MZWRU v Minister for Immigration
[2006] FMCA 529
•13 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWRU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 529 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error. |
| Migration Act 1958, ss.65, 91, 91R, 425 Tamil Nadu Prohibition and Forcible Conversions Act of October 2002 |
| NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | MZWRU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1318 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 29 July 2005 |
| Date of Last Submission: | 7 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 13 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Fernandez |
| Solicitors for the Applicant: | Ravi James |
| Counsel for the Respondent: | Mr S. Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $7,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1318 of 2004
| MZWRU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 30 August 2004. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant a protection visa to the Applicant.
Both parties were represented at a hearing and both were permitted to file and serve further submissions after the hearing.
The Applicant is a citizen of India. He arrived in Australia on 16 February 2003. On 20 March 2003 he lodged an application for a protection visa claiming a well-founded fear of persecution on the basis of the following:
·his religion at the hand of Hindu extremists because of his (Christian) proselytising; and
·Hindu extremists and government authorities because of his former leadership of an organisation known as Vanniyar Community Reawakening Organisation (VCRO), which is a secessionist group that advocates for the rights of the Vanniyar people.
In his initial claim, the Applicant alleged that he left India to escape "from murder and persecution in the hands of high-caste people and Hindu extremists". He further stated in the claim that he had left India, "also to escape detention under 'POTA' and anti-conversion laws in India". He claimed that:
“ … Also as a Christian I have been attacked by Hindu extremists. I am very unpopular with the government authorities.”
When asked what he thought would happen to him if he returned to India, he stated:
“For the last 21 years I am involved with a campaign under the name "Vanniyar Community Re-Awakening Organisation."
My campaign purpose was to carve out a portion from the present state of Tamil Nadu (India) and to form a separate (sic) state for my Vanniyar community.”
He stated that:
“Also I am actively involved spreading the Good News (Bible) to the Hindus and others.”
(Court book page 9)
The Applicant gave oral evidence to the Tribunal on 2 July 2005 and apart from relying on the application, also relied upon a statement to the Department which was provided on 29 April 2003, translated from the Tamil language to English. Prior to the hearing on 2 July 2004 the Applicant also submitted various documents which included newspaper articles relevant to his claim, together with some medical evidence. The Applicant's then representatives sought time within which to make further submissions after the hearing and indeed did so by a facsimile transmission dated 23 July 2004.
The newspaper articles and medical certificates, together with the written submissions dated 23 July 2004, were all referred to by the Tribunal in its decision under the heading "Claims and Evidence." The written submissions forwarded on behalf of the Applicant by facsimile message on 23 July 2004 were detailed and comprised 29 pages. Likewise, the Tribunal in its decision set out in detail the claims and evidence arising from the documents submitted by the Applicant and evidence at the hearing. A proper reading of the "Claims and Evidence" set out in detail by the Tribunal reveals that it has substantially set out the claims, in considerable detail, raised by the Applicant in the manner described earlier in this judgment.
The tribunal's findings
Under the heading "Findings and Reasons" the Tribunal considers the claims of the Applicant and makes significant adverse findings. It rejected the Applicant's evidence after dealing with the Applicant's claims in some detail. It is useful to set out the following passage from the Tribunal's decision where at Court Book page 176 it states:
‘FINDINGS AND REASONS
The applicant claimed he was a Christian who travelled around India proselytizing. Further, he claimed that he was a Vanniyar. He was a member of an organization which was agitating for a separate Vanniyar state. In a post-hearing submission, he claimed that he was agitating for a separate Vanniyar Christian state in India.
