SZBSO v Minister for Immigration - [2004] FMCA 931

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSO v MINISTER FOR IMMIGRATION

[2004] FMCA 931

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa to the applicant – applicant a citizen of India – applicant claims persecution as a Christian married to a Hindu – Tribunal finds applicant to be a credible witness.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.91R

Chan v minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
R v The Homes Secretary; Ex parte Siva Kumaran (1988) AC 958
Immigration and Naturalisation Service v Cardoza Fonseca (1987) 94 L ed 2^nd 434
Bowie v The Queen (1986) 161 CLR 10
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997]
Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] CAFC 168
Prahastono v Minister for Immigration and Multicultural and Indigenous Affairs (1977) 77 FCR 260
Arumugam v Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 251

Applicant:

SZBSO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2250 of 2003

Delivered on:

23 November 2004

Delivered at:

Sydney

Hearing date:

22 November 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Nair

Solicitors for the Applicant:

Ward Maxwell & Co

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application is remitted to the Refugee Review Tribunal.
That a writ of certiorari is to issue quashing the decision of the Refugee Review Tribunal of 29 August 2003 handed down on
25 September 2003.
That a writ of mandamus is to issue requiring the Refugee Review Tribunal to hear and determine the applicant's application for a protection visa.
The respondent is to pay the applicant's costs in the sum of $3,000.00.
I remove this application from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2250 of 2003

SZBSO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

I have before me the matter of SZBSO and the Minister. It is an application for review of a decision by the Refugee Review Tribunal affirming a decision of the delegate of the Minister to refuse a protection visa to the applicant.
It is an unusual case, for a couple of reasons. For a start, it is unusual in that the Refugee Review Tribunal accepted the applicant as a witness of truth. It is unusual because unlike so many applications of this nature that have come before the Court, the applicant does not seek to challenge the factual findings. Whilst of course in a judicial review the Court is well aware that it is the decision maker and the Refugee Review Tribunal that makes the decisions on the merits, so many applicants, regrettably, attempt to run an application as if were a hearing de novo when of course it is not.
As will be seen, Mr Nair of counsel not only does not seek to challenge the factual findings by the Refugee Review Tribunal, he asks the Court to accept them. What the applicant says is not that the Tribunal made an error of fact at all. The applicant says that the Tribunal made an error in applying the facts to the law and thus it is not a factual error that the Tribunal has made, but a legal error. That then is the basis of the applicant's case.
The applicant is a citizen of India. He was born on 21 November 1964. He speaks English, he speaks Hindi, he can read and write those languages and he also speaks a local language called Telagoo. He is a Christian by religion, that is not particularly unusual in India as Christians constitute the second largest religious minority in India after Muslims.
The applicant is a business man who is in fact chief executive of the company, he is married, he has two children. In his case his grandparents were Muslims, they converted to Christianity a long while ago but they retained their Muslim surname. His family are Christians. His wife is not a Christian, his wife is in fact a Hindu and an upper class Hindu at that. This marriage was entered into without the knowledge of the older people of both families and as a result the applicant says that he has suffered a great deal of difficulty. His wife's family formed a dislike to him because of his religion and he said that they approached a supporter of the BJP Hindu Party in India to, he says, get rid of him. He says that they made threatening phonecalls to him, sent letters to him telling him to divorce his wife, they spoke to him personally. They moved to another party of the city. His landlord on finding out that he had contracted an inter-caste marriage, not only abused him but cut off his electricity and his water. He suffered discrimination in his employment, he was the only Christian worker and he was asked to resign. He says that his parents were threatened and he said that he knew he was being watched and followed and had to make arrangements to leave India. He said he was constantly harassed by the BJP and its supporters.
He said that he has been beaten up by his brothers-in-law, although it was a number of years ago. He said he has been threatened, his family has been threatened. He said that he has been accosted by thugs, he said he has been evicted at short notice, he has been charged extra for goods and services. He said his wife has been made to work twice as hard for the same income because of her inter-caste marriage.
The Tribunal considered the applicant's claims that if he returned to India he would be persecuted because he was married to a Hindu, in effect because he is a Christian married to a Hindu. The Tribunal member approached his claims to come under the Refugees Convention on the basis of whether she was re quired to determined whether he had a well founded fear and if so, what he feared amounts to persecution for a Convention reason. The Tribunal member said at page 95 of the Court Book:
When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims the applicant has made. This may involve an assessment of the applicant's credibility.
The Tribunal member went on to say:
When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
At page 96 the Tribunal member came out with a strong affirmation of the applicant's credibility. At about point 1 on the page she said:
I accept that the applicant is an Indian national. In my view the applicant gave evidence is a frank and straightforward manner. He did not demonstrate any propensity to exaggerate or embellish his claims. I accept that the applicant's evidence was credible and reliable.
The Tribunal however went on to say:
That said, while I accept that the applicant has had a number of problems because of his marriage to a Hindu woman, I am not satisfied that the applicant's mixed religious marriage gives rise to a well founded fear of persecution for a Convention reason. Nor am I satisfied that the applicant has a well founded fear of persecution for reasons of his religion.
I would comment that it is difficult to see the difference between those matters except that persecution for reasons of one's religion is a Convention reason.
The Tribunal went on to make a number of findings:
I accept that the applicant's brothers-in-law caused him to be beaten up on one occasion. I accept that the applicant's brothers-in-law have threatened his family. I further accept that since the applicant has been in Australia his brothers-in-law have sent Hindu religious leaders aligned to the BJP to encourage his wife to separate from him. The applicant claimed that he has received various threats over the years of his marriage. He indicated that in the last two years prior to leaving India he received threats on six or seven occasions. He also indicated that he had received harassing phonecalls where the caller hung up or did not identify himself. I accept that these things have occurred.
The applicant's evidence did not suggest that his brothers-in-law had personally made these threats against him but rather that he believed that they were behind the threats. I accept that given the history of opposition of his brothers-in-law to his and his wife's marriage, it is reasonable that the applicant would have this belief.
Notwithstanding these findings, the Tribunal member said at page 97 of the Court Book:
I am of the view that the chance that the applicant's brothers-in-law would harm him seriously enough to amount to persecution in the reasonably foreseeable future is remote.
The Tribunal did make a number of findings at page 97 from about point 4 onwards:
I accept that the applicant has had other problems because of his marriage. In particular he has referred to problems with accommodation. I accept that the applicant has been charged more for rent and facilities after landlords have found that he is a Christian or [says here] married to a Muslim [but that is obviously a typing error, Christian married to a Hindu]. I accept that the applicant has at times been evicted at short notice.

