FEDERAL COURT OF AUSTRALIA

SZNIU v Minister for Immigration and Citizenship [2009] FCA 1270

SZNIU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 721 of 2009

STONE J

2 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

Factual Background

1                     The appellant, an Indian citizen, arrived in Australia on 18 June 2008 and lodged an application for a protection visa on 31 July 2008.  This application was refused by a delegate of the first respondent on 27 October 2008.  On 21 November 2008 the appellant applied to the Refugee Review Tribunal for a review of the Minister’s decision.  He was unsuccessful and subsequently applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  That application was dismissed on 23 June 2009, and the appellant filed a notice of appeal from his Honour’s decision on 2 July 2009 (SZNIU v Minister for Immigration & Anor [2009] FMCA 573).

2                     The appellant claimed that he had a well-founded fear of persecution in India arising from his membership of the Indian National Lok Dal Party (the INLD).  The appellant claims that as a member of the INLD, he took an active role in the 2005 elections in his home state of Haryana, working for the INLD, and in particular, for a member known as Jasvinder Singh.  He claims to have been involved in handing out pamphlets, putting up posters, and reading announcements over a loudspeaker from a car.  The appellant claims to fear members of the Congress Party, and in particular, a local Congress Party member, Harmohinder Singh and his followers, who, he alleges, might kill him because of his involvement in the elections.  He said that in 2005, Mr Singh threatened to kill him, and that thugs came to his home, threatened his family, and harassed him.

3                     Despite these events, the appellant admitted that he was able to continue his activities relatively unhindered, until in 2007 Harmohinder Singh asked him to become a member of the Congress Party.  According to the appellant, he refused this offer and Mr Singh became extremely angry.  The appellant claims that he subsequently organised a rally against corruption in the Congress Party, and that as a result, he was told by a member of the Congress Party that the leader of the party had issued an order to have the appellant killed.  As a result of these events, the appellant was forced to move to another town, Kurukshetra, for about a year.  He subsequently moved to Australia, claiming that he remained in fear of being harmed by Congress Party supporters.

The Tribunal’s Decision

4                     The Tribunal indicated some concern about various inconsistencies, implausibility and embellishments in the appellant’s evidence.  Nevertheless, it accepted that he had in fact been a member of the INLD Party and had been threatened as claimed.  In considering the question of the likely harm that he would suffer on returning to India, however, the finding was not favourable to the appellant.  It found that the threats, both in 2005 and 2007, were very likely to be carried out.  In support of this conclusion, the Tribunal noted that the appellant was able to live in Kurukshetra and Dehli without threat or harm.  Moreover, the Tribunal indicated that the appellant’s claims centred on him being in fear in his hometown, and that these fears did not prevent him from living in any other State in India. 

5                     As the Tribunal was satisfied that the harm feared by the appellant was localised to the Haryana State, it found that his fear could be alleviated by relocation within India.  The Tribunal also found that in the circumstances, relocation would be reasonable for the appellant.  The Tribunal listed as relevant circumstances that:

·        There is generally freedom of movement within India, and thus the appellant could live in other cities in India, as a right;

·        He is a single man of good health, who is not and was not previously providing any support to his family, as he was not employed in the past, and thus is responsible for himself only;

·        While he may have no employment history other than his party employment, he has had 10 years’ education and advocacy, organisational, publicity and media skills, which would assist him in finding employment elsewhere in India;

·        He speaks, reads and writes Hindi, which is an official language of India, and has some limited English skills, and that this would assist him in finding employment and accommodation in many other cities in India;

·        There are no restrictions on accessing housing or education or health care in India, other than how much money a person has, so these services would be available to the applicant subject to his obtaining employment;

·        He has previously stayed in a major Indian city, Delhi, and could not give any clear reason as to why he could not live safely there now;

·        He is a resourceful man, as demonstrated by his travelling unassisted from India to Tully in Far North Queensland, and then to Sydney, while not speaking the English language, and finding people from his town here in Australia, as well as meeting most of his food and accommodation needs here in Australia himself;

·        The Congress Party is not in power in all states in India, so he could choose to live in a state not ruled by that party, if he wishes;  and

·        While he believes he would not be safe in Punjab State with his aunt, he is not in any way restricted to that state in any relocation in India.

6                     The Tribunal thus concluded that the appellant did not hold a well-founded fear of being harmed for any Convention reasons, should he return to India. 

7                     The learned Federal Magistrate identified five grounds of review from the appellant’s amended application to the court below. Those five grounds can be summarised as follows:

(1)        The Tribunal failed to comply with its obligations under section 424A of the Migration Act;

(2)        The Tribunal failed to consider the application in accordance with section 91R(1) of the Act;

(3)        The Tribunal failed to consider the motivation for the appellant’s persecution;

(4)        The Tribunal failed to understand, or knowingly ignored, that the appellant was an active member of INLD; and

(5)        The Tribunal did not act in good faith.

