SZFDV v Minister for Immigration and Citizenship [2007] HCA 41

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, CALLINAN AND CRENNAN JJ

SZFDV APPELLANT

AND

MINISTER FOR IMMIGRATION

AND CITIZENSHIP & ANOR RESPONDENTS

SZFDV v Minister for Immigration and Citizenship

[2007] HCA 41

30 August 2007

S61/2007

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

J T Gleeson SC with N J Owens for the appellant (instructed by Corrs Chambers Westgarth)

S J Gageler SC with P S Braham and T Reilly for the first respondent (instructed by DLA Phillips Fox)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SZFDV v Minister for Immigration and Citizenship

Immigration – Refugees – The appellant was an Indian national who faced persecution in his home region on account of his political beliefs – Whether the principle of internal relocation is consistent with the Convention Relating to the Status of Refugees – Whether the Refugee Review Tribunal erred in holding that it was reasonable for the appellant to relocate elsewhere in India.

Immigration – Refugees – Well-founded fear of persecution – Whether a well-founded fear of persecution may be confined to a particular region of a country – Whether persecution may reasonably be avoided by relocation – Relevance of practicability – Relevance of territorial distinctions.

Immigration – Refugees – See SZATV v Minister for Immigration and Citizenship.

Words and Phrases –"practicable", "refugee", "relocation", "well-founded fear of persecution".

Migration Act 1958 (Cth), s 36(2).

Convention Relating to the Status of Refugees, Art 1A(2).

1. GUMMOW, HAYNE AND CRENNAN JJ. This appeal from the Federal Court of Australia (whose appellate jurisdiction was exercised by Madgwick J) was heard together with SZATV v Minister for Immigration and Citizenship[1] and the same counsel appeared on each appeal. These reasons should be read with those in SZATV. 2. Madgwick J dismissed an appeal from the dismissal by the Federal Magistrates Court of an application for certiorari to quash a decision of the Refugee Review Tribunal ("the Tribunal") (the second respondent in this Court and a submitting party), for prohibition directed to the Minister (the first respondent in this Court), and for mandamus directing the Tribunal to redetermine according to law the appellant's application for a protection visa. 3. The appellant is an Indian national, born at Theni in the State of Tamil Nadu in 1977. He arrived in Australia on 16 May 2004 and applied for a protection visa. In his application the appellant gave his religion as "Hindu". The application was refused by a delegate of the Minister on 11 June 2004 and the Tribunal subsequently affirmed the decision of the delegate. 4. On 13 October 2004, the appellant attended a hearing conducted by the Tribunal and gave evidence with the assistance of an interpreter. He had no legal or other representation at the hearing. 5. The appellant claimed that his father and his family sympathised with the Communist Party and that his brother had worked as a Party member in Tamil Nadu. The appellant left school when he was 16 years of age and after the death of his brother he was employed at the mill in Coimbatore where his father worked. The appellant worked at the mill for approximately three and a half years until the employer company ceased operations there in 2002. The mill was situated some 200 km from the home where his mother still lived and the appellant returned there after the closure of the mill. 6. The country information showed that according to the 1991 Census the population of Tamil Nadu was more than 62 million, 88.67 percent of the population were Hindus and Tamil was spoken by 86.7 percent of the population and Telugu by 2.2 percent. 7. The appellant asserted that while his brother had been working as a member of the Communist Party he had opposed the two major Tamil parties, the Dravida Munnetra Kazhagam (the DMK) and the All-India Anna Dravida Munnetra Khazagam (the AIADMK). He maintained that his brother had been killed by "rowdies" from these parties at a Communist Party meeting in 1998. The appellant did not distinguish between the Communist Party of India and the Communist Party of India (Marxist). 8. The appellant was elected a trade union leader of the employees at the mill and disputed some payments to the workers by their employer. He believed that the mill owners held him responsible for the subsequent closure of the mill by government order in 2002. He claimed, among other things, that the mill owners had used their influence as DMK members to procure the laying by the police of false charges of murder of a DMK leader, and that he had been assaulted by DMK "rowdies" in July 2003. Threats also were made to his family. The appellant claimed that in August 2003 he had moved to the capital of Tamil Nadu, Chennai (formerly Madras), where he had continued to fear persecution by DMK "rowdies". He stayed in Chennai until he left for Australia in May 2004, travelling on an Indian passport issued in June 2003 and with an Australian business visa. 9. The Tribunal stated: