SZEUX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 680

FEDERAL COURT OF AUSTRALIA

SZEUX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 680 SZEUX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & REFUGEE REVIEW TRIBUNAL NSD 2574 OF 2005 BENNETT J 9 MAY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2574 OF 2005

BETWEEN: SZEUX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 9 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent's costs.

3. I grant leave to the first respondent to forward evidence in support of an application for fixed costs to my Chambers by Friday at 4 pm.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2574 OF 2005

BETWEEN: SZEUX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BENNETT J

DATE: 9 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant's claim before the Refugee Review Tribunal was based upon his assertion that he was a follower of Baba Pyara Bhaniarawala ('Baba'). The Tribunal found that he was not such a follower. There is no need to go into the detail of the appellant's claim in that regard because it was conceded before the Federal Magistrate that that part of the Tribunal's reasons were infected with jurisdictional error, in that the Tribunal failed to put certain information about the Baba to the appellant and thereby contravened s424(A)(1) of the Migration Act 1958 (Cth) ('the Act'). 2 This appeal centres upon a second part of the Tribunal's reasons which dealt with the question of possible relocation within India. The Federal Magistrate found that this independent ground for the Tribunal's decision was sufficient to validate the decision and the conclusion that the appellant did not face a real fear of persecution upon return to that country. 3 The notice of appeal from the decision of the Federal Magistrate raises two grounds. The first asserts that the Tribunal's decision was manifestly unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223). The error so asserted deals with that part of the Tribunal's reasons that led to the conclusion that the appellant was not a follower of the Baba. Mr Jayawardena, who appears for the appellant, properly conceded that it was not necessary for him to press that ground of appeal as he had been successful in relation to that part of the Tribunal's reasons. Ms Mason, who appears for the Minister, accepts that characterisation. Indeed, she accepted that unless the relocation part of the Tribunal's decision could stand, the matter must be sent back for reconsideration. 4 The second ground then deals with relocation. Ms Mason has identified two aspects to that ground. The first is whether, as put by Mr Jayawardena, the Tribunal failed to apply the "real chance of persecution" test. The second is whether the Tribunal had failed to consider a part of the appellant's claim, that he may face serious harm before relocation could be made. The Tribunal's conclusion was that the appellant could relocate within India to Delhi. The heading on that part of the Tribunal's reasons was 'What if the Tribunal was wrong and the applicant in fact had a membership card?'. It is clear, as I read the Tribunal decision, that this aspect of its reasons was based upon a total acceptance that it might be wrong and that the appellant was a follower of the Baba. The Tribunal's finding was that the appellant could: '…easily and reasonably live in Delhi upon return to India. He is well educated and speaks and writes Hindi and English. He still has financial resources from his family's company. He would not face difficulties or serious harm from anyone other than were he to be identified as a follower of Baba Bhaniarawala in Delhi by Sikh extremists. There is no real chance that he would be identified as Baba Bhaniarawala's follower by Sikh extremists if he lived in Delhi. He claims that he was living there prior to him leaving the country and experienced no problems. While he claims he was in hiding, the Tribunal rejects that claim. He did not wear a turban, was not identifiable as a Sikh and even on his own evidence, he had no problems since January 2002.' 5 The Tribunal continued to say: 'Assuming that he is a member and follower of the Baba Bhaniarawala the Tribunal is satisfied that he was not a devout follower. He does not practice now. With this background he would not do anything that would draw himself to the attention of extremists. The chances of extremists finding him, identifying his association with Baba and being motivated to harm him are remote. Delhi is a massive city with a population over 13 million ... Even in the remote chance that he was to be harmed in Delhi, he would be able to report the issue to the police.' (Emphasis added) 6 Mr Jayawardena submits that the Tribunal erred in applying the correct test and he emphasises the last sentence that I have cited from the Tribunal's reasons. He also refers to that part of the decision of the Federal Magistrate who, in referring to that sentence, said at [18]: Clearly what follows does not go to the critical question of a real chance of persecution if the applicant were to relocate to Delhi. 7 And his Honour acknowledged that that: ...contemplates an alternative situation that is clearly somewhat less than the necessary real chance of persecution and as stated is a remote chance. 8 Read in context, I am of the view that the Tribunal did properly deal with the question of whether or not the appellant were to suffer a real chance of persecution. It held quite clearly that there was no real chance and gave reasons for its conclusion that were open to it on the evidence. 9 I turn to the second aspect of the ground of appeal, that is whether or not the Tribunal should have been considered as part of the appellant's claim that he may face serious harm before relocation could be made to Delhi. There does not seem to have been a case made, or made by implication to the Tribunal, that the appellant would need to return to another part of the country before relocation. The claim made by the appellant, as recorded by the Tribunal, was that he had been living in Delhi for about six months prior to leaving to come to Australia. Indeed, in its conclusion the Tribunal referred to the appellant's return to Delhi. The conclusion that it was reasonable for the appellant to return to Delhi was supported by a consideration of the material that was before the Tribunal. In any event there is no material evident from the decision or evidence referred to by the appellant that can be said to raise a claim made to the Tribunal that the appellant would not be able to return directly to Delhi. Nor was there any reason for the Tribunal to consider an alternative aspect of relocation. Further, I do not see that such a claim or assertion that there was such a claim was made to the Federal Magistrate. 10 The appellant has not made out the grounds of appeal and it follows that the appeal must be dismissed. 11 I order the appellant to pay the respondents' costs. I grant leave to the first respondent to send to my Chambers either a note of consent of those costs in a fixed sum or, if there is no such consent, I grant leave to the first respondent to forward evidence in support of an application for fixed costs to my Chambers by Friday at 4 pm.