SZAKV v Minister for Immigration

[2004] FMCA 222

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAKV & ANOR v MINISTER FOR IMMIGRATION [2004] FMCA 222

MIGRATION – Review of RRT decision – where applicants did not attend Tribunal hearing – where Tribunal found that violence encountered was random criminal activity – whether the Tribunal’s finding that state protection was available to the Plaintiff constituted Wednesbury unreasonableness – whether the causal nexus between the persecutory events and convention ground of race was made out – whether the Tribunal failed to take into account a relevant consideration critical to the decision.

Federal Magistrates Court Rules 2001, Pt 21 r 21.02(2)(a)

Abebe v The Commonwealth [1999] HCA 14
NAVX v Minister for Immigration [2004] FCA 346

First Applicant: SZAKV

Second Applicant: SZAKW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 645 of 2003

Delivered on: 31 March 2004

Delivered at: Sydney

Hearing date: 31 March 2004

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Tony Silva of Silva Solicitors

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicants to pay the respondent’s costs assessed in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 645 of 2003

SZAKV

First Applicant

And

SZAKW

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicants in these proceedings are husband and wife, they are citizens of India and they arrived in Australia on 21 March 2002.  On

   
   

   5 April 2002 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs.  On 4 June 2002 a delegate of the Minister refused to grant protection visas and on 25 June 2002 the applicants applied for a review of that decision.

2. The applicants were represented by a migration agent.  They received the standard letter from the Tribunal advising them that the Tribunal had considered the papers and was unable to come to a favourable decision on that information alone.  The Tribunal, which sent this letter out on 8 January 2003, proposed a hearing on 17 February 2003.  The applicants initially requested an interview in a document to be found at [CB 110] but in another document dated 13 February 2003, found at [CB 114] they advised the Tribunal that they did not wish to come to the hearing.  There was filed before me today an affidavit in which some explanation was put forward for that decision but the fact is that the decision was made and the parties did not attend.

3. The evidence before the Tribunal consisted of the applicants' original completed forms, and in particular, the response to questions 40 and 41 found at [CB 17] and [CB18].  At [CB 17] the applicants stated :

   “But now after the 1992 Hindu - Muslim riots, the situation has become very bad.  After these riots, in which many Muslims were killed, living in India for a Muslim is going from bad to worse.  During these riots, a Hindu mob came to my house and looted the house in my absence, which fortunately was the reason I escaped with my life.  I went and complained at the local police station but it was of no help at all.  In fact these people came to know about it and made life more difficult for me, they even beat me up once very badly.  It was not possible for me to live there in peace. That is why I left India and came here.

   If I go back to India, I fear for the safety of me and my wife.  After I got married in 1998, they even came to my house regularly and threatened my wife and asked for money if we wanted to live in peace and I had to give them money for the safety of our lives and financially my position became very bad so as soon as I got a chance, I left India.  If I go back these people will not spare me as I have hurt their pride and ego.”

   There are some further references which I believe are important.  At [CB 19] the applicants says:

   “These Hindu activists will surely harm me and my wife if I go back .....  They will surely harm us because we escaped from them and came to Australia and so they will take revenge and keep the fear in the eyes of other Muslims also who are being victimised by them .....

   The police will not protect us because they are also on the side of these Hindus and as I have mentioned earlier, I have had personal experience about it when I went to complain to them.”

4. The above was the evidence before the Tribunal, upon which the Tribunal had to make a determination.  In its decision the Tribunal set out in short form those matters at [CB 123].  It then proceeded to make its decision commencing on the same page.  The Tribunal accepted that there were serious inter communal riots in parts of India in 1992/1993 and that at that time the applicant's home was looted and that his attempts to obtain police assistance after the event were unsuccessful.  The Tribunal noted that owing to the scale of violence in various cities around India, the police were often reported to have been unable to maintain control.  The Tribunal then said:

   “The Convention is not directed against the failure of a country to protect its citizens against random criminal behaviour, or failure to act on insufficient evidence.  Consequently, the Tribunal is not satisfied that the applicant lacked state protection, in the relevant sense, in relation to that incident.”

