SZBGN v Minister for Immigration - [2005] FMCA 86

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGN v MINISTER FOR IMMIGRATION

[2005] FMCA 86

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal misapplied test of well-founded fear of persecution.

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Applicant:

SZBGN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1663 of 2003

Delivered on:

19 January 2005

Delivered at:

Sydney

Hearing date:

19 January 2005

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr D. Burwood

Solicitors for the Applicant:

Ward Maxwell & Co

Counsel for the Respondent:

Mr C. Mantziaris

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent's costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1663 of 2003

SZBGN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 11 July 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant is a citizen of India, who arrived in Australia on 25 November 2001. He applied for a protection visa on
7 January 2002. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing.
The applicant, who is a Hindu from the Punjab in India, claimed to fear persecution from a Hindu militant organisation known as Rashtriya Swayamsevak Sangh (RSS). His father was a member of this organisation. He was a member of the youth wing and took part in meetings and activities. However in August 2000 the RSS conspired to send a person in Sikh dress to throw pig meat at the local Mosque with the aim of sparking animosity between the Sikhs and the Muslims. The applicant claimed that he and his friends decided to warn the Muslims and, as a result, the RSS person who had gone to the Mosque was caught. Subsequently there was fighting between the Muslims and RSS members in which RSS members were beaten. The applicant claimed that the President of the RSS had stated that he and his friends were traitors and should be punished severely. His father had asked him to flee to Delhi. Some months later (in February 2001) he did so. He came to Australia in November 2001.
The applicant had claimed initially, in connection with his protection visa application, to fear that he would be tortured or killed if he returned to India due to his involvement in the incident and his ‘opinion’. At the Tribunal hearing he claimed to fear that he would be killed by the RSS and said that that was the reason he had had to go to Delhi. He told the Tribunal that after the events of August 2000 he had initially remained in the Punjab, he had continued to work and to travel to home from work on weekends. He had been threatened by RSS people on the bus and there had been one incident in a crowded market place where he had been slapped by lower caste people who belonged to the RSS.
According to the Tribunal reasons for decision, which are the only record of what occurred in the Tribunal hearing, the Tribunal indicated to the applicant that it found his evidence in this respect unconvincing. It was put to him that the Tribunal member would have thought that a crowded market was, in fact, the ideal place to kill him. The reasons for decision record that the applicant then indicated that he had gone to Delhi and remained there until November 2001 and that he accepted that he could live and do some work there. However he claimed that if someone were to kill him there, no one would know who had killed him. The Tribunal recorded that it put to the applicant that in the light of his evidence the member found it difficult to accept that the RSS had wanted to kill him at all.
In its reasons for decision the Tribunal preferred the applicant’s evidence at the hearing to the account given in the statement accompanying the original application to the extent of any inconsistency. However it found that, as it had put to the applicant in the course of the hearing, his evidence was very unconvincing. Specifically the Tribunal did not accept that the RSS wanted to kill the applicant. Nor did it accept that the applicant's friend, who was also said to be involved had disappeared and that the applicant believed the RSS was responsible.
The Tribunal expressed particular concerns about the applicant’s evidence. It took into account the fact that despite the fact that the events had occurred in August 2000, the applicant continued to work and to travel home at weekends until he went to Delhi in February 2001. It considered that, on the applicant’s evidence, the RSS had ample opportunity to kill him in the Punjab if it had so wished. The Tribunal went on to find that even if it were to accept that the applicant had been threatened by the RSS in his home village in the Punjab he would be able to escape the persecution that he feared by moving to some other part of India, for example, to Delhi. It noted the applicant’s concession that he could live and work in Delhi. The Tribunal addressed his claim that if he were killed in Delhi no-one would know who did it, but restated that it considered that the RSS had had ample opportunity to kill the applicant in the Punjab, if it had wanted to do so.
The Tribunal did not accept that there was a real chance that the applicant would be killed or otherwise persecuted by the RSS as a result of his involvement in the incident in August 2000 if he returned to India now or in the reasonably foreseeable future. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of being persecuted by reason of his real or imputed political opinion or for any other Convention reason if he returned to India.
The applicant relies on an amended application filed on 16 March 2004. At the commencement of oral submissions counsel for the applicant clarified that he did not seek to rely on the ground in paragraph 5.1 of the amended application (that a breach of the rules of natural justice occurred) and that the grounds relied on were that there had been an error of law, identification of the wrong issue or the application of the wrong test. The applicant's contention as it appears in the amended application and was developed in oral submissions, was that the Tribunal erred in law and failed to apply the law as it was required to do in its application of the test of well-founded fear of persecution.
