FEDERAL COURT OF AUSTRALIA

SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110

MIGRATION – procedural fairness – whether Tribunal failed to notify appellant of hearing – requirements of s 425 of the Migration Act 1958 (Cth) – relocation principle – whether Tribunal erred in applying relocation principle – whether it was reasonable for the appellants to relocate – whether the appellants would be required to modify behaviour to avoid persecution

Held: (1) The Tribunal satisfied its obligations to afford the appellant procedural fairness with respect to notification of the hearing date by complying with the requirements of ss 425, 425A and 441G of the Migration Act 1958 (Cth).

(2) The Tribunal did not err in finding that it was reasonable for the appellants to relocate within India.

Migration Act 1958 (Cth) ss 422B, 425, 425A, 441G

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180 followed

NALZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 270 considered

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 followed

SZCLL & Anor v Minister for Immigration and Anor [2005] FMCA 1474 referred to

SZDPB v Minister for Immigration [2005] FMCA 1067 referred to

SZDPE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 626 referred to

VNAA and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 followed

SZDPB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1610 of 2005

SZCLL and SZCLM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and ANOR

NSD 1956 of 2005

SPENDER, FRENCH & COWDROY JJ

3 JULY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AND

BETWEEN:                    SZCLL and SZCLM

                                        Appellants 

AND:                              MINISTER FOR IMMIGRATION AND MULTICULTURAL

                                        AND INDIGENOUS AFFAIRS

                                        First Respondent

                                        REFUGEE REVIEW TRIBUNAL

                                        Second Respondent

REASONS FOR JUDGMENT

1                     Before the Court are two separate appeals from decisions of the Federal Magistrates Court, each dismissing an application for review of a decision of the Refugee Review Tribunal. The appeals relate to applications for protection visas by a husband and wife from India (SZCLL and SZCLM) (‘the parents’), and by their infant daughter (SZDPB) (‘the child’).

2                     In each of the appeals, the appellants were unrepresented, and the husband made submissions on behalf of himself and his wife in one of the appeals, and on behalf of his infant daughter in the other.

BACKGROUND TO The Parents’ appeal

3                     Proceedings NSD 1956/2005 is an appeal by SZCLL and SZCLM from a judgment of Scarlett FM on 29 September 2005 (see [2005] FMCA 1474).  Those proceedings were an application for review of a decision of the Refugee Review Tribunal.  The Tribunal handed down its decision on 16 December 2003, the decision being to affirm the decision of the delegate of the Minister not to grant a protection visa to the parents.

4                     In Scarlett FM’s reasons for judgment, his Honour set out the history of the matter and the claims made by SZCLL and SZCLM, as follows:

‘2.        The Applicants are husband and wife.  They arrived in Australia on 20^th May 2003.  On 18^th June 2003 they applied for protection visas which were refused on 26^th June 2003.  On 21^st July 2003 the Applicants sought a review of that decision from the Refugee Review Tribunal.

3.         The First Applicant, the husband, claims to have been threatened and tortured by Hindu fundamentalists and to be the target of the present BJP Government in India and their supporters.  This resulted from the fact that he was a Muslim who had married his employer’s daughter, a Hindu.  The employer was an influential man in Madras who was a financial contributor to the BJP. The First Applicant eloped with his employer’s daughter.  The father in law, as he had now become, had the Applicant charged with kidnapping.  The Second Applicant, the wife, had now sworn an affidavit in which she said that she had converted to Islam of her own free will.

4.         The First Applicant claimed to have moved around India for some time in order to avoid the malevolent actions of his father in law.  He moved to Bombay, now called Mumbai, for a while but his father-in-law managed to locate him there.  This came about because the husband telephoned a former work colleague who had informed on him to his father-in-law.

5.         The Applicants left India for Australia.  The wife travelled to Australia on a passport in another person’s name in order to avoid being located by her father.

