FEDERAL COURT OF AUSTRALIA

SZFCB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 961

MIGRATION – judicial review – whether Magistrates Court should have found jurisdictional error in conclusion by the Refugee Review Tribunal that the appellant could safely relocate within India

Migration Act 1958 (Cth) ss 424A(1), 424A(3)

Judiciary Act 1903 (Cth) s 39B

NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 discussed

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

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 cited

SZFCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 715 of 2005

SACKVILLE J

14 JULY 2005

SYDNEY

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.

REASONS FOR JUDGMENT

the appeal

1                     This is an appeal from a judgment of the Federal Magistrates Court given ex tempore on 20 April 2004.  The learned Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 11 November 2004.  The RRT had affirmed a decision of a delegate of the respondent (‘the Minister’) not to grant the applicant a protection visa.

2                     The appellant is a citizen of India, whose family apparently resides in his home state of Tamil Nadu.  The appellant arrived in Australia on 16 May 2004 and on 28 May 2004 lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 8 June 2004, a delegate of the Minister refused to grant the protection visa.  As I have noted, the RRT affirmed that decision and an application for judicial review was dismissed.

3                     The appellant, as directed, filed an amended notice of appeal.  The notice of appeal asserts that the learned Magistrate erred in law by failing to find that the RRT had made a jurisdictional error in affirming the decision of the delegate on a number of grounds, as follows:

‘4.  The Federal Magistrate failed to see that Tribunal having accepted that the applicant subjectively feared he might be persecuted by local high caste persons should have accepted the reality that there was a real danger to the applicant.

5. The Federal Magistrate made an error by accepting that the Tribunal’s finding that the applicant could relocate to any other part of India.

6.      The Federal Magistrate made a legal, factual and jurisdictional error in not properly applying the principles laid down by the Full Court of Federal Court in Randhawa v The Minster for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437.

7.      The Federal Magistrate failed to see that the appellant had a fear of persecution in his home country and that persecution is well founded.

8.      The Federal Magistrate is wrong in saying that there is no reviewable error.  The Tribunal and the Federal Magistrate has failed to see that the language and culture in each state of India is different.  And it is difficult it find job or live here.  Whereas in Australia the language is English and the language is not different from India.  In Tamil Nadu state of India, English language is used from nursery school to college level.  The Tamilnadu state in India does not use other languages like Malayalam.  The Federal Magistrate should have treated this as a reviewable error.

9.      The Federal Magistrate and the Tribunal should have seen that in Tamil Nadu, English is the main language used everywhere.  Therefore the applicant feels comfortable in an English speaking country like Australia than other states in India which have other languages and culture.

10.  The Tribunal before advising the applicant to relocate to other parts of the country should have relied on some independent source to find the truth stated in the about point.  The Federal Magistrate has not considered this point and made an error.

11.  The Federal Magistrate failed to see that the Tribunal failed in relying on some country information provided by foreign sources.  The Federal Magistrate should have seen the Tribunal had not given priority to the real factual situation and should not have relied on unrealistic third party statements.’

(The numbering is that adopted by the notice of appeal.)

the appellant’s claims

4                     In a handwritten statement accompanying his application for a protection visa, the appellant claimed that he had grown up in poor, lower-class family in Tamil Nadu State.  His home was in a village, some 15 kilometres from Chennai (the capital of Tamil Nadu State).  He said that upper-class people had regularly punished lower-class people, including the appellant’s father, and treated them like slaves.  The appellant claimed that his father had defended the rights of lower-class people and had been a leader of minority communities in his area.  By reason of those activities, his father had been ‘brutally killed’ in July 1990.

5                     The appellant had undertaken studies at a college and then decided to follow in his father’s footsteps by helping lower-class people.  Accordingly, he also became a leader of minority communities but, like his father, had been harassed and threatened.  Fearing for his life, he had migrated to a neighbouring state, but an upper-class criminal gang had followed him.  As a result of these threats, he obtained a visa to travel to Australia.

6                     At the hearing before the RRT, the appellant stated that he belonged to a ‘scheduled caste’ of Tamils whose members had been discriminated against in Tamil Nadu.  He said that he had become a leader of low caste persons in his local village in 2000.  Thereafter he had been targeted by high caste persons who ‘thought [that he] should be killed or chased away’.

7                     The RRT put to the appellant that it would need consider whether he could reasonably reside in and travel to another part of India where he would not have a well-founded fear of persecution.  The appellant said that it would not be reasonable for him to relocate because he would be unable to speak the local language. 

the rrt’s reasons

8                     The RRT noted that the appellant had been able to obtain tertiary education in India and had also obtained employment commensurate to his skills.  On the basis of his own evidence, the RRT was not satisfied that the appellant would have a real chance of being subject to persecution merely by reason of him being a lower caste person, should he return to India. 

