SZFFN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1250

FEDERAL COURT OF AUSTRALIA

SZFFN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1250

MIGRATION – no issue of principle – humanitarian grounds SZFFN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1088 OF 2005 CONTI J 1 SEPTEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1088 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFFN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 1 SEPTEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant is to pay the respondent's 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 1088 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFFN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 1 SEPTEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Federal Magistrate Barnes given on 28 June 2005, whereby her Honour dismissed the appellant's application for review of the decision of the Refugee Review Tribunal ('the Tribunal') given on 31 May 2004, which in turn affirmed the decision of a delegate of the Minster made on 1 April 2004 to refuse the appellant's application for a protection (class XA) visa. 2 The appellant was born on 18 November 1976 in Amritsar India. He had eleven years of education in India, and can read and write English and Punjabi and can speak and read Hindi and Urdu, and could do so before coming to Australia. Before coming to Australia, he had been involved in marketing, and he came to Australia to do further study in a marketing advanced diploma course in order to upgrade his employment status back in India. He entered Australia in September 1998. 3 The appellant's mother was a fundamentalist Sikh. However the appellant became a Muslim in the context of marrying on 21 September 2000 a woman of Turkish nationality who was an adherent of the Muslim religion. He claims that by so doing, he angered his family in India, and in particular his Sikh mother, who was also said to be a member of the State Police Commandos. The basis of his claim for refugee status was that he feared for his life if returned to India, because of the authority and mobility of State Police Commandos. The appellant has a son to his present marriage; it was a second marriage so far as his wife is concerned, she having three teenage children from her first marriage. 4 In the course of the finding by the Tribunal member that the Tribunal could not be satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, the Tribunal member found that the appellant had not claimed or experienced past persecution owing to a Convention reason, and further that '… the potential claimed agent of persecution is the applicant's family', which '… does not bring a person within the Convention unless the State either encourages or it appears to be powerless to prevent that private persecution'. Hence the Tribunal's finding that 'the potential for harm is solely connected to or motivated by the personal relationship between the applicant and his family members'. In the result therefore, the Tribunal found that the appellant did not face a real chance of persecution for a Convention reason, should he now return to India, or do so in the foreseeable future. Moreover even if there was a Convention basis for the claimed future actions by the appellant's family, including assistance from the Police and/or Commandos, which the Member did not accept, the Member was satisfied on the evidence that it was reasonable to expect the appellant to live elsewhere in India to avoid any possible harm he might fear from his family or those authorities. 5 Thereafter the Tribunal proceeded to find that the applicant 'could successfully relocate in India', where there exist 'normal checks and balances associated with a fully functioning democracy in India', where 'he will have the same level of protection as all other Indian citizens', and in particular 'will enjoy the meaningful protection of the Indian Police and other security institutions'. 6 Barnes FM considered that no jurisdictional error could be distilled in or from the Tribunal's reasons for decision, and in particular, in the member's application of the relocation principle addressed by the Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, assuming there be as part of the general law a 'separate relocation principle', referring in that regard in particular to the observation of Black CJ in Randhawa at [269]-[270]. In relation to the marginally wider claim whereby the appellant put his case to the Federal Magistrates Court, Barnes FM observed as follows: '38. This latter point was not a claim that was made by the applicant, who clarified in the Tribunal hearing that his concern related to his family and the use and assistance they may be able to make of the police and/or Commandos. There was no claim by the applicant, and nor does the material before the Tribunal raise a claim, that individual Commandos or Commandos as a group may seek out and threaten or assault him as a member of a particular social group. As to the broader claim that the Tribunal arguably failed to consider whether relocation was reasonable given the applicant's claimed membership of the particular social group of Sikh to Muslim converts, again this was not his claim. The Tribunal properly considered the applicant's claim and the impediments to relocation which he raised. While the applicant expressed his claim in terms of his conversion from being a Sikh to a Muslim his claim was not put nor did it raise a claim that he feared harm from the public or indeed from sections of the public because of his conversion. Even in his written submission to the Tribunal the claim about persons being burned alive was a claim that members of their families burned them alive not that particular segments of the public provided a potential source of harm to converts.' 