SZCWJ v Minister for Immigration

Case •

[2006] FMCA 540

•

7 April 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCWJ & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 540
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicants are citizens of India claiming well-founded fear of persecution.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth), ss.474, 475A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

Ratnam v Minister for Immigration & Ethnic Affairs (1997) ALD 203
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZBWJ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 13
NAIZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37
SZBWJ vMinister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

First Applicant: SZCWJ
Second Applicant: SZCWK
Third Applicant: SZCWL
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 589 of 2004
Delivered on: 7 April 2006
Delivered at: Sydney
Hearing date: 7 April 2006
Judgment of: Scarlett FM

REPRESENTATION

The Applicants: In Person
Solicitor for the Respondent: Mr Markas
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. Leave to join Refugee Review Tribunal as a Respondent.

  2. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  3. That the Application is dismissed.

  4. That the First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $5,500.00.

  5. I allow eight (8) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 589 of 2004

SZCWJ

First Applicant

SZCWK

Second Applicant

SZCWL

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 29th January and handed down on 19th February 2004. There are three Applicants, two of whom attended Court today. The Applicants are husband and wife and their infant child. They are citizens of India who arrived in Australia on 3rd May 2003 and applied for protection (class XA) visas. When those visas were refused, the Applicants applied on 28th August 2003 for review of that decision. 

Background

  1. The First and Second Applicants attended a hearing of the Tribunal on 21st November and gave oral evidence. They claim a fear of persecution for reasons of race and religion. They are of different religions and their marriage was across religious boundaries. This caused a considerable rift in the families which they said gave rise to threats and attempts to harm them.  They left their immediate area and eventually came to Australia. 

  2. They were asked by the Tribunal why they could not have moved to another part of India and the wife told the Tribunal that her brother had a lot of contacts and her father used to have transfers to different parts of India in view of his work with the air force.  They told the Tribunal Member that they fitted within the definition of the Refugees Convention by means of race and religion. The husband is a Brahmin and the wife is a Sutmuichi, which is a lower caste. The husband is Gujarati and the wife is Punjabi. 

  3. At page 88 of the Court Book, when it was put to the Applicants by the Tribunal Member that it appeared that the differences were family problems rather than Convention based problems, the Applicants reaffirmed the truth of their statements and expressed concern for the welfare of their child, saying:

    We don't want the child to go through this.  After our child was born, we thought he could be kidnapped. 

The tribunal’s findings and reasons

  1. The Tribunal considered Independent Country Information and in the Tribunal's findings and reasons, whilst accepting that the Applicants are citizens of India, made some serious criticisms of the Applicants' evidence.  At page 92 of the Court Book the Tribunal Member said:

    In relation to their claims of fearing harm, however, I do not accept that they have been truthful and consider that they have fabricated and exaggerated parts of their claims. 

  2. The Tribunal Member went on to refer to an acknowledgment by the First Applicant about providing some false information. And at page 93 the Tribunal did not accept parts of their history. And overall, made this finding at page 93:

    Overall I find that the Applicants were not credible witnesses and that they have exaggerated their history and claims. 

  3. The Tribunal was prepared to accept that there were difficulties with the wife's family about her marriage and that the family had in effect disowned her.  

  4. The Tribunal Member did not accept that the circumstances described by the Applicants fell within the Convention definition of a refugee and particularly, made the finding at page 93 of the Court Book that the animosity and harm that the Applicants claimed did not arise out of race and religion.  As the Tribunal said:

    The motivating factor here is not any of the Convention grounds, but personal ones relating to a dissatisfaction of her family with her choice in husband. Any harm that flowed from that, no matter how serious, would not be for reasons of a Convention ground.

  5. The Tribunal also considered whether it was reasonable for them to relocate to other parts of India and considered that it was reasonable in all the circumstances to do so if indeed they feared harm in Hyderabad. 

  6. The Tribunal noted that no specific Convention claims were made on behalf of the Applicant child and that the fate of his application depending on the outcome of the parents' application. That passage appears in the second last paragraph on page 94.

  7. The Tribunal affirmed the decision not to grant protection visas.

Application for judicial review

  1. The Applicants filed a further Amended Application with leave, which apparently had been prepared by a legal adviser. They set out two grounds. First, denial of natural justice; second, failure to apply the correct test. 

  2. The natural justice claim was particularised in two ways. First, that the Tribunal did not tell to the Applicants what the other material available to it was, or give them a proper opportunity to respond to it. Secondly, did not assess the totality of the Applicants' claims. In particular, it was submitted that the Applicants had also put their claim on the basis of their membership of a social group, being a caste, as well as being because of their race and religion. 

