SZCAL v MIAC
[2008] FMCA 330
•20 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCAL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 330 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – merits review not the function of judicial review – procedural fairness – whether persecution involves ‘systematic and discriminatory conduct’ pursuant to s.91R(1)(c) – whether ‘international standards’ of state protection apply – whether ‘serious harm’ pursuant to s.91R(2)(a) – whether country information misapplied – bias – onus of proof – benefit of the doubt – whether proper consideration of claims – whether definition of ‘refugee’ misapplied. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 422B, 424A, 425, 474, 476 |
| SZHMN v Minister for Immigration & Anor [2008] FMCA 331 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 SBBS v Minister for Immigration & Migration & Indigenous Affairs (2002) 194 ALR 749 |
| First Applicant: | SZCAL |
| Second Applicant: | SZCAM |
| Third Applicant: | SZCAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1952 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 5 December 2007 |
| Date of Last Submission: | 27 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The application filed on 25 June 2007 and the amended applications filed on 9 November 2007 and 14 November 2007 are dismissed.
The Applicant Father, SZCAL and the Applicant Mother, SZCAM pay the First Respondent’s costs fixed in the sum of $6000 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1952 of 2007
| SZCAL |
First Applicant
| SZCAM |
Second Applicant
| SZCAN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 15 May 2007 and notified to the applicant by letter dated 16 May 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
The first named applicant (the applicant father) was born on 17 May 1966 and was aged 36 years at the time of his application for a protection visa. Both before the Tribunal and this Court, the applicant father appeared on behalf of his wife (the applicant mother) and their son (the applicant son) who are included in the application. For convenience, the applicant father, the applicant mother and the applicant son will be referred to jointly as “the applicants” where relevant in these proceedings.
The second named applicant, the applicant mother, was born on
18 May 1970and was aged 32 years at the time of her application for a protection visa.
The third named applicant, the applicant son, was born on 31 August 2000 and was aged 2 years at the time of his application for a protection visa.
On 30 October 2003 the applicant father and applicant mother had a daughter who was born in Australia. A separate application for a protection visa was made in regard to the daughter (the applicant daughter).
The applicant father claims to be a national of India, of Punjabi ethnicity, and of Hindu faith.
The applicant father arrived in Australia on 14 November 2002 and the applicant mother and applicant son arrived in Australia on 19 November 2002 on Indian passports issued in their own names.
The applicants lodged an application for Protection (Class XA) visas on 9 November 2002 on the basis that they had been beaten and had their lives threatened by Muslim groups in India. The applicant father's business was also targeted by Muslim extremists (Court Book (CB) 61–62).
On 16 December 2002 the delegate refused to grant the applicants’ protection visas on the basis that they were not persons to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 10 January 2003 the applicants applied to a differently constituted Tribunal (the first Tribunal), for review of the delegate’s decision (CB 64 – 67). On 16 October 2003 the first Tribunal affirmed the delegate’s decision. The applicants sought review of the first Tribunal decision and on 16 May 2005 the Federal Magistrate's Court dismissed the proceedings pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001.
On 9 August 2005, leave to appeal from that decision was refused by the Federal Court.
On 11 February 2006 the applicants lodged a second application for review of the delegate’s decision. After requesting submissions the then Tribunal (the intervening Tribunal) determined that it did not have jurisdiction to determine the application. The applicants sought review of the decision of the intervening Tribunal by the Federal Magistrates Court. The Tribunal had no information in relation to this application before the intervening Tribunal.
On 1 September 2005, the applicants filed a further application for review of the decision of the first Tribunal. On 13 July 2006, the Federal Magistrates Court remitted the matter to the Tribunal to be determined according to law (CB 292).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 10 October 2006 the Tribunal sent a letter pursuant to s.424A of the Act to the applicants. On 9 January 2007 the applicants provided a response.
On 7 February 2007, the Tribunal sent a letter to the applicants inviting them to appear before it on 12 September 2006 to give oral evidence and present arguments. At the applicant father's request, the Tribunal held a joint hearing with the applicant's mother representing the applicant daughter.
The Tribunal invited the applicants to appear at a further joint hearing with the applicant daughter’s application on 12 March 2007. The applicant father and applicant mother and their adviser attended both Tribunal hearings.