7 Moreover Barnes FM pointed out that the Tribunal also found, albeit in the context of addressing relocation, that on the basis of his own evidence, the applicant had no subjective fear of persecution on his return to India, reference being made by her Honour to Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 297, her Honour observing as follows: 'This finding itself provides an unchallenged independent basis for the decision, as in the absence of any subjective fear it cannot be said that an applicant has a well-founded fear.' 8 The appellant's three grounds of appeal to the Federal Court were framed as follows: (i) That the decision of the Refugee Review Tribunal (RRT) ('the Tribunal') dated 31 May 2004 be void for jurisdictional error. (ii) That the Tribunal erred in failing to apply the correct test constructively failed to exercise its jurisdiction, and breached the requirements of procedural fairness in assuming that the applicant could have no well-founded fear of persecution given evidence that other members of the appellant's social group might be persecuted even if they were to live their lives as such 'discreetly' or in 'secret'. (iii) That the Tribunal erred in failing to apply the correct test constructively failed to exercise its jurisdiction, in asking itself whether it was 'satisfied' that the applicant would be 'harmed' for the reasons he claimed if he were returned to India. 9 The appellant appeared at the hearing of his appeal in person. Understandably having no legal qualifications, he was unable to elaborate upon the above grounds of appeal, which were presumably prepared by an unidentified but qualified lawyer. However he made submissions as to what may fairly be described as humanitarian grounds, but did so in a frank and careful manner. The appellant pointed to and explained the following matters: (i) as appears in the reasons for decision of the Federal Magistrate, the appellant is a married man, his wife being Muslim, and they have a very young son; he first met his wife in Australia on 6 May 2000; (ii) he suffers from multiple sclerosis, and has done so since 1998; he tendered medical evidence in that regard; a certificate of Raysean Imaging of 22 July 2005 was said to verify the existence of that affliction; (iii) his current period of immigration detention commenced on 18 June 2004, but he had earlier been in detention for six months; (iv) he is regularly visited in the Villawood Detention Centre by his wife and child; obviously his inability to live with his wife and young son causes him great distress; the child was born on 20 July 2001; (v) his wife is an Australian citizen; she is of Turkish background; (vi) he has undertaken in Australia adult education and vocational training; the following certificates as to Achievement Awards were tendered in evidence: · 29 March 2003 – writing for practical purposes · 14 May 2003 – oracy for practical purposes · 23 June 2003 – reading and writing for practical purposes · 28 July 2003 – general education for adults (foundation) · 2 October 2003 – OHS induction for employees (work cover) 10 Moreover he informed the Court, nevertheless dispassionately, that since 25 November 2002, he has been taking pills from a supervising psychiatrist/doctor apparently stationed at Villawood, which have been causing him considerable stress, because they 'have messed with my head'. 11 I would observe that the appellant's situation presents as a compelling case for re-consideration by the Minister on at least humanitarian grounds, in the light of the material I have summarised. It is no understatement on my part to record that the appellant presented as a person of sincerity, whose circumstances as disclosed to the Court disclose a compelling case for consideration for release into the community for the time being, and for re-consideration of the case for remaining in Australia as part of a family unit involving his wife and young son. His indication to the Court of anxiety to obtain employment and enjoy a normal life as part of a family unit would appear to merit appropriate reconsideration. Of course these observations are made entirely ex gratia, with a full appreciation of the nature and extent of the Minister's obligations to the wider community, but I have a measure of confidence that any such assistance would not be misplaced. 12 In the circumstances, I dismiss the appeal and order the appellant to pay the Minister's costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 6 September 2005 The appellant appeared in person

Counsel for the Respondent: S McNaughton

Solicitor for the Respondent: Phillips Fox

Date of Hearing: 1 September 2005

Date of Judgment: 1 September 2005