FEDERAL COURT OF AUSTRALIA

SZLKA v Minister for Immigration and Citizenship [2008] FCA 1665

MIGRATION - application for a protection visa – relocation within India – no jurisdictional error

Held:  appeal dismissed

Migration Act 1958 (Cth)

Al-Amidi v Minister for Immigration and Multicultural Affairs (2000) 177 ALR 506; [2000] FCA 1081

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

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

SZLKA v Minister for Immigration & Anor [2008] FMCA 909

W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69; [2002] FCAFC 103

SZLKA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1146 of 2008

JAGOT J

10 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant is to pay the first respondent’s costs fixed in the amount of $2,800.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against an order of the Federal Magistrate’s Court of 4 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZLKA v Minister for Immigration & Anor [2008] FMCA 909).  Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees).  Section 474 of the Migration Act protects “privative clause decisions” (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error.

2                     The appellant is a citizen of India.  He arrived in Australia on 30 December 2006.  On 7 February 2007 the appellant applied for a protection visa with the Department of Immigration and Citizenship.  A delegate of the respondent Minister refused the application on 23 March 2007.  On 11 April 2007 the appellant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the decision on 16 August 2007.  The appellant appealed to the Federal Magistrates Court on 27 September 2007.  An amended application was filed on 28 November 2007.

3                     On 22 July 2008 the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court.  The notice of appeal specifies three grounds.  For convenience I summarise the substance of the second and third grounds together.  The appellant claims that: - (i) the Tribunal incorrectly found that the appellant could relocate to Kerala to avoid persecution and the Federal Magistrates Court failed to consider this issue, and (ii) the Tribunal and the Federal Magistrates Court failed to consider the persecution of the appellant on the basis of his religion, political beliefs and involvement with Tamil Nadu Thowheed Jamaath (TNTJ).  Other claims have been advanced in oral submissions during the hearing.

4                     The primary judge found that the Tribunal’s decision was not affected by jurisdictional error.  The primary judge noted that the Tribunal accepted: - (i) the appellant’s involvement with TNTJ, a Tamil Muslim group which fights for the rights of Muslims and lower caste Hindus in Tamil Nadu, (ii) that the appellant faced serious harm, amounting to persecution in Tamil Nadu due to his political opinions, religion and involvement with TNTJ, and (iii) that the appellant could no longer live in his village in Tamil Nadu.  However, on the basis of available country information and other information the Tribunal found that the appellant could relocate to Kerala and enjoy meaningful protection of the Indian police and other security institutions there.

5                     Before the Federal Magistrates Court the appellant sought to tender six internet articles about the political situation of Muslims in India, two predating and four post-dating the Tribunal hearing.  The two articles which predated the hearing were not referred to in the Tribunal’s reasons and there was no transcript of the Tribunal hearing in evidence to determine if they had been put before the Tribunal member.  The primary judge said:

20. Part of the Tribunal’s role is to determine whether or not it is possible for the applicant to relocate. A fair reading of the decision indicates that the Tribunal member undertook a detailed review of the country information available to it in making its determination. The Tribunal has been guided in its approach by the authorities setting out its responsibilities and issues which are critical to this analysis. I am satisfied that on the material before me, it is not apparent that the Tribunal has made any jurisdictional error in this process.

…

22. … The applicant’s attempt to put before this Court additional country information – which he acknowledges was not before the Tribunal – is of no assistance in determining whether the Tribunal committed a jurisdictional error. It is not appropriate for this Court to review the correctness or fairness of the section of country information by the Tribunal, or to re-assess inferences drawn from that material. This is a determination of fact reserved for the decision-maker and cannot be upset by judicial review. In respect of the second set of articles contained in category (b) above, all of those articles were written after the Tribunal decision was handed down and clearly cannot be considered by this Court as the material was unavailable to the Tribunal at the time of its decision.

…

24. The analysis of the Tribunal was detailed in respect of all the material available to it and it is ultimately the Tribunal’s responsibility to determine the relevance and weight to give that information. On a fair reading of the Tribunal’s decision, it is not apparent that it made any jurisdictional error in its relocation finding. Consequently, the application should be dismissed with costs.