6.         The First Applicant told the Tribunal that he did not believe it would be reasonable for him to relocate within India to avoid any feared harm.  He claimed his father-in-law would eventually locate him.  He was not able to speak any other language except Tamil, and he did not have any business connections in any other part of India.  He said that he and his wife were settled in Australia and he had found work in this country.’

5                     The notice of appeal to this Court asserts four grounds: 

‘1.        His Honour failed to hold that the Refugee Review Tribunal erred in that having held that the Applicants could both safely and reasonably relocate their habitation in their country of origin upon condition that they restrict their behaviour suitably the Tribunal failed to consider whether such restriction amounted to persecution within the meaning of the Convention.

                                                PARTICULARS

            The Tribunal accepted that both Applicants have a subjective fear of the Applicant’s father-in-law in India … and it accepted that the Applicant may be subject to harm amounting to persecution in Madras at the instigation of the father-in-law … The Tribunal found that safe and reasonable relocation would involve acting in a discrete [sic] manner so as to avoid being located by the father-in-law who sought to inflict harm upon them …

2.                  His Honour failed to hold that the Tribunal erred in that when considering and determining whether relocation was reasonable it failed to take into account a relevant consideration, namely that relocation would necessarily involve a restriction upon the Applicants in that they needed to act in a discrete [sic] manner so as to avoid the possibility that the Applicant’s father-in-law could ascertain their whereabouts, as particularised in ground 1 above.

3.                  His Honour failed to hold that the Tribunal erred in that upon a decisive issue, namely the reasonableness of relocation:

(a)               it gave consideration to an irrelevant matter;

(b)               reached a decision that was unreasonable in the Wednesbury sense; and

(c)                failed to determine the issue that was properly before it.

…

4.         His Honour failed to hold that the Tribunal erred in that it found that the influence, and the will to inflict harm, of the Applicant’s father-in-law was limited (that is, did not extend beyond the Madras area) whereas there was no evidence before the Tribunal upon which it could have reached any such determination as a matter of fact.

                                    PARTICULARS

The Tribunal found as a fact that the influence and the will, to pursue the Applicant, of the Applicant’s father-in-law is limited …’

6                     As those grounds show, the parents’ complaint to this Court is that the Federal Magistrates Court erred in failing to accept the four grounds argued for them in that Court.  Before returning to the consideration of those grounds of appeal, it is convenient to refer to the appeal by the child.

THE CHILD’s APPEAL

7                     Proceedings NSD 1610/2005 is an appeal from the judgment of Nicholls FM delivered on 10 August 2005, which dismissed the child’s application for review of a decision of the Tribunal handed down on 22 April 2004 (see [2005] FMCA 1067). The decision of the Tribunal affirmed the decision of a delegate of the Minister made on 22 October 2003 to refuse a protection visa to the child.

8                     It may be that in this case the document styled ‘Draft Notice of Appeal’ was filed outside the 21 day period in which an appeal may be filed without leave, as required by O 52 r 15 of the Federal Court Rules. The question was not raised by the Minister on the appeal, and was not the subject of submissions. If it be the case that an extension of time within which to appeal is necessary, we would grant the necessary extension.

9                     The child was born in Australia on 7 July 2003. The Federal Magistrates Court appointed the child’s mother as her litigation guardian pursuant to r 11.11(1) of the Federal Magistrates Court Rules 2001.

10                  On 15 August 2003, an application for a protection visa was made by the child.  In response to the question, ‘Why did you leave that country?’ the child (or more precisely her parents on her behalf) responded, ‘Please see my parent [sic] application. Same statement for me. I will provide statement later.’

11                  In relation to the question, ‘What do you fear may happen to you if you go back to that country?’ the response was ‘Same as my parent application.  I will provide statement later.’

