FEDERAL COURT OF AUSTRALIA

SZADJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1418

SZADJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1293 of 2003

MOORE J

SYDNEY

5 DECEMBER 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s 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

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a judgment of a Federal Magistrate of 8 August 2003, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The application in the Federal Magistrates Court of Australia was said to be made under s 39B of the Judiciary Act 1903 (Cth) and, though not expressly stated, it can be assumed it was an application for constitutional writs.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse to grant the appellant a Protection (class XA) visa under the Migration Act 1958 (Cth) (“the Act”).

2                     The appellant arrived in Australia on 31 December 2001.  On 15 January 2002 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 26 March 2002 the delegate of the Minister refused to grant the appellant a protection visa.  On 26 April 2002 the appellant applied to the Tribunal for a review of that decision.

Background

3                     The following reflects, in a summary form, the appellant’s account of his experiences in India as set out in the reasons of the Tribunal.  The appellant is a citizen of India.  He was born on 15 January 1977.  From 1983 to 1993 he studied in Chitradurga, Karnataka.  In 1992 he joined the Student Islamic Movement of India (“SIMI”) and soon became joint secretary.  In December 1992, the Babri Mosque was destroyed as a result of inter-communal riots between Hindus and Muslims in Chitradurga.  The appellant lodged a complaint to the police after which time “terrorists” broke into his house and attacked his parents and him.  The appellant received a warning that he would be assassinated.  In 1994 the appellant went to live with his uncle in Shimoga, Karnataka where he continued his studies.  He stayed with his uncle until 1999.

4                     In August 2001 the appellant and his cousin attended a Hindu procession as members of SIMI.  The appellant and his cousin were attacked, and the appellant’s cousin was killed.  The appellant witnessed the death of his cousin.  He was warned by the assassins they would fabricate charges against him.  He escaped to Hyderabad where he stayed in hiding for approximately 3 months before coming to Australia.

The Tribunal’s Reasons

5                     The Tribunal found the appellant did not have a well founded fear of persecution in India because he was able to re-locate.  The Tribunal accepted aspects of the appellant’s claims.  It appeared to accept that the appellant was involved with SIMI, even though it did not make an express finding to this effect.  It also accepted that the appellant was assaulted following the riots in 1992, but found that this was because he had made a report to the police and not because of his activities with SIMI.  It accepted that after this incident the appellant successfully relocated to Shimoga where he resumed his studies, completing his education in 1999, and subsequently finding employment.  It accepted that in 2001, the appellant was assaulted and that this assault arose from his activities with SIMI.  It appears to have accepted that the appellant’s cousin was murdered and that the appellant witnessed the murder.

6                     The Tribunal found that having regard to the independent country information and the appellant’s own account of relocation first to Shimoga and then to Hyderabad, he could relocate to another place within India.  The Tribunal indicated that because of the appellant’s young age, his professional qualifications and work experience, it would be reasonable and feasible for him to relocate.

7                     The Tribunal made an alternative finding in relation to the appellant’s fear that he would be specifically targeted.  It found that the appellant’s fear was not for a Convention reason, but rather because he was the only witness to his cousin’s death and that he could testify against his cousin’s murderers.

The judgment of the Federal Magistrate

8                     After making some introductory observations in his reasons for judgment, the Federal Magistrate set out at [2] the grounds relied on by the appellant:

1.         The Refugee Review Tribunal’s member accepting that I have been assaulted but the member is advising to relocation in India.

3.         Relocation is not possible and I will submit the relocation problems in India to the court within four weeks. 

4.         On page 14 paragraph 1 the member wrote that she satisfied that I was the witness of a murder but not for a convention related reason.  Whereas it’s a religious and political problem.

It can be seen that the appellant was effectively complaining about two matters.  The first was the way the Tribunal dealt with the issue of relocation.  The second concerned the characterisation of any interest in the appellant arising from his witnessing his cousin’s murder.

9                     As to the first matter, his Honour set out the Tribunal’s discussion of the circumstances in which the appellant witnessed the murder of his cousin, in which it concluded that any interest in the appellant did not relate to “one of the five Convention reasons”.  He said at [10] – [12]:

These findings gave me cause for concern that they may be responsive to the wrong question. The Tribunal has sought to separate the integers of one situation. Remembering that the assault on the [appellant] (and therefore presumably the murder of his cousin) arose in the course of the [appellant]’s activities with SIMI it looks to see whether he can relocate. It seems implicit in the assumption that he can relocate away from his problems that he would have problems that are convention related if he remained in the state. What are those problems? They could only be the fear he feels from those involved in the killing of his cousin and the assault upon himself which the Tribunal accepted arose in the course of his activities with SIMI. I cannot find any evidence that any other fear was expressed. In the [appellant]´s statement to the Tribunal [CB 76-78] this is the only relevant incident mentioned. The [appellant] there deals with why he has a fear that he will not receive effective protection, and that does not appear to have been dealt with by the Tribunal in its reasons.

I am of the view that the Tribunal responded to these claims by the [appellant] appropriately. It decided he had a subjective fear of persecution for a convention reason and that he had that objective fear within his own state. It came to the view that he could relocate elsewhere in India based upon the short relocation that had occurred when the [appellant] went into Hyderabad. The Tribunal, by inference, asked itself the question whether or not the [appellant] would be likely to continue with his SIMI activities because it came to the conclusion that he would not, as he did not do that in Hyderabad.