  3. In respect of the failure to apply the correct test, again, the Applicants raise their claim of failure by the Tribunal to consider whether the Applicants suffered persecution due to their membership of a particular social group, namely their caste.  And also:

    The Tribunal failed to consider whether the State's inability to protect the Applicants from harm for a non-Convention reason amounted to persecution by the State for a Convention reason.

  4. In respect of that second particularly, 2(b), I commented during the hearing and I find now that very statement of that claim, namely that a failure to consider whether the State's inability to protect the Applicants from harm for a non-Convention reason amounted to persecution by the State for a Convention reason, only has to be made for it to be shown that it is illogical and absurd. 

  5. The points that are of more substance have been addressed by the Respondent first, in the written submissions, and second, in the oral submissions made by Mr Markas for the Respondents today.

  6. In respect of the first ground it is submitted that the Tribunal found that the Applicants did not objectively have a well founded fear of persecution, even if one were to accept that the Tribunal did not make a finding on the issue of subjective fear, there was no obligation upon it to do so, where there was a finding that any subjective fear would not be objectively well founded.  I am referred to the decision of Ratnam v Minister for Immigration & Ethnic Affairs (1997) ALD 203.

  7. In respect of the second ground, the Respondents submitted that the findings made by the Tribunal were open to it on the evidence. 

  8. The Respondents submit also that consideration should be given to whether any breach of s.424A(1) of the Act can be said to arise following the decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2. The submission is noted that whilst inconsistencies in the evidence of the husband and wife were not put to them for comment in writing, the submissions is that the findings of inconsistencies were not a part of its reasons for affirming the delegate's decision. I believe that to be correct.

  9. The written submission says that the Tribunal reached its decision on two separate and independent bases. First, that the Applicants' claims were not Convention related. And second, that the Applicants could relocate to any other part of India. The submissions are that these are independent reasons for concluding that Australia does not owe protection obligations to the Applicants so as to entitle them to be granted protection visas. I am referred to the decision of SZBWJ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 13, at [53] which is an appeal to the Full Court from a decision of a Federal Magistrate. (See Randhawa vMinister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and SZBWJ vMinister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437, also NAIZ vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37).

  10. Those findings, it is submitted, were not based on the inconsistencies in the Applicants' evidence and thus there was no breach of s.424A(1) of the Act.  In my view, that submission is correct.

  11. The oral submissions that were made on behalf of the Respondent, it was put that in respect of the claim of the Tribunal not considering the Applicants' claim on the basis of their membership of a social group, their caste, which was also the foundation of the failure to apply the correct test ground, the submission is that the Tribunal is not required to deal with claims that were not made. Indeed, I am of the view that the claims were not made, that the grounds were put clearly on the basis of race and religion, and the Tribunal did not accept that.

  12. As to the finding of State protection or the lack of it, the Respondents submit that the findings on relocation were inconsistent with a suggestion that the State was unable or unwilling to protect the applicants. 

  13. The Applicants also submitted that the Tribunal had not considered the situation relating to their child. In my view, that is incorrect and it appears to me that the reference in the evidence to the parties' child and the specific finding made on the final page of the decision indicates that the Tribunal did in fact do just that. 

  14. The main reason why the Tribunal did not accept the Applicant's claims was the basis of credibility. The Tribunal was not satisfied that the Applicants were credible witnesses in respect of a number of parts of their claims. A credibility finding is a finding of fact, a finding of fact is the task of the administrative decision maker. There was evidence open to the Tribunal on which it could be satisfied as to make an adverse finding about the Applicants' credibility.

Conclusion

  1. In my view, and I have read the decision thoroughly, not only are the claims of jurisdictional error made by the Applicants not borne out, but I am unable to discern any other jurisdictional error not mentioned by the Applicants. It follows that the decision is a privative clause decision as defined by and as protected by s.474 of the Migration Act. The application must therefore be dismissed.

  2. There is an application for costs. The parties say that they cannot afford to pay them, certainly not in the sum of $5,500.00. It usually follows that where a party is unsuccessful, the other party applies for a costs order. It appears to me that it is appropriate to follow that practice, although I will take into account the Applicant's claimed impecunious circumstances, as they say they cannot afford to pay the costs. And I am mindful of the fact that $5,500.00, whilst it appears to me to be a reasonable figure in the circumstances, would represent a somewhat crippling impost.

  3. I am not of the belief that any order for costs should be made against the Third Applicant, who is an infant, who has played no active part in these proceedings at all and has advanced no separate claim.

  4. I will allow time to pay and I will allow eight months to pay in the circumstances. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  18 April 2006

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