Section 36(2) of the Migration Act 1958 directs the delegate’s (and then the Tribunal’s) attention to the criterion that it be satisfied that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended, by the Refugees Protocol. In essence the Tribunal needed to be satisfied that the applicant was a refugee as defined in Article 1A(2) of the Refugees Convention. This involved, among other elements, a consideration of whether the applicant had a well founded fear of persecution for a Convention reason. It is this element that is relevant in the circumstances of this case.
As the applicant conceded, the Tribunal properly set out the test for well-founded fear of persecution in the introductory part of the reasons for decision. In particular the Tribunal recognised that as Dawson J stated in Chan Yee Kin v MIEA (1989) 169 CLR 379 at 396, the element of well-founded fear contains both a subjective and objective requirement:
There must be a state of mind - fear of being persecuted and a basis-well-founded-for that fear. Whilst there must be fear of being persecuted it must not all be in the mind, there must be a sufficient foundation for that fear.
The Tribunal also recognised, and the applicant concedes it did so correctly, that a fear will be well-founded if there is a real chance, in the sense considered by the High Court, that a person will be persecuted for one of the Convention reasons, if he or she returns to his or her country of nationality. As Mason CJ at 389, Dawson J at 398, Toohey J at 407, and McHugh J at 429 in Chan recognised, a fear will be well founded in this sense even though the possibility of persecution occurring is well below 50 per cent. However as was stated in the subsequent explanation of the test by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572:
no fear can be well founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
It is relevant that in that case their Honours also pointed out that it is dangerous to treat a particular word or phrase as synonymous with a statutory term and when one is considering well foundedness, that is the test. A fear is well founded when there is a real substantial basis for it. While the Tribunal and the Federal Court, and indeed other courts have used the term, ‘real chance’ as a replacement or substitution for it, the language of the Convention refers to ‘well-founded’. As the High Court indicated that is the test. It is perhaps safer to use that expression, while bearing in mind that a fear of persecution may be well founded even though the evidence does not show that persecution is more likely than not to eventuate (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572 in Guo).
Against that background the applicant contended that the Tribunal misapplied the test of well-founded fear in two ways. It was suggested that the Tribunal imposed a more stringent evidentiary onus-of-proof test on the applicant and incorrectly interpreted the applicable law. The first aspect of this claim is a suggestion that appears to be made in the amended application, although it is not clearly pursued in the written submissions, that the Tribunal applied a balance of probabilities standard to the well-founded fear test. However, considering the Tribunal reasons for decision as a whole, not simply the introductory words, nor the concluding words or only the substantive discussion of the Tribunal, it is clear that the Tribunal did not, in fact, either use the language of probabilities nor reasoning based on the balance of probabilities. Specifically, as was stated by the High Court in Guo, it did not approach its task on the basis of considering whether the evidence showed that the persecution was more likely than not to eventuate.
The second aspect of the applicant's claim is a contention that in the findings and reasons part of the decision the Tribunal introduced what is described as a subjective ‘ideal opportunity to kill the applicant test’. It is submitted that the findings are capable of being construed as meaning that an applicant for a protection visa must go so far as to demonstrate that he or she has not been killed before the applicant will be able to demonstrate that he or she has a well-founded fear of persecution. Indeed, the amended application suggests that the Tribunal findings are capable of being construed as meaning that ‘the applicant had to provide proof that he had died in order to establish that he had a well-founded fear of persecution’. In this sense, it is said that a different test (an evidentiary onus of proof test) was substituted for the test of well-founded fear and that the application of the wrong test amounted to a jurisdictional error by the Tribunal.
I am not satisfied that the Tribunal erred in the manner contended. It did not require that the applicant prove that he had died in order to establish that he had a well-founded fear. Nor did it substitute some other test (be it expressed as an ‘ideal opportunity’ or on evidentiary onus of proof test) for the test of well-founded fear. It is relevant to have regard to the passages relied on by the applicant in the Tribunal reasons for decision. The first passage relied on appears in the findings and reasons part of the decision. Immediately after the Tribunal indicated its preference for the evidence given at the hearing (at which the applicant complained that his fear was a fear of being killed by the RSS) the Tribunal stated that it found his evidence unconvincing. In support of this finding it recounted various aspects of the applicant's evidence: the threat, the fact that he remained in the Punjab, his claim that he was threatened and slapped on one occasion. It stated:
