SZDCB v Minister for Immigration & Citizenship [2007] FCA 1008

FEDERAL COURT OF AUSTRALIA

SZDCB v Minister for Immigration & Citizenship [2007] FCA 1008 Migration Act 1958 (Cth) s 424A SZDCB v Minister for Immigration and Citizenship [2007] FMCA 417 SZDCB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 567 OF 2007

BUCHANAN J

6 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 567 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDCB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J DATE OF ORDER: 6 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed; 2. The appellant is to pay the costs of the first respondent as taxed if not agreed.

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 567 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDCB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 6 JULY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a citizen of India. He arrived in Australia on 3 April 2002 and applied for a protection (class XA) visa on 16 May 2002. On 21 November 2002 a delegate of the first respondent ('the Minister') decided to refuse to grant a protection visa. The appellant applied to the Refugee Review Tribunal ('the RRT') for review of the delegate's decision. The RRT affirmed the delegate's decision on 18 February 2004. The appellant applied to the Federal Magistrates Court for judicial review of the decision of the RRT. On 3 February 2006 a Federal Magistrate dismissed the application for judicial review. The appellant brought an appeal to this Court. On 31 July 2006 the appeal was upheld by consent. The appellant's application to the RRT for review of the delegate's decision of 21 November 2002 was remitted to the RRT to be dealt with again. 2 By a decision signed on 12 October 2006 and notified to the appellant by letter dated 2 November 2006 the RRT, differently constituted, again affirmed the delegate's decision to refuse to grant a protection visa. 3 The appellant brought a further application for judicial review to the Federal Magistrates Court. By judgment delivered on 19 March 2007 (SZDCB v Minister for Immigration and Citizenship [2007] FMCA 417) Scarlett FM dismissed the application for judicial review. The appellant has appealed to this Court from that decision. 4 The foundation for the appellant's claims for a protection visa was that he had been placed on a 'hit list' of the People's War Group ('the PWG') a terrorist organisation active in his home state of Andhra Pradesh. He asserted several attempts on his life, which he described, had already occurred. 5 The RRT described in detail the course of the interview it conducted with the appellant, including the substance of many questions put to him about the matters he relied on and his responses. This enquiry extended to the factual matters advanced by the appellant, the circumstances alleged to have generated the hostility of the PWG against him and whether he could avoid their attention by relocating to another part of India. 6 In its decision the RRT accepted that the PWG is a violent and ruthless organisation but it did not accept or believe the appellant's claim that he was at risk from the PWG. Furthermore, it considered the appellant could reasonably be expected to relocate elsewhere in India if he was at risk, as he claimed. The RRT said: 'For the reasons detailed above, the Tribunal finds the applicant's claims and evidence regarding being on a PWG hit list to lack credibility. Even if the Tribunal accepts the applicant's claims and evidence that he was on a PWG hit list – a matter about which the Tribunal has grave adverse credibility findings discussed above, the Tribunal notes that any problems he encountered in India were local ones centred on his home area of Hyderabad (in Andhra Pradesh). The applicant is under no compulsion to return to his home town or even his home state, and the Tribunal has considered therefore, the matter of relocation of the applicant to another part of India. (emphasis in original) … The Tribunal asked the applicant at hearing why he did not simply move to another part of India away from the problems he faced in Hyderabad, Andhra Pradesh. The applicant's claims and evidence were to the effect that the PWG would find the applicant wherever he lived in India. The Tribunal notes however, that according to the independent evidence (sighted for the applicant at hearing) the PWG operates in only certain areas of India – namely the PWG is active in pockets of Madhya Pradesh, Maharashtra, Chhattisgarh, Andhra Pradesh, Orissa, Jharkhand, West Bengal and Bihar (see http://www.satp.org/satporgtp/countries/india/terroristoutfits/pwg.htm) In light of this independent evidence, the Tribunal finds that the applicant could relocate to an area in which the PWG is not active. The Tribunal is satisfied on the applicant's claims and the independent evidence, that the applicant can live in other parts of India other than his "home town" of Hyderabad in Andhra Pradesh, where he claims to fear harm, and that he will obtain a meaningful remedy against risk of any persecution he may face in that state. The Tribunal is satisfied on the applicant's own evidence and that of the independent evidence that the applicant would be out of the reach of his problems in other parts of India outside his home state. … The Tribunal is satisfied on the evidence before it that the applicant is not at risk in every part of India nor does it accept [based on the applicant's own evidence and country information referred to above] that the applicant will face persecution for a Convention reason should he relocate.' 7 In the judgment from which the present appeal is brought Scarlett FM held that no jurisdictional error in the decision of the RRT had been established. In his Notice of Appeal the appellant does not suggest any particular error in the reasoning of Scarlett FM. Rather, he asks this Court to simply substitute a different view of the RRT decision. 