SZDBX v Minister for Immigration - [2005] FMCA 280

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBX v MINISTER FOR IMMIGRATION

[2005] FMCA 280

MIGRATION – Indian Hindu feared persecution after marriage to converted Muslim – no jurisdictional error found – concerns about solicitor referred to Legal Services Commissioner.

Migration Act 1958 (Cth), ss.36(2), 91R(1), 424A(3), 422B(1), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Applicant:

SZDBX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 826 of 2004

Judgment of:

Smith FM

Hearing date:

3 March 2005

Delivered at:

Sydney

Delivered on:

3 March 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr D Jordan

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4500.
Direct that the District Registrar forward a copy of this judgment to the Legal Services Commissioner of NSW.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 826 of 2004

SZDBX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth), challenging a decision of the Refugee Review Tribunal dated 2 February 2004 and handed down on 24 February 2004. The Tribunal affirmed a decision of a delegate refusing to grant a protection visa to the applicant.
Section 483A gives the Court “The same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction of the Federal Court is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, this Court must find that the Tribunal decision was affected by jurisdictional error before it has power to set aside the decision and remit the matter for further hearing by the Tribunal.
The Court does not have power itself to decide whether the applicant is a refugee or should be granted a protection visa. Issues of fact concerning entitlement to a protection visa are matters for final decision by the Tribunal unless they reveal jurisdictional error.
In the present case, the applicant arrived in Australia in March 2003 from India and applied for a protection visa soon after his arrival. He was assisted by an agent. His agent inserted into the form extracts from a typed document. In response to the question: “why did you leave that country?” the applicant said:
I faced persecution for the following reasons:
Political: my brother is the active member of the Nationalised Congress Youth Party.
Race/religion: I married a Muslim girl and the Muslims have made it a political motive to ostracise me.
I left my home country for the above mentioned reasons.
The applicant’s answers to the subsequent questions gave a little, but not much, more detail about those claims. He indicated that he had left his wife and small daughter with his parents in India, and that before he came to Australia his occupation was “import dealership” in Mumbai.
No supporting material was put before the delegate, who refused the application on 18 August 2003.
Assisted by the same agent, the applicant appealed to the Refugee Review Tribunal. He attached the typed statement which had been extracted in his original application, and stated:
My reasons for persecution in my estate is that I am the brother of a politician. I will submit to your office documentary or written/oral evidence regarding the incidents that I have encountered in India. Therefore I will be a political prisoner if I had to return. The submission will follow later.
He authorised his agent to act on his behalf in relation to the case.
On the material before the Court compiled by the respondent, no supporting material or submissions in written form were ever presented to the Tribunal.
The applicant attended a hearing on 9 December 2003. The Tribunal indicates in its reasons that in the course of the hearing the applicant gave oral evidence in English, and did not ask for the assistance of an interpreter. It records that he told the Tribunal that his brother had now left the Congress Party, and that he did not pursue any claims of a fear of harm due to his brother's political beliefs. The applicant also told the Tribunal that he did not pursue his claim that he would be targeted by Islamic fundamentalists if he returned to India. The claims he made to the Tribunal arose only from his marriage. He told the Tribunal the following:
The applicant confirmed that his wife and daughter were still living in Mumbai. He told me that his wife was a Muslim girl who had lived in the same apartment building as the applicant prior to marriage. He claimed that he and his wife fell in love and saw each other for 2-3 years before their families found out about the relationship. Before their marriage his wife was a commerce student at a local college. The applicant’s family came to know about the couple’s relationship in 1993-1994 and in 1995 he and his wife decided to get married
He claims they went to a Registry Office and booked a date for the marriage ceremony. She came from college and the couple were married at the Registry Office. The applicant’s wife stayed with her parents 1-2 months and then the couple ran away.
I asked the applicant is he had any technical difficulties in getting married. He told me that they went to the Registry Office. She was 18 years old and he was 21 years old and they had no difficulties getting married. I put it to him that under Indian law a Hindu could not marry a Muslim. He said that his wife had converted to Hinduism and changed her name. He said his wife was no longer a Muslim when they married.
The applicant told me that when the applicant’s and the applicant’s wife’s parents found out that the couple had married they were all very unhappy. The couple moved out and lived in their own home in Mumbai.
The applicant’s wife had 2 brothers, one 29 years old and the other 25 years old. The applicant told me that his wife’s brother was unhappy because his wife had converted to Hinduism. His wife’s brothers targeted him because of the marriage. The applicant had a small business and in 1993 and 1995 they came together with many of their friends and threatened to assault the applicant and cause trouble for the business.
In December 2002 they threatened the applicant when they came to his place of business and threatened him and hit people at his office. The applicant went to the local police station to complain about the assault. The police took his complaint and told him that if they came back to give them a call. He then decided that he should leave India to avoid being harmed by these people.
Neither party has put the transcript of the proceedings before the Tribunal into evidence before me, and in the absence of that transcript I accept the Tribunal's description of the proceedings. To the extent that evidence given by the applicant to me today, which I shall refer to below, is inconsistent with the Tribunal's account, I do not accept his evidence for reasons which I shall refer to below.
The Tribunal says that it put to the applicant information relevant to his case concerning the situation in India. The Tribunal then set out extensive extracts from that material.
Under the heading Findings and Reasons, the Tribunal referred to the applicant's claims which he had not withdrawn, and made the following findings:
I find that the applicant is married and that his wife and child live in Mumbai with the applicant’s older brother. I have some difficulty accepting that the applicant’s wife was a Muslim before their marriage and that they conducted a relationship for some 3 year before their marriage. I have these doubts because the applicant’s evidence was vague and generalised when questioned about how he and his wife met and married. He was not able to give detailed evidence on the circumstances of their meeting and the difficulties involved in getting married. He said his wife converted to Hinduism and changed her name however he glossed over these events and I would have expected that the conversion of a girl of Islamic faith and marriage to a Hindu would have resulted in many religious, legal and family difficulties. I would have expected the applicant to be able to give a more detailed account of the difficulties encountered. However, for the purposes of this decision, I will accept that the applicant’s wife was a Muslim and that she converted to Hinduism before marriage. It seems that she has now been accepted into the applicant’s wider family circle as she is currently living under the care of the applicant’s brother in Mumbai and is living as a Hindu.
The applicant says that he has been threatened by the applicant’s brothers because their sister converted to Hinduism and married the applicant. The applicant claims that he was threatened in 1993, 1995, and 2002. I accept that the applicant may have been verbally threatened by the members of the applicant’s wife’s family however I do not accept that the applicant faces a real change of persecution by members of the applicant’s wife’s family for reasons of his religion
Whilst the applicant says he has been threatened in 1993, 1995 and 2002, neither he nor his family have come to any harm as a result of the threats and the applicant continued his business until he left India in 2003. He has left his wife and child in Mumbai with his brother and no harm has come to them since he left India. In any event the harm he says he fears from his wife’s relatives arises from a private and domestic dispute relating to the circumstances of his marriage and his wife’s conversion to Hinduism. This has caused family problems because of religious differences however the threats arise from a private domestic dispute and not for the essential and significant reason of his religion.
The Tribunal's reference to “the essential and significant reason of his religion” is a reference to s.91R(1) of the Migration Act, which requires the Convention definition to be read, for the purposes of decision-making under the Act, so that the definition does not apply in relation to persecution for one or more of the reasons mentioned in article 1A(2) unless: “that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution.”
I can find no error in the Tribunal's reasons showing that it misunderstood the effect of the law which governed its decision.