The Tribunal accepted that the [appellant] had a well-founded fear of persecution for reasons of his political activities, arising out of the August 2001 assault, but concluded that he did not have an objective fear of persecution because “as a matter of practicality” he was able to relocate to another state within India: Randhawa v Minister for Immigration (1994) 52 FCR 437. At [CB 117] the Tribunal states:

“The [appellant] has not claimed and there was no evidence to suggest he has been involved in any activities outside his own state. The [appellant] has not claimed and there is no evidence to suggest that he resumed his SIMI activities in Hyderabad. The Tribunal is satisfied on the evidence before it, that the [appellant] does not have any profile that would place him at risk outside Karnatake.”

The function of the Tribunal is to respond to the case that the [appellant] advances: Dranichnikov v Minister for Immigration [2003] HCA 26 at [78] and the Tribunal is not required to consider claims that have not been made: SCAL v Minister for Immigration [2003] FCA 548 at [16]. It was open to the Tribunal on the evidence before it to conclude that the [appellant] could relocate.

[Emphasis added]

10                  As to the second matter, his Honour said at [13] –[14]:

The second issue relates to the Tribunal´s findings on the [appellant] witnessing of the murder of his cousin. The Tribunal held that the [appellant] did have a fear of persecution but it was not well-founded because the fear did not come within the confines of the five categories of Art 1A(2) of the Convention. The [appellant]´s fear in this instance is different from the fear discussed above. The first fear which the Tribunal found to exist was presumably one of general persecution of the [appellant] by people opposed to his SIMI activities. This second fear would appear to relate to particular persons namely, the murderers of his cousin. Whilst it is possible that these people might constitute a part of the group who the [appellant] had a fear of within the Convention, the Tribunal found that the particular fear he felt from these particular persons was not Convention related. That would seem to me to be correct. It is a fear of injury from these persons not qua political opponents but qua persons wishing to avoid prosecution for serious criminal offences albeit ones containing a political element.

The Tribunal was therefore right to divide the effects of this one incident into its two constituent parts and consider the [appellant]´s claims against both of them. I am of the view that the Tribunal asked itself the right question and was consequently not in error in a manner that could be reviewed pursuant to s.39B of the Judiciary Act 1903 (Cth).

[Emphasis added]

I turn now to consider the appeal.

Issues in the appeal

11                  The notice of appeal was filed on 29 August  2003.  The grounds of appeal read as follows:

1.         My claims are not Convention related reasons and I am not target of police and also I can relocate in India.  But I was the witness of a murder, police and political leaders were back of me and my life will be in danger.  So, relocation is not possible due to the police and also local SIMI, congress and local ruling paries.

ORDER SOUGHT

Even though my activities were local with SIMI and also I was the witness of the murder of my cousin I will be the target of the police.  I lived in Hyderabad due to the leave the country and I was hiding from police and I never worked there and never participated in any activities.  So relocation is not possible.  As I was the witness of a murder where the person involved in political activities and police will be back of me.  So 1. so set aside of the judgment of Raphael M.  2.  Freshly consider my case to RRT.  3. Costs.

12                  It can be seen that the appellant was again focusing on the two issues raised in the proceedings in the Federal Magistrates Court.  The appellant represented himself in the appeal.

13                  I do not share, at least with any confidence, the view of the Federal Magistrate reflected in par 11 of his reasons (set out at [9] above) that the Tribunal, by inference, asked itself the question whether or not the appellant would be likely to continue with his SIMI activities “because it came to the conclusion that he would not, as he did not do that in Hyderabad”.  The transcript of the hearing was not in evidence before the Federal Magistrate.  It is not evidence in this appeal.  The only record of what the appellant said is what is summarised in the Tribunal’s reasons.  The import of what the appellant was saying gleaned from that summary, appears to me to be that he was in hiding in Hyderabad.  If so, it may well be a large step to say that because the appellant did not continue his SIMI activities in Hyderabad (which is what the Tribunal appears to have relied on its reasons under the heading “Relocation [from Shimoga to Hyderabad [2001]”) he did not have any profile which would place him at risk outside Karnataka.  However those matters do not point, in my opinion, to jurisdictional error.  They are, at most, a narrow approach to the facts which another decision maker might have approached differently.

14                  Ultimately the Tribunal addressed and answered a question determinative of the appellant’s application, namely whether the appellant could reasonably relocate from the area of India where he had been at risk of harm and in fact harmed.  It is open to the Tribunal to determine whether there is some location within an asylum seeker’s country of nationality or residence (other than the location in the country where he or she came from or lived) where the asylum seeker can reasonably be expected to live and where they are not at risk of harm: see Syan v Refugee Review Tribunal (1995) 61 FCR 284, Aras v Minister for Immigration & Ethnic Affairs (1998) 50 ALD 797 and Al-Amidi v Minister for Immigration & Multicultural Affairs (2000) 177 ALR 506.  The Tribunal also considered whether it was reasonable for him to relocate (a matter that must be considered: see Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437).  The Federal Magistrate was correct in dismissing the appellant’s application.

15                  The appeal should be dismissed with costs.

Associate:

Dated:              5 December 2003