SZNXH v Minister for Immigration and Citizenship

Federal Court of Australia|2010-05-04|Before: Barker J

APPEAL 1 This is an appeal from a judgment of a Federal Magistrate delivered on 30 November 2009. The Federal Magistrate dismissed the appellant's application for review of a decision of the Refugee Review Tribunal (Tribunal) given 20 August 2009. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) visa.

prior applications 2 The appellant is a citizen of India who arrived in Australia on 10 February 2009. On 25 March 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. In that application the appellant claimed to be a Sikh, and belonging to the Lubana ethnic group. He claimed that he and his family were always harassed, discriminated and persecuted for their religious beliefs and for their membership to a political organisation, the Bharatiya Janata Party (BJP). The appellant claimed that he was an "activist" of the BJP. He also claimed that as his grandfather migrated to India from Pakistan in 1947, he and his family were identified as "muhajirs", meaning "migrants". He claimed he and his family were discriminated against and did not have the same access to "facilities" or employment. He claimed to fear that if he were to return to India, he would be harmed by the Hindu and Muslim "militants" on the basis of his religion and political opinion. 3 A delegate of the first respondent refused the application for a protection visa on 1 June 2009, and notified the appellant by letter dated 2 June 2009. On 28 June 2009 the appellant applied to the Tribunal for a review of that decision.

tribunal's findings 4 The Tribunal accepted that the appellant is a Sikh, that he was a member of the BJP, and that his father and grandfather migrated to India from Pakistan. The Tribunal also accepted that the population of the appellant's village is mainly Hindu, and that he and his family were in the minority there. 5 Whilst the Tribunal accepted that the appellant may have been an ordinary member of the BJP since 1985, it was not satisfied that he was involved in any election activities as claimed. The Tribunal based this finding on what it considered to be the unpersuasive evidence of the appellant in this regard, and on a letter submitted by the appellant from the Chairman of the BJP in his constituency. As the Tribunal rejected this claim, it did not accept that he was detained and mistreated by the police during the state elections. 6 The Tribunal accepted that the appellant was frequently targeted by his fellow villagers while residing there, including his claims that he was attacked and extorted for money, his property was damaged, his grandfather murdered, and his wife indecently assaulted. The Tribunal was of the view that such conduct amounted to serious harm as defined by s 91R of the Migration Act 1958 (Cth) (the Act). However, the Tribunal was also of the view that, having regard to the appellant's circumstances overall, it would be reasonable and practicable for the appellant to safety relocate to a different part of India to avoid any risk of harm. 7 The Tribunal therefore found that the appellant's fear of persecution was not well-founded, and affirmed the decision under review.

DECISION OF THE FEDERAL MAGISTRATE 8 On 16 September 2009 the appellant filed an application for judicial review in the Federal Magistrates Court relying on the following four grounds: 1. The Tribunal failed to consider that I am a victim of political persecution as an activist of BJP. The Tribunal ignored my persecution that I experienced and also I shall be experiencing on my return back to India for my political belief and the Tribunal made errors of jurisdiction. 2. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to accept me as credible witness for my claims and refused my application. The Tribunal failed to consider that Muhajirs are differently treated in India. 3. The Tribunal failed to take into consideration my well founded fear of persecution, discrimination, assault and torture, which I experienced in India prior to my departure. I shall experience the similar situation on my return back. The Tribunal's failure to consider my fear of persecution is an error of jurisdiction. 4. The Tribunal found relocation to different area will help me to escape persecution which is not feasible for a person like me for my religious and ethnic background as I am a Sikh and also a Muhajir. Accordingly the Tribunal made errors of jurisdiction. 9 In respect of ground 1, the Federal Magistrate noted that the Tribunal did consider (and accept) that the appellant was a member of the BJP, but that it was not satisfied that he was active in political activities such as to have attracted harm from political opponents. The Tribunal had reached this view on the basis of the unpersuasive nature of the appellant's own evidence, and a letter which he provided in support from the BNP. His Honour stated that these findings were open to the Tribunal on the material which was before it (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). 10 In respect of ground 2, the Federal Magistrate found that contrary to what was asserted, the Tribunal did not make any general adverse finding as to the appellant's credibility. Further, the Tribunal's decision revealed that it accepted that the appellant was a Muhajir, and that for this and other reasons would suffer serious harm if he were to return to his local village. However, it also found that the appellant could nonetheless safely and reasonably relocate elsewhere in India. His Honour dismissed ground 3 for similar reasons. 11 In respect of ground 4, the Federal Magistrate reiterated that there was no error in the Tribunal finding that it would be reasonable and practicable for the appellant to relocate within India to avoid persecution. In particular, his Honour noted that the Tribunal's decision complied with what was said in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24]; SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51; and Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265. Further, the appellant did not seek challenge the Tribunal's record of what occurred at the hearing, namely, that the Tribunal raised this issue with him at the hearing, and gave him the opportunity to put to the Tribunal his objections, his arguments and his difficulties with relocating. 12 Having found no jurisdictional error in the Tribunal's decision, the Federal Magistrate dismissed the application for judicial review.

