SZOLC v Minister for Immigration and Citizenship

Federal Court of Australia|2010-11-23|Before: Streeton J

introduction 1 By a notice of appeal dated 1 September 2010 and filed 3 September 2010, the appellant appeals from a judgment of Raphael FM delivered on 13 August 2010. Raphael FM dismissed the appellant's application for review of a decision of the Refugee Review Tribunal ("Tribunal") handed down on 30 April 2010. The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection (Class XA) visa. 2 The appellant is a 37 year old citizen of Thailand who was born in 1972. He arrived in Australia on 6 July 2009. He claimed to fear persecution in Thailand by ethnic violence from Buddhist extremists because he is a Muslim of Pakistani origin. 3 In essence, the appellant (a citizen of Thailand who claims to have suffered persecution in the southern provinces due to his Muslim religion and Pakistani origins) contends that the Tribunal erred in concluding that it would be reasonable for him to relocate in Thailand, because it failed to take into account relevant considerations and took into account irrelevant considerations. 4 At the hearing of the appeal, the appellant appeared in person and was assisted by a Thai/English interpreter. 5 The notice of appeal states the following grounds: 1. The Refugee Review Tribunal failed to take into account the relevant considerations before made such a comment of relocation. Particulars: A. The Tribunal failed to take into account the relevant considerations before such a comment that: (i) It would be safe and reasonable for him to relocate. 2. The Refugee Review Tribunal made irrelevant considerations at the time of assessing my claims for protection visa. Particulars: A. The Tribunal made irrelevant considerations at the time of assessing my claims for protection visa that: (i) It had no country information to suggest there is blanket anti-Pakistani or anti Muslims sentiment throughout Thailand; and (ii) There was no evidence that the applicant's brother would be unable to assist him financially. The Delegate's decision 6 A delegate of the first respondent conducted an interview with the appellant on 8 October 2009. The appellant submitted a written statement which set out his claims. The delegate found, inter alia, that there was effective state protection in Thailand and that the appellant could reasonably be expected to relocate within Thailand. The delegate refused the application.

Tribunal hearing 7 By an application for review dated 5 November 2008, the appellant sought a review of the delegate's decision. On 18 December 2009, the appellant attended a hearing before the Tribunal. The appellant claimed to be a Muslim living in the southern states of Thailand, where discrimination against Muslims had dramatically increased during 2004, and killings, torture and looting had occurred from time to time. Some Muslims were ethnic Thais, while others, like himself, were from the Subcontinent. The appellant was a businessman who conducted a shop and mail order business selling sarongs. He claimed that in April 2009, he had been beaten by Buddhists and hospitalised, and his business had been attacked and ransacked. His business was attacked again in May 2009 and for a third time on 9 June 2009. A Muslim associate was killed in 2007. The appellant stated that he was an organiser for the Muslim Youth association in his area, and had been targeted, harassed and humiliated by Buddhist fundamentalists. He did not believe that the government would protect him sufficiently. 8 In the course of the hearing, the Tribunal raised the question of relocation in Thailand with the appellant and the following exchange occurred: TRIBUNAL MEMBER: Now it's up to him to explain to me as a single man with no dependants why couldn't he relocate elsewhere in Thailand?

APPLICANT: Because of these problems and these issues, one of the issues is I have no money left, all the money has been lost because of this problem. And the other issue is like in Australia you can go from one city to another and you can find a job. It doesn't work like that in Thailand because I haven't been educated in Thailand and my education is basically from a British School in Pakistan and that's why for me to relocate from this area is very difficult.

TRIBUNAL MEMBER: My question was why can't you relocate in Thailand, and you replied because he lost most of his funds in the destruction of this shop, right?

APPLICANT: The system in Thailand is not like the system here where you can easily move to another place and get a place for rent. It doesn't work over there like that. And because they asked you when you move from this area to another area and they look at your background that you're moving from that area where the problem is and that's why they don't let you settle there, and they treat you, you know, if you move from one area to another and they know you're coming from this area they think that you're like a terrorist or just a trouble maker and that's why you are moving from that area into their area.

TRIBUNAL MEMBER: Well that hardly applies in Bangkok which is a huge city.

