SZLVG v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal against an order of the Federal Magistrates Court dismissing the appellant's application for judicial review in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZLVG v Minister for Immigration & Anor [2008] FMCA 960). Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees). Section 474 of the Migration Act protects "privative clause decisions" (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error. 2 The appellant is a citizen of India. He arrived in Australia on 27 March 2007. He applied for a protection visa on 23 April 2007. The first respondent's delegate refused the application on 17 May 2007. The appellant applied to the Refugee Review Tribunal for a review on 12 June 2007. The Tribunal affirmed the decision on 15 November 2007. The appellant appealed to the Federal Magistrates Court on 28 December 2007. In his amended application the appellant claimed that the Tribunal's decision was void for jurisdictional error on numerous grounds most of which related to a claimed fear of persecution by reason of his membership of and activities in connection with a political party in India known as the Trinamool Congress (the TMC). The TMC is based in West Bengal and opposes the government of the Communist Party of India (Marxist) (the CPI(M)). The Federal Magistrates Court dismissed the appeal on 30 June 2008. 3 In his notice of appeal to this Court the appellant claimed that the Federal Magistrates Court should have found that the Tribunal: - (i) failed to comply with s 424A of the Migration Act by not giving the appellant a reasonable opportunity to provide comments on information, (ii) failed to give the appellant procedural fairness by not granting the extension of time to provide comments as requested, and (iii) failed to adequately consider what might reasonably be expected of the appellant with respect to his relocation in India and thus failed to determine whether his fear of persecution was well founded. 4 The appellant filed an amended notice of appeal in Court raising additional (but overlapping) grounds, namely, that: - (i) the Tribunal failed to apply the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 to the relocation issue (by reference to the appellant's age, absence of family or community support, overlooking the submissions made by the appellant's agent on 25 September 2007, failing to initiate its own investigation about relocation and the specific impediments of different faces and languages, the police being informed of a stranger in town, problems with employment, and difficulties with moving and buying land between States), (ii) the Tribunal misapplied the decision in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 by finding that the appellant could relocate and live discreetly without considering the adverse interest of authorities in his new location, and (iii) the Tribunal misapplied the decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71. 5 With respect to the first appeal ground, the primary judge identified that the Tribunal had written to the appellant on 4 September 2007. The Tribunal's letter invited comment on information that the Tribunal considered relevant to the review because it may be the reason, or part of the reason, for the Tribunal to conclude that the appellant's story was not credible due to inconsistency in the story between the time of the application and the hearing. The information concerned alleged assaults in January 2007 and October or November 2006. This letter was intended to discharge the Tribunal's obligation under s 424A of the Migration Act and gave the appellant until 18 September 2007 to respond. Under s 424B(2) the prescribed period for a response is 7 days from receipt of the invitation. The Tribunal may extend the period under s 424B(4). The appeal grounds do not suggest that the due date for response of 18 September 2007 contravened the prescribed period. 6 The appellant, by letter dated 17 September 2007, requested an extension of time to respond to the Tribunal's letter until 1 November 2007. The Tribunal, by letter dated 25 September 2007, declined this request but noted that the Presiding Member would not make a decision on the review until 1 November 2007. The appellant submitted his comments by letter dated 25 September 2007. 7 The primary judge dealt with the appellant's claim that he was not given a reasonable opportunity to comment on the information. The primary judge observed that the Tribunal was entitled to decline the appellant's request for an extension of time. Further, the appellant had not at any time identified the additional documents on which he wished to rely. Finally, the Tribunal had informed the appellant that it would not make a decision on the review until 1 November so that, in substance, the appellant received the benefit of the extension of time that he had requested. For these reasons the primary judge was "unable to see that there was any unfairness in the manner in which the Tribunal acted". I agree. I also note that the appellant's letter of 25 September 2007 did not identify any additional material that the appellant was unable to obtain due to time requirements. The Tribunal, moreover, considered the information in the letter of 25 September 2007 despite the fact that it was submitted after the due date of 18 September 2007. Further, the decision was not made until 15 November 2007, two weeks after the date indicated by the Tribunal in its letter of 25 September 2007. I see no error in the primary judge's approach to this issue. 