   The Tribunal then referred to the other incidents in the following manner:

   “The applicant claimed that on a second occasion following his marriage, unidentified Hindus demanded money.  He provided no evidence that following the earlier alleged attack, or the alleged extortion, he either sought or was denied assistance from the authorities, or that he was able to do was identify his attackers to the police although he suggests that they may have been the same people.

   The Tribunal is not satisfied on the material before it that there is a causal connection between any of these events, or that they occurred for any of the Convention reasons, or that he lacked state protection in relation to those incidents.”

5. The Tribunal then cited certain country information relating to communal violence and the ability of the Indian authorities to provide state protection and concluded with the following:

   “The applicant has only recounted two incidents of violence over a period of eleven years.  In view of this, the Tribunal is not convinced that there was a systematic or targeted attack upon him and his wife, nor compelling evidence that the authorities were unable or unwilling to give him adequate protection at the time.  Rather it would appear that the first instance occurred in the context of a major riot, and the second instance could best be described as an isolated case of criminal extortion.  The Tribunal noted that the State Department's Report concluded that:

   Despite some incidents of violence during the period covered by this report, relations between the various religious groups generally are amicable among a substantial majority of citizens.

   Having carefully examined all the available evidence, the Tribunal is not satisfied that the applicants face a real chance of persecution, nor it is satisfied that the applicants have a well founded fear should they return to India.”

6. Mr Silva who appears for the applicants before me, has filed an amended application and some helpful written submissions to which he spoke.  He has four grounds upon which he seeks to impugn the decision of the Tribunal.

7. The first ground is that there is no evidence that the looting of the applicants’ property involved random criminal behaviour as opposed to Hindus looting the property of a Muslim person due to racial hatred.  Mr Silva argues that the acceptance by the Tribunal of the existence of racial violence during the period in which the applicant makes his complaint about the looting, is a de facto acceptance that the looting must have been as a result of the racial hatred directed at the applicants and that it was part of the riots which were documented.  The difficulty with this assertion is that in the absence of any more than the statement by the applicant that a Hindu mob came to his house and looted it, there is no firm proof of a causal connection with the Convention.  Firstly, the applicant was not at the house so we do not know how he knew it was a Hindu mob.  Secondly, he does not actually state that this all occurred during the course of the riots although he states that it took place at the time of the riots.  When these doubts are expressed, one can see that it was open to the Tribunal not to draw the inference which Mr Silva seeks me to say is an unavoidable one from the statement of the applicant.

8. The second ground put by Mr Silva is that the Tribunal was unreasonable to a degree of Wednesbury unreasonableness when it held that state protection was available to the applicant.  He says there is absolutely no evidence of this and that all the evidence points against it.  That evidence being that the applicant attended the police after the looting incident and did not receive the satisfaction.  I think Mr Silva would also seek to pray in aide the finding by the Tribunal that the police had often been reported to have been unable to maintain control after the inter communal riots. 

9. Mr Silva goes further.  He refers to the fact that the applicant has stated that he did not believe the police were able to protect him.  Mr Silva argues that if there is no evidence upon which a Tribunal could come to the conclusion which it did, then the Tribunal has failed to undertake the task put before it, whether that failure is described as Wednesbury unreasonableness or otherwise.  The wording of the Tribunal's conclusion to [CB 123] are not particularly happy in relation to this incident.  The Tribunal says:

   “The Convention is not directed against the failure of a country to protect its citizens against random criminal behaviour, or a failure to act on insufficient evidence. Consequently, the Tribunal is not satisfied that the applicant lacked state protection, in the relevant sense, in relation to that incident.”

10. I think there are some important things to be said about this aspect of the matter.  Firstly, it has to be remembered that this incident took place in 1992/1993, ten years before the applicant left the country and that was a matter known and considered by the Tribunal.  Secondly, it could be said that what the Tribunal was putting was that it could not be satisfied that the looting of this applicant's home was not a piece of random criminal behaviour nor could it be satisfied that the applicant, who admitted that he was not present at the time, was able to give the police sufficient evidence to warrant their taking further steps.  If that interpretation is put upon the decision the Tribunal, then it can seen that such a view was open to it and in those circumstances the praying of Wednesbury unreasonableness, lack of evidence or otherwise, really does not stand up. 