APPLICANT: Because as I explained earlier that I have nothing left. To even move to Bangkok you need something to start your business, to do something. And because of my background it would be very hard for me to find a job there.

TRIBUNAL MEMBER: Are you suggesting that there's nobody in your community that lives in Bangkok?

TRIBUNAL MEMBER: Well if you look up the statistics for Bangkok you'll see that there's quite a sizeable Muslim population there.

APPLICANT: Mostly everywhere Muslims are in the whole world but I mean that doesn't, in my case it doesn't apply.

APPLICANT: Because I don't know anybody over there so if no‑one knows you why would they help me or how would they help me?

TRIBUNAL MEMBER: Yes but your family have been in Thailand now for two generations.

TRIBUNAL MEMBER: So your father, your relatives, must know somebody.

APPLICANT: Yeah but the issue is, you know, like just by knowing they can't help me in business and they can't offer me a job.

APPLICANT: Because we did try to call a couple of people to help me to settle there and they just, you know, they just told me to excuse them.

TRIBUNAL MEMBER: Why did you decide to come to Australia?

APPLICANT: I have heard about Australia and that's why I thought maybe its better if I go away from Thailand, far away from Thailand, it will be okay.

TRIBUNAL MEMBER: So initially you told me you didn't know anybody in Bangkok, now you're telling me yes you did, or your family did know people in Bangkok but when they contacted them they wouldn't help you?

APPLICANT: Because personally I don't know anybody. My brother knew a couple of people and he contacted on my behalf.

TRIBUNAL: You see the application of the refugee convention takes the issue of living somewhere else very seriously. The first question is: Is the person under threat anywhere in a whole country in the event that they move? And that's pretty unusual, very unusual.

