FEDERAL COURT OF AUSTRALIA SZIWG v Minister for Immigration and Citizenship [2007] FCA 782 SZIWG v MINISTER OF IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 258 OF 2007 SPENDER ACJ 16 MAY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 258 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIWG Appellant AND: MINISTER OF IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: SPENDER ACJ DATE OF ORDER: 16 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent, fixed in the sum of $2,800. 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 258 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZIWG Appellant AND: MINISTER OF IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: SPENDER ACJ DATE: 16 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Driver FM on 6 February 2007, where his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 May 2006 affirming a decision of the delegate of the Minister on 13 January 2006 to refuse the appellant's application for a Protection Visa. 2 The basis of the applicant's claim for a Protection Visa is that he has a well-founded fear of persecution because he was a member of the Indian National Lok Dal party in the Kaithal District, Haryana State, and at the time of the state elections in February 2005, he was physically mistreated and threatened by supporters of the opposing Congress Party. He alleges that his attempts to have the Police investigate and deal with that conduct were rebuffed. He also said that he moved from Kaithal to Chandigarh to stay with his cousin before leaving to Australia. 3 He arrived in Australia on 22 October 2005, having been granted a Visitor Visa that expired on 21 January 2006. He lodged his application for a Protection Visa on 7 December 2005. 4 The Tribunal found that the appellant's fear of harm was not convention related. It found that the appellant was a truthful and credible witness, but that the harm suffered by the appellant was not serious harm amounting to persecution. 5 On the evidence before it, the Tribunal found that the chance of the appellant suffering serious harm, should he return to the Kaithal district in Haryana, was remote. 6 The Tribunal said: The Tribunal concludes on the basis of the evidence before it that the applicant, whilst he has been harassed and threatened by his political adversaries in the past, immediately after the state elections in February 2005 [he] has not suffered serious harm such that it amounts to persecution. It concludes that the chance is remote that he will suffer such harm in the future if he returns to his district in Kaithal and to Haryana. 7 The Tribunal also concluded that the appellant had lived in various states in India prior to travelling to Australia without harassment or harm and, accordingly, it was reasonable for the appellant to relocate to a larger city in India should he wish to remove himself from his political adversaries in Haryana. 8 In support of its conclusion that relocation was reasonable, the Tribunal noted: The applicant is young, tertiary educated and has organisational experience which he could utilise in a number of contexts in the workplace. 9 In the proceedings in the Federal Magistrates Court, Driver FM gave judgment at the conclusion of the hearing, dismissing the application with costs. 10 In his Honour's reasons for judgment, Driver FM was critical of the consideration by the Tribunal of the issue of whether the harm amounted to persecution. His Honour said at [14]: I remain concerned about the Tribunal's consideration of the issue of whether the applicant was exposed to a serious risk of harm. The Tribunal accepted the applicant's factual claims, which included claims that on the day of the election in February 2005 he had been struck on the head, abducted and dumped approximately 60 kilometres away. His injuries required medical attention. He was also struck on a second occasion when he was slapped. There were later verbal threats. 11 In the VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544, Gummow J at [18] considered what constitutes serious harm. His Honour said: Counsel for the appellant urged a reading of par (a) of s 91R(2) which would include a past or concurrent communication of an intention to kill or deprive a person of liberty which, looked at objectively, is capable of instilling fear in the person and does so. The Minister supports the construction adopted by Marshall J, in particular that: (i) threats to life or liberty in the form of declarations of intent do not, without more, constitute a serious harm, the serious harm which persecution must involve, (ii) the term "threat" connotes" risk" in the sense of danger or hazard, and (iii) the threat to life or liberty must manifest itself as an instance of serious harm as distinct from a possibility of danger. The submissions for the Minister should be accepted. 12 At [16], Driver FM said: In this case the applicant was subjected not only to verbal threats but also to two incidents of battery, the first of which was serious and deprivation of liberty, albeit for a relatively short time. I cannot understand how the presiding member concluded that the first attack on the applicant, the facts of which she accepted, did not amount to serious harm. It is apparent from reading the applicant's claims as a whole that the purpose of the action taken against the applicant was to prevent him from dealing with what he perceived to be electoral fraud. … There was no consideration by the Tribunal of the likelihood of the applicant being attacked again should he participate in a subsequent election and seek to prevent electoral fraud as he had apparently detected on polling day in February 2005. In my view, the consideration by the Tribunal of the question of whether the applicant had suffered serious harm in the light of past events, and whether he would suffer such harm in the future was inadequate. (Emphasis added) 13 However, the Federal Magistrate proceeded to find that the decision of the Tribunal was supported by the finding that the applicant could relocate. His Honour noted that there had been discussion about that issue with the applicant at the Tribunal hearing, as is apparent from the written decision of the Tribunal. 