The Tribunal had a number of concerns regarding the applicant's credibility. The applicant in his evidence to the Tribunal was very vague. He was unable to describe in detail many important aspects of his claims. He could not explain the means by which his organization, which he claimed to have been in existence for more than 20 years, planned to implement their plan to establish a separate Vanniyar state. Further, in his evidence to the Tribunal, the applicant seemed not to remember several of his claims until they were put to him by the Tribunal, such as the claim that he had been informed that his arrest was imminent. The Applicant provided an inconsistent account regarding the description of the attack in December 2001. In particular, he was prepared to quickly change his evidence when it was put to him that his previous account had been different. Finally, the applicant did not raise the claim that he was trying to establish a separate Vanniyar and Christian state until after the hearing. When asked about Vanniyar separatism in the hearing, and other political parties' platform in this respect, he never mentioned the fact that he was trying to establish a Christian Vanniyar state. The Tribunal does not accept that these matters were the result of a hearing difficulty that was not mentioned at the hearing.”
The Tribunal had accepted the Applicant was a member of the Vanniyar class and that he is a Christian. It then analysed the population of India and noted that 2.3 per cent of the population are Christians. It referred to the situation in Tamil Nadu. Specific reference was made to the Applicant's claim that he was unable to obtain employment due to his religion and/or that he was discriminated in employment as a result of being a Vanniyar. The Tribunal significantly stated the following at Court Book page 177:
“ … He claimed that this was because the Brahmins owned all the businesses and all of the land. This claim seems inconsistent with his own experiences in owning and operating his own business, and, further, as pointed out to the applicant in the hearing, although the Brahmins may own the businesses, they must employ somebody within businesses, and this tends to be the Vanniyars.”
The Tribunal then referred to relevant country information and proceeded to draw the following conclusion:
“Further, the applicant agreed with the Tribunal that the Vanniyars consist of the largest single community in the state, accounting for 12% of its population. The Tribunal acknowledges that the Vanniyars may be discriminated against by the Brahmins in employment but the Tribunal is of the view that this treatment is not of sufficient seriousness as to amount to persecution within the meaning of Section 91R of the Act.
The Tribunal notes that the applicant's ability to practise his religion and attend church was not impaired. He gave evidence that he regularly attended church in India. The applicant claimed that he regularly proselytized in the villages surrounding where he lived, trying to convert people to Christianity.”
The Tribunal then dealt with a claim by the Applicant which related to an incident in December 2001 and pointed out a number of discrepancies between the claim before the Tribunal and in written documents and proceeded to make the following finding:
“ … The Tribunal finds the applicant's willingness to change his evidence so readily, undermines his credibility. Further, the applicant's account to the Tribunal of what occurred this day is farfetched. Although there were a number of people in a car was attacked, the only persons who were actually attacked were the applicant and his mother. The other people who were in the car were not harmed at all. For these reasons, the Tribunal does not accept that this incident occurred at all. The applicant was also very vague and unclear about the laws in Tamil Nadu against proselytizing, which the Tribunal would expect someone who was involved in that activity to be well aware of. …”
The Tribunal then refers to a US Department report where comment was made in relation to the Tamil Nadu Prohibition and Forcible Conversions Act of October 2002 and it was noted in that report that according to the Act:
“ … those who attempt to convert individuals or groups from one religion to another using ‘false promises’ and ‘allurements’ are subject to prosecution, and all persons who ‘[take] part directly or indirectly in [a conversion] ceremony’ must report the ceremony to the District Magistrate.”
The Tribunal in its findings then relevantly states the following at Court Book page 179:
“The applicant was unaware of the legal requirements to convert somebody in India. He was unaware of the challenge there had been to the anti-proselytizing legislation, which the Tribunal would have expected him to be aware of if he was a church campaigner. Finally, the Tribunal notes that the applicant has not been involved in any sort of proselytizing activities in Australia. He claimed that this was mainly due to a language problem yet the Tribunal pointed out to him there are a sizable Indian population in Australia. The Tribunal would expect the applicant to have continued his activities in Australia, where he could do so in relative safety.
