FEDERAL COURT OF AUSTRALIA

SZOJV v Minister for Immigration and Citizenship [2012] FCA 459

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent’s costs to be taxed.

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

REASONS FOR JUDGMENT

1    The appellants are citizens of India. The first appellant (the appellant) is the husband of the second appellant. The appellants arrived in Australia on 13 June 2009 and on 9 September 2009, made a protection visa application. The couple’s child was also included in the protection visa application as a family member.

2    The appellant claimed he was a member of Dera Sacha Sauda (DSS), a spiritual organisation, and feared persecution by reason of his membership of the DSS. The appellant claimed he regularly visited DSS headquarters and was a strong believer in DSS. The appellant claimed that there were clashes in his location, which was in Uttar Pradesh, between Sikh demonstrators and the followers of DSS at which he had been present. The appellant said that in July 2007, he was attacked and beaten with rods by Sikhs and on 18 July 2009, an indefinite curfew was imposed in Dabwali, a town in the Sirsa District, after clashes between DSS and Sikh groups. One person was killed in the clashes and demonstrators burnt a number of shops and many people were injured. The appellant went on to claim that in January 2009, the appellant’s house was attacked and he was warned he would be killed. The appellant, also, claimed he is on a “hit list” of a Sikh group. The appellant claimed his family would be killed if he went back to India and that he would be forced to change his religion. The appellant stated he had informed the police of the threats but that no action was ever taken even after he went to the Chief Minister.

3    The appellants’ application for a protection visa was refused by a delegate of the first respondent. The appellant applied for a review of the decision by the Refugee Review Tribunal (the Tribunal).

the tribunal

4    The Tribunal accepted the appellant was a supporter of DSS and had been assaulted and threatened by Sikhs. The Tribunal, also, accepted the appellant feared that he would suffer harm which was serious harm within the meaning of s 91R of the Migration Act 1958 (Cth).

5    The Tribunal considered the appellant’s fears were localised.

6    The Tribunal had regard to independent country information which had identified certain areas in India where there had been clashes between Sikhs and members of the DSS. Further, the Tribunal found that it would be reasonable for the appellants to relocate to those areas of India where there was no evidence of clashes having occurred between Sikhs and DSS followers. Further, said the Tribunal, the appellant’s evidence indicated that he was literate and operated a business in India. The Tribunal went on to say that the appellant had proven his resilience and capacity to survive in an alien environment by being able to live and support his family in Australia over the past two years. Also, the Tribunal said that the appellant had not claimed during the hearing, any impediment to their relocating or to accessing employment.

the federal magistrates court

7    On 29 July 2011, the appellants applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision. The Federal Magistrate dismissed the appellants’ application for judicial review.

the appeal

8    On 8 February 2012, the appellants filed a notice of appeal. The notice contained the following grounds of appeal:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants 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 learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the RRT.

9    At the hearing of the appeal, the appellant in his oral submissions, said that his complaint in support of his grounds of appeal was that the Federal Magistrate should have found that the Tribunal had erred because, having found that he feared persecution on the basis of his membership of the DSS, it did not then find that he was entitled to a protection visa.

10    The first respondent, in written submissions filed before the hearing, objected to the grounds of appeal as being unparticularised and not raised before the Federal Magistrate. However, after having heard the particulars of the appellant’s complaint made in his oral submissions, the first respondent withdrew the objection on the basis that the two grounds of appeal raised by the appellant, were to be construed as a complaint that the Federal Magistrate erred in failing to find that the Tribunal had fallen into jurisdictional error in finding that it was reasonable for the appellants to relocate in India.

11    The Federal Magistrate found that the Tribunal had properly considered the question of whether it was reasonable for the appellants to relocate by specific reference to potential geographical locations and the individual circumstances of the appellants.

12    In my view, the Federal Magistrate did not err in coming to that view. It is apparent that the Tribunal gave consideration to the independent country information which described the specific areas where clashes between DSS followers and Sikhs had occurred and, therefore, had identified that the appellant’s membership of the DSS would not expose him to serious harm in those areas of India, in respect of which there was no evidence of such hostility between Sikhs and followers of the DSS. Further, the Tribunal had regard to the personal characteristics of the appellant and found that the appellant was literate, had run a business, was resourceful and had not raised any specific impediments to relocation within India.

13    It follows, then, in my view, the two grounds of appeal raised by the appellant are dismissed.

14    The appeal is dismissed.

Associate:

Dated:    4 May 2012