SZBVE v Minister for Immigration
[2005] FMCA 840
•17 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBVE v MINISTER FOR IMMIGRATION | [2005] FMCA 840 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in India – no reviewable error found – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.65 |
| Attorney-General (NSW) v Quin (1990) 170 CLR 1 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 NAHI v Minister for Immigration [2004] FCAFC 10 |
| Applicant: | SZBVE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2368 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 17 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2005 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2368 of 2003
| SZBVE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was completed on 12 September 2003 and was handed down on 8 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of mixed political and religious persecution. The relevant background information is set out in paragraphs 4-13 of written submissions prepared on behalf of the Minister. I adopt those paragraphs as background for the purposes of this judgment:
The applicant is a citizen of India of Tamil ethnicity and Muslim faith[1] who arrived in Australia on 10 November 2002 on a business (Class UC) visa[2]. He lodged an application for a protection visa on 10 December 2002[3]. Accompanying his application is a statutory declaration[4] which sets out his claims as follows:-
[1] Relevant Documents (“RD”) p.11
[2] RD, p.12
[3] RD, pp.1-35
[4] RD, pp. 25-28
a)The applicant earned a living from a small shop and 11 acres of farm land, on which he employed Dalits, the lowest caste in the Indian caste system[5]. He claims to have treated them better than they were treated by his non-Muslims neighbours[6]. The Dalit workers saw conversion to Islam as a means of escaping their caste situation[7].
[5] RD p. 25
[6] ibid. op. cit.
[7] RD, pp.25-26
b)Workers on adjoining property, owned by Brahmins, the highest caste, also converted to Islam. The applicant began actively assisting anyone who wished to convert to Islam, expressing his views openly[8].
[8] RD, p.26
c)The applicant and his family began receiving death threats from Hindu activists who also threatened his workers, despite which, four families converted to Islam in 2002[9]. In all, five workers and their families converted to Islam.
[9] ibid. op. cit
d)The local leader of the BJP and a member of Parliament visited the applicant when they heard of the conversions, both accusing him of forcibly converting the employees to Islam. The applicant states that he was assaulted by a mob which accompanied the member of Parliament[10].
[10] ibid. op. cit
e)The following day, the leader of the RSS, a radical Hindu movement, warned the applicant that if he persisted, he would kill the applicant and his family[11].
[11] ibid. op. cit
f)The applicant went to the police with these threats, but they accused him of illegal activities, including involvement with banned Islamic organisations and with bombing incidents[12].
[12] ibid. op. cit
g)The applicant was arrested during demonstrations in November 2002, protesting against laws against forcible conversions. During his detention, he was humiliated and brutally assaulted[13]. Thereafter, he continued to receive threats.
[13] RD, p.27
h)He fears that his personal safety would not be assured if he returned to India and claims that the government cannot protect him because he is Muslim[14].
[14] ibid. op. cit
A delegate of the Minister refused the application on 5 March 2003[15] and the applicant applied for review in the RRT on 3 April 2003[16]. Accompanying his review application was an undated statement taking issue with the delegate’s decision[17].
[15] RD, pp.40-48
[16] RD, p.49
[17] RD, pp.53-55
The applicant attended a hearing before the RRT on 4 September 2003, where he gave oral evidence.
Relevantly, the applicant’s evidence at the hearing was to the following effect:-
a)Immediately after he had acquired land in late 2000, five families converted to Islam. The RRT noted that this conflicted with the claim made in his statement that the conversions began in 2002[18].
[18] RD, p.108
b)Initially, the fact that these families had converted was not widely known, but it became known after the BJP came to power[19]. The RRT noted that the applicant had previously said that trouble started immediately after the conversions. When the RRT sought to clarify this point, it noted that the applicant reverted to the previous version[20].
[19] RD, pp.108-109
[20] RD, p.109
c)The person he feared the most was the local member of the State Legislative Assembly[21].
[21] ibid. op. cit
d)People were still looking for him, even though he indicated that he had had nothing to do with the conversions and the families said that they had decided to convert of their own accord[22].
[22] ibid. op. cit
e)When asked why anyone would be interested in five conversions that had taken place two-and-a-half years ago, the applicant responded that it was thought he would convert more people. The applicant stated that only a few other conversions had occurred in his district. When asked whether these people were suffering problems, the applicant responded that these other conversions were not known[23].
[23] ibid. op. cit
f)The applicant’s uncle was looking after his farm in his absence, but was not suffering the harm to which the applicant claimed to have been exposed, as the “people upset with him were only interested in him”[24].
