SZCWB v Minister for Immigration

[2006] FMCA 629

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWB v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 629

MIGRATION – RRT decision – Indian claiming religious and political persecution – Tribunal found no claim to be well‑founded – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965

Applicant: SZCWB

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 572 of 2004

Judgment of: Smith FM

Hearing date: 20 April 2006

Delivered at: Sydney

Delivered on: 20 April 2006

REPRESENTATION

Counsel for the Applicant: Applicant in Person

Counsel for the First Respondent: Ms T Wong

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 572 of 2004

SZCWB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 4 March 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 January 2004 and handed down on 11 February 2004.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending act, and Acts Interpretation Act 1901 (Cth), s.8).

3. The powers of the Court under s.483A are the same as those of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.

4. The applicant arrived in Australia in July 2003, and on 15 August 2003 his application for a protection visa was lodged by an agent, Mr Mollah.  The application contained a brief statement of the applicant’s reasons for seeking protection in Australia so that he did not have to return to India.  In response to the question, “Why did you leave that country?”,  he said: 

   I was persecuted because of my religious believe and political opinion, present government and Hindu fundamentalist are target me. 

   They try to kill me.  My name is them death list. 

   I have no security in all over India.  I tried to escape various parts of India but failed. 

   I am seeking asylum in Australia to safe my life. 

   I am a genuine refugee applicant.  Under UN protocol and convention. 

   I will provide more details of my claims later. 

   In answer to the question, “Who do you think may harm/mistreat you if you go back?”, the applicant said: 

   (1)Hindu fundamentalist

   (2)Present BJP government

   (3)Government police. 

   I will provide more details of my claim later. 

5. The suggestion that the applicant would provide more details and supporting evidence never came to fruition.  A delegate refused the application on 2 October 2003.  On 7 November 2003, the applicant appealed to the Tribunal, again appointing Mr Mollah as his authorised agent. 

6. The application for review did not provide more supporting material for the applicant’s claims, but asserted that he was a genuine refugee who had been persecuted “in my previous country of residence because of my political opinion and my secular believe”.  The form said that the applicant was “trying to collect relevant documents”, and “I am going to making statement to support my review application”.  No supporting documents were ever sent to the Tribunal, but after the applicant was invited to a hearing on 12 January 2004, a brief typed statement was sent to it.  This said: 

   I am [name] from India informing you that what ever happened to me in India.  I am from the state of Tamilnadu in India. 

   At this time in Orissa one of the states in India, one Australian reverent father family was staying over there.  One day they were burned by same Hindus R.S.S. society people. 

   Sunday, 30 March 2003 morning myself and my friend went to the church and coming back.  I was talking to my friend about that Australian father’s matter.  I said obviously it was not fair what the R.S.S. Hindu people did against the father and it was cruisers.  At that time same friends R.S.S. people crossed that way and heard my words.  They just came to us and ask us to get apologies for that what we said was “that it true and fact.  We can’t ask apologies, suddenly they starting to attacking us by wooden sticks.  We had injured and admitted in a private clinic. 

   After three days we discharged from that hospital.  Then I came to Mumbai for hide to save my life. 

   Then the Tamilnadu R.S.S. people came to my house and attacked my family when I was not at home. 

   My family try to complained to nearest police station but unfortunate local police did not take any action against Hindu R.R.S. people.  The local police did not protect my life and my family property, because they will not take any action against the Hindu R.S.S. people because they have political influences.  Then I have shifted my house. 

   They search my present address.  I know that they will attack me any time in India.  There is no security for my life in India because they have branches every where India. 

   That’s why I escaped from India and came to Australia to safe my life.  I cannot hide and live any more days in India. 

   If I will stay anymore over there is India, They will definitely kill me.  I heard and believe that your country will take care and give me a safe life. 

   I believe in Jesus Christ and believe on you to protect me and give me stay permission to stay in Australia. 

   I like Christianity, it means who one should compulsorily convert from the other caste and Religion. 

   I am a genuine refugee under the UN convention and protocol. 

7. The applicant attended the Tribunal’s hearing.  A transcript is not in evidence, but the Tribunal gave a description of its questioning of the applicant.  At the start, it said: “I had some difficulty ascertaining the applicant’s claims at hearing, however I understand he claimed to fear persecution arising out of his ‘religious belief’ and his ‘political opinion’”. 

8. The applicant gave some further details about his claimed assault in March 2003, and the subsequent movements of himself and his parents.  The Tribunal said that it put to the applicant various concerns it had as to whether the RSS would still have any interest in locating the applicant if he returned. 

9. The Tribunal said: “the applicant also raised a new claim at hearing.  He claimed to have converted to Christianity”.  His claim was that he would be prosecuted under the “religious conversion laws”.  In support, the applicant told the Tribunal that he had recently watched a television program where Sri Lankan Tamils were discussing the Bible.  He also said that, although he had not attended a Christian church in the six months since his arrival in Australia, on one occasion he had “stood at the door of a Christian church in Sydney” and “looked in”. 

10. The applicant also made claims that he feared discrimination in jobs.  The Tribunal also discussed with the applicant whether he could relocate within India. 

11. Under the heading “Findings and Reasons”, the Tribunal first addressed the applicant’s claim to fear supporters of the RSS, arising from the claimed incident in March 2003.  The Tribunal gave two reasons for not accepting that this claim gave rise to a real chance of persecution for a Convention reason if the applicant returned to India. 

12. The first reason was: “I do not accept the applicant was denied any State protection for a Convention reason”.  I had a concern from this finding, whether the Tribunal appreciated that an applicant can qualify for a protection visa where State protection is unacceptably denied for any reason, if the persecution feared from non‑State agents was for a Convention reason.  However, I do not consider that any error made by the Tribunal in this respect materially affected his ultimate conclusion which rejected this part of the applicant’s claim. 