9                     The RRT acknowledged, however, that the appellant’s principal claim was that he feared persecution by reason of having come to the adverse attention of high caste persons in his home region in India.  For the purposes of the decision, the RRT accepted that the appellant might have some problems in his home village.  It accepted that the appellant’s evidence relating to a scuffle that took place between low caste and high caste persons in 2002 was ‘plausible’.  The RRT continued as follows:

‘For the purposes of this decision, and without deciding whether such fear was well founded, I accept the applicant subjectively feared he may be persecuted by local high caste persons in his home village in Tamil Nadu, due to him being perceived to be a spokesperson for local low caste persons’.

10                  The RRT noted that it was not necessary to determine conclusively whether the appellant had a well-founded fear of persecution in his local area if the RRT was satisfied that he could safely relocate within the country and that it was reasonable to expect him to do so.  The RRT also noted that none of the country information suggested that high caste persons had or ordinarily used their connections to track down their ‘enemies’, nor that a network that would allow such tracking down to occur actually existed.  Accordingly, the RRT was not satisfied that high caste persons had a network throughout India allowing for the tracing of persons considered to be their enemy.  More importantly, it was satisfied that any problem the appellant had ‘was localised and would only arise should he return to his home village in India’.  The RRT was therefore not satisfied that any of the high caste persons in or around the appellant’s home village would have any interest in pursuing him should he relocate elsewhere within India.  The RRT was also satisfied that the appellant could safely travel to and reside in states neighbouring Tamil Nadu without having a well-founded fear of persecution for a Convention reason.

11                  The RRT next went on to consider whether it would be reasonable in all the circumstances to expect the appellant to relocate within India.  The RRT pointed out that the appellant had obtained work since arriving in Australia.  This indicated that he was able to manage in a country which had language and culture very different from his own.  Therefore, it was not unreasonable to expect him to relocate within India, notwithstanding the claimed language difficulties.  Moreover, the appellant had agreed that he would be able to obtain work in another Indian state. 

12                  The RRT concluded as follows:

‘Accordingly, I am satisfied the [appellant] would be able to secure employment commensurate with his skills in India outside Tamil Nadu.  I am also satisfied, given his ability to readily secure work in Australia, a country with culture and language dissimilar to his own, that any language differences would not mean that it would be unreasonable to expect the [appellant] to relocate within India.

Furthermore, no evidence was provided that there were concerns with respect to infirmity, health services or education, either with respect to the [appellant] individually or with respect to his family … Neither did the country information … satisfy me that relocation on these grounds would be unreasonable for this [appellant].  Accordingly, I am satisfied the [appellant] can be reasonably expected to relocate within India and by so doing avoid any well founded fear of persecution for a Conventionreason’.

the magistrate’s reasons

13                  The Magistrate observed that the appellant’s criticisms of the RRT were essentially based on matters of fact.  The appellant had challenged the RRT’s view that he did not face a risk of persecution in India, and claimed that the RRT had overlooked the fact that English was the main language used in Tamil Nadu.

14                  His Honour referred to the recent Full Court decision in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37, and noted that in that case the Full Court had endorsed the approach taken by an earlier Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.  His Honour interpreted the judgment of Branson J in NAIZ (with which North J agreed) as supporting the proposition that:

‘a consideration of the question of relocation within an applicant’s home country is an important matter.  It should not be obtained [sic] in a light or an offhand way.  It is as important to establish the reasonableness on a practical basis of relocating within one’s home country as it is to look at the question of relocation in a general sense.’

15                  Nonetheless, the Magistrate in the present case pointed out that a court conducting judicial review of an RRT decision cannot simply substitute its own view of the facts for that of the RRT.  There was evidence before the RRT which enabled it to make the factual findings on which it relied.  Accordingly, the RRT had not made any jurisdictional error. 

16                  The RRT referred to one matter that caused it ‘some concern’.  The appellant had claimed that he had received further information recently about the state of affairs in Tamil Nadu.  In particular, he told the Court (it is not clear whether by way of evidence or from the bar table) that he had recently received reports that people were enquiring about him in his home village.

17                  The Magistrate noted that this recent information could not have been considered by the RRT and that it was not open to the Court to take into account material relating to events post-dating the RRT’s decision.  It was a matter for the appellant whether he chose to make another application based on the fresh material.

18                  For these reasons, the Magistrate dismissed the application.

reasoning

19                  The grounds identified in the notice of appeal, with one exception, constitute challenges to the merits of the RRT’s decision.  The main criticism appears to be that the RRT paid insufficient attention to the fact (as asserted by the appellant) that the English language is widely used in Tamil Nadu and that other languages, such as Malayalam are not widely used.  The appellant also appears to assert that the English language is not as widely used in states neighbouring Tamil Nadu as it is in Tamil Nadu itself.  This criticism appears to assume that the appellant is fluent in English, although he used a Tamil interpreter to assist him at the hearing of the appeal in this Court.