[24] ibid. op. cit
g)In response to the RRT’s observation that by the time of the alleged attack in November 2002, the applicant had already had his Australian visa, the applicant eventually stated that at some unspecified time before he left for Australia, he had been involved in a meeting called to protest rising transport and rice prices[25]. The police detained him and a few others and it was at this time that the applicant was identified as the person responsible for the conversions. The applicant said he was released without charge[26]. He claimed that this happened several times during 2002, including November 2002.
h)He could not relocate to other parts of India because of language difficulties. When asked whether it was not more difficult to relocate to Australia for that reason, he did not reply[27].
The RRT’s decision
The RRT found that there was no real chance of serious harm being suffered by the applicant or his family in the event that he returns to India and that therefore, the applicant does not have a well-founded fear of persecution for reasons of his religion or any other reason[28].
In arriving at this finding, the RRT accepted that the applicant received complaints and threats after conversion of five of his workers to Islam in early 2000[29].
However, it also found that the applicant’s oral evidence at times conflicted with his written claims and that he was evasive and inconsistent in his oral evidence[30]. It noted that these inconsistencies were pointed out to him and that he was given several chances to clarify matters[31].
The RRT also expressed the view that the applicant’s knowledge of politics was not what it expected someone with the level of political activity claimed by the applicant. It accordingly did not accept that the applicant has a high political profile such as would make him the target of attention from opponents of the party he supports[32].
The RRT was not convinced that anyone would remain interested in five conversions nearly three years after they took place, in a country with a very large Muslim population where conversions are a frequent occurrence. Consequently, the RRT was unable to accept that the applicant was arrested by police for reasons associated with the five conversions[33]. The RRT noted that the applicant’s own evidence was that he was detained for reasons relating to the demonstration and for no other reason, and that on each occasion, he was released without charge.
The RRT also took the applicant’s evidence that his wife and three children live peacefully in a town 50 kilometres away from his own town and in an area of interest to the local MLA whom he claims to fear, that his uncle continued to run his farm without incident and that almost three years have passed since the conversions. The RRT further noted that, according to the applicant, conversions take place “all the time” and the inconsistencies between the claims in the written application and the applicant’s oral evidence. It determined that all these factors were inconsistent with a fear of persecution[34].
[25] ibid. op. cit
[26] ibid. op. cit
[27] RD, p.110
[28] RD, pp.116-117
[29] RD, p.116
[30] ibid. op. cit
[31] ibid. op. cit
[32] ibid. op. cit
[33] ibid. op. cit
[34] RD, pp.116-117
This matter came before me on 6 June 2005 on a motion by the Minister for the summary dismissal of the judicial review application. I declined to deal with that motion because no interpreter was available on 6 June 2005 and I considered in any event that the matter required a final hearing. I directed that the matter be listed today for final hearing.
The applicant was given the opportunity to file and serve written submissions by 10 June 2005. He elected not to do so. The applicant relies upon his original judicial review application filed on 5 November 2003 and also an amended application filed on 27 September 2004.
I discussed with the applicant this morning how I should treat those two documents. The original application asserts jurisdictional error in very general terms, but provides no particulars. In order to properly engage the Court's jurisdiction, particulars would be required.
The amended application sets out 13 purported further grounds of review but these are, in reality, matters of detail. I put to the applicant that I should treat the amended application as a statement of the particulars of the grounds of review identified in his original application. He agreed that I should treat the documents that way. The original application as particularised is substantially a contest over the merits of the RRT decision. To the extent that jurisdictional error is meaningfully asserted, the assertions are not substantiated on the material before me. The evidence before me is limited to the green court book. The applicant did not take up the opportunity given to him this morning to make oral submissions.
Ms Pepper adopted the written submissions that had been prepared previously by the Minister's solicitors in support of the Minister's motion for summary dismissal. I agree with those submissions concerning the absence of jurisdictional error. The submissions address the purported 13 grounds set out in the amended application. As I have already noted, I regard those grounds as particulars of the grounds asserted in the original application, albeit that it is not clear which particulars relate to which grounds. The Minister's written submissions nevertheless effectively deal with the asserted grounds of review as particularised. I adopt the following parts of paragraphs 15‑43 of the Minister's written submissions:
Ground 1
The applicant claims that the RRT erred factually and legally in dealing with his application. … A factual error of itself does not necessarily provide a basis for challenging the RRT’s decision. The respondent submits that this ground of review is unarguable.
