FEDERAL COURT OF AUSTRALIA

SZNRE v Minister for Immigration and Citizenship [2009] FCA 1333

Migration Act 1958 (Cth), ss 91R(2)(a), 424, 424(2), 424(3) 424B

SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693

Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109

SZNRE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 937 of 2009

REEVES J

19 NOVEMBER 2009

BRISBANE (VIA VIDEOLINK TO SYDNEY)

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 6 August 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

background and procedural history

2                     The appellant is a citizen of India who arrived in Australia on 23 October 2008.  On 5 December 2008, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the Minister for Immigration and Citizenship (“the Minister”) refused that application.  The appellant then applied to the Tribunal for a review of that decision.  The Tribunal subsequently affirmed the delegate’s decision.  The appellant then made an application for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia.

claims of political persecution

3                     The appellant claimed to fear persecution due to his membership of the Communist Party of India (“CPI”).  He claimed that he was targeted by political opponents from the Bharatiya Janata Party (“BJP”) and that he was attacked by BJP supporters in March 2008, suffering a stab wound to his hand which required treatment in hospital.

4                     The appellant also claimed that members of his own party were targeting him by sending him through crime areas for their own political gain.  He stated that he moved to Mumbai before coming to Australia.

the tribunal affirms the delegate’s decision

5                     The Tribunal accepted the appellant’s claim that he was involved with the CPI in Kerala and that he suffered difficulties from both the BJP and within his own party in March 2008.  The Tribunal accepted that he had been attacked and injured as claimed.

6                     The Tribunal found, however, that the appellant’s difficulties with his political opponents were and would continue to be confined to the area where he previously lived and he would be able to avoid the harm he anticipated by relocating within India.  The Tribunal was satisfied that, if the appellant required protection after relocating, he would have access to a reasonable level of protection provided by the State in India.

7                     The Tribunal was further satisfied that the appellant had the skills and knowledge which would enable him to relocate, noting that he had successfully relocated to Mumbai for seven months before coming to Australia.

8                     The Tribunal found that relocation was a reasonable option for the appellant to avoid further harm and was not satisfied that he faced a real chance of serious harm giving rise to a well-founded fear of persecution for a Convention reason in India.

the Federal Magistrate finds no jurisdictional error

9                     In his judicial review application to the Federal Magistrates Court, the appellant raised the following grounds:

1.                  The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if he asked to relocate in India.  The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.

2.                  the Tribunal failed to comply with s424 of the Migration Act 1958.

(a)        The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

(i)                  The invitation did not specify the way in which the additional information may be given.

(ii)                The invitation did not specify the period within which the information was to be given.

3.                  The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has no considered this aspect and therefore committed factual and legal error.

4.                  The RRT has failed to investigate applicant claims, specially the grounds of persecution, in India.  Therefore, the Tribunal decision dated 21 May 2009 was effected by actual bias constituting judicial error.

FIRST GROUND OF REVIEW

10                  The Federal Magistrate held that the appropriate test regarding relocation was whether relocation was reasonable, practicable and safe.  His Honour was satisfied that the Tribunal did consider the particular circumstances relevant to the appellant, including issues like language difficulties, his relevant skills and knowledge and his experience in having previously successfully relocated within India.  Consequently, his Honour was satisfied that the Tribunal’s findings regarding relocation were open to it on the evidence before it and that no error was apparent in the manner in which it approached its task in relation to that issue.

11                  Furthermore, his Honour found that the Tribunal’s acceptance of the appellant’s claim to have a well-founded fear of persecution in his local area and its relocation finding demonstrated that it properly understood and applied the concept of “persecution” in s 91R(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

SECOND GROUND OF REVIEW

12                  In relation to the second ground of review, his Honour noted that in SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 (“SZNAV”) it was held that a part of a letter of “Acknowledgement of Application” the Tribunal sent to the applicant in that matter gave rise to a requirement that the Tribunal had to satisfy the requirements of s 424(3) and s 424B of the Act.  Whilst doubting the correctness of that decision, his Honour found that he did not need to consider it, since the “Acknowledgement of Application” letter in this matter was expressed in very different terms to the relevant part of the corresponding letter in SZNAV and, therefore, the decision in SZNAV could be distinguished.  Furthermore, his Honour found there was no evidence before the Court of any other invitation from the Tribunal seeking “additional information” from the appellant pursuant to s 424 of the Act.