For all these reasons, although the Tribunal accepts that the applicant is a Christian, it does not accept that he has been involved in proselytizing in India or that it is part of his religious practice. The Tribunal does not accept that the applicant has a profile as a leader of a Christian organisation. Accordingly, the Tribunal does not accept that the applicant has been harmed or threatened in any way in relation to proselytizing activities. The applicant's brother-in-law may have been confronted by some Hindus when preaching in a remote area. However the Tribunal has found that the applicant is not involved in these types of activities and therefore the chance of a similar incident occurring to him is remote. The Tribunal does not accept that if the applicant was to return to India, that he would be involved in proselytizing, and therefore finds that there is no real chance that he would be persecuted for reasons of his religion, and that this fear of persecution is not well founded. …”
The Tribunal rejected other claims by the Applicant in relation to threats made upon his wife or attacks upon the Applicant's sister and husband.
The amended application
The Applicant relied upon an Amended Application filed 8 August 2005, and as noted earlier, both parties were permitted to file and serve further submissions and indeed did so after the hearing with the last of the submissions being filed by the Applicant on 7 October 2005.
In the amended application filed 8 August 2005 the Applicant claimed the Tribunal decision was affected by a jurisdictional error.
The amended application appears to raise three general issues which may properly be referred to under the following headings:
·failure to grant the Applicant a proper hearing by taking remedial when advised of the Applicant's hearing impediment (the hearing impediment issue);
·incorrectly interpreting section 91R of the Act in relation to the discrimination suffered by the Applicant in employment as a member of the Vanniyar class;
·breach of natural justice and/or procedural fairness by making an adverse credibility finding of the Applicant in relation to his claim of being a proselytiser.
It was noted that the third of those claims, all of which are subject to detailed particulars, was referred to by counsel for the Applicant as being "the main issue in this case".
Applicant's submissions
Hearing impairment
In the Amended Application it was asserted that the decision of the Tribunal is affected by jurisdictional error and that it breached the requirements of s.425 of the Migration Act 1958 (the Act) and procedural fairness by failing to grant to the Applicant a proper hearing in relation to the Applicant's hearing impediment of which it was advised before its decision was handed down. In the particulars subjoined to that ground, the following appears:
“(a)The Tribunal as required by section 425 of the Act invited the applicant to a hearing on 2 July 2004.
(b)In the post hearing submissions filed by the applicant regarding some of the credibility issues raised at the hearing, it was stated that the applicant had a hearing impediment following an incident in 1996 and that the hearing impediment affected the accuracy and consistency of the applicant's responses to the questions by the member, particularly in some responses which were crucial to an adverse finding by the Tribunal regarding the applicant's credibility.
(c)The Tribunal failed to give any allowance to this in its consideration or to reschedule the hearing or seek clarification to provide a proper hearing so that these matters which were affected by the hearing impediment and identified would have been properly considered and, importantly clarified particularly in relation to the December 01 incident and whether he took his wife and children.”
The First Respondent submitted in relation to the hearing impediment issue that the Tribunal is not under an obligation to hold a second hearing and there has not been any breach of s.425 of the Act. It was argued that the Applicant through his representatives provided detailed written submissions after the Tribunal hearing and that the Applicant was represented at the hearing. The Applicant accordingly was given an ample and fair opportunity to present his case to the Tribunal and no error has occurred.
In my view, the first respondent's submissions in relation to this ground are correct. As noted during the course of submissions, the Applicant had ample opportunity at the hearing through his representatives to present his case. If any hearing impediment prevented the presentation of the case before the Tribunal, then in the normal course of events it would be expected that those then acting for and on behalf of the Applicant would bring that to the attention of the Tribunal.
In this case, even if that were not the case, for reasons not fully explained to this court, then it is clear that very detailed submissions were made by the then representatives of the Applicant concerning crucial issues agitated for and on behalf of the Applicant. Those detailed submissions were considered by the Tribunal, as set out earlier in this judgment, in its detailed reasoning. Indeed, in this case the observation can be made that the Tribunal has provided an extremely detailed account of the claims made by the Applicant, both at the Tribunal hearing and in the written submissions made after the hearing.
Although counsel for the Applicant was asked to identify matters which may have been raised beyond the detailed written submissions or to at least identify issues which could have been further agitated at a second hearing, held presumably to accommodate the hearing impediment of the Applicant, reference was made to a transcript where it was suggested there may be some difference in meaning and accuracy. Reference was made to the Tribunal member being requested to repeat a question.