I accept that the applicant has also suffered ostracism from neighbours when they have found out about his marital status.
Further down the page:
Overall although I accept that the applicant has undergone some distressing experiences in the course of his married life, I am not satisfied that he has suffered such serious harm and systematic and discriminatory conduct because of his marriage that it could be characterised as persecution within the meaning of the Convention.
Final paragraph on the page:
I accept that the applicant had problems with a customer who would not pay him and that these problems contributed to the failure of the applicant's business. I accept that this customer was a Hindu who was well connected politically. I accept that the applicant was assaulted by his customer's workers when he tried to recover some of the money owing to him.
Further, the Tribunal member surmises:
It is possible that his customer decided not to pay the applicant all that he was owed because of the applicant's religion. However, I am not satisfied that the applicant's customer's failure to pay a debt is treatment serious enough to amount to persecution of the applicant for a Convention reason.
Further, the Tribunal found at page 98 of the Court Book:
I note also that the applicant did complain to the police about his customer's workers physically assaulting him. His evidence indicated that the police started investigating the matter but dropped the investigation when the applicant's customer paid the police a bribe.
The Tribunal member finally at page 99 reaffirmed her views as to the applicant's credibility:
As noted above, the applicant was a very credible witness.

I accept that he has undergone a range of difficult experiences in the past because he is a Christian married to a Hindu.

I empathise with the applicant's situation. It may well be that he will have similar experiences in the future. However, I am unable to be satisfied that the applicant's past experiences, his religion or his marriage to a Hindu give rise to a well founded fear of persecution for a Convention reason.
In a written submission from Mr Nair of counsel which was backed up by a succinct and focussed oral submission, the applicant's case was put on the basis that he has a fear of persecution, that it is well founded, that it arises from his marriage to a Hindu. The case was put on the basis that the Tribunal accepted the factual matters put forward but the grounds for relief are that the Tribunal was not satisfied that those factual matters were in accordance with the prescribed criteria - in other words, an error in applying the facts to the law. And that, it is submitted, is a jurisdictional error.
I was referred to the test for well founded fear which is referred to particularly in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) HCA 62; it is also found in (1989) 169 CLR 379. Chan's case is an important case as subsequent authorities recognises.

