SZCRX v Minister for Immigration
[2007] FMCA 537
•22 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCRX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 537 |
| MIGRATION – RRT decision – Applicants travelling on Indian passports, claiming persecution in India and Bangladesh – inconsistent evidence as to nationality – Tribunal addressed necessary issues concerning nationality – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.36(2), 424A, 424A(1), 474, 476
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
NBKE v Minister for Immigration & Citizenship [2007] FCA 126
Tji v Minister for Immigration & Ethnic Affairs (1998) 158 ALR 681
| First Applicant: | SZCRX |
| Second Applicant: | SZCRY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1941 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 22 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 March 2007 |
REPRESENTATION
| Counsel for the Applicants: | Applicants in person |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1941 of 2006
| SZCRX |
First Applicant
| SZCRY |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 13 July 2006, which seeks relief under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 May 2006 and handed down on 20 June 2006. The Tribunal affirmed the decision of a delegate made on 29 July 2003, refusing to grant a protection visa to the applicants.
The application has been listed twice previously before me for directions, and was listed today for a final hearing, giving the applicants opportunity fully to present their case and evidence. They have filed an amended application and a written submission, but have not sought to tender any transcripts of the two hearings which they attended before the Tribunal. I therefore accept the Tribunal’s description of the hearings.
The delay between the delegate’s decision and the Tribunal’s decision is accounted for by a previous decision of the Tribunal handed down on 21 January 2004, which was set aside by consent order in this Court on 7 March 2006. I am informed by the Minister’s counsel that the Minister’s consent was given on the basis that the first Tribunal failed to put to the applicants in a s.424A(1) invitation some information which it took from their visa applications relevant to the issue of their nationality. That failure was not repeated by the present Tribunal.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474 so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants’ claims should be believed nor whether they qualify for protection visas.
The applicants are a young couple, husband and wife, who arrived in Australia in December 2002. An application for protection visas was lodged on their behalf by an agent, Mr Mollah on 24 December 2002. The wife claimed, and there is no dispute, to have been an Indian citizen by birth. She made no claims to fear persecution in India separate from those of her husband. Like the Tribunal, I shall refer to him as “the applicant”.
The information in the applicant’s protection visa application was summarised by the Tribunal:
With regard to their travel and nationality details, the applicant husband claimed that he was a Bangladeshi citizen at birth, and that his current citizenship was Indian and was acquired on 2 November 2001. He claimed that his country of residence before arrival in Australia was India. His wife’s nationality and residence was Indian. He claimed they departed legally from India on 3 December 2002 on Indian passports in their own names issued in Kolkata on 9 November 2001 and 1 October 2001 respectively, but that the authority did not give permit or clearance. He claimed not to have had or used any other passport or travel document. He claimed to have travelled to Bangladesh on 15 February 2002 from India for a visit. He did not say how long he stayed in Bangladesh.
The applicants provided partial copies of their passports issued in Kolkata. The passports appear to have been validly and legitimately issued. Notwithstanding that the applicant husband claimed to have been born in Bangladesh, his passport indicated that he was born in P in West Bengal, that his residence was in P West Bengal, and that he was an Indian citizen. The applicants arrived in Australia on 2 December 2002 travelling on Visitor visas issued in New Delhi on 15 November 2002 and valid for one month single travel.
The applicant’s passport was subsequently sighted by both of the Tribunals at two hearings which were held, and reference was made to them at the first hearing he attended:
The applicants presented their passports. It was noted that both passports were Indian. The passports indicated that the applicant wife had travelled to Thailand and Singapore and that the applicant husband had travelled to Thailand and Singapore, and had visited Bangladesh twice, from 15 until 26 February 2002 and from 5 until 8 September 2002.
In his evidence, the applicant husband claimed to have been born in Bangladesh. It was put to him that his passport was Indian. He claimed that his family was from Bangladesh and he was born there. He went to India because he had problems, and he knew people there who helped him get the passport. He claimed that he escaped from Bangladesh to India because of various problems and had then obtained the passport.