The applicant’s claims and evidence (CB 294 – 310)
The Tribunal summarised the applicant father’s claims in the protection visa application (at CB 295), including that:
·the applicant father and his family were supporters in India of the political organisations BPJ, RSS and Shiv Sena
·in 1992 during the Muslim-Hindu riots in India the applicant father’s courier business suffered a great loss as his office was completely destroyed by fire
·he became a target of Muslim extremists and their mafia group who demanded protection ransom. His wife and family were constantly threatened
·the applicant father re-established his courier business until following the last election in Mumbai, when he again became targeted by Muslim extremists and their mafia group due to his active role in Shiv Sena
·he and his family were beaten nearly to death and hospitalised. Police took no action as no one would come forward to give information
·the applicant father's business suffered heavy losses
·in February 2002, during national riots when many persons were killed by Muslim terrorist groups, the applicant father again started receiving constant death threats and the authorities failed to protect him and his family
·the applicants left India to avoid the violence and threats from Muslim groups.
The Tribunal summarised the applicant father’s claims at the Tribunal hearings (at CB 316), including that:
…the applicant father claims to [the Tribunal] that he is a Sikh who lived in Mumbai. He was harmed by the Muslims when he was the owner of a courier business. He was required to deliver bombs, bullets and other explosive items by two Muslim men… As he refused to do so, he suffered harm at the hands of the Muslims. He did not receive police protection despite complaining to the police. He fears returning to India because of his fear of the Muslims and his children will suffer harm.
I accept that the first respondent accurately summarises the further claims of the applicant mother and the applicant daughter in its written submissions, as follows:
[The applicant mother] initially sought a protection visa solely as a member of the family unit headed by [the applicant father]. This also appears to have been the position before the first Tribunal.
Before the…Tribunal [the applicant mother] also claimed that she had suffered domestic violence in India, but not in Australia.
In regard to the applicant daughter, the Tribunal gave lengthy consideration to a volume of material concerning the position of women and children in India.
Her original protection visa application had not advanced any claims. A statement filed in support of her protection visa application essentially adopted the claims made by the other members of the family; and her father told the Tribunal that her claims rested on his own.
It appears that, before the …Tribunal, claims were developed that the applicant's daughter faced mistreatment and harm in her own right if she were to go to live in India. The Tribunal set out its conclusions on these claims, as well as on the parents’ claims of persecution, in identical terms in its reasons in each matter.
To a large extent the claims of the [applicant] daughter appear to have amounted to placing before the Tribunal material tending to show that conditions were hard in India and that children (and women) faced many risks there.
The Tribunal’s findings and reasons (CB 316 – 333)
I accept that the first respondent accurately summarises the Tribunal's findings and reasons in regard to the applicants, and the applicant daughter as follows:
The applicant [father]
The Tribunal concluded that [the applicant father] was not a witness of truth and had “created his claims”. It gave extensive reasons for this conclusion, which included:
(a) significant inconsistencies between his claims as advanced on different occasions (as to which his explanation was rejected);
(b) three identified claims which had been raised for the first time before the second Tribunal;
(c) a lack of detail about what he claimed had happened to him since 1992; and
(d) a lack of support in the country information for the claim that the authorities had not offered him protection.
The Tribunal therefore rejected [the applicant father’s] claims to have suffered harm at the hands of Muslims and concluded that he (and his family) had not fled India fearing Convention related harm.
The Tribunal raised for itself the issue of whether [the applicant father] and his family might face harm as Sikhs from Mumbai if they were to return to India. It concluded that all faiths enjoyed freedom of worship, that there was nothing to suggest that Sikhs in Mumbai did not have the protection of the police, and that relations between various religious groups were “amicable among the substantial majority of citizens”.
The applicant [mother]
The Tribunal rejected [the applicant mother’s] claim [of domestic violence] as it did not consider her [to be a witness of truth].
The applicant daughter
… the Tribunal rejected the claim that there was a real chance of the daughter being a victim of torture or sexual harassment or domestic violence and that there was no state protection; it did not think the evidence indicated systematic persecution of women or children; and it referred to recent governmental initiatives to improve the lot of women.
The Tribunal concluded that, even if such a group [comprising Sikh Indian children born outside India] existed as a “particular social group” in India, there was nothing to indicate that its members faced harm because of that membership.
The proceedings before this Court
The applicants filed the application in this Court on 25 June 2007 setting out 2 grounds for review of the Tribunal’s decision. On
9 November 2007and 14 November 2007, the applicants filed amended applications in identical terms, setting out 2 grounds of review.
