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MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant - applicant a citizen of India - applicant claimed that the Refugee Review Tribunal fell into jurisdictional error by failing to have regard to the evidence about the possibility of relocation within India - applicant's wife unable to speak English or Hindi - held irrelevant to the issue of relocation within India - official language of Australia is English - no reviewable error.

SZDPE v Minister for Immigration [2004] FMCA 869 (16 November 2004)

SZDPE v Minister for Immigration [2004] FMCA 869 (16 November 2004)
Last Updated: 30 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPE & MINISTER FOR IMMIGRATION
[2004] FMCA 869




MIGRATION - Visa - protection visa - Refugee Review Tribunal - application for review of decision affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant - applicant a citizen of India - applicant claimed that the Refugee Review Tribunal fell into jurisdictional error by failing to have regard to the evidence about the possibility of relocation within India - applicant's wife unable to speak English or Hindi - held irrelevant to the issue of relocation within India - official language of Australia is English - no reviewable error.




Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), s.475A

Franco-Buitrago v Minister for Immigration and Multicultural Affairs [2000] FCA 1525 - distinguished

Randhawa v Minister for Immigration (1994) 52 FCR 437 - followed

NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263

Applicant:
SZDPE




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG 1487 of 2004




Delivered on:


16 November 2004




Delivered at:


Sydney




Hearing date:


12 November 2004




Judgment of:


Scarlett FM




REPRESENTATION

Counsel for the Applicant:


Mr Zipser




Counsel for the Respondent:


Ms Francois




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application is dismissed.

(2) The Applicant is to pay the Respondent's costs of this application fixed in the sum of $4,500.00

(3) The application is removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1487 of 2004

SZDPE



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This in an application for a review of a decision of the Refugee Review Tribunal handed down on 27 April 2004 affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant. The applicant seeks a writ of certiorari quashing the decision and a writ of mandamus compelling the Tribunal to rehear and redetermine the matter according to law.

2. The applicant is a citizen of India from West Bengal. He is a married man, he was born on 1 August 1969. He comes from the town of Bongaon in India. He is of the Bengali ethnic group and he can speak, read and write both Bengali and English. He also has some ability in Hindi. He is married and he has a son. His family still live in India.

3. He seeks a protection visa as a result of his claims of fears for his life or his safety as a result of his support of the National Congress Party. He has lived in the Bongaon area certainly from 1991. He lived for a short period of time in New Delhi before he left for Australia. His family are still back in India.

4. He was involved in the elections in 2001 as a campaigner. He says that he suffered threats by telephone and by anonymous letters. One evening after the election he said that he was attacked by a group of seven or eight people and he was quite badly beaten up. He fears further violence and fears that if he returns to his home area he would face further violence.

5. He travelled to Australia after spending about a month in New Delhi and sought a protection visa. That application was declined by a delegate of the Minister so he sought a review by the Refugee Review Tribunal. As I said, that decision was unfavourable to him.

6. He now asks that the Court should review the decision of the Refugee Review Tribunal. The applicant claims that the Tribunal in making a finding that the applicant could return to India and relocate to another part of that country fell into jurisdictional error on two grounds. The two grounds are summarised in this way.

a) The Tribunal failed to have regard to the point that the applicant's opponents might find him in Bongaon or West Bengal generally before he had an opportunity to relocate; and

b) The applicant's wife only speaks Bengali and does not speak either English or Hindi. The Tribunal failed to take this point into account in assessing whether relocation was a reasonable option.

7. The applicant expanded on these two points in a written submission prepared by his counsel Mr Zipser who also addressed the Court.

8. The written submission prepared by Mr Zipser of counsel conveniently refers to the two bases upon which the applicant claims the Tribunal fell into jurisdictional error by the titles:

Relocation 1 issue -

and -

Relocation 2 issue

For convenience I propose to follow that course.

9. In his oral submissions to the Court on the date of the hearing

Mr Zipser opened with a very frank admission that it is usually difficult to persuade a Court on a judicial review as to a finding of fact. He referred the Court to a decision of Tamberlin J in the Federal Court of Australia in the matter of Franco Buitrago v Minister for Immigration and Multicultural Affairs. This decision No. N692 of 2000 was handed down on 27 October 2000. I will deal shortly with his Honour's decision in Franco Buitrago.

10. In the oral submission Mr Zipser referred first of all to the relocation 2 issue which relates to the language skills or otherwise of the applicant's wife. In his written submission Mr Zipser said that the applicant accepted the approach in Randhawa v The Minister for Immigration (1994) 52 FCR 437 in relation to relocation including that the Tribunal must consider whether relocation is a reasonable option in the particular circumstances.