Whilst a proper reading of the transcript, which appears in the supplementary court book, reveals examples where a question is repeated, I am satisfied that a combination of that transcript and the detailed written submissions satisfactorily and thoroughly advances the claims for and on behalf of the Applicant. Most of the transcript appears to contain what can only be described as direct and responsive answers by the Applicant to questions asked by the Tribunal.
It is not for this court to analyse in detail subtle differences which may have occurred in translation unless it can be demonstrated that there is some inaccuracy not overcome by the opportunity afforded to the Applicant to provide, as in this case he has done, very detailed submissions in support of the case after the hearing. It is particularly relevant in my view to note that the Applicant was represented at the hearing and of course the submissions made after the hearing were prepared by his then representatives. I am not able to identify any significant piece of evidence where it could be claimed the Applicant has suffered prejudice or has been denied procedural fairness arising out of any hearing impediment the Applicant suffered during the hearing before the Tribunal.
Accordingly, in my view this ground should fail.
Section 91R
In support of this ground it was claimed that the Tribunal failed to give the Applicant a proper hearing and/or failed to give consideration to his hearing impediment and incorrectly interpreted s.91R of the Act. The particulars subjoined to this ground rely upon the particulars subjoined to the first ground, and otherwise it was claimed the Tribunal misunderstood and/or misconceived the criteria about which it had to be satisfied for the purpose of s.65 of the Act, being a Convention element of persecution as stated in s.91R, because it wrongly found that the -
“mere existence of a (sic) ability by the applicant to survive will not amount to persecution and/or misunderstood what is required to establish the existence of persecution consisting of denial of capacity to earn a livelihood of any kind threatening a persons capacity to subsist submitting him to threats of harm and persecution because of his religious and caste status vis-a-vis the Brahmin community.”
As I understood this submission, great emphasis was placed upon the discrimination suffered by the Vanniyars and the interpretation of the Tribunal of s.91 of the Act. Reference was made to the Tribunal's decision and some attempt was made to analyse the percentage of Christians in Tamil Nadu. Reference was made to the finding of the Tribunal that the Applicant had conducted and owned his own business and where it ultimately reached the conclusion that the discrimination was not of sufficient seriousness.
As I understood the argument for the Applicant, it was submitted the Tribunal should have considered the Applicant's claim or struggle to meet the necessities of life in the face of what is described as caste discrimination and persecution. That issue, it was argued, should have been considered by the Tribunal, and its failure to do so resulted in a misinterpretation of the meaning of s.91R.
The First Respondent submitted that the Tribunal correctly applied s.91R to the claim. Reference was made to the Tribunal's finding at Court Book page 177 where it states the following:
“The applicant claimed that he was unable to obtain employment due to his religion. However, the Tribunal notes that the applicant was employed between 1979 and 1982. When he returned from Saudi Arabia he was able to purchase his own premises and operated a business, in which he employed other people. He was able to operate the business for 9 years before coming to Australia. The applicant also claimed that he was discriminated in employment as a result of being a Vanniyar. He claimed that this was because the Brahmins owned all the businesses and all of the land. This claim seems inconsistent with his own experiences in owning and operating his own business, and further, as pointed out to the applicant in the hearing, although the Brahmins may own the businesses, they must employ somebody within businesses, and this tends to be the Vanniyars. …”
That passage, recited earlier in this judgment, was relied upon by the first respondent to support its submission that no error of law is disclosed in relation to the interpretation of s.91R of the Act.
In my view, the first respondent's submissions are correct. Section 91R of the Act does not preclude the Tribunal from assessing the seriousness of the claimed discrimination and nor is the Tribunal in error by considering the material set out in the passage referred to above. It has clearly had regard to relevant material in assessing the seriousness arising from s.91R. It noted in its decision that an Applicant must fear persecution, and pursuant to s.91R, persecution must involve "serious harm" the Applicant (s.91R(1)(b)) and "systematic and discriminatory conduct" (s.91R(1)(c)). The Tribunal then went on to consider examples of what may be included as "serious harm" (see Court Book page 164).
