Bongaon area at least from 1991. His family, including his wife and son, still live in India. He can speak, read and write both Bengali and English and has some ability in Hindi.

(b) The appellant entered Australia on 8 September 2003 on a temporary business visa, after living for a short period of time in New Delhi. On 3 October 2003 he lodged an application for a protection (Class XA) visa.

(c) The appellant claimed a well founded fear of persecution in India on the basis of his political opinion arising from his involvement with, and membership of, the Congress (I) Party (also referred to sometimes by the appellant as, inter alia, the National Congress).

3 In the statement provided in support of his protection visa application, the appellant claimed that: (a) He became involved with the student wing of the National Congress (the Chatra Parisad) whilst at college. (b) In 1989 he joined the Yuba Congress of India, the main role of which was to liaise with the National Congress. (c) During the elections in 1991, 1998 and 2001 he campaigned for Congress candidates. (d) During 2000 he was elected as the executive member of the Bonga Thana Congress. (e) During 2002 he was elected as the member of the district committee of the National Congress. (f) During the 2001 election campaign he was attacked a number of times by Communist Party of India - Marxist ('CPIM') 'hoodlums'. (g) He was attacked on 21 June 2001 at 8:00pm by CPIM activists, beaten and taken to a private clinic. (h) On 11 November 2002 he led a protest against the misrule of the CPIM and CPIM activists disrupted the event and later filed false charges against the appellant which 'compelled' him to leave India. 4 The appellant did not submit any documentary evidence in support of these claims. A delegate of the Minister refused the application on 5 November 2003. The reasons for the refusal included that there was effective state protection in India and it was reasonable for the appellant to relocate.

Tribunal Proceedings 5 On 24 November 2003 the appellant applied to the Tribunal for a review of the delegate's decision. The appellant seems to have lodged with the Tribunal a second copy of his application on 26 November 2003. 6 On 3 December 2003 the Tribunal advised the appellant that it was not able to make a favourable decision on the information he had provided and invited him to attend a hearing on 21 January 2004. On 16 December 2003 the Tribunal informed the appellant that it had agreed to his migration agent's request for an adjournment and had rescheduled the hearing for 16 February 2004. 7 The appellant gave evidence to the Tribunal at the hearing on 16 February 2004. The Tribunal then wrote to the appellant's migration agent on 1 March 2004 and confirmed its request that the appellant provide documentary evidence about his involvement in politics and medical evidence about his eyes. The Tribunal also invited the appellant to attend a further hearing on 29 March 2004. At the second hearing the appellant's migration agent provided: · medical records about the appellant's eyes; · a letter certifying that the appellant was a member of the Indian National Congress (I) party since 1989; and · a medical certificate dated 3 March 2004 in relation to injuries the appellant received in June 2001.

The Tribunal's Decision and Reasons 8 The Tribunal accepted that the appellant was a member of the Congress (I) party, was injured in 2001 and attended protests in 2002. However the Tribunal did not accept that: (a) there were false charges filed against the appellant; (b) he held any executive positions within the party or had a leadership role. The Tribunal found that he was no more than an active ordinary member of the party; (c) his political opponents searched for him when he moved to New Delhi; and (d) his political opponents would be awaiting his return. 9 The Tribunal then made further findings that: (a) It would be reasonable to expect the appellant to relocate; and (b) there is effective state protection within India. 10 In making the finding of relocation the Tribunal took into account the following matters: (a) While the appellant was concerned that he had no source of income for any relocation, his wife is currently running his life insurance business and he owns a garment shop. (b) He has a good education and can speak, read and write both English and Bengali and he can speak and understand some Hindi. (c) He is still young and had demonstrated his resilience in travelling to Australia and establishing himself as a businessman in India. (d) The appellant is a Hindu which is the majority religion in India. (e) His party, Congress (I), is in power in 13 of India's 28 states. (f) He holds a valid passport and will not have any problems as returnee in that regard. (g) His opponents will not be waiting for his return due to his low profile. (h) The appellant does not have a profile which would attract the interest of his opponents elsewhere in India. 11 The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for reasons of his political opinion or for any other Refugees' Convention reason if returned to India.

Federal Magistrates Court Proceedings 12 The appellant applied to the Federal Magistrates Court for a review of the decision of the Tribunal. 13 The appellant claimed that the Tribunal in making a finding that the appellant could return to India and relocate to another part of that country fell into jurisdictional error on two grounds, summarily articulated as: (a) The appellant's wife only speaks Bengali and does not speak either English or Hindi. The Tribunal failed to take this point into account in assessing whether relocation was a reasonable option; and (b) the Tribunal failed to have regard to the point that the appellant's opponents might still find him in Bongaon or West Bengal generally before he had an opportunity to relocate.

Federal Magistrates Court Decision and Reasons 14 The Court dismissed the application and in so doing answered each of the grounds of review as follows: (a) The appellant's claim that the Tribunal had failed to consider the practical problems for his wife, who cannot speak English or Hindi, if the appellant was to relocate within India did not amount to jurisdictional error as the matter was never put to the Tribunal, was not obvious from the material before the Tribunal and was not relevant given that the same issue would rise if she relocated to Australia. (b) The Tribunal did consider in a general sense the situation that would arise upon the appellant's return to India with a view to his relocation and found, having regard to his low political profile, that his opponents would not be awaiting his return.

The Appeal to this Court 15 The appellant's notice of appeal relies on one ground, namely that the Court below had erred in considering that the Tribunal did not fall into jurisdictional error in making a finding that the appellant could return to India and relocate. 16 The appellant filed written submissions in support of the appeal, however, they do not advance any new argument to what was put to the Court below. 17 The appellant who appeared in person with the assistance of an interpreter declined to make any further submissions, orally or in writing. 18 In my view, the respondent's submission that the Tribunal's findings were open on the evidence and it appropriately determined whether there was some location within India where the appellant could be reasonably expected to live and was not at risk of harm is correct. The Tribunal properly considered factors relevant as to whether it was reasonable for him to relocate: See Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 esp. at 443 per Black CJ. 19 It is true that the Tribunal did not consider the second ground of review [14(b)), supra] by reference to a temporal dichotomy, being the time of his arrival at the airport on the one hand [the appellant having made it clear that he did not say specifically that the people who sought to harm him would be waiting for him at the airport] and the period between the time of his arrival at the airport and the time of moving the family to relocate to a safer part of India on the other. However, this was because no evidence suggesting a different answer to the first time and the subsequent period was put before the Tribunal. Indeed, the subsequent period and the claim that the Tribunal had not specifically considered it was first raised by the appellant's counsel before the Court below. 20 I agree with the Court below that the Tribunal's decision discloses no jurisdictional error. 21 The appeal should be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

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