11. Where an applicant is a member of a family unit, whether relocation is a reasonable option requires a consideration of the position of other members of the family unit. For example relocation might not be a reasonable option if a member of the family unit, for example, a spouse or a dependent child could not relocate. In the present case, Mr Zipser submitted, the Tribunal failed to assess properly the position of the applicant's wife. In particular, the Tribunal failed to assess whether the wife could speak Hindi or English. If she can only speak Bengali then relocation might not be a reasonable option for her and hence it would not therefore be a reasonable option for the applicant. In these circumstances he submits the Tribunal ignored a relevant consideration and failed to properly apply the relocation test giving rise to jurisdictional error.

12. In his oral submissions Mr Zipser expanded on this point saying it is relevant for the Tribunal to consider whether it is reasonable for the family as a whole to relocate or whether it was reasonable for the applicant to relocate without his family. The Tribunal, he submitted, did know that the applicant has a wife and son and that at the moment the wife and son are still resident in India.

13. Mr Zipser sought to file an affidavit by the applicant as to the applicant's wife's language skills or in particular the applicant's wife's inability to speak English or Hindi. Ms Francois for the respondent opposed the tender but in my view I regarded the affidavit as relevant and I admitted the document.

14. In the affidavit the applicant says and I quote:

My wife speaks, reads and understands Bengali. My wife cannot speak English. She reads some English but with difficulty. She understands a little bit of English. My wife cannot speak, read or understand Hindi.

15. I am mindful of the fact that this is a judicial review and the merits of the strength of the evidence is not within the scope of this review. In fact a quote from the decision of Beaumont J in Randhawa at page 448 where his Honour said:

It is trite law that a review of the merits" have an administrative decision is not within the scope of judicial review. That in essence an error of law must be shown to exist before the Court has the power or authority to intervene, and that intervention even if open is discretionary.

16. The particular case to which my attention has been drawn by Mr Zipser of counsel is the decision of Tamberlin J in Franco Buitrago v The Minister for Immigration and Multicultural Affairs. This proceeding came before the Federal Court pursuant to an order of McHugh J in the High Court where the proceeding was remitted for the Federal Court to determine the question whether there was an error of law by the Refugee Review Tribunal in relation to the application of the law to the facts as it relates to internal relocation and whether that error of law was so serious that it amounted to a constructive failure to exercise jurisdiction.

17. The facts of the case are that the applicant was a national of Colombia who sought together with his wife and five year old child a protection visa on the basis that he was a refugee within the meaning of the 1951 convention relating to the status of refugees. The matter came before the Court by way of an application for review of the decision by the Refugee Review Tribunal.

18. The central question raised on the review application was whether the Refugee Review Tribunal erred in concluding that it was reasonable to expect the applicant and his family to relocate and live elsewhere in Colombia and avoid the harm that they feared.

19. The decision maker had accepted that the applicant had a subjective fear of persecution and a fear of future harm which could amount to persecution. He said in his reasons:

In my view it is entirely possible that the agents of harm have no further interest in the applicants. However, for present purposes I accept that there is more than a remote possibility that the agents of harm could continue to hold an interest in the applicants. I am also willing to accept for present purposes that the threats they have experienced and fear in the future is harm which might be capable of amounting to persecution. However, on the applicant's own evidence they have successfully relocated elsewhere in Colombia and had no further difficulties.

20. His Honour went on to say that it was apparent that the decision maker proceeded on the basis that the issue of determination was the ability of the applicant to relocate elsewhere in Colombia so as to the fear from any reasonable fear of persecution.

21. There was evidence before the Refugee Review Tribunal as to the state of health of the applicant's five year old son. The child suffered from a severe blood disease and there was medical evidence to the effect that if the child was to develop mucosal bleeding he would require an urgent platelet count and admission to hospital for treatment with intravenous immunoglobulin. There was a report from the Sydney Children's Hospital which confirmed that.

22. The situation here is that six months before the hearing the applicant had written to the Refugee Review Tribunal in which he set out what he said was an important element in his case. He referred to what he described as the delicate health condition of the applicant's son. He said that the son was suffering a rare illness and when the family was living in Colombia the illness was never treated by the Colombian doctors in any effective way. The answers that the applicant and his family had received from doctors in Colombia regarding treatment and survival possibilities for the child were negative.

23. He was, however, treated by specialists in Australia. He was prescribed a specific drug and the child's illness was under control and was being treated by doctors at the Children's Hospital at Randwick. He also attached letters from two doctors, one of who was a specialist haemotologist oncologist.

