SZCQU v Minister for Immigration - [2006] FMCA 811

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCQU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 811

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958

NABE v Minister for Immigration & Multicultural & Indigenous Affairs No. 2 (2004) 144 FCR 1
Craig v South Australia (1995) 184 CLR 163

Applicant:

SZCQU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG314 of 2004

Judgment of:

Barnes FM

Hearing date:

30 May 2006

Delivered at:

Sydney

Delivered on:

30 May 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr J. Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG314 of 2004

SZCQU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 January 2004 affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, who is a citizen of India, arrived in Australia in 2003 and applied for a protection visa. He claims to fear persecution on the grounds that he was born a Dalit (an untouchable) and for reasons of imputed political opinion because he had converted to Islam. He provided a statutory declaration accompanying his protection visa application in support of his claims. The application was refused and the applicant sought review by the Tribunal.

He attended a Tribunal hearing and, in addition, his adviser provided written submissions to the Tribunal.
The applicant claimed that his parents were Dalits. His sister was killed in 1980 when houses of Dalits were subject to arson. His family was relocated to another part of India. In 1985 his father met a leader of the Muslim League and the family converted to Islam.
The applicant claimed that he was assisted in his education through Islamic charitable organisations. In 1992 the family suffered in riots incited by the Babri Mosque affair and his mother was murdered.

He claimed there were conflicts between Muslims and Hindus and that in 1996 his brother had been arrested on suspicion of planting a bomb and that he was shot and killed in police custody. He claimed that he and his father were under suspicion and that the police had been searching for them.
He claimed (and elaborated upon this in his evidence to the Tribunal) that he had been arrested in 1997 having been charged with an attempt to assassinate a politician and to plant bombs and create racial unrest. He also said that he had been charged with illegally brewing liquor that killed people. He claimed he was detained and spent six months in gaol. He claimed that at that time they used to take people to take part in strikes and if they refused the police would threaten them with arrest on false charges such as murder. He claimed that he escaped when released on bail and travelled to the United Arab Emirates in 1998 using his own passport. He returned to India because his father was unwell. He claimed that when he returned he had been held for eight hours and then let go after paying money to be released. He travelled to the United Arab Emirates after his father's death and then returned to India in June 2000. The applicant claimed that on his return to India he was spoken to for ten minutes and then let go and that from June 2000 until July 2003 he was in hiding and that the police were searching for him. He left India for Australia using his own passport in July 2003.
In its reasons for decision the Tribunal outlined independent country information in relation to the situation in India and summarised the applicant's claims. However it found the applicant not to be credible and that he did not have a well-founded fear of persecution for any Convention reason should he return to India.
It accepted that the applicant was a Dalit and a Muslim, and that Dalit and Muslims may suffer discrimination as minorities in India. However on the basis of the applicant's evidence as to his high level of education and the fact that he had worked as an accountant, it found that the applicant had not suffered a denial of capacity to earn a livelihood and that he would be able to work in his profession again should he return to India. On that basis it found that any harm the applicant had suffered or would suffer in the foreseeable future as a Dalit and a Muslim was not sufficiently serious to constitute persecution.
The Tribunal also accepted the independent evidence that caste-based and inter-religious rioting occurred in India from time to time, that people such as the applicant’s mother and sister could be killed and that such harm was sufficiently serious to constitute persecution. However, it had regard to information that such sectarian conflict was “sporadic and random” and that the number of people killed and injured was, given the size of India's population, extremely small. On that basis the Tribunal found there was no real chance the applicant might be harmed in such conflict. It also took into consideration that the applicant had played no prominent role as a Dalit and a Muslim, such that he might be targeted for sectarian harm.
The Tribunal then considered the applicant's specific claims about being sought by the police since 1997, when he claimed he had absconded on bail for very serious charges including attempting to assassinate a government minister. The Tribunal did not accept these claims. It found it implausible that, despite his being allegedly sought by the police for the next six years, the applicant had been able to depart India three times and re-enter twice on a passport issued in his own name. It accepted independent evidence to which it referred about tightening of immigration controls in India and found that, if the applicant was wanted, he would have been detected at the airport.
It did not accept that had the applicant been sought for such significant crimes, he would have been able so easily to bribe his release the first time and not be detected on other occasions. Hence it did not accept that he paid a bribe to secure his release on his first re-entry into India. It found that if he were wanted by the authorities as claimed and prepared to pay a bribe, he would logically have procured a passport in a false name to evade detection. It did not accept his claim that the Indian authorities did not use a person's birthdate to trace them, so that it was safe to use his passport.
The Tribunal had regard to the applicant’s claim that he was assisted to depart India through a friend of his father in customs but found the fact that the applicant's adviser could not confirm that the applicant had mentioned this to him in evidence before raising it before the Tribunal to be evidence that this claim had never previously been advanced and found it to be a fabrication made to strengthen the applicant’s claims. The Tribunal found on the evidence before it that it was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicant sought review of the Tribunal decision by application filed in this Court on 9 February 2004. He relies on an amended application filed on 19 July 2004. The application is expressed generally to contend “that the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa”. However the grounds are clarified in particulars; first, the contention is that the Tribunal:
“to consider in assessing the chance of the applicant being arrested and/or persecuted on his return to India based on the fact he was associate with the Muslim League in India and also as a minority Muslim as a member of a particular social group in India.”
I take this to be a contention that the Tribunal failed to consider two bases for the applicant's fear, being an association with the Muslim League and as a Muslim. In the relation to the first of these contentions – that the Tribunal failed to deal with the claim that the applicant feared persecution by reason of his association with the Muslim League – there is nothing in the written claims or the material before the Court to suggest that the applicant made such a claim. In the statement attached to the protection visa application the applicant referred to the fact that his father met a leader of the Muslim League who invited him to convert to Islam. The Tribunal also recorded that in the Tribunal hearing the applicant was asked about his political involvement. He stated that he was not a member of any party, but that his father had been a member of the Muslim League. He continued generally, when asked if he had ever been detained, that because he did not support the state government politicians, they locked him up for five to six months in 1997. The applicant also claimed that he was arrested under suspicion of attempted assassination of a politician and that he was subsequently sought by the police for that reason.
In these circumstances there is nothing express in the applicant's claims and nothing arising by necessary implication or arising squarely on the material before the Tribunal that required the Tribunal to deal expressly with any association of the applicant with the Muslim League.