8 The appellant's second ground of appeal arises from the same circumstances as the first, with the appellant claiming that the refusal to grant him an extension of time amounted to a denial of procedural fairness. Although not put in those terms to the Federal Magistrates Court it is clear that the primary judge dealt with the extension of time issue by reference to basic considerations of fairness. The facts recorded above do not support any finding of a denial of procedural fairness to the appellant. In any event, s 422B of the Migration Act specifies that Div 4 of Pt 7 (in which s 424A is located) "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". 9 Insofar as the appellant's third and additional appeal grounds relate to a claim that the Tribunal failed to consider the letter of 25 September 2007, the ground must be dismissed. As noted, in its reasons the Tribunal gave specific consideration to the information in this letter. Similarly, insofar as the third ground of appeal relates to the Tribunal's decision being flawed because the Tribunal did not initiate its own investigation, the ground must be rejected. The Tribunal had extensive country information before it which it was entitled to take into account in assessing the appellant's capacity reasonably to relocate in India outside of West Bengal. The Tribunal was not bound to initiate its own investigation. 10 Insofar as the grounds of appeal relate to the issue of relocation to another part of India outside of West Bengal, the primary judge concluded that the Tribunal had exercised its jurisdiction in accordance with the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and authorities following from that decision (at [17]). In so doing the primary judge applied the observations of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [24] to [26], namely, that "what is "reasonable", in the sense of "practicable", must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality". Further, that although the Convention relating to the Status of Refugees is not concerned with "living conditions in a broader sense", nevertheless "in particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography". 11 The primary judge also identified that the Tribunal considered the appellant's business, languages, levels of education and ability to live and work in other countries as part of its decision that relocation out of West Bengal (and the activities of the CPI(M) with respect to supporters of the TMC) was a reasonable option for the appellant. In consequence the appellant did not have a well founded fear of persecution and was not a person to whom Australia has protection obligations under the Convention. 12 The amended appeal grounds call for consideration of the relationship between the decision in Appellant S395/2002 (2003) 216 CLR 473; [2003] HCA 71 and the capacity for the appellant to relocate within India. I am satisfied that the primary judge's conclusions were correct in this regard. 13 First, it was open to the Tribunal to find that the appellant's well-founded fear was based on the activities of the CPI(M) within West Bengal, with the CPI(M) being active in certain areas of India only. 14 Secondly, the Tribunal did not base its conclusion on the impermissible view that the appellant could live "discreetly" outside West Bengal and thereby avoid persecution. The Tribunal found that the appellant could relocate within India to an area where the CPI(M) was not active and would still be able to express political opinions without facing any real risk of persecution. The Tribunal accepted that the appellant would not be able to participate in the activities of the TMC (which does not operate outside West Bengal) but found that he would be able to participate in politics with respect to the issues of interest to him. I accept the respondent Minister's submissions in this respect that the issue of capacity to continue membership of a particular party and its significance to the "attribute for which the appellant was selected for persecution" (SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51; [2007] HCA 41 at [12]) was one of fact for the Tribunal. Further, the appellant has not established that the Tribunal failed to consider any objection to relocation based on continued membership of the TMC. Accordingly, it was open to the Tribunal to find (as it must implicitly have done) that the inability to participate in the activities of the TMC, given their localised nature, was not such as to make relocation unreasonable. Unlike SZATV this is not a case where the Tribunal has found that the appellant would need to avoid expressing political opinions in order to avoid persecution. 15 Thirdly, and contrary to the appellant's claim, the Tribunal considered the issue of potential adverse interest in the appellant by authorities in other parts of India. Relying on independent country information, the Tribunal did not accept the appellant's evidence. 16 Finally, a concern I raised with the parties after the initial hearing about the operation of s 424A in respect of the Tribunal's conclusions about relocation also cannot be sustained. The information on which the Tribunal relied to found its conclusions about relocation involved independent country information and information given by the applicant during the hearing. As such the exceptions in s 424A(3)(a) and (b) of the Migration Act applied. 17 For these reasons the appeal must be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.