The applicant father appeared in person before the Court on
5 December 2007with the assistance of a Hindi interpreter. Mr Kennett of counsel appeared for the first respondent.
The Court agreed to the applicant father's request that it hold a joint hearing with the applicant daughter’s application (as had been done before the Tribunal), given that the amended applications [and the original applications] filed in both sets of proceedings raised identical grounds of review. Likewise, the Court has handed down identical Reasons for decision (as did the Tribunal) in both sets of proceedings in regard to the grounds raised in the respective applications, amended applications, and the applicants’ and applicant daughter’s written submissions (see SZHMN v Minister for Immigration & Anor [2008] FMCA 331.
The applicant father represented the applicants, as well as the applicant daughter, in the joint proceedings before the Court.
Grounds of application
The grounds of the application are:
(1)The Tribunal erred in deciding that the applicants are not a refugee.
(2)The Tribunal was unfair and denied the applicants natural justice.
Ground 1 of the application.
This ground is not particularised. It seeks that the Court engage in merits review which is not the function of this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (and see The applicants’ and applicant daughter’s written submissions, Particular 6 below).
Accordingly, Ground 1 of the application is rejected.
Ground 2 of the application.
The applicants and applicant daughter have not particularised how they say they have been denied natural justice in this case. Whilst the applicant father submitted to this Court that he objected at the Tribunal hearing to the member not being prepared to listen to his refugee claims, I note that the applicants and applicant daughter have not sought to put the transcript of the evidence of the Tribunal hearing or any other admissible evidence before this Court on the point. As stated by the Full Federal Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]:
In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.
I note that the applicants’ migration agent brought a complaint to the attention of the Principal member immediately after the Tribunal hearing, seeking that the member who conducted the hearing be disqualified alleging that she repeatedly asked the wrong questions, and annexing unsourced portions of the transcript of the Tribunal hearing (see CB 200-209). I further note that the Principal member of the Tribunal (after a senior member had listened to the tapes of the applicant’s and his daughter’s hearings), did not accept that there was any substance in the complaint and was of the view that the member had conducted the review “appropriately in the circumstances” (CB 210).
In any event, the applicants and applicant daughter are not entitled to common law procedural fairness: s.422B of the Act. The Tribunal must observe the statutory expression of natural justice in Part 7, Division 4 of the Act: (Lay Lat v Minister for Immigration & Indigenous Affairs [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration & Indigenous Affairs [2006] FCAFC 62 at [8].
In this regard, the Tribunal invited the applicants and applicant daughter to two hearings before it and put the determinative issues arising under the review fairly to them, in particular the plausibility of their claims, and gave them an opportunity to comment thereon in accordance with the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [33]-[48]. There is nothing disclosed on the face of the Tribunal decision record to demonstrate that the Tribunal was motivated by factors extraneous to its jurisdiction: SBBS v Minister for Immigration & Migration & Indigenous Affairs (2002) 194 ALR 749 at [43] ff; NAOA v Minister for Immigration & Indigenous Affairs [2004] FCAFC 241 at [21].
The question of the fairness of the Tribunal’s findings in relation to the applicants’ and applicant daughter’s claims are matters of fact for it and the fairness of its findings should not be reviewed by the Court: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35-37.
I am also satisfied that the Tribunal complied with its obligations under s.424A of the Act by inviting the applicants and the applicant daughter to comment on information upon which it might, subject to their response, make an adverse conclusion, and indicating the relevance of that information to the review; and took into account the applicants’ and applicant daughter’s response to the concerns raised. Otherwise, the Tribunal was not obliged to put to the applicants and applicant daughter its subjective thought processes, appraisals and determinations, including its disbelief of the applicant father’s and applicant mother’s credibility: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18].
I therefore detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied therefore that the applicants and applicant daughter were accorded procedural fairness by the Tribunal in accordance with the statutory framework of the natural justice hearing rule under the Act.
Accordingly, for the reasons stated above, Ground 2 of the application is rejected.
Grounds of the amended application
The grounds of the amended application are:
(1)The second respondent (the Tribunal) misconstrued the requirement of s.91R(1)(c) Migration Act that harm to an applicant be “systematic”.
Particulars:
(a)The Tribunal (at p.37 of its reasons) held, incorrectly, that religious violence was not, “systematically organised and institutionalised”.
(2)The Tribunal failed to ask a question that it was, in the circumstances of this case, legally required to ask.
Particulars:
(a)Whether the Indian authorities provided a standard of protection comparable with international standards.
Ground 1 of the amended application.
I note at the outset that the reference to the particulars at page 37 of the Tribunal decision in regard to SZCAL v Minister for Immigration & Anor [2008] FMCA 330 should in fact read page 31 (CB 321); and the reference in SZHMN v Minister for Immigration & Anor [2008] FMCA 331 should read page 39 (CB 289).
