FEDERAL COURT OF AUSTRALIA

SZOCW v Minister for Immigration and Citizenship [2010] FCA 1307

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be taxed in default of agreement.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This is an appeal from orders of the Federal Magistrates Court, constituted by Lloyd-Jones FM. The appellant had applied for a protection (class XA) visa on 10 July 2009. That application was refused by a delegate of the respondent Minister for Immigration and Citizenship (“the Minister”), and, on 19 October 2009, the appellant applied to the Refugee Review Tribunal(“the Tribunal”), for a review of that decision. After a hearing on 8 January 2010, the Tribunal, on 14 January 2010, affirmed the refusal of the visa.

2    Before the Federal Magistrates Court, the respondent relied on a constructive failure by the Tribunal to exercise its jurisdiction. That failure was particularised as follows:

i.    The applicant provided information to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process in respect of the applicant claims. The Tribunal ultimately gave no weight on the basis of its credit findings. It was an error for the Tribunal to place no weight on the Applicant’s claim without engaging in an active intellectual process as to the contents of the claim. It was an error for the Tribunal to assess the Applicant’s credit without first assessing whether or not a liberal Muslim in India was at risk of harm from radical Hindus, and not able to access effective protection in India.

ii.    The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s 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 failed to satisfy the statutory obligation was a serious jurisdictional error caused by the Tribunal.

3    The two grounds of the present appeal are:

1.    The Hon. FM failed to consider that the Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weight against my case in the final out come. The Tribunal used the all information for matter of reasoning and evaluation of my case for outcome.

The next paragraph, which is numbered 3, but, is, in fact, the second paragraph in the grounds of appeal, is:

3.    The Hon. FM failed to consider that the Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s91R(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 failed to satisfy the statutory obligation was a serious jurisdictional caused by the Tribunal.

4    Before the Tribunal, the appellant had claimed that he, together with some of his neighbours, had been the victim of ethnic violence directed at Muslims in the Thane area of Mumbai in India. In the course of that violence, his house and restaurant had been ransacked, and similar persecution had been visited on his Muslim relatives and neighbours, forcing them to leave their houses, farms, and businesses. He also instanced episodes of attacks, robbery, and rape against Muslims by Hindu extremists. He claimed that after leaving the Congress Party for the Bahujan Samaj Party (“the BSP”) he had been a specific target of threats by Hindu extremists after the most recent Sok Sabha elections. The Tribunal accepted the appellant’s account in general, observing, at [57] of its reasons:

The Tribunal is prepared to accept that applicant was threatened, assaulted and his business was damaged beyond repair in the lead up to the last Sok Sabha elections. The Tribunal is of the view that the applicant’s past treatment amounts to serious harm for the purposes of s.91R(1)(b) of the Act. The Tribunal is satisfied that the applicant’s political opinion was the essential and significant reasons for the harm he suffered. The Tribunal is satisfied that if he were to return to Thane and continue his activities at the same level as he has done so in the past the possibility that he may face similar treatment cannot be ruled out. In other words, there is a real chance that he would face significant harassment or serious physical harm at the hands of Hindu members of the Congress, the BJP and Shiv Sena in his locality. The Tribunal is satisfied that such treatment would amount to serious harm for the purposes of s.91R(1)(b) of the Act. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c), in that it is deliberate or intentional and involves selective harassment for a Convention reason.

5    However, the Tribunal went on to conclude that the appellant could avoid further persecution by relocating to an area away from Thane, near Mumbai, if he were to return to India. In that context, the Tribunal found, at [58]-[60] of its reasons:

58.    That said, the applicant’s evidence clearly suggests that his fears are localised and confined to the district of Thane. The Tribunal is of the view that it would be reasonable for the applicant to safely relocate to a different locality or a different part of India well away from his locality.