‘He says that he was threatened by the RSS people when he was travelling home by bus and that on one occasion some lower caste RSS people met him in a crowded market and gave him two or three slaps. As I indicated to the Applicant I consider that a crowded market would be the ideal place to kill someone (because the killer could slip away through the crowd). I do not accept on the basis of the Applicant’s evidence that the RSS wanted to kill him. I consider that they had ample opportunity to do so if this was what they wanted to do...’
In that context the Tribunal reiterated that it had indicated in the hearing that it considered that a crowded market would be an ideal place to kill someone because the killer could slip away through the crowd. Having set out that evidence, it continued:
‘ I do not accept, on the basis of the applicant's evidence, that the RSS wanted to kill him. I consider that they had ample opportunity to do so if that was what they wanted to do’.
When the account by the Tribunal of what occurred in the Tribunal hearing is considered in conjunction with this part of its reasoning, it is apparent that the Tribunal was reiterating a question, albeit perhaps rhetorical, that it had put to the applicant in the context of addressing his claim that the RSS wanted to kill him. The reasons record that in the same exchange in the Tribunal hearing the applicant accepted that he could live and work in Delhi but suggested that if someone were to kill him in Delhi no-one would know who it was. That particular claim is repeated in the second part of the findings and reasons section of the decision relied upon in support of the applicant’s contention as follows:
‘The Applicant said that if someone were to kill him in Delhi no one would know who had killed him, not even his parents, but for reasons given above I consider that the RSS had ample opportunity to kill the Applicant in Punjab if this was what they had wanted to do.’
The Tribunal set out that claim but reiterated that the RSS had ample opportunity to kill the applicant ‘in Punjab’ had they wanted to. The Tribunal records that it indicated to the applicant that in light of his evidence it found it difficult to accept that the RSS had wanted to kill him at all. This is consistent with the finding that it ultimately made. It was open to the Tribunal to test the applicant's claims in this way as part of the process of ascertaining whether the objective element of the well-founded fear of persecution test could be satisfied. The crowded market comment and the reference to the opportunity the RSS had to kill the applicant in the Punjab are part of the process of the testing of the applicant’s evidence which the Tribunal undertook in addressing the objective element of the test in relation to the applicant’s claimed fear.
For reasons which the Tribunal gave and which were open to it on the material before it, it did not accept on the basis of the applicant's own evidence that the RSS wanted to kill him. It was in this context that the Tribunal referred, among other things, to the particular incident in the market place at which, despite the fact that the Tribunal took the view that RSS members would have an opportunity to kill him should they wish to do so, they merely gave him a few slaps. In other words, the evidence that the applicant had had contact with RSS members, had remained in his home area for a number of months, and had not experienced anything more serious than a brief verbal threat not to go against them and the slaps, was material that the Tribunal relied on in reaching the conclusions that it did, in particular, that it was not satisfied that there was an objective basis for the applicant's fear of assassination or persecution. That this is what the Tribunal did, rather than imposing a different subjective test or an onus of proof test, is apparent from reading the Tribunal reasons for decision as a whole. It is confirmed by the Tribunal findings in relation to the absence of a real chance that the applicant would be killed or otherwise persecuted by the RSS if he returned to India.
The oral submissions of the applicant also addressed the possibility that the applicant's fear extended beyond a fear of being killed. The Tribunal preferred his account at the Tribunal hearing, at which time he expressed his fears in terms of a fear of being killed. Its reasons addressed what occurred in the past, rejected the claim that the RSS wanted to kill him but also addressed wider fears in its consideration of RSS threats in the Punjab, the possibility of relocation and assessment of the future. It considered the possibility of relocation on the basis that the applicant could escape ‘the persecution he feared’ by moving to some other part of India. This finding addresses the full extent of the applicant's fears as expressed in the Tribunal hearing as do the findings that it did not accept that there was a real chance that the applicant ‘would be killed or otherwise persecuted by the RSS as a result of his involvement in the incident in August 2000’ if he returned to India.
In conclusion then, the Tribunal did not apply an onus-of-proof test. It properly considered whether it was satisfied that the applicant met the criterion incorporating the elements of Article 1A(2) of the Refugees Convention. It did not substitute a subjective ideal opportunity to kill the applicant test. Rather the fact that the RSS did not take advantage of the opportunity to kill the applicant when it could have done so was one of the factors which led the Tribunal to conclude that any fear which the applicant held as to the future was not well founded. In other words, there was not, in the words of Dawson J in Chan (at 396) a ‘sufficient foundation’ for any such fear.
This was the only ground relied on by the applicant. It has not been established. Accordingly the application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful, the respondent seeks that he meet costs in the sum of $4000. I consider that that is an appropriate amount bearing in mind the nature of this and other similar matters.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 4 February 2005