FEDERAL COURT OF AUSTRALIA SZJCV v Minister for Immigration and Citizenship [2008] FCA 1124 Migration Act 1958 (Cth) ss 91R and 424A Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZJVC and SZJCW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 615 of 2008 TRACEY J 4 AUGUST 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 615 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJVC First Appellant SZJCW Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE OF ORDER: 4 AUGUST 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. 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 615 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZJVC First Appellant SZJCW Second Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE: 4 AUGUST 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from an order of a Federal Magistrate delivered on 15 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 27 September 2007: see [2008] FMCA 487. The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellants. BACKGROUND 2 The appellants are husband and wife who are citizens of India. They arrived in Australia on 12 December 2005. They entered on short-term visitors' visas. On 19 January 2006 the appellants lodged an application for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs as it was then known. The appellant wife did not put forward her own specific claims but applied as a member of the family unit and relied on the claims of her husband. A delegate of the first respondent refused the application for a protection visa on 3 March 2006. On 16 June 2006 the Tribunal affirmed the decision of the delegate. 3 The appellant claimed that he was an active member of a leading political party, the Shiv Sena, in Muland (his locality in Mumbai). His shop was located in an area dominated by a rival political party, "the NCP led Congress". In 2005, one of the leaders of the Shiv Sena party left that party and joined the Congress Party; many of the "MLAs" of Shiv Sena followed him. This resulted in a shift in power in the local area away from Shiv Sena to the Congress Party and led to pressure being placed on the appellant to leave the Shiv Sena and join the Congress Party. He refused to do so and was harassed, threatened, intimidated and assaulted. Ultimately, he and his wife fled India. 4 On 14 June 2007, Federal Magistrate Lloyd-Jones made orders, by consent, which quashed the Tribunal's decision and remitted the matter to the Tribunal for re-hearing. 5 The application was then re-heard by a differently constituted Tribunal. Its decision is the subject of the present appeal. REFUGEE REVIEW TRIBUNAL 6 The Tribunal accepted that the appellant was a member of the Shiv Sena party; that he had been politically active in his local area, and that he had been the subject of intimidation and pressure to persuade him to change his political allegiance. The Tribunal accepted that the appellant had been subjected to serious harm for reasons of his political opinion and that he had a well-founded fear of persecution for his political opinion if he returned to Muland or the neighbouring area of Kalwa. However the Tribunal found that the appellant would avoid further harm if he were to relocate to a different part of India, and it considered it would be reasonable for the appellant husband to do so. 7 The Tribunal found that the appellant's political activities had been highly localised and confined to Muland (and the neighbouring area of Kalwa) and did not accept that he would be targeted by the Congress Party nationally or that his personal enemies would pursue him across India. The Tribunal noted the appellant had provided no acceptable reason for him to not relocate internally. The Tribunal considered the appellant's employment history and his language proficiency. It was not satisfied that he would not be able to earn a living in India. Ultimately the Tribunal was satisfied that it was not unreasonable or impracticable, for the appellant to relocate to a different part of India where he would not be at risk of persecution. The Tribunal affirmed the decision of the delegate not to grant the appellants protection visas. THE FEDERAL MAGISTRATES COURT 8 On 19 October 2007 the appellant filed an application for judicial review of the Tribunal's decision in the Federal Magistrates Court. On 19 December 2007 the appellant filed an amended application. 9 The first ground read: "1. The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error by finding reasons against itself. Particulars i) When the Tribunal mentioned that, 'In the Tribunal's view, the applicant's experiences in the past amount to serious harm for the reasons of his political opinion. Accordingly, the Tribunal accepts he has a well founded fear of persecution for his political opinion if he returns to Mulund and the neighbouring are of Kalwa' (CB-185, para-2). ii) Then the Tribunal mentioned (CB-186, para-4) that, 'Overall, based on the evidence before it the Tribunal is not satisfied that the applicant as a well founded fear of persecution in India for reason of his political opinion'." 