FEDERAL COURT OF AUSTRALIA

SZQMR v Minister for Immigration and Citizenship [2012] FCA 122

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrates Court on 12 December 2011 be set aside.

3.    The decision of the Refugee Review Tribunal of 8 July 2011 be set aside.

4.    The matter be remitted to the Refugee Review Tribunal to be determined in accordance with law.

5.    The first respondent pay the appellant’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a decision of Driver FM delivered on 12 December 2011 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

Background

2    The appellant is a citizen of India who arrived in Australia on 24 May 2010. The appellant’s wife lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Citizenship on 25 May 2010. On the face of the visa application, the appellant did not have claims of his own and was included in the application as a member of the visa applicant’s family unit. A delegate of the first respondent refused the application for a protection visa on 5 November 2010. On 3 December 2010 the appellant applied to the Tribunal for a review of that decision. The appellant made claims in his own right in the application for review to the Tribunal. The appellant’s wife applied to the Tribunal separately and is not subject of these proceedings.

3    The appellant claimed that his wife is a lesbian and as a result, he was targeted by the Congress Party. The appellant used to be an active member of the Congress Party, however since his marriage he has stopped participating in the Party. Upon finding out that marital problems were the cause of his disinterestedness in the Party, other members of the Party urged him to seek a divorce; however the appellant was unwilling to do so. One reason was that the appellant claimed that he is a Latin Catholic and that he cannot divorce and thus cannot re-marry. The appellant claimed that his marriage to a lesbian woman has brought shame to the Congress Party. The appellant claimed that there was an attempt to have the appellant and his wife killed whilst they were riding on his motorcycle.

4    The appellant also claimed to suffer threats from Hindu and Muslim activists and that he has been banned from his local church. He fears that he will be killed by religious extremists if he returns to India. The appellant stated that the police are unable to help him as he is perceived as someone who is linked with a homosexual.

Decision of the Tribunal

5    The Tribunal found that the appellant had not been entirely truthful in his claims. Nevertheless, the Tribunal accepted a number of the appellant’s claims and ultimately found that the harm suffered by the appellant amounted to serious harm for the purposes of s 91R(1)(b) of the Migration Act 1958 (Cth) (the Act). The Tribunal found that should the appellant return to his local area as the spouse of, or in the company of his wife, there is a real chance that the appellant would suffer serious harm from members of the Congress Party. Furthermore, the Tribunal accepted that the appellant will not return to his local area without his wife.

6    However, the Tribunal found that it was reasonable for the appellant to safely relocate elsewhere in India, away from his local area. The Tribunal considered that the appellant had not given any persuasive reason as to why he was unable to relocate in India, and noted that the appellant is young, well-educated and resourceful. It found that should the appellant relocate to a different part of India, there was no real chance that he would face harm from members of the Congress Party. It found that the interest in the appellant from the Party is localised and that it was reasonable and practicable for the appellant to relocate to a different area of India.

The Proceeding in the Federal Magistrates Court

7    By his amended application, the appellant replied upon the following grounds:

1.    The second respondent failed to take into account a relevant consideration in determining the reasonableness of the relocation.

Particulars

•    In considering the reasonableness of the [appellant]’s relocation to another part of India the Tribunal failed to take into account that on the Tribunal’s findings the applicant would be accompanied by his wife in his relocation.

2.    The Tribunal did not comply with s425 Migration Act 1958 in that it did not accord the applicants procedural fairness.

Particulars

•    It was a requirement of procedural fairness that the Tribunal inform the applicant of its intention to consider his relocation in the company of his wife and to allow the applicant to address the reasonableness of this.

8    The Federal Magistrate found that the first ground was not made out. Specifically, his Honour found that the Tribunal’s decision was based on the premise that the appellant may be accompanied by his wife if he returns to India and it considered any objections to the relocation question in accordance with the established principles.

9    In response to the second ground, the Federal Magistrate found that by reason of the discussion at the hearing before the Tribunal, the appellant was put on notice of the “determinative issue” as required by s 425 of the Act.

The Appeal

10    The appellant’s notice of appeal sets out the following grounds of appeal:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant’s claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

Ground 1

11    Section 91R of the Migration Act provides as follows:

Persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct.

(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(3) For the purposes of the application of this Act and the regulations to a particular person:

(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

12    The Minister submits that, as this ground of appeal was not raised before the Federal Magistrate, it requires the leave of the Court to be raised in this appeal. The Minister submits further that leave ought not be granted.

13    While I accept the principle advanced by the Minister in relation to the ground of appeal, I note not only the difficulties faced by self-represented litigants but the fact that the Minister appears prepared to meet this ground of appeal (and has in fact done so in written submissions). Accordingly, I will allow the appellant to raise this ground of appeal.