The applicant’s protection visa application was put to him; that he had claimed that his citizenship at birth was Bangladeshi, but that his current citizenship was Indian, and that he had acquired such citizenship on 2 November 2001. He claimed that he was not of Indian citizenship and that he did not know how he got the passport. He claimed that it might have been in the last week in October 2001 when he went to India. He claimed he returned to Bangladesh after he got the passport and he returned twice, once in February 2002 and the other in August 2002. The first time was for 8‑10 days and the last 2 or 3 days. He was asked if he confirmed that he went to India in October 2001, and he said yes. He was asked if he was sure, and he said yes.
Later in the same hearing, the applicant said something different:
It was put to the applicant that his claims were that he had problems which forced him from Bangladesh to India, then problems in India which forced him to come to Australia. It was put to him that his Indian passport indicated that he had been born in West Bengal. He said it was true that he lived in India, and that he acquired citizenship and then obtained an Indian passport. He claimed that his family lived in Bangladesh. He was asked if he had any supporting evidence that his family lived in Bangladesh. He claimed that he needed time and that he did not know that he needed supporting evidence. He was asked if he had not realised previously or had advice from his adviser that such evidence would be needed in light of his claims. He claimed that he had submitted some papers in support that he was a Bangladeshi. It was noted that the adviser had produced some copies of documents, two of which were letters, the day before the hearing.
At the second hearing, the question of the applicant’s Indian nationality was again addressed:
The Tribunal said that any problems the applicant might be facing in Bangladesh would in fact not be relevant if in fact he was able to reside safely in India. The Tribunal asked whether his Indian passport, which he tendered at the Tribunal, was genuine. He said it was “definitely genuine”. The Tribunal said that in that case he would be able to reside in India and avoid any harm in Bangladesh. He then said that he could not be sure it was genuine as he had got ‘help’ from people to arrange his passport and so he does not know if it is genuine. The Tribunal put to the applicant that he had used it to enter and depart India several times and so the Indian authorities apparently accepted that it was genuine. He replied that he had had no difficulty using it.
However, the applicant’s final submissions to the Tribunal in response to its s.424A(1) letter asserted:
17.I have no right to go back to India, as I am not an Indian citizen. I have every chance of being persecuted and prosecuted if I go back to India as a non‑citizen. I managed to obtain my Indian passport with the help of a broker only to find a way to escape persecution. It will not allow me to stay there.
18.In accordance with the Indian citizenship act section 5 sub section 6 a foreign man is not able to acquire Indian permanent residency or citizenship marrying an Indian woman citizen.
19.A recent regulation in India has deprived the people who settled there after 1970 from their voting rights. Accordingly their names have been deleted from recent voter lists.
20.Though I am a citizen of Bangladesh I cannot go back to Bangladesh for my well‑founded fear of persecution for my political and religious belief I have not opportunity to go back to India as I am a non‑citizen in that country.
21.On my return back to Bangladesh or India I have real chance of being persecuted because of my political profile and religious belief.
The applicant’s claims in relation to a fear of persecution in Bangladesh and in India were presented in a statement attached to the protection visa application, and in subsequent submissions and evidence to the two hearings attended by the applicant. In short, he claimed to have been born and educated in Bangladesh, to have become “strongly involve in Awami League politics” at school, to have become an executive committee member of that party in a particular location, and to have “joined various political rallies and demonstration directly arranged by Awami League”. He claimed that after the Awami League took power in 2001:
I was attack by BNP and Muslim fundamentalist terrorist twice. I was admitted to hospital late August 2001. Lucky I was survive and in the beginning of this year BNP and their fundamentalist Jamati-e-Islami coalition Government started strong attack against minority community. I tried to escape some where in Bangladesh but I failed. I was stopped by Muslim fundamentalist and also threatened by Muslim terrorist that if I do not leave Bangladesh they will kill me. After that incident I decided to leave Bangladesh. For the safe of my life I leave Bangladesh to India. I married a low race girl. After the marriage I was the target of BJP supporter. The BJP supporter threaten me and try to kill me. I gone to the police station for file a FIR but officer in charge did not accept my report. I felt insecure and for safe of my life I try to leave India.