The Tribunal's Decision 9 The Tribunal, by a decision given on 30 April 2010, affirmed the delegate's decision to refuse the appellant a protection visa. 10 In its reasons for decision given on 30 April 2010, the Tribunal accepted that there had been violence between Buddhists and Moslems in Southern Thailand, including in the appellant's province. 11 The Tribunal gave weight to the appellant's claims that he was attacked on three occasions and his shop was fire bombed, because he was a "Pakistani" Muslim and a leader of a Muslim community group which tried to defend their property. While finding that the appellant's claim was significantly weakened by his inability to identify any other Muslim Thais of "Pakistani" origin who had suffered a similar fate, or any other members of his community who had left Southern Thailand through fear of persecution, the Tribunal gave him "the benefit of the doubt". 12 The Tribunal stated (at [27]-[28]): 27. The High Court has confirmed that as a general proposition, and depending upon the circumstances of a particular case, it may be reasonable for an applicant to relocate in their country to a region where objectively, there is no appreciable risk of the occurrence of the feared persecution. See SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51. 28. Consequently, in this case the Tribunal must determine whether the applicant might reasonably re-locate to a region of Thailand which would be free of the risk of persecution. If it is reasonable for an applicant to relocate to another part of Thailand then it would follow that their fear is not "well founded. 13 The Tribunal set out extensive country information in relation to Southern Thailand, including a lengthy advice by Human Rights Watch on whether relocation to the North was a viable solution for Thai Muslims wishing to escape the security situation in the South (at [30]). 14 The Tribunal notes that the Human Rights Watch advice indicated that "in‑country relocation was possible and can be done safely for those Muslims facing serious and deadly threats from separatist militants" (at [31]). It "did not even have to be as far away as Chiang Mai or Bangkok" (at [32]). Further, the advice stated that "[s]eparatist militants never hunted down "traitors" outside the southern border province" (at [35]). 15 The Tribunal accepted the appellant's claim that he had no real connection with separatist militants (particularly high value targets) and had not been adversely profiled by Thai police. It concluded that it would be reasonable for the appellant to relocate to a city such as Bangkok or Chiang Mai to avoid persecution on the grounds of his race or religion. 16 The Tribunal recorded that, during the hearing, it raised with the appellant the issue of relocation as follows: The applicant was asked why couldn't relocate elsewhere in Thailand? He replied because he lost most of his funds in the destruction of his shop and Thailand is not like Australia where you can rent accommodation. They think you are moving because you are a terrorist or troublemaker. The Tribunal respondent that that would not apply to Bangkok which is a large city. The applicant respondent that he didn't have anything left to move to Bangkok. With his background it would be hard to find a job there. The applicant confirmed that there was a sizeable Moslem community living in Bangkok. In his case that was of no value because he didn't [k]now anyone in Bangkok. The Tribunal responded as his family had been in Thailand for two generations, they must know someone in Bangkok or elsewhere. Just knowing doesn't help me in business to find a job, he replied. We did try to contact people to help me but they refuse to help. He claimed that didn't know anyone anybody and his brother who knows people had contacted them on his behalf. 17 The Tribunal noted the appellant's complaint that Pakistani Moslems were treated as "outsiders", but did not consider that it was established on the evidence. 18 At [71], the Tribunal stated: The Tribunal has taken account of the applicant's assertion that people of "Pakistani" origin are treated as "outsiders" in Thailand. He produced no evidence of incidents where other citizens were persecuted by other Thai communities or the Thai authorities. The Tribunal is aware from country information that Thailand is a very mixed community of races, tribes and cultures. Moslem conversions are taking place among the Hill Tribes where there is a Chinese Moslem community but there is no country evidence which would suggest that they are being persecuted in accordance with the Convention. 19 The Tribunal was satisfied that the persecution the appellant claimed to fear, as well as the risk to him, were localised to three southern Thai provinces. The Tribunal considered that although Buddhism was the predominant religion of Thailand, the appellant would not, as a Muslim, be in fear of persecution wherever he went in Thailand. 20 To the contrary, the Tribunal was satisfied that "it would otherwise be safe for the appellant to relocate elsewhere" in Thailand because (at [72]): · the applicant is single without the difficulties of relocating his entire family; · His claimed that he could not relocate because he had lost all his funds in the shop fire. Later he claimed that he gave his stock of sarongs away to other dealers. If so he could surely ask them to recompense him financially. Under the circumstances, The Tribunal does not accept this claim as credible. As his occupation was selling sarongs both wholesale on a mail order basis and retail, he could continue to supply his clients throughout Thailand from his source in Indonesia, or open a new shop in another part of Thailand which was not affected by the ethnic and or religious disputes prevalent in the three southern Thai provinces. There is no evidence that the applicant's brother, who owns a rubber plantation, would be unable to assist him financially. · The Tribunal has found no country information which would suggest that there is a blanket anti-Pakistani or anti Moslem sentiment throughout Thailand. The applicant told the Tribunal that the number of "Pakistani" Moslems was small throughout Thailand, and even in his own district he was unable to identify any other Pakistani Moslems who had suffered persecution, or was he aware of other members of his community which had sought to leave southern Thailand.

application to federal magistrates' court 21 The appellant, by an application filed on 24 May 2010, applied to the Federal Magistrates' Court for review of the Tribunal's decision. 22 At the hearing at the Federal Magistrates' Court on 13 August 2010, the appellant, who was represented by counsel, filed a further amended application, which deleted from the amended application the allegation that, in considering the reasonableness of relocation, the Tribunal had taken into account irrelevant considerations. The further amended application relied only on the Tribunal's alleged failure to take into account relevant considerations, which were identified as the appellant's inability to read or write Thai and his education in a British school in Pakistan.