So far as is relevant, s.91R(1)(c) provides that Art. 1A(2) of the Convention does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
… (c) The persecution involves systematic and discriminatory conduct.
Persecution which is systematic involves conduct which is ‘non-random’: Minister for Immigration & Citizenship v SZCWF [2007] FCAFC 155 at [28]-[32], but which does not have to be ongoing, or a highly organised course of conduct against a person.
The relevant part of the Tribunal judgment states:
I accept the independent evidence that states that Hindu/Sikh/Muslim violence is the product of unpredictable frictions over a range of issues rather than being systematically organised or institutionalised in any way (CB 321).
I accept that, taken in isolation, the phrase “systematically organised or institutionalised in any way” could suggest that the Tribunal adopted a too narrow or too stringent test. However, I consider that a fair reading of this passage, when taken in its proper context and in the light of the Tribunal’s decision as a whole, cannot support a conclusion that the Tribunal misapplied or misconstrued the appropriate test in this way. In this regard, the Tribunal went on to say:
I do not accept that the Indian government does not protect Sikh communities or Sikhs when communal violence has occurred…
I am not satisfied that the independent evidence indicates that there is a pattern of persecution by Muslims of Sikhs in India or that the state is indifferent or unwilling to act when communal violence occurs (CB 321).
A fair reading of this passage indicates that the focus of the Tribunal was on the independent evidence which indicated that the relevant violence was “the product of unpredictable frictions” and not “a pattern of persecution”. The High Court in Wu Shan Liang [1996] 185 CLR 259 at 271-272 reinforces the correctness of this approach of the Court not engaging in over-zealous judicial review:
When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (35). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
In any event, the applicants’ and applicant daughter’s argument on this ground becomes, in effect, academic given the Tribunal’s finding as follows that the independent evidence establishes that Sikh victims do, in fact, receive the protection of the Indian police and Indian government:
The independent evidence before me does not suggest that Muslims who attack Sikhs are not punished for their actions or that their Sikh victims do not receive the protection of the Indian police or the Indian government. I accept the independent evidence… that where communal violence does occur the Indian authorities seek to end it at the earliest time. Persons considered to be inciting communal violence can be and are prosecuted under Indian law. I am of the view that where the situation that the Sikh victims of Muslim attacks did not receive protection from the Indian authorities, it would be known to various independent monitors … I am of the view that there is a reasonable willingness on the part of the Indian authorities to take action in respect of criminal acts against its citizens and in respect of Sikhs.
This finding by the Tribunal, that the Indian authorities provided protection to the applicants and applicant daughter from harm, negates any basis for this ground of review, (and see amended application ground 2 below, in particular in regard to the Tribunal’s findings that the Indian authorities provided sufficient protection not only to Sikhs but also to members or supporters of the BJP, RSS and Shiv Sena).
Accordingly, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
This ground picks up the wording of the High Court in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [27] and [28] concerning whether the Ukraine provided its citizens with “the level of state protection required by international standards”. This phrase appears in the High Court judgment in the following context:
What kind of inability to protect a person such as the first respondent from harm of the kind he has suffered would justify a conclusion that he is a victim of persecution and that it is owing to a well-founded fear of persecution that, being outside his country, he is unwilling to avail himself of his country's protection?
No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence …The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system. None of the country information before the Tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect…
…It is hardly surprising that there was no evidence of the failure of Ukraine to provide a reasonably effective police and justice system. That was not the case that the first respondent was seeking to make … Even so, it gave no cause to conclude that there was any failure of state protection in the sense of a failure to meet the standards of protection required by international standards, such as those considered by the European Court of Human Rights in Osman v United Kingdom [emphasis added].
The first respondent sought to explain and justify his unwillingness to seek the protection of the Ukrainian authorities, either at home or abroad, on the basis that they were the instigators, directly or indirectly, of the attacks on him. That case was rejected by the Tribunal … The only other basis upon which the first respondent's unwillingness to seek the protection of the Ukrainian government could be justified, and treated as satisfying that element of Art 1A(2), would be that Ukraine did not provide its citizens with the level of state protection required by international standards [emphasis added] … It is not necessary in this case to consider what those standards might require or how they would be ascertained. There was no evidence before the Tribunal to support a conclusion that Ukraine did not provide its citizens with the level of state protection required by such standards [emphasis added] … A person living inside or outside his or her country of nationality may have a well-founded fear of harm. The fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify unwillingness to seek their protection (at [25]-[28]).