6                     In respect of the first appeal ground, the appellant submitted in writing:- (i) the Tribunal did not consider the facts and the appellant’s personal circumstances, (ii) the Tribunal’s finding ignores the “reality” that India is a large country in which every state has a different culture so the appellant’s presence in Kerala would be immediately noticeable if he relocated there, and (iii) relocation is not an option having regard to the statement in Al-Amidi v Minister for Immigration and Multicultural Affairs (2000) 177 ALR 506; [2000] FCA 1081 at [18] that “if the expectation of relocation is to be regarded as reasonable, there must be satisfaction of the basic norms of civil, political and socio-economic human rights in that relocation”.

7                     In respect of the second and third appeal grounds, the appellant submitted in writing:- (i) the Tribunal failed to consider the possibility of the appellant’s persecution in Kerala if the current regime of law and order in Kerala were to collapse, (ii) failure to consider that matter was a jurisdictional error (W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69; [2002] FCAFC 103), (iii) the Tribunal considered certain information about the religious freedom of non-Hindu communities in India citing the Department of Foreign Affairs and Trade 2006 but did not make the appellant aware of the existence of that information prior to making its decision, which failure contravened s 424A of the Migration Act.

8                     As to the first appeal ground, the primary judge correctly identified that it was open to the Tribunal on the basis of available information to find that the appellant could relocate to Kerala to avoid persecution.  The Tribunal is not bound by the rules of evidence (s 420(2)(a) of the Migration Act) and may get any information that it considers relevant (s 424(1)). This includes “country information” (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).  Further, it is clear that the primary judge also considered the relocation issue as disclosed at [20] – [24] of the primary judge’s reasons and review of the Tribunal’s reasons. 

9                     Contrary to the appellant’s submissions, this consideration was based on the appellant’s particular circumstances (including his qualifications, business skills and language) against the background of the country information.  The observations in Al-Amidi (2000) 177 ALR 506; [2000] FCA 1081 at [18] on which the appellant relies provide no particular assistance on the facts of the present case.  In Al-Amidi the Tribunal failed to address the “fundamental issues relevant to the reasonableness of” relocation (at [19]).  In this case the Tribunal addressed the appellant’s particular circumstances in some detail. 

10                  The appellant’s submission about the Tribunal not having informed the appellant about country information relevant to religious freedom in India also cannot be sustained given the terms of s 424A(3)(a) of the Migration Act.  Section 424A(3)(a) exempts from the obligation of notice 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 person is a member”.

11                  In oral submissions before me the appellant emphasised other practical difficulties with respect to relocation including, in particular, the need to obtain authorisation or permission for accommodation.  The Tribunal’s reasons do not disclose this issue as a fact which the appellant put to the Tribunal as relevant.  There is no transcript of the hearing before the Tribunal.  As the respondent Minister submitted, the reasonableness of relocation depends on the circumstances of the appellant.  This in turn largely depends on the objections raised to relocation (Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443C-D).  The appellant was on notice of the relevance of the relocation issue by reason of two letters sent by the Tribunal (23 May and 13 July 2007).  Reference to these additional issues in this appeal cannot establish any legal error by the Tribunal.  The facts in W396/01 (2002) 68 ALD 69; [2002] FCAFC 103, where the Tribunal failed to consider any aspect of the appellant’s circumstances by reason of seeking asylum in Australia and having been subjected to interview by ASIO, are also not similar to the present case.

12                  Consistent with the primary judge’s conclusion I see no jurisdictional error in the Tribunal’s consideration of the relocation issue. 

13                  As to the second and third appeal grounds, the Tribunal and the primary judge considered the persecution of the appellant on the basis of his religion, political beliefs and involvement with the TNTJ.  In fact, the Tribunal accepted the appellant’s evidence in this regard and the primary judge referred to this at [9] in the reasons for decision.  It follows that these appeal grounds also cannot be sustained.

14                  For these reasons I consider that no error is disclosed in the primary judge’s reasons.  The appeal must therefore be dismissed.

Associate:

Dated:         10 November 2008