Decision of Federal Magistrate 23 Raphael FM dismissed the application. His Honour set out the background, noted that the Tribunal had accepted the appellant's claims that he had experienced difficulties and incidents in his area in the Southern states, but had considered that it would be reasonable for him to relocate to another part of Thailand. 24 In rejecting the sole ground of review, Raphael FM referred to Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 ("Randhawa"). In Randhawa Black CJ (with whom Whitlam J agreed) held that the definition of a refugee in article 1A(2) of the Convention should not be construed as giving refugee status to "those who, although having a well‑founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country" (at 440-441). Therefore, Black CJ stated, the correct principle was "what has become known variously at the internal protection principle, the relocation principle… and the internal flight alternative" (at 441). [See also SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18] 25 Black CJ stated: In the present case the delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention, this question was not to be approached in a narrow way and, in her further analysis, the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so. 26 Black CJ observed that a person's fear of persecution in relation to the country as a whole would remain well founded "if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person…" (at 442). 27 Black CJ also noted that the range of the realities relevant to reasonableness of relocation extended beyond physical or financial barriers (at 442). His Honour recognised that the relevant inquiry could be wide. He stated that: "the extent of the decision‑maker's task will be largely determined by the case sought to be made out by the applicant" (at 443). In that context, the delegate would need to consider the issues and impediments the applicant raised. 28 In the present case, after referring to Randhawa, Raphael FM stated: [12] Accepting for the purposes of this case that the privilege of an English education is an impediment to relocation, the question that the court must ask itself is whether it could be said that this matter was not considered by the Tribunal. I have some difficulty with making such a finding because it is important always to read a Tribunal's decision in its fullest context and not to try and isolate bits and pieces from a transcript and utilise those in support of a claim of jurisdictional error. [13] Certainly the applicant made reference to his education at the British school, but when he was asked again by the Tribunal to effectively explain what that meant for his relocation difficulties he did so in a manner that made reference to the "outsider" nature of his position, and that nature was dealt with by the Tribunal in the interview at some length, as I have extracted, and was considered in the findings and reasons of the Tribunal in the manner to which I have referred. 29 His Honour acknowledged that "the fact that the applicant does not claim to be literate in Thai "was a matter not examined by the Tribunal, but was not "raised by the applicant, and would thus fall within that class of issues referred to by the Chief Justice [in Randhawa]" (at [14]). 30 Raphael FM observed that "the applicant's major objection to relocation was what he felt was his inability to obtain employment" or continue the business in a new location. His Honour stated (at [16]): … the concern that the applicant raised with the Tribunal associated with his education and illiteracy was mostly relevant to his ability to find employment, and that was a matter which the Tribunal considered. Insofar as it related to his position as "outsider" that too was considered. 31 Raphael FM concluded that "I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its decision" (at [17]). The Appeal 32 Both grounds 1 and 2 of the notice of appeal allege error only in the decision of the Tribunal. No jurisdictional error in the decision of Raphael FM is identified. 33 Both grounds of appeal are therefore defectively framed for, as Flick J stated in SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 (at [9]): The jurisdiction which is relevantly conferred on this Court is to entertain an appeal from a decision of the Federal Magistrates Court. The first two purported Grounds of Appeal identify no error said to have been committed by that Court. No appellate jurisdiction is conferred on this Court to entertain any appeal from a decision of the Refugee Review Tribunal. 34 Before me, however, counsel for the first respondent, pursuant to its obligations as a model litigant and s 37N(1) of the Federal Court of Australia Act 1976 (Cth), did not seek to rely on the defective form of the grounds. Rather, the first respondent was content that the grounds be treated as allegations of error by the Federal Magistrate. Ground 1 1. The Refugee Review Tribunal failed to take into account the relevant considerations before made such a comment of relocation. Particulars: A. The Tribunal failed to take into account the relevant considerations before such a comment that: (i) It would be safe and reasonable for him to relocate. 35 Although the first respondent did not take technical objection to ground 1, counsel submitted, correctly in my view, that it was flawed in substance (see SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 at [10] to [12]), as it did not identify the relevant considerations allegedly ignored by the Tribunal. Assuming, however, that as alleged before the Federal Magistrate, the relevant circumstances allegedly ignored were the appellant's inability to read or write Thai and his education at a British school, in my opinion, ground 1 is not made out. 36 The Federal Magistrate correctly applied the relevant principles. As his Honour concluded, the Tribunal summarised (at [56] of its reasons, set out above) its exchange with the appellant about relocation. In [67] to [73] of its reasons, the Tribunal fully addressed the impediments and concerns raised by the appellant, including education in a British school as understood in the context in which the appellant raised that issue. 37 The appellant did not raise his inability to read and write Thai as an impediment, and the Tribunal, on the basis of Randhawa, did not err in failing to consider it. Nevertheless, as the first respondent submitted, the evidence before the Tribunal did not suggest that it had inhibited the appellant, as he was fluent in the Thai language in which he had conducted business for years. 38 There is nothing to suggest that the Tribunal failed to consider any other matter relevant to the reasonableness of the appellant's relocation within Thailand. 39 Ground 1 of the notice of appeal is not made out. Ground 2 40 It is further alleged that the Tribunal erred in taking into account matters irrelevant to the reasonableness of relocation: 2. The Refugee Review Tribunal made irrelevant considerations at the time of assessing my claims for protection visa.