I have been referred to the judgment of a number of the Judges of the High Court in respect of the meaning of well founded fear of persecution. Mason CJ said that he agreed with the conclusion reached by McHugh J that a fear of persecution is "well founded" if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. His Honour went on to refer to the decision of the House of Lords in The Queen v The Home Secretary ex parte Siva Kumaran (1988) AC 958 where their Lordships spoke of a real and substantial risk of persecution. And there was a reference to an important decision of the Supreme Court of the United States in Immigration and Naturalisation Service v Cardoza Fonseca (1987) 94 L ed 2nd 434. In the decision of Stevens J saying that the interpretation favoured by the majority of the Supreme Court would indicate that:
It is enough that persecution is a reasonable possibility.
Mason CJ indicated that he preferred the expression "a real chance" because it clearly conveys the notation of a substantial as distinct from a remote chance of persecution occurring and because it is an expression which has been explained and applied in Australia. In Bowie v The Queen (1986) 161 CLR 10, Mason CJ and Wilson and Deane JJ said:
If an applicant establishes that there is a real chance of persecution then his fear, assuming that he has such a fear, is well founded notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they return to their country of origin.
Dawson J referred to a well founded fear of persecution. His Honour said:
The phrase "well founded fear of being persecuted" has occasioned some difference of opinion in the interpretation of the relevant article of the Convention. Upon any view, the phrase contains both a subjective and an 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 differences which have arisen have largely stemmed from a desire to place a greater emphasis upon either the subjective or the objective element of the phrase.
His Honour went on to refer to the decision of the United States Supreme Court in Cardoza Fonseca where his Honour said:
On the other hand, it is also clear enough that a fear can be well founded without any certain or even probability that it will be realised. So much was recognised by the United States Supreme Court in Immigration and Naturalisation Service v Cardosa Fonseca where it was held that a statutory provision reflecting the relevant phrase in the Convention did not require the probability of persecution.
His Honour went on to say:
I should express my preference for a test which requires there to be a real chance of persecution before fear of persecution can be well founded.
His Honour also referred with approval to the decision in Bowie v The Queen.
Toohey J looked at the phrase, well founded fear of persecution, and referred to a consideration that:
A fear is well founded if it is based "on reasonable grounds" and that such grounds are established if the applicant can "give a plausible account of why he fears persecution" and the account is "supported to the extent reasonably possible".
Gaudron J in her decision refers to the Convention in speaking of "well founded fear of persecution" posits that there should be a factual basis for that fear:
The words well founded fear of persecution do not as a matter of ordinary language convey any precise relationship between fear and its factual basis.
McHugh J in his judgment referred again to the question of a well founded fear. He too referred to the Supreme Court of the United States decision in Cardoza Fonseca where an applicant for refugee status may have a well founded fear of persecution even though there is only a

10 per cent chance that he would be shot, tortured or otherwise persecuted. Obviously, a far fetched possibility of persecution must be excluded. His Honour went on to say, interestingly enough:
Nor is it a necessary element of persecution that the individual should be the victim of a series of acts. A single act of oppression may suffice as long as the person is threatened with harm and that harm can be seen as a part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class she is being persecuted for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough depending on the circumstances that the government has failed or is unable to protect the person in question from persecution.
The matter was again considered by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wy Rong and Anor (1997) HCA 22; (1997) 191 CLR 559. Their Honours there, as Mr Nair pointed out in his submission, said at page 572 in the CLR report:
To use the real chance test as a substitute for the Convention term well founded fear is to invite error.
I note that there is a reference in the decision also to the judgment of McHugh J in Chan's case that persecution was selective harassment and that in appropriate cases it could include single acts of oppression and measures in disregard of human dignity. In his submission