10 The Federal Magistrate found that it was not inconsistent for the Tribunal to have accepted the claims put forward by the appellant but to find that the appellants could reasonably and safely relocate to other parts of India. Notwithstanding its finding that the appellant's fear of localised persecution was well-founded the Tribunal was still required to consider the availability of protection in another part of India. The Federal Magistrate referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 as authority for this proposition. 11 The Federal Magistrate found that the Tribunal had considered the issue of relocation in accordance with the authorities and found no error on the part of the Tribunal. The Tribunal gave the appellants the opportunity to put before it their reasons for asserting that it was not reasonable to expect them to relocate internally. The Tribunal was satisfied that, if the appellants relocated outside of the Muland/Kalwa area to other States where Hindi speaking Hindus are a majority, and even if the appellant husband continued to engage in political activity at the same level as he had in the past, there was no real chance that he would face harm by Congress Party members or officials. The Tribunal also looked at a number of personal factors relevant to the appellant husband: his work, his business and employment background, his linguistic capacity and ultimately found that it was satisfied that it was not unreasonable or impracticable, bearing in mind all of those factors, for him to relocate to a different part of India where he would not be at risk of persecution. 12 The second ground read: "2. The Tribunal made a jurisdictional eroor that the Tribunal did not give adverse iformation to the applicant which is the requirement under s424A of the Migration Act 1958 (the Act) when it made its decision. Particulars: i) The Tribunal made a private investigation related to the applicant's claim where Hindi speaking Hindus are a majority for the relocation purpose of the applicant but those information was not communicated with the applicant which are the reason or part of the reason to reject the applicant's claim for protection (CB-186, para 2). ii) The information regarding 'earning a living in India' was a result of private investigation done by the Tribunal was not inform to the applicant for comment." 13 The Federal Magistrate found that the information relating to the disposition of Hindi speakers and those States in India in which they are located, was information that squarely fell within the exceptions set out in s 424A(3)(a) of the Migration Act 1958 (Cth) ("the Act"). The Tribunal's conclusion that the appellants could safely and reasonably relocate was a reason for the Tribunal's decision and not "information", within the meaning of the Act: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. The "private investigation" by the Tribunal was clearly part of the Tribunal's reasoning processes. The appellants had not established any jurisdictional error. 14 The third ground read: "3. The Tribunal made an error of law u/s 91R of the Act when the Tribunal wrongly rejected the applicant's claim which fulfil the requirement of the law, that the Tribunal accepted the following:- (i) the applicant's claims are based on the convention grounds of political opinion and religion, (ii) the applicant was an ordinary member of the Shiv Sena party, (iii) the activities of the applicant in the party, (iv) political enemities from his activites, (v) serious harm suffered by the applicant and his family and brother and also financial loss suffered by the applicant, (vi) his righ for business was stopped, (vii) the Tribunal also accepted that the applicant has a well founded fear of persecution for his political opinion in India, (viii) the applicant was assaulted by Muslim supportes of the Congress party." 15 The Federal Magistrate considered ground three to be another aspect of the complaint that was raised in ground one. For the reasons stated in relation to ground one, the Federal Magistrate could not see any error in the Tribunal's approach. 16 During the course of the hearing, the appellant complained he had not been put on notice that relocation was to be an issue before the Tribunal. The Federal Magistrate therefore gave consideration to the question of whether the Tribunal was in breach of its procedural fairness obligations. To the extent that relocation and the Tribunal's finding in relation to relocation could be said to be one of the determinative issues in the Tribunal's decision, the appellants were "put on notice" by the delegate's decision that relocation within India would be an issue before the Tribunal. The Federal Magistrate referred to the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. The issue of relocation was also raised with the appellants during the hearing. The Federal Magistrate noted that the mere fact that the appellants disagree with the Tribunal's findings was not sufficient to reveal jurisdictional error on the part of the Tribunal. 