Particulars: A. The Tribunal made irrelevant considerations at the time of assessing my claims for protection visa that: (i) It had no country information to suggest there is blanket anti-Pakistani or anti Muslims sentiment throughout Thailand; and (ii) There was no evidence that the applicant's brother would be unable to assist him financially. 41 Ground 2 was not previously raised below, so leave is required. The discretion to grant leave to rely on a ground of appeal not raised below was summarised by Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11]. The primary question is whether it is expedient in the interests of justice to do so: In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, Kiefel, Weinberg and Stone JJ stated (at [46] to [48]): [46] … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. [47] In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. [48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 42 In Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 ("Iyer"), Heerey, Moore and Goldberg JJ said (at [22] - [24]): [22] …We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant.

[23] Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration. It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the Refugee Review Tribunal to make it clear from the outset what are the substantive grounds of review relied upon. …

[24] However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge. 43 In NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 (at [166]), Madgwick J observed that in migration matters, the consequences to and circumstances of the applicant could modify the priority usually accorded to finality. Therefore, the relevant questions included: 1) Do the new legal arguments have a reasonable prospect of success? 2) Is there an acceptable explanation of why they were not raised below? 3) How much dislocation to the Court and efficient use of judicial sitting time is really involved? 4) What is at stake in the case for the appellant? 5) Will the resolution of the issues raised have any importance beyond the case at hand? 6) Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? 7) If so, can it be justly and practicably cured? 8) If not, where, in all the circumstances, do the interests of justice lie? 44 The first respondent did not oppose a grant of leave, or was content that the question of leave be determined together with the substantive appeal. Counsel submitted, however, that the deliberate abandonment of ground 2 at the hearing before the Federal Magistrate reflected its weakness. 45 The first respondent submitted, correctly in my view, that ground 2 had no reasonable prospects of success, because of a lack of country information suggesting blanket anti‑Pakistani or anti‑Muslim sentiment throughout Thailand, and the lack of evidence that the appellant's brother would be unable to assist him financially, were relevant to the reasonableness of the appellant's relocation. 46 Where relevant factors are not expressly stated, they may be implied from the subject matter, scope and purpose of the Act. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J at [39]-[40] stated: In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

(References omitted.) 47 In Randhawa (at 442-443), Black CJ (with whom Whitlam J agreed) stated that in determining the question of relocation, the Tribunal is required to consider whether an applicant can reasonably be expected to relocate to another area and the practical realities facing the applicant. His Honour expressly recognised that the inquiry extended beyond physical or financial barriers and could be wide. In SZATV v MIAC (2007) 233 CLR 18, Gummow, Hayne and Crennan JJ stated (at [24]) 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. 48 The appellant himself raised, among other things, his lack of financial means as an impediment to his relocation. Matters which could potentially affect his financial means were thus not irrelevant. 49 Similarly, the appellant raised anti‑Muslim or anti‑Pakistani sentiment as a possible cause of discrimination against him and an impediment to relocation. The absence of evidence of blanket anti‑Muslim or anti‑Pakistani sentiment was not irrelevant to the reasonableness of the appellant's relocation within Thailand. As such, it was a matter that the Tribunal was entitled to take into account. 50 The new ground of appeal has, in my view, no reasonable prospects of success.

Conclusion 51 I have read the reasons of both the Tribunal and the Federal Magistrate, which in my view disclose no jurisdictional error or indication of want of procedural fairness. 52 The Tribunal's conclusion on relocation was open on the evidence, which indicated that the appellant was a relatively young, single man who had successfully run a business with a retail and mail-order component in Thailand for over four years, and whose family still lived in Thailand. The Tribunal's reasons indicate that it obtained specific country information about the reasonableness of relocation within Thailand, questioned the appellant about the issue and gave appropriate consideration to the impediments the appellant asserted. 53 Ground 1 of the notice of appeal is not established. Leave to rely on ground 2 of the notice of appeal, a matter not raised before the Federal Magistrate, should be refused, as there are insufficient prospects of success. 54 The appeal should be dismissed. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.

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