Mr Nair refers the Court to the provisions of s.91R of the Migration Act.
Subsection 1 refers to persecution in these terms:
For the purposes of the application of this Act and the regulations to a particular person, article 1A(2) of the Refugee's Convention as amended by the refugee's protocol does not apply in relation to persecution for one or more of the reasons mentioned in that article unless: a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons for the persecution; and b) the persecution involves serious harm to the person; and c) the persecution involves systematic and discriminatory conduct
Subsection 2 goes on to say:
Without limiting what is serious harm for the purposes of paragraph 1B, the following are instances of serious harm for the purposes of that paragraph: a) a threat to the person's life or liberty; b) significant physical harassment of the person; c) significant physical ill treatment of the person; d) significant economic hardship that threatens the person's capacity to subsist; e) denial of access to basic services where the denial threatens the person's capacity to subsist; f) denial of capacity to earn a livelihood of any kind where the denial threatens the person's capacity to subsist.
In the written submission I am also referred to the decision in

Scargill v The Minister for Immigration and Multicultural and Indigenous Affairs
(2003) FCAFC 116 and also the decision of

Lobo v
The Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 168. In Scargill their Honours concluded their reasoning as is quoted by Mr Nair in his submission in this way:
In the present case the appellant's application clearly identified the basis upon which he sought a visa as a remaining relative. The Ministers and the Tribunal's satisfaction or lack of satisfaction on that matter was a condition precedent to a valid decision to grant or refuse a visa under s 65(1) of the Act. It was not merely a procedural requirement. For the reasons given the Tribunal fell into error in the consideration of that question and in the result there was a constructive failure to exercise the jurisdiction vested in it. In our opinion that error makes this case a plain one where the decision was not made 'under this Act' thus it is not a decision protected by s 474(1).