See NABE v Minister for Immigration & Multicultural & Indigenous Affairs No. 2 (2004) 144 FCR 1 at [58].
To the extent that such an association with the Muslim League may be imputed by reason of the applicant's claim about his conversion to Islam or his claims that he was arrested under suspicion of attempted assassination of a politician and sought by the police, the Tribunal dealt with both possibilities, finding that the applicant had no well-founded fear of persecution based on his claim to be a Muslim. It rejected that claim because of the fact that the applicant had been well educated and employed in a reasonable job and despite the evidence which it accepted in relation to levels of discrimination and inter-religious violence. These findings also deal with the ground that the Tribunal failed to consider the applicant’s claims as a Muslim.
The Tribunal also dealt with, but rejected, the applicant’s claim to have been arrested under suspicion of attempted assassination of a politician, rejecting the claim that the authorities had been, and continued to be, interested in the applicant on this basis for the reasons that it gave, in particular, the ease with which the applicant had been able to leave and return to India on a number of occasions, travelling on his own passport. No jurisdictional error is established on the first basis contended for in the amended application.
The second particular is “The Tribunal's satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief”. I have outlined the Tribunal's reasons for decision. The Tribunal gave two reasons for its decision, dealing first with the applicant’s general claim to fear persecution for reason of being a Dalit and a Muslim (a convert to Islam) and finding, despite its acceptance of the applicant's claims about the deaths of his mother and sister, that the relative number of people injured in communal violence in relation to the number of people in India was small and that such conflict was sporadic and random and that the applicant had played no prominent role as a Dalit and Muslim, such that he might be targeted for sectarian harm and on that basis, finding there was no real chance that he might be harmed in such conflict.
Secondly, the Tribunal dealt with the applicant's specific claims to be sought by the police, which it rejected and found implausible based on the country information regarding a person’s ability to arrive in and depart from India on one's own passport in circumstances where that person was wanted by the authorities.
It has not been established that the Tribunal's ultimate satisfaction that the applicant was not a refugee was based on reasoning which did not provide a rational or logical foundation for this belief. The steps in the Tribunal's reasoning provided a rational foundation for the Tribunal's conclusion in relation to the applicant's general claims and also in relation to the specific events the applicant said had taken place and the Tribunal's rejection of those claims. In turn, its rejection of those claims provided a rational basis for its conclusion that the applicant was not a refugee.
Before leaving the amended application, I note that annexed to the amended application was a copy of what the applicant told the Court is a medical certificate. However he also told the Court that this was not material provided to the Department or the Tribunal. As such it is not material that assists the Court to determine whether the Tribunal made a jurisdictional error on the material before it at the time of its decision.
More generally, in oral submissions today, the applicant took issue with the merits of the Tribunal decision. However merits review is not available in this Court as I explained to the applicant. He also told the Court that there were some things he had not told the Tribunal about what occurred to him in India and that he wished to put such material before the Court. Again, this is not a re-hearing and such claims do not establish that the Tribunal fell into jurisdictional error.
The applicant also filed written submissions on 1 March 2006 which raise and address grounds other than those in the amended application. First it is claimed that the findings of the Tribunal demonstrated actual bias on the basis that the decision was not properly justified by the Migration Act 1958, that the Tribunal rejected the applicant's claims without considering his oral evidence in relation to major issues, and the statement he had submitted to the Department (which he says in his written submissions he also provided to the Tribunal.)
In particular the applicant then takes issue with the Tribunal's rejection of his claims in circumstances where he had lost his family members due to his Dalit background. He repeated his claims to have spent time in gaol, having been charged with an attempt to assassinate a politician. It was contended that such circumstances the Tribunal acted with apprehended bias towards the applicant.
It is, however, a rare and exceptional case in which actual or apprehended bias will be established based only on the Tribunal reasons for decisions. This is not such a case. The fact that the applicant takes issue with the Tribunal findings does not establish either actual or apprehended bias (which appears to be contended on the basis that the Tribunal had reached a conclusion at the end of the process of review with which the applicant disagreed.) There is no indication on the material before the Court that the Tribunal had made up its mind at some earlier stage of the review and was not open to change its mind, or that the circumstances were otherwise such as to constitute either actual or apprehended bias.
The applicant also claims generally that the error made by the Tribunal is a typical situation referred to in Craig v South Australia (1995) 184 CLR 163. This claim does not establish jurisdictional error.