17 The Federal Magistrate concluded that the appellants had not established any jurisdictional error on the part of the Tribunal and dismissed the appellant's application. APPEAL TO THIS COURT 18 The notice of appeal to this court was filed on 2 May 2008. The notice of appeal contained three grounds. 19 The first ground read: "1. The Honourable Federal Magistrate erred in not considering that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error that it did not comply with s 424A of the Migration Act 1958 (the Act). The Court wrongly mentioned in paragraph 30 in its decision that, the information falls within the exceptions set out in s424(3)(a) and also mentioned in paragraph 33 that, 'the applicant's capacity is not a information for the purpose s 424A of the Act." 20 The second ground read: "2. The Honourable Federal Magistrate erred in not finding that the Tribunal made an error of law when it rejected the applicant's claim on the basis of the relocation issue which is not the requirement of the Act." 21 The third ground read: "3. The Honourable Federal Magistrate did not consider that the Tribunal did not follow s91R of the Act when the Tribunal made its decision. Because the applicant satisfied many requirements for protection but the Tribunal did not consider those." 22 The appellant husband appeared in person at the hearing of the appeal. He had the assistance of an interpreter. The appellant wife did not appear. They had earlier filed written submissions. 23 I have carefully considered the reasons of the Tribunal and those of the Federal Magistrate. In my view the Federal Magistrate was correct when he found that the Tribunal's reasons do not disclose any jurisdictional error on its part. I respectfully agree with the Federal Magistrate's reasons for so holding. The Federal Magistrate did not err in any of the ways alleged in the notice of appeal. 24 There are some aspects of each ground of appeal which require more specific attention. 25 It is alleged, in Ground 1, that the Federal Magistrate erred by not finding that the Tribunal had failed to comply with s 424A of the Act. This was said to have occurred in two ways: the Magistrate had erred by finding that certain information, considered by the Tribunal, fell within the exception provided for in s 424A(3)(a) of the Act; and the Federal Magistrate had also wrongly found that the Tribunal's assessment of the appellant's capacity to earn a living in India did not constitute information for the purposes of s 424A. 26 The information, which the Federal Magistrate found was covered by s 424A(3)(a), was country information relating to the disposition of Hindus and Hindi speaking persons in India. This information did not apply specifically to the appellants. There was, therefore, no requirement to direct the appellants' attention to this material. 27 The appellants alleged that the Tribunal's conclusion that it was not satisfied, having regard to the appellant husband's work experience, that he would not be able to earn a living in India constituted "information". The Federal Magistrate was correct to hold that that conclusion formed part of the Tribunal's reasoning process and was not, itself, "information" within the meaning of s 424A. 28 As I understand the thrust of the second ground it alleges error on the part of the Tribunal because it found that the appellants were not refugees because they were able to relocate within India. The particular jurisdictional error relied on is not identified in the notice of appeal. In their written submissions the appellants suggest that the Tribunal erred by basing its decision, that the appellants could relocate within India, on information provided by the appellant wife. The Tribunal did not do so. It based its conclusion relating to relocation on a range of factors including the disposition of Hindi speaking Hindus within India, the appellant husband's work experience, his linguistic capacity and the fact that the intimidation and harassment by his political opponents occurred by reason of his influence in a small area of Mumbai. The Tribunal directed itself consistently with relevant authorities. Its conclusion was open to it. 29 I found ground three incomprehensible. I did not understand what was meant by the allegation that "the Tribunal did not follow s 91R of the Act". The written submissions do not deal with the matter. I asked the appellant husband to develop his argument in support of this ground. He said that it was intended to raise the relocation point. The reference to s 91R had been suggested by a "friend" who had some legal training. The appellant complained that, while the Tribunal had accepted that he had been persecuted because of his political activities in Mumbai, it had failed to recognise that the some thing would be expected to happen again anywhere in India. This was plainly an attack on the merits of the Tribunal's decision. No jurisdictional error was identified. 30 None of the grounds of appeal is made out. 31 The appeal should be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 4 August 2008 The applicant was self represented Counsel for the Respondents: M Cleary Solicitor for the Respondents: Clayton Utz Date of Hearing: 4 August 2008 Date of Judgment: 4 August 2008