8 The appellant is unrepresented. It is normal for some latitude to be extended. I will treat his grounds of appeal as founded upon the proposition that they necessarily imply error on the part of Scarlett FM in the sense that his Honour erred by failing to identify the defects in the RRT decision alleged by the appellant and their suggested jurisdictional significance. 9 Apart from the matters contained in the Notice of Appeal itself the appellant relied upon written submissions. He did not make any oral submissions at the hearing of the appeal. 10 The first matter upon which the appellant relies in his appeal to this Court is the suggestion that the RRT breached the requirements of s 424A of the Migration Act 1958 (Cth) ('the Act') in two respects. Section 424A provides: '424A(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies–by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non‑disclosable information.' 11 During the hearing before the RRT he was reminded on two occasions of evidence which he gave at the earlier RRT hearing. The appellant draws attention to the following passages in the RRT decision (I have emphasised what the appellant relies on but continued the extracts to give some context): 'The Tribunal referred the applicant to his earlier evidence when he stated thathe reportedtheparticipation of the PWG members in a procession. The Tribunal asked who he report thisinformation to P. Janardhan Redddy. The Tribunal asked who this person is. The applicant stated that this person was a member of the AP legislative assembly for Hyderabad. The Tribunal asked what he did with this information. The applicant stated that he passed the information to the police. The applicant stated that the police fired on the procession and two people died and one of the people killed was a PWG member. The applicant confirmed that this was the middle of 2000. The Tribunal asked if his fear of harm arose from this incident. The applicant confirmed that this was correct. [sic] … The Tribunal noted the applicant's earlier evidence that he heard about them [sic] hit list soon after the new year in 2001. The Tribunal asked the applicant if anything happened to him in 2001. The applicant stated that there was an incident with an auto-rickshaw. The applicant stated that the incident took place in April or May 2001. The Tribunal asked what exactly happened.' 12 It is clear that the two passages referred to by the appellant were directed at eliciting information directly from him. The two particular sentences to which he draws attention are introductory. Moreover, as Scarlett FM observed in his judgment, the earlier evidence referred to by the RRT was information provided by the appellant for the purpose of his application for review of the delegate's decision. The fact that the earlier RRT decision was set aside did not affect that position. It was the same application for review which was remitted for further attention by the RRT. In those circumstances the information referred to in the most recent RRT proceedings was within the operation of s 424A(3). There was no need for it to be drawn to the appellant's attention in writing. It is by no means clear, in any event, that the information was used adversely to his application for review and therefore fell, prima facie, within the obligation of disclosure in s 424A(1) but it is not necessary to express a concluded view on that issue. 13 The appellant also complained that the RRT had breached s 424A by not providing to him, in writing for his comment, material referred to in the decision which suggested there was no real obstacle to him relocating elsewhere in India. The material related to the nature and areas of operation of the PWG. In my view it fell within the exception in s 424A(3). It was not information that was personal to the appellant. Rather it was general in its nature. 14 In my view, therefore, the contention that the RRT breached the requirements of s 424A should be rejected. 15 The second argument relied on by the appellant was to the effect that the RRT had failed to properly consider whether it was reasonable to expect him to relocate elsewhere in India. The argument rested on general propositions that the RRT failed to make proper enquiries of him about 'the mobility of the family, the financial resources and the ability of [the appellant] to relocate to other parts of India'. 16 Although the appellant told the RRT, in answer to its questions, that he was married with two children there is no suggestion that they are in Australia. His claim for a protection visa does not extend to them. There is no indication that the appellant raised any obstacle concerning the mobility of his family if he relocated to another part of India rather than staying in Australia. The RRT was not obliged to make specific enquiries of him about the mobility of his family when it assessed his claim to remain in Australia. The other matters were clearly addressed by the RRT which said: 'If it is not reasonable for a person who has a well founded fear in part of a country to relocate to another part, then the person's fear of persecution in relation to the country as a whole is well founded. Alternatively, if it is reasonable for the applicant to relocate to another part of the country then that applicant's fear is not well-founded. The Tribunal notes that while the applicant's first language is Telegu, the hearing was conducted in English which he speaks well, and the Tribunal also notes the applicant evidence that he speaks Hindi as a second language. The Tribunal notes that the applicant has the ability to find employment, and is working as a machine operator in Australia. He has found a place to reside and indeed he has the ability to socialise with his workmates. In light of the applicant's own evidence at hearing, has shown his ability to relocate from India to Australia and find a place of residence, employment, and new friends/work acquaintances. Under these circumstances, the Tribunal is satisfied that relocation within India is a reasonable and feasible option for the applicant. The Tribunal does not accept that the applicant is at risk in every part of India.' [sic] 17 The appellant's argument about relocation cannot be accepted. 