These passages from S152/2003 have been the subject of judicial consideration by the Full Federal Court in SZDWR v Minister for Migration & Indigenous Affairs [2006] FCAFC 36, in particular at [18]-[21]; and in SZGHC & Anor v Minister for Immigration & Citizenship [2007] FMCA 570 at [25]-[28] per Driver FM who cites with approval the decision of S1573 of 2003 v Minister for Immigration [2005] FMCA 47 per Smith FM, in particular at [27]-[34].
In SZDWR, the Full Court made the following relevant observations in this context:
In Applicant A v Minister for Immigration and Ethnic Affairs (referred to with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 (“S152/2003”), Brennan CJ said that the definition of refugee must be speaking of a fear of “persecution that is official, or officially tolerated or uncontrollable by the authorities or the Courts of the Refugee’s nationality”. It follows that where the conduct of police, not acting as agents of the State, is said to amount to persecution, the question which arises is whether the State and its agencies are able and willing to deal with it. The standard of protection referred to in the cases is that of a reasonably effective police force and a reasonably impartial system of justice: see S152/2003 at [28]. It is not complete efficacy and it does not require the State to act immediately. We respectfully agree with Sir Murray Stewart-Smith’s view that these requirements would raise the standard to one of a guarantee of safety. S152/2003 confirms that no country can be taken to offer such a guarantee (at [26]).
In S152/2003 the majority … referred with approval to the views of Hale LJ in the Court of Appeal in Horvath v Secretary of State for the Home Department (“Horvath”), that if the willingness and ability of the State to offer protection against the acts of non-state agents is sufficient, a person’s fear of persecution will not be “well founded”; if it is insufficient it may turn the acts of others into persecution for a Convention reason; if it is insufficient it may be the reason why the applicant is unable or, if it amounts to persecution, unwilling, to avail himself or herself of the protection of their home State.
In the view of the majority in S152/2003 the fact that the authorities may not be able to provide an assurance of safety, does not justify an unwillingness to seek their protection. Once the Tribunal in that case rejected the allegations that the State was complicit or encouraged harm, and that attacks were random and uncoordinated, its finding that the government had the ability to protect meant that the information before the Tribunal did not justify the conclusion that the government could not provide protection to international standards . That being so, the applicant in that case was not a victim of persecution and he could not justify his unwillingness to seek the protection of his country (at [28]- [29]) [emphasis added].
In S1573 of 2003, Smith FM stated at [26]:
Counsel for the applicants submitted that in the last sentence of [27] their Honours implied that the likely State response to the risk of third party harms must be found to “meet the standards of protection required by international standards” before it could be found to be “adequate” or “effective” or to establish the “ability and willingness” of the State to protect the person fearing persecution.
In my opinion, this submission misunderstands the fundamental question which is being addressed by a Tribunal in such a case. This is whether the Tribunal is satisfied that the person fearing harms will not receive State protection, not that he will receive it. From this misunderstanding, the submission misunderstands the point made by their Honours in Respondents S152/2003. They said no more [than] that if there had been evidence before the Tribunal that in the circumstances feared the State response would not “meet international standards”, then this might have provided evidence suggesting a failure of State protection. They cannot be understood to suggest that in all cases a Tribunal must conclude that such a failure would occur unless it found compliance with international standards. I cannot understand their Honours to suggest that in every case it is either necessary or possible to identify “international standards” against which to assess an individual country’s responses, for example, to communal rioting…
… I consider that the Tribunal made no error of law by reaching these conclusions in the absence of evidence showing that the Indonesian government would meet relevant “international standards” and a finding by the Tribunal on that topic.
A further reason for rejecting this ground for review is that the proposition that a “failure by a Tribunal in a non state agent case to consider international standards of protection necessarily involves jurisdictional error, whether or not that issue is raised by a claimant” was refuted by Heerey J in MZ Raj v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1261 (see [26]). I respectfully agree with all that his Honour said concerning the ratio decidendi of Respondents S152/2003 and the inherent difficulties in the proposition. I consider that I am bound by his Honour’s judgment to reject the present ground argued by the applicants.
In SZGHC, Driver FM, (having accepted the reasoning of Smith FM in S1573), reached the following conclusion with regard to the relevance of the reference to “international standards of protection” in S152/2003:
… properly understood, the observations of the High Court in 5152 were not intended to establish a new test for determining the effectiveness of State protection. It would be wrong to conclude from those observations that a reference to international standards in any case is either a necessary or a sufficient consideration. The obligation on decision makers is to consider whether, at a practical level, effective State protection will be available to particular applicants. International standards of protection, if known, may inform that assessment but they cannot replace it.
I agree with the above reasoning of Smith FM and Driver FM on these matters.