59.    The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-1.

60.    The applicant was involved in low level political activities in support of the BSP, which provoked the anger of the local Hindu supporters of the other major political parties, including Shiv Sena. The applicant, however, was not a member of the BSP and his activities were limited to promoting the party at election times. He has provided no acceptable reason as to why he would be followed or found by Hindu political activities based in his locality if he were to relocate to the other parts of the densely populated and vast country. It is a well-known fact that India is a longstanding multiparty, federal, parliamentary democracy where members and activities of all political parties can freely engage in political activity. There was no evidence in the independent sources consulted by the Tribunal to suggest that BSP supporters, including Muslim activists in the Party, of high or low profile are persecuted across India by members of the BJP, Shiv Sena and/or the Congress. Indeed, the BSP is the ruling party in the state of Uttar Pradesh, which also has a large Muslim population. At the hearing, the applicant stated that women are not “safe” in Uttar Pradesh, but did not explain how this related to his circumstances. He also stated that the ruling Congress Party in India comprises of Hindus and authority is in their hands. The applicant did not provide any further explanation as to how exactly this would make relocation unreasonable in his case. If the applicant was implying that the Congress led central government is somehow antagonistic towards BSP supporters, Muslims or both, and that this would render relocation unreasonable, there was no persuasive evidence before the Tribunal to support these notions. In the 2009 general elections, the Congress was able to gain a majority and form government with a coalition of allies called the United Progressive Alliance (UPA) (The Hindu, 2009, India gives Congress & UPA a clear mandate, May 17, http://www.thehindu.com/2009/05/17/stories/2009051759930100.htm). During the course of the election campaign, central figures with the Congress, including Rahul Gandhi, courted the Muslim vote, emphasising Congress as truly secular, contrasting it against a “Hindutva” driven BJP. This in turn led to prominent Muslims speaking out in Congress’s favour, “albeit in somewhat backhanded fashion” (Rushda Majeed, 2009, Indian Muslims put their faith in Congress, guardian.co.uk, 27 May, http://www.guardian.co.uk/commentisfree/belief/2009/may/27/india-muslims-congress-elections). Following the elections, the BSP extended its “unconditional support” to the UPA government, announcing that the Party will support the secular Congress-led UPA to keep the “communal” BJP out of power (Breaking News Online, 2009, Samajwadi Party, Bahujan Samaj Party support UPA at the centre, 19 May, http://www.breakingnewsonline.net/2009/05/samajwadi-party-bahujan-samaj-party.html).

6    Because the appellant in the Federal Magistrates Court had relied entirely on the contents of his amended application and did not seek to supplement it by any oral or written submissions, the learned Federal Magistrate endeavoured to identify the respects in which the Tribunal had failed to engage in an active intellectual process in evaluating the appellant’s claims to be a refugee. His Honour accordingly examined how the Tribunal had conducted its hearing and noted at [12] of his reasons:

The Tribunal hearing was conducted with the assistance of an interpreter of the Hindi and English language. However, a significant part of the applicant’s evidence was given in English, bypassing the interpreter function. The decision record contains the applicant’s statements concerning the incidents in Mumbai, his political affiliations, the resulting hostility concerning his change of allegiance due to the alleged political hypocrisy of the various political leaders, as well as the consequences of that change of allegiance and the harm that he suffered. The Tribunal then questions the applicant on a number of the details in respect of his claims. The Tribunal goes on to explore the various regions in India that have large Muslim populations. It examines with the applicant which of these areas would offer safety and others that would not.

After that examination his Honour concluded at 14:

As indicated above, in the absence of submission or argument in respect to this alleged failure and on a fair reading of the decision record, it is not apparent on its face that the Tribunal failed in its task. Consequently, this issue in respect of this ground cannot be sustained and should be dismissed.