Ground 2
In this ground, the applicant repeats some of the facts forming the basis of his claim and says that the RRT failed to see that the threats to him from the RSS and BJP were of a serious nature and that his life was at risk.
In its decision, the RRT recited at length the applicant’s claims in relation to the harassment he claimed to have suffered at the hands of the BJP and RSS[35]. It found that the applicant did not have a political profile such as would make him the target of opponents of the party supported by him. There is no error in this approach. This ground appears to be an attempt on the part of the applicant to seek impermissible merits review.
[35] RD, pp.108 and 109
Ground 3
Essentially, the allegation that the RRT approached his matter with “a pre-determined mind” is one of bias on the part of the RRT. … In the respondent’s submission, there is no evidence on the face of the decision of any actual or apprehended bias on the part of the RRT. Nothing in the conduct of the RRT suggests that that it did not bring an impartial mind to the decision. Its findings and conclusions were supported by the evidence before it.
Further, the allegation that the RRT did not consider the treatment of the applicant at the hands of the RSS, BJP and the police is not borne out by the decision. The RRT considered in detail the applicant’s claims in this regard but simply did not accept that the applicant had a political profile such as would make him the target of the RSS or BJP[36]. It also did not accept that the applicant was arrested by police for reasons relating to the conversions and noted the applicant’s own evidence that he was detained solely for reasons relating to a demonstration on the rising prices of rice and transport in which he participated[37].
[36] RD, p.116
[37] ibid. op. cit.
Again, this ground appears to be an attempt on the applicant’s part to take issue with the merits of the RRT’s decision.
Ground 4
The RRT found that the applicant did not have a political profile that would make him the target of the BJP and RSS. By implication, this finding meant that the RRT did not accept the applicant’s claims that the local leader of the BJP and a member of Parliament visited him when they heard of the conversions, or that he was assaulted by a mob which accompanied the member of Parliament, or that the leader of the RSS threatened to kill the applicant and his family.
Having found this, it was not necessary for the RRT to make a specific finding about the claim that the police accused him of illegal activities when he went to complain about the alleged incidents. The applicant again seeks to take issue with the RRT’s findings in this regard, which the respondent submits were open to it on the evidence.
Ground 5
In this ground, the applicant claims that the RRT failed to consider that he was brutally attacked by the police during demonstrations against the anti-conversion law in November 2002.
The RRT noted that, in the applicant’s oral evidence, the demonstration related to rising rice and transport prices, and this occurred several times during 2002 including in November[38]. It noted that on one of these occasions, the applicant claimed to have been detained for five hours but released without charge. The RRT noted the inconsistency between this account and the version of it described in the protection visa application. The RRT pointed out those inconsistencies to the applicant and gave him several chances to clarify them, which he did not do[39].
[38] RD, p.109
[39] RD, p.116
The RRT ultimately decided that, as the applicant’s evidence was inconsistent and that he was sometimes evasive about his claims, it did not believe him in relation to the November 2002 incident[40]. Assessment of the applicant’s credibility is a matter of fact and, as such, reserved for the RRT[41]. There is no error of law if the RRT’s approach to the credibility of the applicant was open to it on the material, as it was here[42]. The respondent submits that this ground of review is not arguable.
[40] ibid. op. cit.
[41] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-38
[42] Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 552 and 559
Ground 6
The applicant alleges that the RRT committed an error in not accepting the applicant’s claim that “as a Muslim, the applicant was not able to seek the protection of the government”. The respondent submits that, having found that the applicant was not at risk of persecution for the reasons he claimed or any other reason, it was not necessary for the RRT to make a specific finding about effective protection.
Nevertheless, the RRT did address the issue by putting to the applicant independent reports relating to the situation of Muslims in India, which suggested that his claim of being unable to access government protection on account of being a Muslim was unfounded[43]. The applicant seeks to cavil with the factual findings made by the RRT, which were clearly available on the evidence.
[43] RD, p.110
Grounds 7 and 8
The applicant claims in these grounds that he was feeling tense and nervous at the time of the hearing and for this reason, “there was some difference in chronology of events”. The applicant asserts that the RRT ought to have noted this.
Again, the RRT pointed out the applicant’s inconsistencies to him and that he was given several chances to clarify matters, including the offer of break in the hearing to enable him to think over some matters, which the applicant declined[44]. The RRT afforded the applicant reasonable opportunities to clarify his evidence and gather his thoughts, which the applicant declined. There can therefore there can be no basis for grounds 7 and 8 of the amended application.