24. The applicant expressed the view that if on the basis of the medical evidence his son's treatment was changed or discontinued as a consequence of the family leaving Australia that could put the child's health at risk. His Honour referred to the fact that the letter specifically raised the question of the child's health and ask that it be taken into account.

25. The decision maker did refer to the question of the child's health and said:

He -

meaning the applicant -

added that his son's current doctors believed that his son's health could be put at risk if his treatment were changed or discontinued as a consequence of leaving Australia. I note that these are not matters which are relevant to the determination of refugee status.

26. His Honour went on to say that that quotation made it apparent that the decision maker excluded from consideration matters relating to the treatment and survival possibilities for the child and the risks to this child if his treatment were changed or discontinued as a consequence of leaving Australia. The decision maker excluded that as being not relevant to the claim for refugee status.

27. His Honour disagreed. His Honour referred to and followed the decision of Randhawa to which I have previously referred and in referring to the decision of the Black CJ his Honour said at paragraph 14:

In reaching this conclusion the Chief Justice emphasised that in the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered and that the question was not simply whether the applicant could possibly relocate to other areas of the country but whether he could reasonably be expected to do so.

28. His Honour went onto say in Franco Buitrago at paragraph 17:

The question of whether safe internal relocation is reasonably available is of course one of fact for determination by the Refugee Review Tribunal. However, in reaching a conclusion on this question the Refugee Review Tribunal must not fall into an error of law by excluding from consideration matters which are central to a determination of that issue. The reasoning in Randower makes it clear that the circumstances to be taken into account are wide ranging with strong emphasis on the practical realities of an applicant's position, such that the cultural problems of relocation can be taken into account.

29. His Honour went on to say:

The medical condition of the child could reasonably be considered to be out of the question whether relocation is reasonable or feasible in a practical sense.

30. This then is the decision upon which Mr Zipser for the applicant bases his submission in respect of relocation 2 issue, the issue relating to the wife's linguistic skills.

31. In my view the decision in Franco Buitrago v The Minister for Immigration can be distinguished on the facts. In that case the applicant had specifically written to the Refugee Review Tribunal and asked that the Tribunal take some state of health into account when a decision was made. The decision maker referred to that issue but stated that the child's treatment and survival possibilities and the risks to the child if his treatment was changed or discontinued was irrelevant to the claim for refugee status.

32. In the case before me, while I accept that the applicant's wife cannot speak either English or Hindi, it was conceded by counsel that this matter was never put to the Tribunal. It can hardly be said that such a situation would be glaringly obvious to the Tribunal so that there was an obligation to investigate the issue. It is well known that many people in India do speak English. In his application for a protection visa the applicant answered question 10 by stating that he speaks, reads and write both Bengali and English. He made no mention of the fact that his wife did not have the same skill in English.

33. To my mind there was no way that the Tribunal member could reasonably have been expected to know that the applicant's wife does not speak English unless the applicant mentioned that fact. In any event, even if the applicant had made the Tribunal aware that his wife spoke only Bengali it does not seem to me to be a relevant issue. It is hardly an answer to the question why the applicant cannot relocate to another part of India because his wife cannot speak English if that reason is to be relied on to show a need to relocate to Australia. The official language of Australia is English and there are relatively few speakers of Bengali in this country.

34. If the applicant had put to the Tribunal that he could not reasonably locate to another part of India because his wife spoke only Bengali it is likely that the Tribunal member would have asked the applicant why he was seeking to live in Australia rather than Bangladesh where people do speak Bengali. With respect, there seems to be almost an air of desperation about this submission and I am not satisfied that an error of jurisdiction has been shown on that point.

35. In my view, with respect, the issue described as the relocation 1 issue is somewhat stronger. It will be recalled that the relocation issue was that the Tribunal in making a finding that the applicant could return to India and relocate failed to have regard to the point that the applicant's opponents might find the applicant in Bongaon or West Bengal before he had an opportunity to relocate. It is submitted that the Tribunal fell into jurisdictional error on that basis.

36. In his written submission Mr Zipser put to the Court that the applicant expressed to the Tribunal concern that on his return to India his opponents might find him and harm him. Specifically, the applicant stated his concern about returning to India was that if his opponents knew that he was returning home he is not sure whether they would let him go home from the airport, see page 88.6 of the Court book.

37. In response to this claim the Tribunal did :

not accept that his opponents would be waiting his return having regard to his low political profile.

That's at page 105 of the Court book, at point 5.