appeal to this court 13 On 21 December 2009, the appellant filed a Notice of Appeal which states in [2]-[7] six grounds: 1. The Federal Magistrate Honourable Nicholls erred in law for its failure to consider that the Tribunal failed to find that I was persecuted for my political belief and I shall be persecuted if returned back to India and the lacking in the proceeding of the Refugee Review Tribunal as the Tribunal did not give me a reasonable opportunity to respond to independent evidence in the possession of the Tribunal which suggests that I shall not be a victim of harassment for my political belief If returned back to India and made errors of jurisdiction. 2. The Federal Magistrate made error to find that the Tribunal failed to accept me as Muhajir and that the Muhajirs are discriminated and differently treated in India. 3. The Federal Magistrate erred in not finding that the Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and that I do not have a well-founded fear of persecution within the meaning of the convention and I do not meet the criteria set out in s.36(2) of the Act of Protection visa; 4. The Federal Magistrate erred in not finding that the Tribunal found relocation to an alternative area will help me to escape persecution which is not feasible for a person like me for my religious and ethnic background as I am a Sikh an also a Mhujajir. 5. The Federal Magistrate erred in law not finding that the Tribunal failed to consider that my persecution is well founded and I shall be harmed for my political belief on my returned back to India. 6. The Federal Magistrate erred in law not finding that the Tribunal has not taken into consideration the threat to my life or liberty, significant harassment to me that I shall be experiencing on return back to my country of origin and I do not come within the Convention definition of a refugee. [As stated in original]

consideration of Grounds of appeal 14 The notice of appeal, filed on 21 December 2009, pleads six grounds of appeal. Directions were made by a Deputy District Registrar of the Court regarding the preparation of the appeal for hearing, including the filing and service of submissions. Those directions, relevantly, required the appellant to file and serve written submissions no later than five clear working days before the hearing date. 15 No submissions for the appellant were filed or served in accordance with this direction. However, at the hearing, the Court invited the appellant to respond orally to the oral outline of the Minister's submissions.

Ground one 16 Ground one combines a claim that the Federal Magistrate erred in law by failing to find jurisdictional error in the Tribunal's failure to find that the appellant was persecuted for his political belief and that the Tribunal did not give the appellant the opportunity to respond to country information that the Tribunal possessed which suggested that the appellant would be persecuted for his political belief. 17 The first claim appears to misstate, as the Minister submits, the appellant's claims as he presented them to the Tribunal. The appellant did not claim that he would be persecuted for his "political beliefs". He claimed that he would be persecuted as a BJP activist. The Tribunal found that appellant was an ordinary member of the BJP and further that there was no independent evidence that ordinary members of the BJP, or activists whether of high or low profile, are persecuted across India by Congress Party members or officials. This finding includes a rejection that the appellant will be persecuted for his political beliefs. Such a finding was open to the Tribunal on the basis of the country information before it. No jurisdictional error is apparent in the reasoning of the Tribunal, nor was there any legal error on the part of the Federal Magistrate for failing to so find. 18 The second claim wrongly contends that there was country information before the Tribunal that supported the position that the appellant would be persecuted for his political beliefs. No such country information appears to have been before the Tribunal whether presented by the appellant or obtained by the Tribunal. The country information before the Tribunal was to the contrary. 19 This ground must fail.