THIRD GROUND OF REVIEW

13                  In relation to the third ground of review, his Honour found it was open to the Tribunal on the material before it to find that it could not be satisfied that the appellant’s fear of harm, as it related to India as a whole, fell within the terms of the Convention.  His Honour considered it was quite clear that the Tribunal did consider and, indeed, accept the appellant’s claim to fear harm in his local area of India.  But it found on the material before it, that the appellant was able to reasonably and safely relocate to another part of India.

FOURTH GROUND OF REVIEW

14                  Finally, his Honour found that there was no obligation on the Tribunal to undertake further inquiries, in the circumstances, and that there was no evidence of bias on the part of the Tribunal.

15                  After considering some other documents and matters the appellant put before the Federal Magistrate, which his Honour considered involved an attempt to engage the Court in a merits review of the Tribunal’s decision, he proceeded to dismiss the application for want of jurisdictional error.

THE CONDUCT OF PRESENT APPEAL

16                  On 27 August 2009, the appellant filed a notice of appeal in this Court which alleged that:

The Federal Magistrates Court failed to consider the ground of my appeal such as error of law made by the Tribunal failed to comply with s424 of the Migration Act 1958.

(a)        The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

(iii)               The invitation did not specify the way in which the additional information may be given.

(iv)              The invitation did not specify the period within which the information was to be given.

[Errors in original]

17                  While the introductory paragraph has been altered to allege error on the part of the Federal Magistrate, the balance of this sole ground of appeal is identical to the second ground of review before the Federal Magistrate.

18                  At the hearing of this appeal before me on 13 November 2009, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Ms Johnson appeared for the first respondent.

19                  The appellant made some oral submissions which were not apposite to his sole ground of appeal.

20                  Ms Johnson was content to rely upon the outline of written submissions that had been filed on behalf of the Minister.

CONSIDERATION

21                  In his sole ground of appeal, the appellant has not identified what “invitation” he is referring to.  In relation to the identical ground of review before him, the Federal Magistrateappears to have assumed that this ground of review/appeal had its genesis in the decision in SZNAV:  see [12] above.  Since this sole ground of appeal alleges error in relation to the Federal Magistrate’s treatment of that ground of review, without challenging the assumption the Federal Magistrate made, I will make the same assumption.

22                  However, I consider there are at least two significant difficulties with the appellant’s reliance on the decision in SZNAV.  The first is that the decision in SZNAV has since been set aside by the Full Court of this Court:  see Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 (“SZNAV FC”) delivered 27 August 2009.  In that decision, the Full Court held that the relevant part of the “Acknowledgement of Application” letter did not fall within s 424 of the Act because it was not a formal request for information under s 424(2), such that it had to be given in a particular manner under s 424(3) and satisfy the requirements of s 424B:  see SZNAV FC at [21].  Instead, the Full Court held that the “Acknowledgement of Application” letter was an administrative exercise preliminary to the review, which had the purpose of providing the respondents with information about the review process and advising them of their rights:  see SZNAV FC at [25].

23                  The second significant difficulty for the appellant in relying on the decision in SZNAV was identified by the Federal Magistrate in his decision.  It is that the statement in the relevant part of the “Acknowledgement of Application” letter in SZNAV stated that:  You should … immediately send us any documents, information or other evidence you want the Tribunal to consider.  Any documents not in English should be translated by a qualified translator.  Whereas, in this matter, the equivalent “Acknowledgement of Application” letter contains no such directive statement and merely says:  If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.  It follows that, even if SZNAV was correctly decided, it is distinguishable.

24                  Finally, I should note that, I respectively agree with the Federal Magistrate that, apart from the “Acknowledgement of Application” letter, there is no evidence of the Tribunal making any other request for information of the appellant.

25                  For these reasons, the appellant’s sole ground of appeal has no merit and must be rejected.  It follows that this appeal must be dismissed.

Associate:

Dated:         19 November 2009