38. However, Mr Zipser submits, a further issue which arose clearly on the materials before the Tribunal was whether the applicant's opponents, even if they were not awaiting his return to West Bengal might:

a) Discover his return before he had the chance to relocate from West Bengal to another part of India and;

b) Harm him before he relocated.

39. The Tribunal did not consider this claim. As stated by the Full Court in NABE v The Minister of Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 263, at paragraph 63:

A failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which if resolved one way would or could be dispositive of the review can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.

40. In his oral submissions Mr Zipser referred me again to this point that the applicant felt that if his enemies knew that he would arrive at the airport he might not get home from the airport but the Tribunal did not consider what would happen if he did in fact get home from the airport but did not relocate to another part of India in sufficient time.

41. I turn to page 105 of the Court book. In the second paragraph on page 105 the Tribunal refers to the fact that the Congress Party holds office in 13 of India's 28 states, that there was also freedom of movement between one state and another:

Furthermore, the applicant left India legally on a valid passport and has a valid passport at present, so I find that the applicant will not have any problems as a returnee in this regard. Further the applicant acknowledged at the second hearing that he was not stating that his opponents would know definitely that he was returning to India and I do not accept that his opponents would be awaiting his return having regard to his low political profile and I make that finding. Accordingly, the Tribunal finds that the applicant does not have a political profile which would attract the interests of the CPI(M) and his opponents elsewhere in India. Further, there is no reason the applicant would come adversely to the attention of the India authorities or others for reason of his political opinion or for any other reason.

42. In the final paragraph on page 105 the Tribunal said:

The applicant stated that when he went to New Delhi he moved around and did not stay in the same spot. However, there was no evidence to suggest that he was the subject of the adverse attention of his opponents at that time and I do not accept the applicant's implied claims that his opponents were searching for him in New Delhi. The applicant stated that the police could not protect him, however the independent evidence which I accept is that India is a longstanding democracy, the judiciary is independent, the states and the central government provide for law and order, there is a right of peaceful assembly, freedom of speech and there is an open trial in most cases. As such I find that there are the normal checks into balances associated with a fully functioning democracy in India. I am satisfied that he -

meaning the applicant -

will have the same level of protection as all other Indian citizens.

43. The situation as I see it is that the Tribunal did consider in a general sense the situation that would arise upon the applicant's return to India with a view to his relocation.

44. In her written oral submissions on behalf of the respondent,

Ms Francois of counsel referred me to the decision of the Full Court in Randower and said that there was no duty on the Tribunal to make independent inquiries unless the situation was that there was something so obvious that that duty arise. In this case she submitted that there was no circumstances that gave the Refugee Review Tribunal a duty to inquire.

45. I will look at the decision of Randhawa v The Minister to which I have previously referred. In particular I look at the decision of Black CJ at page 443 to which I have been referred by Ms Francois.

46. In the second paragraph on page 443 his Honour said:

In the present case the delegate recognised the width of the inquiry required by considering whether the appellant's Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision maker's task will be largely determined by the case sought to be made out by an applicant.

47. In this case the applicant has made clear his concerns about the particular area of West Bengal in which his family lives and where he used to live. He made it clear that he did not say specifically that the people who sought to harm him would be waiting for him at the airport and indeed the Tribunal has found that there was no likelihood that that harm would be occasioned to him.

48. The point made by counsel for the applicant that in the intervening period between arriving at the airport and moving the family to relocate to a safer part of India might leave the applicant and his family open to some harm is to my mind, with respect, a splitting of hairs. I am not of a view following the decision of Black CJ in Randhawa that the Refugee Review Tribunal was obliged to consider the minutia of the administrative arrangements involved in relocation unless there was evidence of some specific issue that had been raised by the applicant at the hearing.

49. There is no evidence that that particularly specific issue was in fact raised, certainly the applicant raised a general concern that his enemies in the particular area of West Bengal might seek to harm him again but in my view the question of relocation has been dealt with appropriately by the Refugee Review Tribunal.

50. In my view it has not been demonstrated that the Tribunal fell into jurisdictional error and as there is no reviewable error the applicant should be dismissed.

51. I will require a transcript of my reasons for this decision.

52. I am of a view that costs follow the event. Mr Zipser of counsel has quite accurately to my view characterised this as a standard case although I would have to say that it is not in every case that I do have the opportunity of hearing submissions put by counsel with the eloquence and courtesy with which I have been privileged in hearing the submissions in this particular matter.

53. In my view the sum of $4500 is within the range that the Court would normally consider appropriate and accordingly I propose to make an order in that amount.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date:
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