Some details of the claims were given in a confused statement, which also referred to his being the subject of a warrant issued in relation to a false case against him, and his life being in danger both in Bangladesh and India. His statement concluded:
I am also the victim of my religious in Bangladesh Muslim fundamentalist. I was persecuted in Bangladesh because I am a Hindu minority. I also persecuted because I married a low class Hindu community. I did not support any violation of human rights and extreme religious life style. I believe secularism.
If I return to my living country Bangladesh & India now, there exists the following measures, in particular besides other unforeseen events:
1.Death in the hands of BNP & Indian thugs.
2.Arrest by the BNP coalition government police and I would remain in the Jail custody and torture without any trial.
3.The Bangladeshi Fundamentalist Muslim terrorist will kill me.
4.I apprehend that I shall definitely be prosecuted for the religious reasons & the document in obtaining of visiting passport.
For safe of my life I do not have any other alternative.
In light of the above mentioned circumstances. I am seeking Refugee status accordance to the United Nations Convention 1951 and 1967 protocol relating to the Status of Refugees.
A body of country material was also forwarded by the agent to the Department.
The delegate’s reasons for refusing the application turned on a finding as to the applicant’s nationality:
I note at the outset of this decision record that I do not accept that the applicant was a citizen of Bangladesh and I believe that he has invented fraudulent claims of Bangladeshi citizenship in an attempt to obtain a refugee visa. I base this finding on the fact that the applicant’s passport (Indian passport number [number] issued on 9 November 2001 and valid until 8 November 2011) states that the applicant was born in “W.B.”, ie West Bengal, India and not in Bangladesh as claimed. Further, the applicant infers that he obtained Indian citizenship due to his marriage to [the applicant wife], an Indian citizen, however according to the applicant’s Form C “Application for a Protection (Class XA) Visa” at question 13 he states that he married [the applicant wife] on “19/6/02”. At question 21 on the Form C he states that he obtained Indian citizenship on 2/11/01, ie seven month before his marriage to an Indian citizen. On the basis of these findings I determine that the applicant was born in India and not Bangladesh as claimed.
The delegate then concluded that “the applicant has not put forward a credible case to support a claim of persecution in India”, and did not further address the applicant’s claimed fears in relation to Bangladesh or his claimed Bangladeshi nationality.
On appeal, the applicant continued to receive the assistance of Mr Mollah who submitted submissions, a body of country information concerning Bangladesh, and, shortly before the first hearing, some documents purporting to confirm a court case against the applicant in relation to which he would be arrested. He submitted that the applicant had been “an activist of opposition party Bangladesh Awamileague”. There was also a certificate on a doctor’s letterhead, certifying a treatment for “injury (cut) on mid thigh of right side (Rt thigh)” on 23 August 2001.
The first Tribunal’s reasons for affirming the delegate’s decision largely followed the reasoning of the delegate, and relied on a clear finding:
In sum, I am unable to accept that the applicant is, or ever was, a Bangladeshi national or citizen. I accept that the applicant is an Indian national and citizen. I am unable to accept that the applicant had problems in Bangladesh or India or that he is at risk if he was to return to India or Bangladesh.
The Tribunal pointed to numerous difficulties of credibility and veracity in the applicant’s evidence and documents, which contributed to the evidence of his Indian passport to cause doubt about whether the applicant was or had been a Bangladeshi national or citizen.
The decision by the Tribunal on remitter which I am now addressing relied extensively upon the previous Tribunal’s narrative of the evidence, including the evidence taken at the first hearing. The Tribunal also narrated the additional evidence given by the applicant when he attended a further hearing before the reconstituted Tribunal, in which the applicants were given opportunity to explain their claims in relation to fears both in Bangladesh and India.