Applying the above reasoning (in S152/2003; SZDWR; S1573 of 2003; and SZGHC) to the present case, the applicant father does not appear to have claimed that the Indian authorities were involved, or complicit in his or his family’s persecution. Rather, his claim is that the police were ineffective (CB 297); that he complained to police that he was targeted by Muslims but “they did not take any action” (CB 298); “he complained to police and the police turned against him”; “he reported it [being shot and being asked to deliver a bomb] to police who would not take a complaint from him”; he went to the police after the first incident and the police said they knew and they did not want to register the complaint. The police said his story was false and asked him to leave. On the second occasion they said it was common that riots happen. When asked if he had taken his complaint further, the applicant father responded that there was “no protection so if you could not lodge a complaint at the lower level, it would not work at the higher level.” He did not lodge a complaint to the senior police of Mumbai. He wrote a letter to the Chief of Police (CB 299).
The Tribunal also put to the applicant father the difficulty it was having with his claim that the Indian police in Mumbai would not take a complaint from a Hindu who was harmed at the hands of Muslims, at a time when there was a lot of information about terrorism. The applicant then stated the he was a Sikh.
The Tribunal did not accept the applicant father’s claims on these matters. Rather, it accepted the independent evidence (a relevant part of which has been set out under ground 1 of the amended application above) in particular that the Indian authorities “seek to end it [any communal violence] at the earliest time” and that persons inciting communal violence “can be and are persecuted under Indian law” and that there is a “reasonable willingness” on the part of the authorities “to take action in respect of criminal acts against its citizens and in respect of Sikhs” (CB 321). The Tribunal further stated that the Indian government seeks to protect Sikhs when communal violence has occurred and that the state is not indifferent or unwilling to act when communal violence occurs.
The Tribunal pointed in this regard to the 2002 communal violence which was concentrated in Gujarat “and serious clashes did not spread further, while the authorities deployed troops paramilitary forces and additional police to restore order and enforce security… In view of the independent evidence, I do not accept, as plausible, that Sikhs or members of the BJP, RSS and Shiv Sena or their supporters do not receive the protection of the Indian authorities or of the Maharashta authorities if attached by Muslims.” (CB 321 – 322)
The Tribunal further stated that:
The independent evidence (from such sources as the US State Department reports on Human Rights practices India 2002-2005 and UK Home Office Report India 2006) indicate that India is a longstanding parliamentary democracy with an independent judiciary and a functioning legal system where citizens and residents are able to express both their political and religious views. There are a number of human rights organisations in India, including Amnesty International, Human Rights Watch and the Indian Human Rights Office who report on human rights issues. There is an independent police force, accountable for their actions. I do not accept, as plausible in view of the independent evidence, that Sikhs or members or supporters of the BJP, RSS and Shiv Sena do not receive the protection of the India authorities or the Maharasta authorities if attacked by Muslims. I have no independent evidence before me to suggest that Sikhs who take an active part in Shiv Sena campaigns suffer harm from Muslims (CB 320).
Whilst the Tribunal made no express reference to “international standards” of protection in the Indian context, it is evident that it considered the Indian authorities provided sufficient protection to Sikhs and members or supporters of the BJP, RSS and Shiv Sena.
In conclusion on this point, I accept that the first respondent’s oral submissions accurately summarise the relevant position:
There's no necessary requirement for a Tribunal faced with a state protection issue to try to identify international standards and pronounce on whether the state in question meets those standards or not. The Tribunal here looked, as a matter of substance, at whether the applicant and his family would be protected by the authorities, and its view was that people who incited communal violence were prosecuted under Indian law and that people who engaged in such violence wouldn't escape punishment. So there was material before the Tribunal which entitled it to conclude that the applicant and his family would receive protection at a reasonable level from the Indian authorities, and a failure to express that conclusion in terms of international standards didn't amount to jurisdictional error.
Accordingly, Ground 2 of the amended application is rejected.
The applicants’ and applicant daughter’s written submissions
The applicants and applicant daughter were given the further opportunity to make written submissions in response to the first respondent’s written submissions. I note however that none of the following submissions by the applicants and applicant daughter relates to matters raised in the amended applications and hence are not made in response to the written submissions of the respondent. Given that the applicants and applicant daughter were unrepresented in these proceedings, the Court has nonetheless considered the applicants’ and applicant daughter’s written submissions which are set out below:
We the applicants of the above judicial review appeal from the decision of the Refugee Review Tribunal 15 May 2007 pursuant to s.476(1)(f) on the ground that the decision was induced or affected by actual bias.