Ground two 20 The second ground of appeal asserts that the Federal Magistrate erred in failing to find that the Tribunal had committed jurisdictional error by failing to accept that the appellant is a muhajir and that muhajirs are discriminated against. The complaint misstates the reasoning of both the Tribunal and the Court below. The Tribunal did not fail to accept that the appellant is a muhajir. In fact, it did so. However, it also found that the persecution which the appellant faced as a muhajir was localised and that such harm could be avoided by relocation to another State in India. 21 This ground also must fail.

Ground three 22 The third ground of appeal is a more generalised complaint that the Court below erred in failing to find that the Tribunal had made a jurisdictional error by not finding that the appellant had a "genuine fear of persecution for a [C]onvention reason" and that he did not meet the criteria for a Protection visa. The first part of this complaint is not accurate. The Tribunal in fact found that the appellant had a genuine fear of persecution for a Convention reason. However, as noted above, it also found that the potential for serious harm was localised and could be avoided by relocation to another State in India. The second part of the ground simply takes issue with the factual finding that the appellant did not meet the criteria for a Protection visa and does not identify any legal error in the reasoning of the Federal Magistrate or jurisdictional error by the Tribunal. 23 This ground also fails.

Ground four 24 Ground four appears to constitute a claim that the Federal Magistrate erred in not finding jurisdictional error in the Tribunal's relocation finding because relocation "is not feasible for a person like me for my religious and ethnic background as I am a Sikh and also a Muhajir". This ground therefore directly challenges the merits of the decision made by the Tribunal and does not identify any legal error in the reasons for judgment of the Federal Magistrate or jurisdictional error by the Tribunal. 25 The Tribunal closely considered and rejected the substance of the claims that the appellant now repeats in this Court. The Tribunal noted that, for example, it would be open to the appellant to move to neighbouring Punjab, where the majority of the population was Sikh. The Tribunal rejected his claim it would not be reasonable for him to relocate in the Punjab because there were clashes there between those Sikhs who were followers of Ram Rahim Singh and other Sikhs. In addition, the Tribunal noted that there are a number of other States in India with Sikh communities, including Chhattisgarh, Madhya Pradesh and Uttaranchal, which are ruled by the BJP. There was no information to suggest that muhajirs are treated differently or discriminated against in the Punjab or any of these States. 26 As this ground does not raise or reveal any error by the Federal Magistrate or jurisdictional error by the Tribunal it must necessarily fail.

Ground five 27 Ground five repeats in substance the first claim of ground one and for the same reasons set out above must also fail.

Ground six 28 In ground six the appellant appears to contend that the Tribunal failed to consider the harm that might befall the appellant if he does not "come within the Convention definition of refugee". In doing so, he appears to suggest that the Tribunal should have taken broader, humanitarian considerations into account even if the appellant is unable to meet the criteria for a Protection visa. As the Minister submits, the complaint is misconceived in two respects. First, the Tribunal had no jurisdiction to consider anything other than whether a review applicant meets the criteria for a Protection visa. Secondly, the appellant indicates some misunderstanding of the reasoning of the Tribunal. The Tribunal found that the harm that the appellant feared was localised and could be avoided by relocation to another State in India. Its reasons for so finding, and its reasons for finding that relocation was reasonable in the circumstances, were open to it for the reasons which it gave. 29 The Federal Magistrate did not commit any error in relation to this ground and this ground must also fail.

general observations 30 In many respects, the grounds of this appeal reflect those considered by the Federal Magistrate. As his Honour explained in some detail, they proceed upon a misconception as to the reasoning of the Tribunal or seek to re-agitate the merits of the case, something that is not open either in the Federal Magistrates Court or this Court. The Tribunal accepted much of what the appellant told it, including that there was a "real chance" he would suffer serious harm from the majority Hindu if he were to return to his village. However, there were no reasons demonstrated as to why he could not relocate to another part of India where people sharing his status, religion and political beliefs may reasonably be considered safe. 31 In his oral submissions, the appellant emphasized his continuing fear of returning to his village in India, but failed to raise any basis to suggest that the Tribunal committed jurisdictional error in relation to its relocation finding or error by the Federal Magistrate in this regard.

CONCLUSION AND ORDERS 32 For these reasons, the appeal should be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

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