The Tribunal also referred to a s.424A letter, and to the applicant’s extensive response which maintained his claim to be a Bangladeshi citizen by birth. This contained the paragraphs which I have extracted above, in which the applicant claimed not to have a right to go back to India. However, even within this submission, there were inconsistent statements. For example, he said:
I like to bring to your attention that I travelled to India illegally only to escape persecution. My living in India was unlawful. With a view to living permanently in India with lawful status I married [my wife] who has come from low caste Hindu family. …
The Tribunal, after setting out all the background and evidence, gave brief reasons for a conclusion that it was not satisfied that the applicants were persons to whom Australia had protection obligations under the Refugee’s Convention, and that they did not satisfy the criterion set out in s.36(2) of the Migration Act. Its reasons were:
The husband applicant claims that he was born in Bangladesh and is a Bangladesh citizen and that he has suffered harm in Bangladesh both as a Hindu and as a supporter of the Awami League and that should he return to Bangladesh, he will face further harm for the same reasons. He further claims that he will face harm should he return to India as he has married a woman of a different caste and that Hindu fundamentalists have threatened them because of that and will continue to do so. He further claims that they could not safely relocate anywhere in India because such fundamentalists will pursue them wherever they might settle.
The Tribunal has considered all the evidence before it. In the light of the fact that the husband applicant has lived in India and holds an Indian passport issued in his name which he has used to travel through Indian immigration, the Tribunal finds that the applicant has Indian citizenship and that he thus has the right to return to, and live in, India. Hence the Tribunal finds that any fears he may hold with regard to Bangladesh not to be relevant.
The Tribunal has considered the applicants’ claimed fears of returning to India but finds them unconvincing and does not accept them as being well‑founded. The Tribunal has no independent evidence before it of harm coming to people who have entered a mixed‑caste marriage. The Tribunal notes that the independent evidence cited above refers to harm coming to those of the lowest or Dalit castes but this is not a claim being made by the applicants, who have not claimed that the applicant wife is from the Dalit caste. Moreover, the Tribunal notes that the reports of caste‑related harm to Dalits are associated with rural areas. The Tribunal found the claims by the applicants that the applicant wife’s family continues to suffer threats and harm many years after they departed India to be unconvincing and does not accept that such events continue. The Tribunal finds further that their claim of being targetted by Hindu fundamentalists associated with the BJP to be unconvincing given the poor showing of the BJP in the West Bengal elections. The Tribunal further finds that, in the particular circumstances of the applicants, it is open to them to relocate to some other part of India, such as New Delhi, where they would be safe from any such alleged harm. The Tribunal finds as far‑fetched, and does not accept, that their alleged enemies would pursue them across India for reason of their mixed‑caste marriage.
In the light of the evidence before it, the Tribunal is not satisfied that the applicants have a well‑founded fear of persecution within the meaning of the Convention. Therefore the Tribunal finds their fear is not well founded.
I explored with counsel for the Minister three issues which appeared to me to arise from the Tribunal’s reasoning, and which might appear to have been touched upon in the documents filed by the applicants in the Court.
The first issue is whether the Tribunal addressed the necessary question under the Convention definition, of whether India fell within the reference in the Convention definition to “the country of his nationality”. It is clear that the Tribunal did not purport to address the alternative of “the country of his former habitual residence”.
Although the Tribunal did not make a finding as to the applicant’s status in terms of Indian “nationality”, it made a clear finding that “the applicant has Indian citizenship”. I accept the submission of the Minister’s counsel that this should be understood as a finding addressing the issue of nationality for the purposes of the Convention, giving it the latitude required under Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. I also accept the submission from counsel for the Minister that, in a situation of possible dual nationality, the Tribunal was required only to address one of the applicant’s countries of nationality if it were able to find effective protection afforded in that State. He cited Tji v Minister for Immigration & Ethnic Affairs (1998) 158 ALR 681 at 683.
I therefore consider that the Tribunal’s reasons indicated an appreciation of the need to make a finding in relation to nationality for the purposes of the Convention.
The second issue which might appear to arise is whether the Tribunal appreciated that the issue of nationality was to be determined by it as an issue of fact on all the relevant evidence. This required it to address the claim made by the applicant at times, albeit equivocally at other times, that he was in fact not a national of India, and therefore could not receive the protection of that State. A recent decision of Siopis J in NBKE v Minister for Immigration & Citizenship [2007] FCA 126 illustrates that a Tribunal will make a jurisdictional error, if it treats a passport as conclusive of the issue of nationality, and for that reason does not address a claim that a passport does not evidence true nationality.