14    The ground of appeal assumes that:

    the Tribunal acted in a manifestly unreasonable way;

    the appellant experienced persecution and the likelihood of harm contemplated by s 91R (which the Tribunal ignored); and

    the Federal Magistrate did not appreciate the errors made by the Tribunal.

15    It is difficult to know precisely what this ground of appeal contemplates. The Tribunal clearly identified s 91R as relevant to its decision. Further, at [130] of its decision the Tribunal observed:

Nevertheless the Tribunal accepts in all the circumstances that cumulatively the past treatment of the applicant husband in his local area… amounts to serious harm for the purposes of s.91R(1)(b) of the Act. The Tribunal is satisfied that the applicant husband’s perceived membership of a particular social group, that being membership (sic) of the family of the applicant wife is the essential and significant reason for the harm he suffered. It also finds that the persecution feared by the applicant wife is for a reason mentioned in Article 1A (2) of the Refugees Convention.

16    The Tribunal continued to find, however, that it would be reasonable for the appellant to safely relocate elsewhere in India removed from the particular local area in which he lived. The Tribunal discussed this in detail at [133]-[136] of its decision. The Tribunal relied on the decision of the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 where the Court held that the Refugee Convention does not provide protection if the applicant could nevertheless avail himself or herself of the real protection of their country of nationality elsewhere within that country (cf SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [124]). In particular, the Tribunal found that if the appellant relocated to a different part of India there was no real chance that he would face harm by members of the Congress Party or indeed anyone else, for the reason that he is perceived to be a member of a particular social group, for reason of his political opinion or indeed for any other Convention related reason. This was because the Tribunal found that the interest in the appellant by Congress Party members and supporters was localised and did not spread beyond the specific area which had been identified by the appellant. On that basis and having regard to the appellant’s circumstances overall the Tribunal was satisfied that it would be reasonable and practicable for the appellant to safely relocate to a different part of India (at [136]).

17    In Court this morning the appellant submitted that "the Congress Party rules India now", that he had worked with the Congress Party and had lost his job because of the situation with his wife, and that if his parents were to visit him in India or he were to visit them the attention of Congress Party members would be attracted.

18    Ms Weston for the Minister submitted that evidence as to the role of the Congress Party in India was not before the Court. I note that his Honour below at [44] observed that the Tribunal did not appear to have had regard to country information on the issue of relocation and that it was not clear from the reasons whether the Tribunal envisaged that the appellant would relocate within his home state of Kerala or elsewhere in India.

19    In SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 the High Court considered circumstances where an appellant was a Ukrainian national who faced persecution in his home region on account of the expression of his political beliefs through journalism. The Tribunal had held that it was reasonable for the appellant in that case to relocate internally. At [32] Gummow, Hayne and Crennan JJ observed as follows:

The effect of the Tribunal's stance was that the appellant was expected to move elsewhere in Ukraine, and live “discreetly” so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his “relocation” in Ukraine. It presents an error of law, going to an essential task of the Tribunal. This was determination of whether the appellant's fear of persecution was “well-founded” in the Convention sense and thus for the purposes of s 36(2) of the Act.

20    In the case before me the findings of the Tribunal appear to be based on the premise that:

    the interest of the particular Congress Party members and supporters in relation to the appellant is purely personal, and does not relate to the sexual orientation of this wife;

    it is not likely that the Congress Party members and supporters in his home area in Kerala would learn that he had returned to India even if he visited his parents or his parents visited him;

    it is not likely that even if the Congress Party members and supporters learned that he had returned, they would have any further interest in him or his whereabouts;

    the appellant should not work again for the Congress Party and should remain “beneath the radar” in respect of his return to India and/or his wife’s sexual orientation;

    the appellant could relocate elsewhere in India, although it is not clear from the Tribunal decision where.

21    In my view, the Tribunal has, like in SZATV, sidestepped proper consideration of the ability of the appellant to relocate in India. This is an error going to the jurisdiction of the Tribunal.

22    I note in passing that his Honour below, while dismissing the application for judicial review, clearly had reservations in respect of the Tribunal’s decision concerning relocation (in particular at [38]-[46]). In my view those reservations were well-founded.

Ground 2

23    Ground 2 is unparticularised and vague. It is difficult to know exactly what the appellant means by it. To the extent that the appellant makes a bare and unsubstantiated assertion that the decision of the Tribunal failed to comply with the Migration Act, in my view it has no merit.

Conclusion

24    The appeal is allowed with costs.

Associate:

Dated:    22 February 2012