[44] RD, p.116
Ground 9
The applicant claims that the RRT is incorrect in finding that the applicant can relocate to another part of the country as the RSS has a “huge network all over the country”.
In fact, the RRT made no findings at all on the issue of relocation. In any event, according to the decision record, the applicant indicated that the only impediment to relocation was language difficulties[45]. There was no evidence, either supplied by the applicant or contained in country information, to indicate that the RSS network exists throughout India or that if the applicant relocated to another part of India, he would continue to be targeted by the RSS. There is no basis for this ground of review.
[45] RD, p.110
Ground 11 (no Ground 10 pleaded)
In this ground, the applicant takes issue with the independent country information relied upon by the RRT. His complaint is that most of the reports are from “foreign sources” and that the RRT should have “taken the right and real facts and not relied on other sources”. He further states that the RRT accepted what some reports say but not the “real one” as stated by the applicant. The respondent submits that none of these complaints sound in jurisdictional error.
Ground 12
By this ground, the applicant seeks to take issue with the merits of the RRT’s decision. This ground of review cannot be sustained. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court in dealing with an application for relief exercising jurisdiction equivalent to that provided for under s.39B of the Judiciary Act 1903 (Cth).
It is necessary for the applicant to establish jurisdictional error. Whatever be the boundaries of jurisdictional error, they do no include errors of fact[46]. On the basis of the factual findings it made, the RRT remained unsatisfied that the applicant met the criteria for the grant of a protection visa. If it was not satisfied that the applicant met those criteria, it was obliged to refuse to grant the visa[47].
[46] NAHI v Minister for Immigration [2004] FCAFC 10 at [10]
[47] s.65(1)(b) Migration Act1958 (Cth)
Ground 13
The applicant claims that it is not the number of conversions that is relevant to his case but the seriousness of such conversions. He claims that the few conversions he effected were taken seriously by his opponents.
The applicant presented no evidence to the RRT suggesting that the conversions were comparatively “serious”, nor was he able to explain why the conversions would have been taken so seriously by his political opponents, despite being given several opportunities to explain this.
Again, this is an attempt by the applicant to take issue with the RRT’s factual findings. This ground of review cannot, in the respondent’s submission, be sustained.
Grounds of the original application
To the extent that the applicant intends to rely on the original application filed in these proceedings, the respondent says that no arguable basis for review of the RRT’s decision is disclosed in that pleading.
…
In ground one, the applicant alleges an error of law in the RRT’s decision. … The respondent submits that no error of law is disclosed in the RRT’s decision.
The allegation in ground two that the RRT did not consider “all the material facts” is simply not supported on any reading of the decision.
The procedural errors by which the RRT’s decision is claimed in ground three to be affected have not been [properly] identified and similarly, no [persuasive] particulars of the breach of the principles of natural justice alleged in ground four have are identified. The respondent submits that there is no arguable basis for either of these allegations.
Ground five is clearly an attempt by the applicant to seek review of the RRT’s findings. The final ground is meaningless without further particulars.
On my own reading of the decision and reasons of the RRT, no jurisdictional error is apparent. I find that there is none. The decision is therefore a privative clause decision and the judicial review application must therefore be dismissed. I will so order.
On the question of costs, the application having been dismissed, the Minister seeks an order for costs fixed in the sum of $5,500 on a party and party basis. Ms Pepper tells me that the Minister's solicitor and client costs are in the order of $8,000. Ms Pepper invited me to take into account that there have been three hearings in this matter and that the Minister has been required to respond to a substantial number of asserted errors.
The applicant invited me to take into account that when this matter came before me on 6 June 2005, no interpreter was available, which would have necessitated a further hearing, and that the matter was originally scheduled for final hearing in November of this year.
There was, in my view, nothing of any complexity in this matter either factually or legally. I understand why the Minister sought to seek to have the matter summarily dismissed, but I would not have granted that order even if an interpreter had been available on 6 June 2005. That is because I formed the view that the detail of consideration that would be required to deal with the Minister's motion would have been the same as that required on a final hearing. In the circumstances, I decided that the preferable course was to provide an expedited final hearing.
I do not consider that the Minister should recover her costs of the aborted hearing on 6 June 2005. Neither do I think that the Minister should recover costs on a basis which might reflect a degree of complexity in this matter which does not exist.
I am satisfied that $4,000 has been properly and reasonably incurred on behalf of the Minister in this matter when assessed on a party and party basis. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 June 2005
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