18 The third matter advanced on the appeal relates to an allegation that Scarlett FM should have, but had failed to, give weight to some documents the appellant attached to an affidavit filed on the same day as his application for judicial review, 27 November 2006. These documents were not before the RRT. It was said they were obtained later although some are stamped 17 December 2005. They are not relevant to any question of suggested jurisdictional error in the decision of the RRT. The hearing before the RRT was the second such hearing. The appellant has been in Australia for five years. The appellant had ample time to provide them earlier if he wished to do so. This aspect of his appeal must also be rejected. 19 The fourth, and final, matter advanced by the appellant is not a ground which was advanced in the application for judicial review brought in the Federal Magistrates Court. The appellant contends that the RRT did not address the appellant's 'social group'. Although he alleges he was a member of a special or distinct social group no attempt at further definition was made although it appears that trade union activities as well as political activities are relied on. 20 It is not open to the appellant to suggest error on the part of Scarlett FM in relation to this issue. Furthermore, there is no basis to suggest it was a matter with which the RRT should have dealt, having regard to the matters advanced by the appellant at the hearing of his application for review of the delegate's decision. 21 In its decision the RRT set out Article 1A(2) of the Refugees' Convention which defines 'refugee' as someone who: 'owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.' 22 In a letter sent to the RRT on 28 July 2003 by the appellant's authorised migration agent the following representation is made on his behalf: 'Third element The applicant satisfies this element. The persecution which the applicant fears falls within the reasons enumerated in the Convention definition – membership of a particular social group or political opinion. The convention reason constitutes the essential and significant motivation for the persecution feared: S91R(1)(a) of the Act.' 23 The 'particular social group' is not further identified. The reason advanced by the appellant to the RRT to suggest he had a well-founded fear of persecution in India arose from an incident said to have occurred in about 2000. The RRT refers to it as follows: 'The ruling party in Andhra Pradesh, Telugu Desam had at one instance increased the electricity bill. The applicant states that the trade union and party leaders including him engaged in several debates with the government to solve this problem. As it was not successful, they took a procession of anti-electricity Bill where all party members from all districts participated. Some P.W.G. leaders namely, Mr. Rangaiah stated that he and his followers will be participating in the procession. The applicant states that he informed the police that the P.W.G leader will be participating in the procession. The police informed him that they would start shooting at the crowd. The Congress members only joined in the procession at last stage. The police stopped the procession and told the crowd to retreat. The leaders of P.W.G. provoked the gatherers and the police reciprocated by firing. One follower of P.W.G. died and four other people died. The Government went ahead with the electricity bill increase. In the mean time, P.W.G found out that the applicant is the informant. They informed the Trade Union leader Narasihma Reddy that the applicant is in their "hit list". … The Tribunal asked the applicant why the PWG was after him. The applicant stated that he passed information about them to the authorities. He stated that he reported the participation of the PWG members in a procession. The Tribunal asked the applicant when the procession took place. The applicant stated it was about the middle of 2000, the demonstration was against the increase in the cost of electricity. … The Tribunal asked why the PWG would think the applicant passed on the information to the Congress Party. The applicant stated that the PWG would have informers like the Congress party, and that is how they knew. Narasimha told the applicant that he was on the hit list because he had been identified as an informer. The Tribunal asked the applicant when he was told by Narasimah that he was on a hit list. The applicant stated that it was in 2001. The Tribunal asked when in 2001. The applicant stated that it was early 2001 - quite soon after the New Year.' [sic] 24 The basis of the appellant's claims before the RRT, despite the representations made on his behalf in 2003, did not in my view relate to a suggestion he might be persecuted because he was a member of any particular social group. The foundation for his claim was the suggestion that he would be killed in a revenge attack because he had passed information to the police. 25 There is no substance, in my view, to this final ground of challenge to the RRT decision and it does not, in any event, provide a basis to suggest error on the part of Scarlett FM. 26 In all the circumstances I find that no error in the judgment of Scarlett FM has been shown and no jurisdictional error has been identified in the decision of the RRT. The appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan J.