Ground 1
11 Section 91R of the Migration Act provides as follows:
Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
12 The Minister submits that, as this ground of appeal was not raised before the Federal Magistrate, it requires the leave of the Court to be raised in this appeal. The Minister submits further that leave ought not be granted.
13 While I accept the principle advanced by the Minister in relation to the ground of appeal, I note not only the difficulties faced by self-represented litigants but the fact that the Minister appears prepared to meet this ground of appeal (and has in fact done so in written submissions). Accordingly, I will allow the appellant to raise this ground of appeal.
14 The ground of appeal assumes that:
the Tribunal acted in a manifestly unreasonable way;
the appellant experienced persecution and the likelihood of harm contemplated by s 91R (which the Tribunal ignored); and
the Federal Magistrate did not appreciate the errors made by the Tribunal.
15 It is difficult to know precisely what this ground of appeal contemplates. The Tribunal clearly identified s 91R as relevant to its decision. Further, at [130] of its decision the Tribunal observed:
Nevertheless the Tribunal accepts in all the circumstances that cumulatively the past treatment of the applicant husband in his local area… amounts to serious harm for the purposes of s.91R(1)(b) of the Act. The Tribunal is satisfied that the applicant husband's perceived membership of a particular social group, that being membership (sic) of the family of the applicant wife is the essential and significant reason for the harm he suffered. It also finds that the persecution feared by the applicant wife is for a reason mentioned in Article 1A (2) of the Refugees Convention.
16 The Tribunal continued to find, however, that it would be reasonable for the appellant to safely relocate elsewhere in India removed from the particular local area in which he lived. The Tribunal discussed this in detail at [133]-[136] of its decision. The Tribunal relied on the decision of the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 where the Court held that the Refugee Convention does not provide protection if the applicant could nevertheless avail himself or herself of the real protection of their country of nationality elsewhere within that country (cf SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [124]). In particular, the Tribunal found that if the appellant relocated to a different part of India there was no real chance that he would face harm by members of the Congress Party or indeed anyone else, for the reason that he is perceived to be a member of a particular social group, for reason of his political opinion or indeed for any other Convention related reason. This was because the Tribunal found that the interest in the appellant by Congress Party members and supporters was localised and did not spread beyond the specific area which had been identified by the appellant. On that basis and having regard to the appellant's circumstances overall the Tribunal was satisfied that it would be reasonable and practicable for the appellant to safely relocate to a different part of India (at [136]).
17 In Court this morning the appellant submitted that "the Congress Party rules India now", that he had worked with the Congress Party and had lost his job because of the situation with his wife, and that if his parents were to visit him in India or he were to visit them the attention of Congress Party members would be attracted.
18 Ms Weston for the Minister submitted that evidence as to the role of the Congress Party in India was not before the Court. I note that his Honour below at [44] observed that the Tribunal did not appear to have had regard to country information on the issue of relocation and that it was not clear from the reasons whether the Tribunal envisaged that the appellant would relocate within his home state of Kerala or elsewhere in India.
19 In SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 the High Court considered circumstances where an appellant was a Ukrainian national who faced persecution in his home region on account of the expression of his political beliefs through journalism. The Tribunal had held that it was reasonable for the appellant in that case to relocate internally. At [32] Gummow, Hayne and Crennan JJ observed as follows:
The effect of the Tribunal's stance was that the appellant was expected to move elsewhere in Ukraine, and live "discreetly" so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his "relocation" in Ukraine. It presents an error of law, going to an essential task of the Tribunal. This was determination of whether the appellant's fear of persecution was "well-founded" in the Convention sense and thus for the purposes of s 36(2) of the Act.
20 In the case before me the findings of the Tribunal appear to be based on the premise that:
the interest of the particular Congress Party members and supporters in relation to the appellant is purely personal, and does not relate to the sexual orientation of this wife;
it is not likely that the Congress Party members and supporters in his home area in Kerala would learn that he had returned to India even if he visited his parents or his parents visited him;
it is not likely that even if the Congress Party members and supporters learned that he had returned, they would have any further interest in him or his whereabouts;
the appellant should not work again for the Congress Party and should remain "beneath the radar" in respect of his return to India and/or his wife's sexual orientation;
the appellant could relocate elsewhere in India, although it is not clear from the Tribunal decision where.
21 In my view, the Tribunal has, like in SZATV, sidestepped proper consideration of the ability of the appellant to relocate in India. This is an error going to the jurisdiction of the Tribunal.
22 I note in passing that his Honour below, while dismissing the application for judicial review, clearly had reservations in respect of the Tribunal's decision concerning relocation (in particular at [38]-[46]). In my view those reservations were well-founded.