12                  As noted by Nicholls FM at [5]:

‘… the Tribunal wrote to the applicant on 4 December 2003 … and advised that on the material before it the Tribunal was unable to make a decision in her favour and invited the applicant to a hearing on 23 January 2004 to provide evidence and arguments in support of her claims.  This letter was sent to the authorised recipient/migration agent, and a copy was sent to the applicant’s home address.  The applicant responded … that she would come to the hearing and that her migration agent would accompany her to the hearing.  The applicant’s father wrote to the Tribunal on 21 January 2004  … requesting an adjournment of the hearing date due to illness by the applicant, and his own physical condition.  The Tribunal agreed to postpone the hearing, and wrote to the applicant on 27 January 2004 setting the new hearing date as 10 March 2004.  This letter was sent by registered post to the applicant’s authorised recipient, and a copy also by registered post was sent to the applicant’s home address …’

Nicholls FM further noted at [6]:

‘ … The Tribunal … found that as the applicant’s claims were the same as her parents, and that as she had not provided any further details and did not attend a hearing in this matter, it was unable to explore the applicant’s claims any further.  There was nothing provided by the applicant to the Tribunal that could assist the applicant’s claims any further and as a result the Tribunal found that the applicant, consistent with the findings of the previous Tribunal, which it had accepted, could reasonably be expected to relocate within India with her parents.’

13                  Subject to one matter, that being a complaint that the child was denied procedural fairness in respect of her hearing by the Tribunal, the child’s appeal will depend upon the outcome of her parents’ appeal.

14                  In the Federal Magistrates Court, the child, represented by her mother, claimed that the Tribunal had denied her procedural fairness because she did not receive the notice of the hearing letter on time. Nicholls FM said at [7]: 

‘… The applicant’s mother claimed … that they did not get the letter advising of the new hearing date until one or two days after the date for the adjourned hearing.  She tendered an Australia Post form, headed “Postal Items Awaiting Collection”, which was dated 9 March 2004, that is the day before the scheduled hearing, addressed to the applicant and notifying of a registered post article held at Belmore Post Office for the applicant.  The back of this form contains a registered post article number, which correspondence [sic] with the registered post number affixed to [a copy of the letter from the Tribunal notifying the applicant of the new hearing date] next to the applicant’s name and address.  On its face then the postal notice can be said to refer to the letter of postponement of hearing date advice sent by the Tribunal to the applicant herself at her home address.  However … the postal notice is checked as being the “final notice” in circumstances where there is provision for a first and presumably earlier notice to have been given to the postal recipient or addressee …’         

15                  Nicholls FM noted that even if the child and her parents had received this letter one or two days after the scheduled hearing date, there was nothing to show that a complaint was made to the Tribunal about the late receipt or that another hearing date was requested before the Tribunal’s decision was delivered nearly three weeks after receipt of the letter. His Honour concluded that the critical issue was that the child’s family had engaged a migration agent to act on their behalf.  The communication by the Tribunal to the migration agent is not shown to have miscarried in any way, and there was ‘absolutely no evidence’ that the migration agent had failed to notify the parents of the information about the new hearing date. 

16                  Nicholls FM held at [9] that:

‘… the Tribunal was entitled to proceed to make a decision pursuant to s.426A(1)(a) of the Act and I can see no error on the material before me in what the Tribunal has done.  In all the circumstances, including the failure by the applicant and those acting for her to provide any further details as promised, the Tribunal was entitled to make a decision on the applicant’s application for review without taking any further action.  It cannot be said that procedural fairness was denied to the applicant in these circumstances, and to the extent that s.422B operates in this case, as the application for review was made well after the enactment of that section, I can see no breach of the statutory requirements as set out in Division 4 of Part 7 of the Act.’

17                  In our judgment, Nicholls FM was correct in his conclusion that there was no want of procedural fairness arising from the claimed late receipt of the hearing letter.  Section 425 of the Migration Act 1958 (Cth) requires the Tribunal to invite an applicant to a hearing.  This can be done by adoption of the process referred to in s 425A.  This was done in this case.  It is not to the point that actual notice was not received by the child until after the date for hearing.  Compliance with the regime referred to in ss 425, 425A, and 441G satisfies the requirements of procedural fairness to an applicant: s 422B.