Particular of actual bias:
1. The Tribunal failed to consider properly the test whether the applicant's would suffer serious harm as per s.91R(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against our case in the final outcome. The Tribunal used all information for matter of reasoning and evaluation of our case for the protection visa. The Tribunal was preoccupied and did not have a fresh look. The Tribunal also failed to consider the Amnesty International country information.
3. The Tribunal applied the wrong test:
(a) By requiring independent evidence of the fact before the Tribunal would accept a claim being made by the Applicant's the Tribunal was, in effect, placing too high an onus of the proof of the applicant's and failing to give the applicant's the benefit of the doubt.
(b) The Tribunal left out individual elements of the applicant's claim and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amounted to persecution.
4. That the decision of the Refugee Review Tribunal was effected by jurisdictional error in that the Tribunal did not take into account certain relevant consideration or ‘integers’ central to the applicant's claim.
5. The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particular Grounds:
(a) The Tribunal did not consider the applicant's who had been under immense and intimidating pressure from Muslim mafia because first applicant refused to carry their parcel.
(b) In relation to above the Tribunal did not consider the first applicant claimed to fear serious harm as a result of his conflict with those Muslim terrorists.
6. The Refugee Review Tribunal failed to note the applicant's satisfy the definition of ‘Refugee’ as defined in Article 1A(2) of the Convention. To go further the Tribunal failed to see that the applicant's satisfy the four key elements that are required to satisfy the Convention definition. The applicant's state that the Tribunal refers to four key elements and since they satisfy them they are entitled to protection visa
The first element – applicant must be outside his country
The second element – the applicant must fear persecution. If the applicant returns to his country his life would be in danger.
The third elements – the persecution that the applicant fears must be for one or more reasons enumerate in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The applicant's fulfil this.
The fourth element – the fear of persecution for a Convention reason must be a “well founded” fear. The applicants fulfil all of the four elements.
The Tribunal which has described these in its decision, have failed to take note of this.
LAW RELATING TO EXERCISE OF THE TRIBUNAL POWERS:
91R (2) Without limiting what is serious harm for the purpose of 1(b), the following are instance of serious harm for the purpose of that paragraph –
(a) a threat to the person’s life and liberty.
414 Refugee Review Tribunal must review decision
(1) subject to sub-section (2), if a valid application is made under s.412 for review of an Refugee Review Tribunal decision, the Tribunal must review the decision.
415 Power of the Refugee Review Tribunal;
(1) The Tribunal may, for the purpose of the review of an Refugee Review Tribunal reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
420 Refugee Review Tribunal was of operating;
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informed and quick.
Therefore the applicant submits that the Tribunal failed to analyse properly the “future harm” the applicant's may face if they have to return back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant's claim.
Particular 1
With regard to particular 1, the applicants’ and applicant daughter’s assertion is highly generalised, and in any event is not borne out by a fair reading of the Tribunal’s decision. The Tribunal clearly considered in this regard whether the applicants and the applicant daughter would suffer serious harm, given the state of protection offered by the Indian authorities based on the independent country information (see amended application grounds 1 and 2 above), and its adverse findings of credibility in regard to the applicant father and applicant mother that neither was a witness of truth (CB 320 and CB322, respectively).
To the extent that this submission seeks that the Court engage in impermissible merits review, this is not the proper function of this Court (and see ground 1 of the application above).
Particular 2
With regard to particular 2, a fair reading of the Tribunal decision demonstrates that it took into account a considerable volume of country information, including from Amnesty International, which is specifically mentioned by the Tribunal at CB 320, and further at CB 321, as one of the sources from which it drew its conclusions on country information and human rights issues in India.
In any event, the Tribunal’s choice and assessment of relevant country information is a purely factual matter for it: (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[14]; NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 1 at [8] per Gleeson J; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81] and [84]). Even if there is evidence to establish that the Tribunal has made an error of fact by relying upon incorrect country information, this would not amount to an error of law, let alone jurisdictional error: NAHI v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137]).
What weight the Tribunal gave to any one of these articles, is ultimately a factual matter for it: (NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 (FC) at [81]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]).
Particular 3(a)
With regard to particular 3(a), it is well settled that there is no onus of proof generally in administrative matters. However, although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
A decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
It is also the case that in assessing an applicant’s credibility, the Tribunal must be sensitive to the difficulties often faced by an applicant and should give the benefit of the doubt to those who are generally credible, but are unable to substantiate all of their claims.