In the present case, although the Tribunal’s reasoning on the applicant’s evidence is tersely expressed, I am not persuaded that the Tribunal did not appreciate that it needed to make a finding of fact on nationality. Indeed, I think it shows that it did. It referred not only to the Indian passport issued to the applicant, but also to the facts of his residence in that country, and his use of his Indian passport to travel through Indian immigration controls on visits to Bangladesh and other countries. In the context of the applicant’s contradictory evidence concerning his nationality, I consider that the Tribunal has found as a matter of fact that the applicant could obtain the protection of the State of India as an Indian citizen. I consider that this finding was open to it on the evidence.
I am not persuaded, as the applicant submitted to me, that the Tribunal overlooked his reference to a provision of the Indian Citizenship Act in paragraph 18 of his submission to the Tribunal, which I have extracted above at [10]. That reference was not developed by the applicant in his submission to the Tribunal, nor was it presented with any supportive legal material or opinions. The reference itself was by no means conclusive as to the way in which the applicant might have acquired his own Indian citizenship.
The Tribunal appears not to have felt it necessary to make a finding as to how the applicant in fact acquired citizenship, and in my opinion it was not required to. It has made the finding which it was required to make, that is, that the applicant currently held Indian citizenship with the right to “return to, and live in, India”. I am not persuaded that there was any evidence before the Tribunal relevant to that issue which it has failed to address. I am not persuaded that the Tribunal overlooked and did not consider the applicant’s fluctuating claims only to be a national of Bangladesh.
The third issue which was required to be addressed by the Tribunal consequent upon its finding of Indian nationality, was whether the applicant could enjoy effective protection in that country of nationality. In this respect I was referred to Finkelstein J’s discussion of “effective nationality” in Tji (supra) at 690‑692. I think the concept referred to by his Honour may also be encompassed by the issues of effective State protection referred to in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [33].
In the present case, in my opinion, the Tribunal has addressed the actual situation of the applicants if they returned to India. It did so when addressing their claimed fears of persecution in that country for ethnic and religious reasons. Its findings that it was not satisfied that they would encounter caste related persecution, nor targeting by Hindu fundamentalists associated with the BJP were, in my opinion, open to the Tribunal, and sufficiently showed that the Tribunal addressed the issues required by the Convention definition and s.36(2) of the Migration Act.
For these reasons, I am not satisfied that the present decision of the Tribunal is affected by any jurisdictional error.
The applicants’ original application, and their amended application and submission, have not been prepared with the assistance of any legal representative. In my opinion, in substance they only argued with the merits of the Tribunal’s conclusions that both applicants were Indian nationals, and therefore that it only needed to address their situation if they returned to that country. Their arguments also attacked the Tribunal’s findings in relation to their situation if they return to India.
I have dealt above with an argument that the Tribunal overlooked a submission made to it on the issue of nationality.
A general allegation of failure to comply with s.424A of the Migration Act has not been developed in any of the documents lodged by the applicants, and I am not able to find any failure in this case. The implicit suggestion that the Tribunal was obliged to put to the applicants, in a written invitation for comment, its reasoning processes as distinct from information which formed part of its reasons, misconceives the effect of that section.
I am not persuaded that there was any claim made by the applicants which has not been addressed by the Tribunal.
Some of the applicants’ submissions suggest that the Tribunal failed to address a claim that the wife came from a caste which was “considered as Dalit”. However, I am unable to identify in the material before me, and the applicants have not taken me to any material that was before the Tribunal, indicating that their claims were ever put in that manner. The Tribunal expressly found that they did not claim “that the applicant wife is from the Dalit caste”, and I am not satisfied that that finding was not open to it.
I have considered all of the submissions presented by the applicants, and have been unable to identify any arguable jurisdictional error of substance which I have not dealt with above.
For the above reasons I consider that the Tribunal’s decision was a privative clause decision, and I must dismiss the application.
I certify that the preceding thirty‑nine (39) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 18 April 2007
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