SZHEP v Minister for Immigration and Citizenship [2007] FCA 1219

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J

DATE: 13 AUGUST 2007

PLACE: ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal. The appeal falls within a quite small compass. The appellants who are husband, wife and their two children are citizens of India who have spent most of their respective lives in Bangladesh. Facing religious harassment in that country they returned to India in late 2001 or 2002 to live in the area of Kolkata just over the border in West Bengal. The Tribunal accepted their personal history of harassment for reasons of their imputed or perceived Bangladeshi origin and found that that harassment was for a Convention reason. The particular social group that appeared to be relied upon was their imputed membership of "Bangladeshis Illegally in India". The Tribunal found that the chance was not remote that they would again be targeted by violent members of the Communist Party of India (Marxist) in West Bengal were they to return there. 2 The Tribunal then addressed the question whether their well founded fear related to the country as a whole. It dealt with this matter as follows: "However the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration Local Government & Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 440-1. I am satisfied that it is reasonable for the applicants to relocate to a different part of India. Their fear of harm is localised in nature. I do not accept that the men who threatened and assaulted them, or people associated with them, would be able to find them anywhere in a densely populated country like India, or would be motivated to do so. I am satisfied that the CPIM is not the ruling party in the majority of India's states, and that societal or official discrimination against 'migrants' from Bangladesh does not occur in much of the country. As to whether it would be reasonable for the applicants to relocate, I appreciate that the family have suffered considerable hardship in recent years and that to again have to re-establish themselves in another unfamiliar area will pose further challenges. However I am satisfied that [the applicant's] employment experience as a chef is one which would enable him to find appropriate employment in many parts of India. I also rely on evidence that while Hindi is the national language and primary language for 30% of Indians, Bengali (which is spoken by all the applicants) is another of the official languages, and English (which is spoken well by three of the applicants, including [the applicant]) is the most important language for national, political and commercial communication. For these reasons I find it reasonable for the applicants to relocate internally in India." 3 I would note in passing that it would appear to be the case that the Tribunal in its description of the hearing referred only at one place to questioning the appellant husband about relocation. That description was as follows: "I asked him why he and his family could not move elsewhere in India, as the independent evidence indicated that there were Christian communities in many places. He responded that he was scared to go somewhere else in case the same thing happened again. I suggested to him that he had a 'portable' skill as a chef, so it seemed he could find employment in some other part of West Bengal, particularly as this area's population was Bengali-speaking, as he was. He responded that he was afraid." 4 The only explicit reference made to country information concerning relocation that is of present relevance was as follows: "DFAT Country Information Report No 83/00 of 25 February 2000 states that well educated and readily employable applicants, putting to one side family or financial considerations, could relocate to another part of India. There were no controls on movement within the country (Danish Immigration Service and the Danish Refugee Council 2000, Section 8.7.1). DFAT continued on relocation: Indian citizens have the freedom to relocate from one area of India to another, with two exceptions: in the state of Jammu and Kashmir, Indian citizens from other states are not allowed to buy property, but can stay in any part of the state without seeking official permission. Indian citizens who are not residents of the particular area are required to obtain a permit to visit some border areas of Jammu and Kashmir, and border areas in the north-eastern states of India. The permits are valid for six months. Indian citizens who have been arrested and released on bail are required to report regularly to local police authorities. In these instances judicial permission is required to relocate to another part of the country (DFAT 2003, E-mail to RRT, RRT Information Request: IND16042, 13 October)." 5 I should also emphasise that under the heading "Bangladeshi Migrants in India" the Tribunal devoted almost three pages of its reasons to country information concerned with harassment, discrimination and violence against such migrants. It is clear from the information quoted that the description "migrants" encompassed both legal and illegal immigrants. The inference that could reasonably be drawn from the country information discussed was that while there may have been some tens of millions of illegal Bangladeshi immigrants in India, it was in the eastern states of that country that they encountered difficulties. The information to which reference was made did not suggest such was the case elsewhere in India. There is nothing in the material before me to suggest there was country evidence to the contrary and, as with the Federal Magistrate, I would note that I have not been provided with the body of the country information cited by the Tribunal in the course of its judgment. I would also note that the Tribunal in its "findings" made the following two observations: "1. It is clear that the number of migrants from neighbouring Bangladesh in Kolkata, and West Bengal generally, is very high, and that many reside legally there. However I also accept that a number of them, perceived to be residing in India illegally, have borne the brunt of a backlash because they have been recently perceived to threaten the economic interests of Indians in West Bengal and neighbouring states. Having considered the independent evidence, I am satisfied that a small minority of people of Bangladeshi background have been so targeted, and thus do not accept that all individuals perceived to be migrants from Bangladesh face a real chance of some serious harm in these states. 2. I have regard to more recent evidence of harassment of Indian citizens who have been mistaken for illegal Bangladeshi nationals (IRNA 2005) and accept that the applicants fell into this category. There are many millions of Bangladeshi nationals residing, whether legally or illegally, in India (ABC 2003). There is no evidence that merely falling into this category leads to a real chance of persecution. However, I do accept that the applicants were the target of a very vicious campaign of harassment."