In its findings, having analysed in part the material set out in the extract above, the Tribunal has in my view properly addressed the issue before it, consistent with the requirements of s.91R. Indeed, it would be difficult to imagine circumstances, where a business was conducted in the manner described, for the Tribunal simply to ignore that evidence and proceed to make a finding of serious harm.
Whilst that evidence may not for other reasons be conclusive as to whether the Applicant has or has not suffered serious harm, it could not be regarded in my view as providing any or any proper basis upon which this court may conclude that the Tribunal has misinterpreted the requirements of s.91R. Its fact-finding process, having regard to the requirements of s.91, in my view are free of jurisdictional error and this ground should fail.
Findings regarding the applicant's alleged proselytising
The Applicant in support of this ground sought to attack what can be only be described as adverse credibility findings by the Tribunal, and did so on the basis of alleging that the Tribunal failed to interpret the convention protocol correctly. Particulars subjoined to this ground referred in some detail to evidence set out in published material and sought to attack the Tribunal's findings referred to earlier in this judgment concerning the Applicant's level of knowledge of the law in the state of Tamil Nadu in relation to the obligations of persons seeking to convert a person to another religion.
The first respondent submitted that no error has occurred in relation to the manner in which the Tribunal dealt with this issue. It was submitted that effectively the finding of the Tribunal was a finding in relation to the Applicant's credibility and that the Applicant in relying upon this ground has sought merits review. It was noted that a credibility finding is a matter within the exclusive jurisdiction of the Tribunal (see NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167). Even if the Tribunal's findings of fact were wrong, it was submitted, there is no jurisdictional error.
In reply to a suggestion made by counsel for the Applicant that there had been a failure to consider a claim relating to an attack upon the Applicant, his sister and brother-in-law, it was submitted and noted by the court during the hearing that the Tribunal in fact dealt with that claim in its reasons for decision (see Court Book page 179).
In my view, the very detailed reasons of the Tribunal and, moreover, its thorough analysis of the claim made by the Applicant, both at the Tribunal and in post-Tribunal hearing submissions, demonstrates that the Tribunal had ample material upon which it could make what was ultimately an adverse credibility finding.
In this case the Tribunal has given reasons for its decision as to why it rejected the Applicant's evidence or the basis for its disbelief. It has done so in very clear detail, and I note that this is often regarded as a process undertaken by the Tribunal, described as a function of the primary decision-maker "par excellence" (see Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]).
In analysing this ground, I am also mindful of the role of the court that it should not be scrutinising the reasons of the Tribunal with an eye attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). In the present case, having regard to the significant adverse credibility findings referred to earlier in this judgment, I am not satisfied that the Tribunal has fallen into any error in considering the material and the claims made by the Applicant.
Accordingly, there is no jurisdictional error and this ground should also fail.
Conclusion
It follows for the reasons given, in my view, that the Application should be dismissed with costs. It should be noted the costs will include the costs of and incidental to the filing and service of post-hearing submissions. One further matter which needs to be mentioned in passing is the issue of whether the Applicant in this application should be permitted to rely upon an affidavit sworn 13 October 2004, which essentially refers to the Applicant's hearing impediment. In my view, that affidavit should not be received or relied upon by this court given that there is no dispute about the existence of a hearing impediment.
To the extent that the affidavit further seeks to challenge the facts as found by the Tribunal, it is my view that to that extent the Applicant should not be permitted to rely upon the affidavit. Submissions can be made about those issues, which in this case have been made in some detail. Otherwise, I am not satisfied that this is an appropriate or exceptional case where this court should receive evidence, and accordingly I do not believe that it is either necessary or appropriate to permit the Applicant to rely upon the affidavit.
As indicated, the appropriate orders of the court are that the application be dismissed and the Applicant be ordered to pay the first respondent's costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 13 April 2006
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