14 The Tribunal was aware of other steps the applicant could have taken to access state protection. The Tribunal had information before it of the availability of state protection, both at the state, and by logical extension, national level, although at the local level there appeared to have been a failure of state protection. The finding by the Federal Magistrate was: I find it was open to the Tribunal to conclude that the applicant could access state protection through relocation. That finding independently supported the Tribunal decision. 15 For that reason, the judicial review application was dismissed. 16 In this particular appeal, the appellant has specified five grounds of appeal, which are: 1. Refugee Review Tribunal is wrong to say as stated in para 4 c) of Hon. Magistrate F.M. Drive's judgment, "based on the applicant's evidence at hearing, the applicant lived in various states in India prior to travelling to Australia, without harassment or harm. Accordingly, it was reasonable for the applicant to relocate to a larger city in India should he wish to remove himself from his political adversaries in Haryana" While living in other states of India or in larger city, it was not possible for me to enjoy full freedom and liberty. There have been many incidents where the State authorities (police) has harmed the victims like me in other states also. There are many cases where Haryana and Punjab Police have arrested the political opponents in States like Uttar Pradesh and Jammu Kashmir. The recent example of CIA United States of America, operating in Europe secretly is a similar example. One can live in another state or another city in other parts of India provided one changes his identity and complete way of life and totally surrenders his liberties and rights. 2. Despite agreeing to some of my claims, Refugee Review Tribunal failed to accept that such incidents amounted to serious harm. 3. In para 15 of the Judgment Hon. Magistrate F.M. Drive says, "Callinana and Heydon JJ at [50] also considered the construction of s.91R92) and concluded that a verbal threat must be current or prospective to constitute persecution." It is an error to not to accept that the harm and threat to which I am exposed if I go back to India is not current or prospective. 4. Hon. Magistrate F.M. Drive has found in para 16 of his Judgement that the Presiding member of Refugee Review Tribunal did not consider the likelihood of occurring of another attack on me. It is a fact that I cannot escape such an attack in case I return to India. To not to consider such prospective risk is a serious error. 5. Hon. Magistrate has also found in para 17 of his judgement that, "the consideration by the Tribunal of the question of wheather the applicant had suffered serious harm in light of past events, and whether he would suffer such harm in the future, was inadequate. Under the light of this finding I should be considered for protection. 17 In respect of the first ground, the appellant alleges that the Tribunal was wrong to say that it was reasonable for the applicant to relocate to a larger city in India should he wish to remove himself from his political adversaries in Haryana. The appellant says, "It was not possible for me living in other states of India or in a larger city to enjoy full freedom and liberty" – and he goes on to make comments of particular incidents. 18 This ground of appeal, contending that the Tribunal was "wrong" to find that the appellant could reasonably relocate within India, amounts in my view to an invitation to review the merits of a factual finding of the Tribunal, which was open to the Tribunal to make. That invitation for merits review is impermissible. Even if the finding was wrong as the appellant alleges in the first ground of appeal, that does not constitute jurisdictional error so as to impugn the legality of the decision. 19 However, the Tribunal did consider the practical realities of relocation, referring specifically to his age, education and work experience and that he had lived previously in various Indian states without harassment or harm. The inferences drawn by the Tribunal were clearly open on the evidence before it and were not perverse. 20 The remaining grounds in the appellant's Notice of Appeal, essentially, challenged factual findings. It follows that in relation to the crucial finding of relocation, which the learned Federal Magistrate found supported the decision of the Tribunal, the appeal by the appellant to this Court must fail. 21 The Federal Magistrate expressed his dissatisfaction with the finding on whether the appellant faced serious harm, but his Honour concluded that the decision of the Tribunal was supported independently by the finding that it was open to the appellant to relocate in India, with the consequence that he would not be exposed to the possibility of serious harm for political opinion should he return to India. That finding of relocation was not infected with jurisdictional error and the Federal Magistrate was right to so conclude. 22 The appeal has to be dismissed with costs. 23 The orders of the Court are that the appeal is dismissed. The appellant is ordered to pay the first respondent's costs, which I fix in the sum of $2,800. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender. Associate: Dated: 22 May 2007 The Appellant appeared in person: Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 16 May 2007 Date of Judgment: 16 May 2007