SZNYH v Minister for Immigration and Citizenship

tribunal's findings 4 The Tribunal accepted that the appellant was an active member of the TMMK, that he was attacked and injured by Hindu extremists, and that, as a result, the appellant found it necessary to relocate to Chennai. However, the Tribunal also found that the difficulties that the appellant faced were confined to his local area, and that it would be reasonable for him to relocate within India. In particular, the Tribunal was satisfied that the appellant's personal circumstances, including his education, language skills and training would assist him to relocate and support himself in India. The Tribunal further stated that a reasonable level of protection provided by the State would be available to him if he relocated within India. 5 Accordingly, the Tribunal found that the appellant did not have a well-founded fear of persecution in India for a Convention reason, and affirmed the decision under review.

DECISION OF THE FEDERAL MAGISTRATE 6 On 24 September 2009, the appellant filed an application for judicial review in the Federal Magistrates Court. In an amended application filed on 19 November 2009 the appellant raised the following two grounds of review: 1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm per s.91R(2) of the Migration Act (which is a mandatory jurisdiction or requirement for the Tribunal to do) if he asked to relocate in India. The Tribunal failure, so to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal. 2. My point is that despite having attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority judge of the High Court in SAAP. 7 In respect of ground 1, the Federal Magistrate was satisfied that when the Tribunal came to consider whether or not the appellant could relocate, it did consider whether if he did relocate, he would be the subject of serious harm. The Federal Magistrate noted that the Tribunal concluded that he would not face such harm, as reasonable state protection could be provided to the appellant. 8 In respect of ground 2, the Federal Magistrate stated that s 424A(1) of the Migration Act 1958 (Cth) (Act) did not require the Tribunal to provide the appellant with its subjective appraisals, thought processes, or determinations: VAF v Minister for Immigration [2004] FCAFC 123; (2004) 206 ALR 471; SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609, at [18]. 9 Having found no jurisdictional error in the Tribunal's decision, the Federal Magistrate dismissed the application.

appeal to this court 10 On 3 March 2010, the appellant filed a Notice of Appeal which states three grounds: 1. His honours judgment delivered on the 10 February 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903. 2. The learned Federal Magistrate erred in not to find that the Tribunal failed to consider the test whether the applicant 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 he asked to relocate to India. The Tribunal failed to satisfy this statutory obligation was a serious jurisdiction caused by the Tribunal. 3. The Hon. FM erred in not to find that the Tribunal failed to consider of the applicant's claims, in failing to consider whether or not a liberal Muslim in India was at risk of harm from radical Hindus and not able to access effective state protection. [As stated in original]

consideration 11 The notice of appeal filed on 3 March 2010 pleads two 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. However, at the hearing the appellant had failed to lodge any such submissions. He was however provided with the opportunity orally to respond to that provided by the Minister. 12 Ground one: Ground one effectively [2] of the notice of appeal - re-states the first ground of the judicial review application below and asserts that the Federal Magistrate erred in failing to find the alleged jurisdictional error in the Tribunal's reasoning. 13 As the Federal Magistrate observed, nowhere in the reasons of the Tribunal does it appear that it misconstrued the nature of "serious harm". The point is the Tribunal accepted much of what the appellant told it. However, the Tribunal considered that the threat of serious harm would be removed if the appellant were to relocate to some other parts of India. Its relocation finding was a finding that the appellant did not face a real risk of serious harm outside of his local area. In oral submissions to the Court on this appeal, the appellant puts forth reasons to question this decision of the Tribunal. However, the Tribunal's decision was one of fact that was open to it. There was no jurisdictional error in the reasoning of the Tribunal, nor was there any legal error on the part of the Federal Magistrate in failing to find the Tribunal erred. 14 This ground fails. 15 Ground two: Ground two - [3] of the notice of appeal - appears to be a new ground not expressly raised before the Federal Magistrate. It asserts that the Federal Magistrate erred in failing to find that the Tribunal had failed to consider an aspect the appellant's claims, namely that it failed to consider "whether or not a liberal Muslim in India was at risk of harm from radical Hindus and not able to access effective protection". Before the Federal Magistrate, the appellant limited his argument to his own specific circumstances. 16 Because no such ground was agitated below, the appellant now requires leave to add this ground. The first respondent opposes leave being granted on the basis that it has no prospect of success. 17 The Minister argues that at no time was it ever expressly contended by the appellant that he feared harm in India simply as a "liberal Muslim". Nor should (or indeed, could) such a claim have been implied by the Tribunal from the claims made. On the contrary, the appellant's claims were that his fear of harm was for reason of his activities and his involvement in several Muslim social, community and political groups in Tamil Naidu. At no time did the appellant ever claim that he had experienced harm in the past for reason of being a "liberal Muslim" nor that he feared harm for this reason in the future. 18 I consider that the Minister's submission in this regard should be accepted. In any event, I consider there is also considerable force in the Minister's further submission that if such a claim had been made it is covered fully by the Tribunal's finding that in other parts of India the appellant would be able to express safely his religious and political views because, in those areas, there is a reasonable level of State protection for Muslim persons such as himself. 19 For these reasons, I would refuse leave for this claim, which I consider to be a fresh claim, to be argued on appeal.

CONCLUSION AND ORDERS 20 For these reasons, the appeal should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.