The applicant contends that the Tribunal acted illogically in making its finding that the applicant's mother and sister could be killed and that such harm was sufficiently serious as to constitute persecution.

The applicant contended that there was illogicality in this finding on the basis that the Tribunal failed to weigh properly the effect of three aspects of his claims: first, that he had lost all his family members because of their Dalit caste; secondly, that he had been tortured by Hindu extremists and police; and thirdly, that a warrant had been issued against him for conspiracy to murder a named Hindu fundamentalist former Union Cabinet Minister.
First, insofar as the applicant takes issue with the weight given by the Tribunal to particular claims, it is a matter for the Tribunal whether it accepts particular claims on the evidence before it. The Tribunal did accept the applicant's claims in relation to the deaths of his mother and sister, but had regard, as discussed above, to other factors in finding that there was no real chance the applicant might be harmed in caste-based and inter-religious rioting in India. The Tribunal noted that such sectarian conflict was sporadic and random that the absolute number of people killed and injured was (given the size of India's population) extremely small and that the applicant had not been prominent as a Dalit or Muslim.
It is not apparent that the applicant did make a claim that he had been tortured by Hindu extremists. The Tribunal rejected the applicant's claims in relation to arrest and detention by the police and also his claims that he was sought by the police for involvement in a conspiracy to murder a government minister but those claims related not to his fear of harm in caste-based and inter-religious rioting, but rather to specific instances of past harm directed at him and a well-founded fear on that basis. No lack of logic let alone a lack of logic constituting or revealing jurisdictional error in the Tribunal's finding is established on the basis contended for by the applicant.
The applicant also submitted that the Tribunal ignored relevant evidence and made a finding in the face of contradicting independent evidence. It is not clear what the relevant evidence is that the Tribunal is said to have ignored, or what is regarded as the contradictory independent evidence. Insofar as the relevant evidence is intended to be the matters referred to in the written submissions which the applicant claimed the Tribunal failed to weigh properly, it has not been established that the Tribunal ignored relevant evidence in a manner constituting jurisdictional error, whether by way of a failure to take into account relevant considerations or otherwise. The Tribunal considered the applicant's claims as put before it, as is apparent on the information before the Court. The fact that it did not accept all of those claims does not establish jurisdictional error.
As to the claim in relation to a finding in the face of contradicting independent evidence, the independent evidence is not identified but in any event, provided there is some basis for the Tribunal making its findings, there is no error in a Tribunal making findings contrary to some independent evidence, as it did in this case. No jurisdictional error is established on the basis contended for in this part of the applicant's written submissions.
As I indicated earlier, in oral submissions and again in submissions in reply, the applicant took issue with the merits of the Tribunal decision and the Tribunal's failure to accept all of his claims. However, these concerns do not establish jurisdictional error. Accordingly, the application must be dismissed. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful and the first respondent seeks that he pay her costs of these proceedings in the sum of $5000. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.

The amount sought is appropriate in light of the nature of this and other similar matters.

The applicant indicated that he could pay the costs in instalments.

I consider that rather than making an order for payment by instalments on the material before the Court, it should be left to the respondent to determine how and when to seek to recover such costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 9 June 2006.