That decision of course in Scargill applies in judicial review of matters under the Migration Act arising from the decision of the Refugee Review Tribunal, as it does in other matters.
I have had the opportunity of reading the respondent's outline of submissions prepared by Mr Smith of counsel. Mr Smith takes on the applicant's claim that the Tribunal misunderstood the test for a refugee by misunderstanding what was meant by persecution and by misunderstanding was meant by the term well founded.
Counsel for the respondent submits that the Tribunal did not fall into error in either way. He goes on to say that the applicant's submissions amount to no more than attack on the merits of the Tribunal's findings. I am referred to the decisions of Prahastono v The Minister for Immigration and Multicultural and Indigenous Affairs (1997) 77 FCR 260 at 268 and Arumugam v The Minister for Immigration and Multicultural and Indigenous Affairs (1999) FCA 251 at 37.
The thrust of these decisions is that whether the conduct amounts to persecution is a question of fact and degree for the Tribunal. Mr Smith submitted that the Tribunal accepted the applicant's claims relating to the harm that he had suffered in the past and the reasons for that harm but rejected his claim to be a refugee on the basis that the harm that the Tribunal found to have occurred was not serious enough to amount to persecution.
On looking at what might happen in the future Mr Smith submitted the Tribunal found on the basis of the most serious incident of harm suffered by the applicant was many years ago, that the chance of being harmed seriously enough to amount to persecution was remote. He also noted that the Tribunal found that the applicant would not be refused protection by the authorities for any convention reasons including his religion.
Mr Smith went on to submit that the manner in which the Tribunal dealt with claims to harm to the applicant's business, the behaviour of his landlords, his difficulty in finding employment and whether or not he was prevented from practising his religion and said that the manner in which the Tribunal dealt with those claims revealed that it was well aware of the question posed by the Convention as by s.36(2) of the Act.
In conclusion Mr Smith submitted that reference to the level of harm cannot support the claim that there is jurisdictional error in the Tribunal's decision. He says that it cannot be said that the only conclusion available to the Tribunal is that there was a well founded fear of persecution because amongst other things the level of harm he has suffered in the past was so serious that it could only be persecution.
He finished by saying that in other words the Tribunal's conclusion of the harm suffered by the applicant in the past at the hands of his brothers in law was not persecution, that was open to it on the material available to it and that the application should fail.
Mr Nair in his oral submission in reply referred me briefly to the decision again of McHugh J in Chan that a 10 per cent chance of persecution could well be sufficient. Mr Nair referred the Court in his oral submission to the decisions in Prahastono and Arumugam but was of the view that the Tribunal had applied the wrong test.
It is quite clear that Chan is an important decision and the decision in Guo follows on from it. This is an interesting case because as I said there is no challenge to the Tribunal's finding on the facts and the Tribunal found that the applicant was a credible witness who gave plausible and believable evidence.
The evidence given by the applicant relates to matters arising from his religion. He is a Christian married to a Hindu. Religion is of course a Convention reason if it applies to persecution. The Tribunal accepted that the applicant had been beaten up on one occasion, albeit it a number of years ago. The Tribunal accepted threats to the applicant's family, the Tribunal accepted that Hindu religious leaders have visited the applicant's wife to try and encourage her to separate from him. The Tribunal accepted harassing phone calls. The Tribunal accepted that given the history of opposition from the brothers in law it was reasonable for the applicant to hold the belief that the brothers in law were behind the harassment even though he was not of the view that or that he could not prove that the brothers in law had done it personally.
The applicant's evidence as to being charged more for rent and facilities by a landlord on the basis of his religion and his marriage to a Hindu was an acceptable claim. That he has been evicted at short notice, has been ostracised by neighbours, had difficulties with a well connected Hindu customer who did not pay, pay a debt, which led to the applicant being beaten up by the customer's workers and led to financial difficulties for the applicant's business.
The applicant sought assistance from the police, that the police on the evidence accepted by the Tribunal dropped the case after a bribe was paid by the applicant's customer, a well connected Hindu. The Tribunal said:
The applicant's evidence did not suggest that the failure of the police to continue to investigate his complaint was motivated by the applicant's religion.
If the applicant's customer was a Hindu, and the Tribunal accepted that may well have been a reason for the applicant's customer not paying an account, and that the applicant's customer not paying the account led to the applicant being beaten up by the customer's workers, and if the failure by the police to continue an investigation into that assault arose from a bribe being paid by the applicant's customer, it is to my mind unrealistically splitting hairs to say that that failure by the police to give the applicant the protection that a citizen would be entitled to receive does not arise from the difficulties with his religion.
It does not necessarily follow that the police officers themselves who failed in their duty by accepting a bribe themselves did so on the basis of their religion and the applicant's religion, but it is to my mind an unrealistic application of the test to require that situation to occur.
In the paragraph that I read earlier on page 98 of the court book where the Tribunal said:
I accept that the applicant's business was ultimately unsuccessful, however the applicant's evidence did not suggest that either his religion or his marriage to a Hindu was the essential and significant reason for his business failure.
That to my mind is not a summary of the evidence that the Tribunal found, there was a connection. It does not have to be the sole reason. Similarly I do not believe that it is a correct assessment of the evidence which the Tribunal found to say that the applicant could have difficulty obtaining employment in the future in spite of his qualifications and experience but the evidence did not suggest that the essential and significant reason for any difficulty would be his marriage or his religion. That was precisely the evidence which led to the conclusion that the Tribunal made.
In my view the Tribunal accepted the evidence that the applicant led in all significant aspects. The Tribunal accepted that the applicant himself was "a very credible witness". The Tribunal accepted that the applicant had suffered significant acts of persecution in the past including being beaten up on two occasions, one at the instigation of his brothers in law, one by the workers of the wealthy Hindu. The Tribunal accepted that there were grounds for the applicant to have similar difficult experiences in the future, not necessarily being beaten up but difficulties with employment, difficulties with accommodation, difficulties with threats and harassment.
It is quite clear in my view that the Tribunal's findings of what the applicant could expect in the future, or will expect in the future, does amount to a systematic course of discriminatory behaviour, selective harassment. There does not have to be a 100 per cent or even a 50 per cent certainty that those things will happen. I am of a view however that the findings made by the Tribunal do show that the applicant has a well founded fear of persecution, that well founded fear of persecution is on the basis of his religion because he is a Christian married to a Hindu.
I am satisfied that this well founded fear of persecution is for a Convention reason and that the findings made by the Tribunal lead to that conclusion. For the Tribunal to make those factual findings which she did and accept the evidence of the applicant which she did, on all of those relevant points, but then not be satisfied that they amounted to a well founded fear of persecution for a Convention reason, is a jurisdictional error, it is a misunderstanding of the requirements and as was set out by the Full Court of the Federal Court in Scargill, was a constructive failure by the Refugee Review Tribunal to exercise the jurisdiction invested in it.
This application must therefore be granted.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 2 December 2004