20                  It is by no means clear, on the material before the RRT, that the facts asserted by the appellant are correct.  But even if they are, that would not establish jurisdictional error on the part of the RRT.  As the RRT pointed out, the appellant himself acknowledged that he would be able to obtain employment if he were to relocate to a state neighbouring Tamil Nadu.  The appellant’s main concern, as expressed to the RRT, was that he could not relocate safely.  The RRT specifically addressed this issue and rejected the appellant’s claim that he would be at risk of persecution for a Convention reason if he were to move to another state outside Tamil Nadu. 

21                  At worst, the RRT made a factual error concerning the extent to which the appellant would have to make a language adjustment if he were to relocate from Tamil Nadu to a neighbouring state.  That error (if it was such) might have affected the RRT’s assessment of the appellant’s ability to reside and work in a state other than Tamil Nadu.  It might also have affected the RRT’s assessment of the adjustment the appellant has been required to make to live in Australia, although it seems that the RRT was referring to the fact that the appellant’s first language is Tamil.  But these are matters relating to the merits of the appellant’s claims and cannot constitute a jurisdictional error warranting relief pursuant to s 39B of the Judiciary Act 1903 (Cth).

22                  The only ground in the notice of appeal that could establish jurisdictional error is ground 6, which complains that the Magistrate failed to find that the RRT had misapplied the principles stated in Randhawa.  In NAIZ, Branson J restated (at [10]-[11]) these principles as follows:

‘Where a person is in Australia having fled his or her country of nationality because of a well-founded fear of being persecuted for a Convention reason in one part only of that country, Australia will have a protection obligation in respect of that person only if he or she is outside that country “owing to well-founded fear of being persecuted” for a Convention reason.  If the putative refugee could reasonably have re-located within the country of nationality, rather than fled that country, he or she will fail the first element of the Convention definition of a refugee.  I put to one side the case of a person who is outside the country of his or her nationality because the circumstances inside that country have materially changed since he or she departed the country.  …

If the putative refugee satisfies the first element of the Convention definition of a refugee but is unwilling to seek diplomatic or consular protection in Australia from his or her country of nationality, the reason for the unwillingness needs to be determined.  If the outcome of the putative refugee seeking diplomatic or consular protection would be that he or she would be returned to a part of the country of nationality in which he or she:

(a)               would not face persecution for a Convention reason; and

(b)               could reasonably be expected to live,

he or she will fail the second element of the Convention definition of a refugee.  The unwillingness to avail himself of the protection of the country of nationality would not be owing to a well-founded fear of persecution for a Convention reason.’

23                  In NAIZ, the appellant succeeded because a majority of the Full Court held that the RRT in that case had failed to give consideration, as required by Randhawa, to the ‘practical capacity’ of the appellant to relocate within Fiji.  Branson J noted (at [21]) that the RRT’s:

‘reasons for decision give no explicit consideration to how, even with some financial assistance from her daughter, the appellant would find a new home in which to live in Fiji and access such support as she might reasonably require to live in that home’.

Her Honour concluded that the RRT had not, as Randhawa requires, given:

‘consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji.  This is not to say that it was not open to the [RRT] to conclude that the appellant could deal with those practical realities, perhaps with financial help from her daughter.  However, the [RRT] was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji’.

24                  In the present case, in my opinion, the RRT did give consideration to the practical realities facing the appellant if he was required to relocate outside Tamil Nadu.  It took into account his educational qualifications, his acknowledged ability to obtain employment, his language skills, and the remoteness of any threat to his safety.  The appellant did not suggest that there would be any difficulty about his family accompanying him.  Whether or not the RRT’s assessment of the facts was entirely accurate, it cannot be said that it failed to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within India.

25                  Although the appellant did not invoke s 424A of the Migration Act 1958 (Cth), either before the Magistrates Court or on the appeal, I have given consideration to the possible application of that provision in the circumstances of the present case.  I have done this in view of the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, to the effect that a failure by the RRT to comply with the procedural requirements of s 424A constitutes a jurisdictional error regardless of whether the failure would otherwise amount to a denial of procedural fairness.  Section 424A(1), inter alia, requires the RRT to give an applicant particulars in writing of any information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review.

26                  There is no doubt that the RRT took into account country information concerning India in reaching its conclusion that the appellant could safely relocate outside Tamil Nadu.  The difficulty for the appellant, however, is s 424A(3) of the Migration Act, which provides that s 424A does not apply to information:

‘that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other persos is a member’.

The country information relied on by the RRT was not specifically about the appellant and thus the exclusion in s 424A(3) applies: Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.  Accordingly, the RRT was not obliged to comply with the procedural requirements specified in s 424A.

conclusion

27                  The appeal must be dismissed, with costs.

Associate:

Dated:              14 July 2005

The appellant appeared in person.