18                  In VNAA and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407, Sundberg, Hely and Gyles JJ said at 413 [14]:

‘The claim put to the primary judge and repeated before us that the methods specified in s 441A by which a document may be given to a person do not apply to an invitation given under s 425 must be rejected.  Section 441A applies only when a provision requires or permits the Tribunal to give a document to a person and states that it must do so by one of the methods specified in the section.  Section 425A so states.  Section 425 does not.  It is, however, plain that the sections are to be read together.  Section 425 merely requires the Tribunal to invite an applicant to appear.  It contains no mechanism by which the invitation is to be extended.  That is done in s 425A.  If the Tribunal invites the applicant to appear, it must be done in the manner there set out, namely by notice specifying the date, time and place at which the applicant is to appear.  That this is the proper construction of the provisions is established by decisions at first instance, with which we agree.  See QAAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1220 at [13] per Cooper J, SAAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 101 at [8] per Mansfield J, Mohammad v Minister for Immigration and Multicultural Affairs [2000] FCA 466 at [17] per Katz J and NAOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 820 at [19] per Sackville J.  It would be absurd to treat Parliament as intending by s 425 that by some unstated means the Tribunal is to issue an invitation to appear before the Tribunal, and by s 425A that it is to dispatch a notice containing details of the date, time and place for the appearance, but not containing the invitation itself.’ [original emphasis]

19                  As to the other claims of the child, the Tribunal said:

‘The Tribunal has carefully read the applicant’s parents claims as contained in the DIMIA file (CLF2003/32988) and the RRT file (N03/46999) relating to their Application for a Protection Visa and their Application for Review.  The Tribunal has reviewed the evidence before the Tribunal as previously constituted.  With the applicant’s parents’ implicit consent this Tribunal has also read and considered the decision of the Tribunal as previously constituted.’

20                  The Tribunal analysed the reasoning of the previous Tribunal decision relating to the parents’ claim, and accepted the findings of that decision.  Nicholls FM concluded at [17]-[18]:

‘17.      … For this reason the Tribunal decision before me, in accepting the findings of the first Tribunal, has not accepted any decision which was infected with the type of error as stated in S395. 

18.       In all the circumstances of the case before me therefore, there is nothing before me to show any error on the part of the Tribunal.  The applicant as a very young child relied entirely on the claims as put forward by her parents, which were considered by a differently constituted Tribunal.  The Tribunal looked at the only set of circumstances as put forward by the applicant, and as they related to the applicant.  There is nothing before me to show that the Tribunal made any error in the way that it went about its task, nor is any error apparent on the material before me.  Accordingly this application is dismissed.’

21                  It is therefore necessary to consider whether the Tribunal decision in respect of the parents’ application contains jurisdictional error.

THE TRIBUNAL DECISION ON the PARENTS’ application

22                  The parents’ grounds of appeal assert that the Federal Magistrates Court erred in failing to accept the grounds argued for the appellant in the Federal Magistrates Court. Ground four seeks to challenge findings of fact made by the Tribunal.  Even if those findings were incorrect, they were open to the Tribunal on the material available to it.  The making of those findings therefore involved no jurisdictional error on the part of the Tribunal.  It only remains therefore to consider grounds one, two and three of the parents’ appeal from the Federal Magistrates Court.