However, the Tribunal is not required to accept uncritically any and all allegations made by an applicant nor is it necessary for it to have rebutting evidence before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
In the present case, it cannot be said that the Tribunal placed any onus of proof on the applicants or the applicant daughter, nor that it misconceived the proper application of the benefit of the doubt. Having assessed all the evidence and material before it, the Tribunal could not be satisfied as to the general credibility of the applicant father and the applicant mother. I consider that these findings were open to it on the evidence and material before it and that it performed the task required of it in this regard in accordance with law.
Contrary to the applicants’ and applicant daughter’s assertion, I therefore detect no application of the ‘wrong test’ on these bases.
Particular 3(b)
With regard to particular 3(b), the applicants and the applicant daughter have sought to make a generalised claim that the Tribunal has considered their claims selectively rather than cumulatively.
The applicants and applicant daughter fail to say what are the “individual elements” that have allegedly been left out of the Tribunal’s consideration of their claims, and which have been wrongly looked at individually, rather than as a whole, in determining whether the applicants’ and the applicant daughter’s claims amounted to persecution.
What weight the Tribunal accords to particular matters before it is ultimately a factual matter for it to determine: (Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Limited & Ors (1985-1986) 162 CLR 24; Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361; NBKT v Minister for Immigration & Multicultural Affairs (2006) 93 ALD 333). As observed by the Federal Court in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
I consider that the Tribunal fully considered the applicants’ and applicant daughter’s claims and provided careful reasons as to why it did not accept the applicant father and the applicant mother as witnesses of truth as set out in its findings and reasons (and see Particular 4 below).
Particular 4
With regard to particular 4, the applicants and the applicant daughter put forward a generalised assertion in which they fail to particularise what are the relevant considerations or integers central to their claims which they assert the Tribunal has failed to consider.
I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the claims made by the applicants and the applicant daughter; explored those claims with the applicant father and applicant mother at two hearings; identified the determinative issues and gave them sufficient opportunity to give evidence and make submissions on those issues at the hearings; gave to them in writing all concerns and information it had that may be part of the decision for affirming the decision under review; had regard to all material provided in response; carefully assessed the independent country evidence; then made findings based on all the evidence and material before it.
As stated above, I consider that its findings of fact were open to it on all the evidence and material before it; that it provided well-articulated and sufficient reasons for its decision; that it applied the correct law to those findings; and reached its conclusions based on those findings. In these circumstances, I am satisfied that the Tribunal accorded the applicants and the applicant daughter procedural fairness in compliance with the statutory regime in reaching its decision and performed the task required of it in accordance with law.
The Tribunal has very fully set out in its findings and reasons its reasons for rejecting the applicants’ and applicant daughter’s claims, the inconsistencies found, and the reasons for its adverse credibility findings. I consider therefore that, contrary to the applicants’ and applicant daughter’s submission, the Tribunal has properly analysed the future harm the applicants and applicant daughter may face if they return to India, and has further properly considered the “real chance” test in this case (and see also ground 2 of the application; grounds 1 and 2 of the amended application; and particular 3(b), above).
Particular 5(a)
With regard to particular 5(a), this particular clearly seeks that the Court engage in merits review which, as stated above, is not the function of this Court.
Particular 5(b)
With regard to particular 5(b), this same issue has been dealt with under particulars 1 and 4 above.
Particular 6
With regard to particular 6, the Tribunal states in this regard that:
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
The Tribunal has also set out the four key elements of the definition of ‘Refugee’ under the Relevant Law (CB 293-294). Its decision demonstrates that it was not satisfied on each of elements 2, 3 and 4. Indeed, once it concluded that the applicant father and applicant mother’s overall credibility could not be accepted and that the applicant father and applicant mother did not have a genuine subjective fear of persecution under element 2, elements 3 and 4 could no longer be satisfied. The Tribunal’s finding on this second element was ultimately a matter for it in its fact finding role. As has been stated earlier in this judgment, it is not the proper function of this Court to engage in impermissible merits review.
Actual bias
As to whether the decision was induced or affected by actual bias on the basis of particulars 1 to 6 above, I reject any suggestion that these particulars disclose actual bias on the part of the Tribunal for the reasons stated above in relation to each of these particulars.
In regard to the allegation of bias, generally, it is well-settled that any such allegation must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has not been done in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicants and the applicant daughter would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has not been demonstrated by the applicants or the applicant daughter. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that the Tribunal brought a mind open to persuasion to the task it undertook, and that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record.
Accordingly, for the reasons stated above I detect no jurisdictional error with regard to the applicants’ and the applicant daughter’s written submissions and the particulars provided therein.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 20 March 2008
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