Secondly, the learned Federal Magistrate considered the appellant’s ability to relocate to another area within India. After reviewing a number of the relevant authorities, including SZATV v the Minister for Immigration and Citizenship (2007) HCA 41, his Honour referred to these findings by the Tribunal at [51] and [52] of its decision;

51.    The Tribunal noted that that the applicant’s evidence suggested that his problems were confined to his locality. He was reminded that in his evidence he had indicated that others in the locality had relocated and was asked why he would be unable to relocate internally. He said others had relocated by moving back to their ‘native’ states. The Tribunal noted that he speaks Hindi and English and asked why he would be unable to relocate to a Muslim majority area in India. He said language was not a problem, but it would be difficult for him to establish himself elsewhere as he needs money. It was put to him that it appears that he had the finances to come here, has extensive business skills and has been able to survive in Australia by finding employment. He said he cannot settle elsewhere. He had to borrow money to come to Australia and he is not safe. His life is at risk and his opponents still ask about him and his whereabouts.

52.    The Tribunal put to the applicant that the information before it suggests that although Muslims are a minority, India has the world’s third largest Muslim population. There are large Muslim populations in the states of Uttar Pradesh, Bihar, Maharashtra, West Bengal, Andhra Pradesh, Karnataka and Kerala. The sources consulted do not indicate that Muslims are generally not safe in India. There are many enclaves and areas dominated by Muslims. He said this was true, but those in the ruling party are Hindus and authority is in their hands. It was put to him that Uttar Pradesh is ruled by the BSP and the state has a large Muslim population. He said even women are not safe in Uttar Pradesh and many people move to Mumbai from Uttar Pradesh so he would not be safe there.

7    Reference was also made to [58] and [59] of the Tribunal’s decision, which I have already reproduced at [5] above, and to [61] where the Tribunal observed:

The applicant also claimed at the hearing that he has no money and it would be difficult for him to resettle himself elsewhere in India. The applicant’s evidence indicates that he is literate and was a successful businessman in India. He has proven his resilience and capacity to survive in an alien environment by being able to live and survive in Australia over the past few months. He was able to find work in Yanco and has now successfully relocated to Goulburn where he manages a take-away food store. There was no evidence before the tribunal to suggest that if the applicant were to return to India, the level of his involvement with politics would change. The Tribunal is satisfied that if the applicant relocated to a different part of India and continued to engage in political activity at the same level as he has in the past there is no real chance that he would face harm by Hindu groups or anyone else for the reason of his religion, political opinion, membership of a particular social group or any other Convention reason. On the basis of the evidence before it and having regard to the applicant’s circumstances overall, the Tribunal is satisfied that it would be reasonable and practicable for the applicant to safely relocate to a different part of India.

8    In the light of a further review of the authorities bearing on relocation, his Honour noted, at [24] of his reasons;

In the matter presently before this Court, the Tribunal considered, with the assistance of independent country information, whether the Applicant could move and relocate in another part of India. The applicant speaks Hindi and English and Hindi is widely understood throughout India. Employment is dependent on the individual’s skill levels and the applicant indicated to the Tribunal that he had completed ten years of education and describes his profession before coming to Australia as “business”. He owned and operated a number of businesses from 1982 – 2009, which required a number of different skills as the businesses covered a number of industries. The applicant has a wife and children in India which he has left to pursue his protection opportunities in Australia. It will be assumed that a return to India would permit a family reunion.

9    His Honour also examined the Tribunal’s reliance on independent country information directed to the position of politically active Muslims in India, and concluded, at [26] of his reasons;

… In relation to the present applicant, there is no suggestion that any of the Indian authorities regard the applicant as a person of political interest. There is no material in the Tribunal’s decision, nor any provided by the applicant before this Court, that raises any objection or practical reason why relocation was not a viable option for the applicant. I am satisfied that the Tribunal has considered all of the relevant factors required to be addressed in the evaluation of the relocation decision, and no jurisdictional error in its approach to that issue is apparent.

10    For my part, I have been unable to detect, in the learned Federal Magistrate’s very thorough examination of the findings of fact and reasoning of the Tribunal, any error of law or mistaken application of the relevant authorities. The appeal must therefore be dismissed with costs.

Associate:

Dated:    25 November 2010