23                  The relocation principle is concerned with whether an applicant can obtain adequate protection in his or her country of nationality by moving to another area within the country.  The Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 identified the relevant inquiry, namely whether the protection afforded by relocation is sufficient to remove a real chance of persecution in the applicant’s own country.  The Tribunal found on this question:

‘With respect to whether he could safely relocate, the country information indicated inter alia, “mixed Hindu-Muslim marriages are quite common in large urban centres and rarely provoke any reaction” … The applicant claimed to have resided temporarily in Bombay.  He had claimed his father-in-law found out he was residing there with the applicant wife and he therefore had to depart.  When asked, he claimed that his father-in-law only found out about his presence in Bombay, due to the applicant having phoned a former work colleague, who was also working for the father-in-law, and this former work colleague informed on the applicant’s whereabouts to the father-in-law.  I do not accept the father-in-law could trace the applicant if the applicant is discreet about informing people of his location.  The applicant did not claim to have been located by his father-in-law for instance, after talking to his own family members.  Importantly, and based on their claimed subjective fear of him, I am satisfied that both applicants would act in a discreet manner in India in future to avoid the father-in-law locating them.  Accordingly, I am satisfied the applicant could safely relocate within India and by so doing avoid a well founded fear of persecution for a Refugee Convention reason.’

24                  It was submitted for the applicants that the Tribunal did not determine whether or not that ‘discreet conduct’ itself amounted to persecution.

25                  In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180, the High Court was concerned with an application for protection visas by two male homosexuals from Bangladesh.  The observations of the High Court make it plain that the fundamental question is whether there was a well-founded fear of persecution. Whether the applicants could avoid persecution or harm by discreet behaviour is irrelevant to that task. As a Full Court of the Federal Court noted in NALZ  v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 270 at 281 [46]:

‘… It has long been accepted that, if it is reasonable for an asylum seeker to relocate within his or her country of nationality and, by relocating, avoids the possibility of persecution, Australia will not owe protection obligations to such a person. Requiring an asylum seeker to relocate, in circumstances where it is reasonable to do so, does not involve the asylum seeker modifying beliefs or opinions or hiding membership of a particular social group if such beliefs, opinions or membership is the source of persecution: see SFKB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 142 at [12]-[13].’

26                  Nicholls FM in dealing with the Tribunal’s reasons for decision in respect of the parents’ application observed at [17]:

‘It is clear … on a plain reading of the decision record, that in relation to the applicant’s parents, the first Tribunal was not intending that the parents would need to be discrete[sic] in hiding their respective religions, their mixed marriage or their membership of any social group from the people in any area where they may choose to relocate.  The phrase “act in a discrete[sic] manner” is clearly directed to the father-in-law.  The Tribunal clearly says that “the applicant”, that is the applicant’s father, did not claim to have been located by his father-in-law for instance after talking to his own family members.  I agree with Ms. Henderson that the relocation principle has never been held to mean that a person who moves away from a place in which he or she is exposed to persecution will then notify former persecutors of his or her new location.  When seen in this way, the Tribunal’s decision does not offend the principles set out in Appellant S395, and nor does it undermine the Tribunal’s ultimate finding on the capacity of the applicant’s parents to reasonably relocate.’

27                  We respectfully agree with the reasoning of Nicholls FM as to the application of the relocation principle to the case of the parents.

28                  The appellants further contended that the Tribunal erred in its assessment of the reasonableness of relocation within India by taking into account an irrelevant consideration. In deciding whether the appellants’ language differences made their relocation unreasonable, the Tribunal found that the appellants had successfully relocated to Australia and found employment here. The appellants submit that this was an irrelevant consideration.

29                  Scarlett FM considered this issue in his decision (at [28]-[31]), noting the decision of Edmonds J in SZDPE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 626, in which it was held that, in considering whether an applicant is able to relocate to another part of the country where a different language is spoken, it is appropriate to consider the applicant’s success in relocating to Australia.

30                  We agree with Scarlett FM’s reasoning, and accordingly agree that the Tribunal did not err on this ground.

31                  It follows that the Tribunal made no jurisdictional error in the case of the parents’ application, and Scarlett FM was correct to dismiss their application.

32                  Each of the two appeals will be dismissed with costs.

Associate:

Dated:              3 July 2006