8                     The first ground of review, so far as it related to information about the INLD and the Congress Party, was dismissed by his Honour on the basis that the information fell within s 424A subs (3)(a) of the Act, and was therefore not required to be put to the applicant, pursuant to section 424A(1).  Prima facie, the information about Harmohinder Singh fell within the exception in section 424A(3)(a), as it was specifically about another person.  Nevertheless, his Honour also dismissed the ground of review in relation to this information, primarily because no evidence had been put before the court that the information had been used by the Tribunal in drawing its conclusions.  His Honour said at [28]of his reasons:

The applicant has not provided any evidence to support the complaint that the “information” about the Congress Party (and to the extent that this may also be said to be a reference to Harmohinder Singh), is to be seen as “information” that “would be” the reason, or part of the reason, for affirming the decision under review as at some time in advance of the Tribunal’s reasoning of the case.

9                     In relation to the second ground, his Honour said, at [41] - [45] of his reasons:

As best as the complaint can be understood, it is that the Tribunal misunderstood, or failed to properly apply, the Convention definitions of “persecution” or the statutory reference to “serious harm.”

 …

The applicant’s complaint is either misconceived, as the Minister submits, or purposefully seeks to ignore the Tribunal’s findings.  The Tribunal accepted the applicant’s claims as they related to his home state of Haryana.  But it found that any risk of persecution or serious harm was limited to Haryana, and that he could safely relocate to other parts of India.

10                  His Honour held that the Tribunal’s decision did not arouse any doubt as to whether the Tribunal had directly understood or applied the effect of subss 91R(1)(b) and (c).  In considering the Tribunal’s view that the appellant’s fear of harm was localised and he could safely relocate in India, his Honour further found that the Tribunal’s conclusion was not illogical, and the appellant did not have a well-founded fear of persecution for a Convention reason.  In making this finding, his Honour relied, correctly in my view, upon the decision of the High Court in SZATV v Minister for Immigration and Citizenship [2007] 233 CLR 18.

11                  In relation to the third and fourth grounds, his Honour noted that although the Tribunal had accepted that the appellant’s persecutors were motivated by a Convention reason, it had found that the appellant was not at risk of harm outside his home state, and that it was reasonable to expect him to relocate.  This was a finding that his Honour said was open to the Tribunal on the evidence before it. 

12                  Finally, his Honour found no evidence that the Tribunal had acted in bad faith.  His Honour noted that the Tribunal, despite its misgivings about the appellant’s claims, gave him the benefit of the doubt and accepted his claims, insofar as they related to his home state.  The Federal Magistrate therefore concluded that the Tribunal’s decision was not infected with jurisdictional error, and dismissed the appeal.

This appeal

13                  As mentioned earlier, the notice of appeal in this matter was filed on 2 July 2009.  It lists only one ground of appeal, namely, that the court below erred in that it ought to have held that it was open to the Tribunal, on the evidence before it, to find that the appellant was a refugee within the meaning of the Act.  In such circumstances, it was alleged that Tribunal ought to have given the applicants for refugee status the benefit of the doubt because of the possibility that the applicant’s claims are plausible, which was the case here. 

14                  As the respondent noted in written submissions, this allegation was not made in the court below, and the appellant would only be entitled to raise it on appeal with the leave of the Court.

15                  At the outset of this hearing, I raised this matter with the appellant, and following some discussion, it became clear that the appellant did not entirely understand the process that was involved.  After further discussion, the appellant elected to abandon the ground raised in the notice of appeal, and to press, instead, grounds that the Federal Magistrate was in error in failing to find in the Tribunal’s reasons the errors that were pleaded before the Federal Magistrate.  This totally changed the basis of the appeal; however, the representative of the Minister, Ms Knight, indicated that she was able to deal with the appeal on that basis, and did not object to the appellant being allowed to amend his notice of appeal in this way.  The appellant did not wish to make any submissions in support of those grounds, and preferred to rely on the submissions that were put to the Federal Magistrate.  That being so it was not necessary for the respondent to say any more than that no error had been detected in either the Federal Magistrate’s reasons or the Tribunal’s reasons, and to rely on the submissions that had been made below.

16                  As would be clear from the outline I have already given of the Federal Magistrate’s reasons, and of the Tribunal’s reasons, the appellant can have no complaint to the effect that the Tribunal had not accepted that he had genuine fear of persecution for a convention reason.  The basis on which the Tribunal found that this genuine fear was not well-founded was that it was possible and reasonable for the appellant to relocate to another part of India, where he would obtain sufficient protection.  This conclusion was based on the Tribunal’s factual finding that the difficulties he had encountered in India were localised to the State of Haryana, perhaps even to part of that State.

17                  It is sufficient for me to say that insofar as the learned Federal Magistrate considered the grounds based on s 424A and s 91R, I agree with his Honour’s reasons and find no fault in them.  Fundamentally, the issue is whether it was open to the Tribunal to make the crucial findings of fact in this case.  They are that the persecution the Tribunal accepted the appellant had suffered was localised in the manner described, and secondly, that it was possible and reasonable for the appellant to relocate.  His Honour found no error in the Tribunal’s reasoning on these issues, and having reviewed both the Tribunal’s reasons and his Honour’s views on the matter, I agree with his Honour’s findings.

18                  For these reasons, the Tribunal found that any fear that the appellant had was not well-founded, and therefore, that he had not established the grounds for refugee status in Australia within the terms of the Migration Act.  For those reasons, the appeal must be dismissed.  There is no reason why costs should not follow the event. 

Associate:

Dated:         2 November 2009