13. This is because the Tribunal, at much greater length, also addressed whether, assuming the truth of the applicant’s history concerning the incident, he had a well‑founded basis for fearing persecution by or on behalf of the RSS if he returned.  At the end of its discussion of this, the Tribunal made clear findings: 

    I am not satisfied on the evidence provided, the RSS has any interest in locating the applicant’s parents, or that the RSS has any interest in locating the applicant, as a result of the 30 March 2003 incident.  Neither am I satisfied, based on his mere assertion ‘the RSS wished to destroy Christians and Muslims’ the RSS have any other interest in him.  Accordingly, and after considering the country information sources referred to in this decision, I am not satisfied the applicant has a well founded fear of persecution by the RSS for any reason, should he return to India. 

14. Preceding this conclusion, the Tribunal had also discussed the applicant’s claims to fear “RSS discriminate in jobs”, and broader claims possibly raised by the applicant in relation to Hindu fundamentalist extremists and supporters. 

15. The Tribunal then addressed the applicant’s claimed fear concerning his conversion or attraction to Christianity. At the start of its discussion the Tribunal noted that the applicant in his primary visa application referred to himself as a Muslim, and to its questioning of him about this. Counsel for the Minister raised with me whether the Tribunal’s reference to this piece of information revealed a failure to follow the procedure required by s.424A(1) of the Migration Act. However, I accept her submission that this information was not “a part of the reason” for the Tribunal affirming the delegate’s decision.  Rather, in my opinion, the Tribunal addressed the applicant’s claim to fear persecution for Christian religious beliefs by assessing only his evidence given at the hearing concerning his fears that he would be prosecuted under the “religious conversion laws”.  

16. The Tribunal addressed his evidence, and concluded: 

    Given he has made no attempt to seek instruction, attend church, or otherwise pursue his alleged interest in Christianity since his arrival in Australia some 6 months ago [and while he could safely do so], and given his virtually non‑existent knowledge of Christianity, I do not accept that the applicant has converted to, or is even interested in converting to, Christianity as claimed.  Neither do I find that there is any reasonable basis upon which I could be satisfied he would be imputed with such conversion either in Australia or in India.  

    I further put to the applicant that even if I were to accept he had converted from Islam to Christianity, there was no indication he did not do this voluntarily.  He did not respond.  Accordingly, I am not satisfied on the claims provided, the applicant would have a well founded fear of prosecution, or persecution of any kind, arising out of his alleged, or imputed, conversion to Christianity should he return to India. 

17. In my opinion, the conclusions which I have referred to above, and the discussion given by the Tribunal in relation to them, fully addressed the claims which were made to it by the applicant, insofar as they could be properly distilled from the confusing statements made by the applicant. 

18. The Tribunal, in its reasons, went on to consider the situation of the applicant upon the alternative hypothesis that he did have a well‑founded fear of persecution for a Convention reason if he returned to his previous location in India, by considering whether he could avoid local persecution by relocating within India.  Its discussion on this topic covers four pages.  However, I do not consider that I need to analyse its reasoning for concluding that the applicant could reasonably relocate.  This is because it is clear from that reasoning that the Tribunal did not resile from its principal conclusions that the applicant had not made out a well‑founded fear of persecution for Convention reasons if he returned to the places of his former residence. 

19. I therefore do not need to address an issue raised by counsel for the Minister, as to whether non‑compliance with s.424A(1) could be identified from the course of its reasoning on relocation. Even if such a failure occurred, in my opinion the Tribunal’s decision was supported by its earlier conclusions reached on a clearly “independent basis” (see SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 per Allsop J at [231] and Weinberg J at [110]‑[111], approving VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 at [33]).

20. The applicant’s application filed in this Court followed a precedent consisting of a list of general heads of alleged error, including allegations of bad faith, denial of natural justice, failure to consider evidence, bias, failure to inquire, and other errors.  However, no particulars of any argument in support of these contentions have been provided.  On my reading of the Tribunal’s decision, they have no substance. 

21. The applicant filed an amended application, which also followed an unhelpful precedent.  It contended: 

    That the RRT decision was effected to take into account a relevant consideration when it assessed weather [sic: whether] the delegate of the Minister raised reasonable grounds for not granting a protection visa. 

    Particulars: 

    a)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 in India a member of a particular social group in India.  

    b)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. 

    Particulars: 

    The applicant repeats the particulars to ground (a)

22. No particulars have been provided by the applicant to identify a particular social group by reason of the membership of which he feared persecution, which was not addressed by the Tribunal.  In my opinion, to such extent that the applicant’s claims could be analysed as being based on his membership of any particular social group, the Tribunal has adequately addressed them in the reasoning I have considered above. 

23. I reject the contention that the Tribunal’s conclusion was not “based upon reasoning which provided a rational or logical foundation”. 

24. The applicant did not file written submissions as permitted by short minutes of directions given when the matter was set down in February 2005.  When he attended the hearing today he had no relevant submissions to make to me.  The concerns which he told me about were that he had now has no connection to India, does not know what is happening there, and wants to stay in Australia.  However, these concerns do not allow me to give him the orders which he seeks in this case. 

25. For the above reasons, I have not been persuaded that the Tribunal’s decision was affected by jurisdictional error. It was, therefore, a privative clause decision, for which relief is barred under s.474(1), and I must dismiss the application.

I certify that the preceding twenty‑five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Iliya Marovich-Old

Date:  8 May 2006