11. The third matter raised by Mr Silva was that there was no evidence that there is no causal connection between events and the race of the applicant.  I think Mr Silva, in making this point, has neatly highlighted the Tribunal's real reason for decision.  It was not that it said there was no causal connection between the events and the race of the applicants, it said there was no causal connection between  each of the events or that they each occurred for any of the Convention reasons.  Race is a Convention reason, but the event has to occur because of race.  In other words, there has to be a causal connection between the events complained of and the race of the applicant.  It is true that the Tribunal accepted that the applicant was a Muslim and that certain, possibly persecutory, activities may have been directed against him by non Muslims.  That does not mean that the alleged persecutory events were directed at him because he was a Muslim.  It would be open to the Tribunal to draw an inference from its undoubted knowledge of events in India, at least in 1992, that they were, but it was equally open to it to decide that in this particular case he was not satisfied of that where he had been unable to obtain any further evidence from the applicant. It is after all for the applicant to make his case. The Tribunal is not the contradictor: see Abebe v The Commonwelath [1999] HCA 14 at [187].

12. The fourth matter raised by Mr Silva is expressed in the following form:

    “The Tribunal failed to take into account a relevant consideration, and which is critical to making the decision:  Yusuf.”

13. I take this to mean that the Tribunal failed to take into account a relevant consideration which was critical to the making of the decision.  The point made here is that the Tribunal seems to have narrowed down the number of incidents to two when a generous reading of the applicant's statement could lead to the inference that there were more than one incident. In fact Mr Silva says that there were four, these being looting, being bashed by looters, being extorted at the time of his marriage and having regular threats made after his marriage.  To this I would add the possibility that the extortion continued after his marriage.  That is a reading which can be made from the statements of the applicant but it is for the Tribunal to decided whether or not it accepts that reading and draws the inferences which Mr Silva says it must draw.  I do not believe that these inferences are necessarily drawn from the statements, they being only statements not made under oath and not supported by any other evidence.

14. In NAVX v Minister for Immigration [2004] FCA 346, Allsop J dealt with a case where an applicant had not attended the interview with the Tribunal. He said:

    [10]  “Section 65 of the Act statutorily demands that the Minister (and relevantly by reason of section 349 of the Act, the Tribunal) grant a protection visa if satisfied of all relevant criteria.  Those criteria in relation to a protection vis include the matters contained in section 36 of the Act, which includes the question as to whether Australia has protection obligations under the Convention to the claimant.  If there is satisfaction of all relevant criteria, a visa must be granted.  However, if the Minister (here the Tribunal) is not satisfied, the statute demands a refusal of the visa.

    [11] Here, on the material before the Tribunal, the Tribunal did not reach its state of satisfaction as to the existence of the protection obligations.  From reading the reasons of the Tribunal, that was not a conclusion was which in any way irrational, capricious or which could otherwise be criticised as somehow unlawful.  The fact is that the Tribunal did not have the relevant state of satisfaction.  In those circumstances, the statute demanded that the visa be refused and that the decision of the delegate be affirmed.

    [12] The Tribunal made it perfectly plain to the applicant in its letter that it was unable to make a favourable decision in support of his claims without hearing from him.  He did not attend.  That was his choice.”

15. I think it is wrong to criticise a tribunal which provides an applicant with an opportunity to appear before it and respond to the type of questions which, by inference, counsel is now suggesting should have been asked, when the Tribunal was not given that opportunity because the applicant, for whatever reason, of his own volition decided not to make an appearance. I cannot see how a party can argue in the absence of his attendance at a hearing that the Tribunal made a jurisdictional error in coming to conclusions which another reading or another inference from the same set of facts could have produced. 

16. There always will be cases where a Tribunal's decision made in the absence of an applicant can be said to have been made in error, and in jurisdictional error.  A clear example is where the Tribunal has made a decision based upon facts which it is absolutely clear from all the papers, simply do not exist.  But that is not the case here.  The applicant made certain submissions.  Those submissions could have been read one way, they were read another.  The applicant did not attend the hearing at which he could have explained his position and it seems to me that the Tribunal did not fall into any error by making its own inferences from those facts.

17. I must therefore dismiss the application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  13.04.04