I consider that it was open to it to decide that the harm the applicant said he feared would not be inflicted for a reason giving rise to protection obligations on Australia for the purposes of s.36(2) of the Act.
Moreover, that finding by the Tribunal was but one of four separate reasons upon which the Tribunal affirmed the decision. One other reasons was shown in its finding in the extract above: that, at a factual level, the applicant did not face a real chance of persecution by members of the applicant wife's family for reasons of his religion.
A third reason is found in its conclusion, which the Tribunal explained, that: “the applicant is able to seek the protection of the police for himself and his family against any threats of private harm from family members” and “the applicant is able to access reasonable state protection against harm threatened by private individuals, in this case, his wife's relatives and the harm he fears does not amount to persecution.”
The Tribunal's fourth reason for affirming the decision was:
If the applicant and his wife wished to avoid problems caused by his wife's brothers, I find that they could move to another area of Mumbai or another city of India where they would be unlikely to encounter their relatives and so avoid hostility from family members.
After considering the whole of the Tribunal's reasons and the evidence before me as to its proceedings leading to its decision, I am unable to identify any jurisdictional error. Nor, in my view, has the applicant in the course of his application for submissions been able to identify such an error.
The application initiating the proceedings was filed by a solicitor, Jyoti Bharati of Bharati Solicitors, 2/232 Beamish Street, Campsie. The application presents the following two allegations as purported grounds for review:
1. The RRT made a jurisdictional error when it failed to regard to all the material and evidence before it make findings on all of the material questions of the fact raised by that material in evidence.
2. The RRT made a jurisdictional error when it involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
Manifestly, this was an inadequate pleading of grounds for a review in the complete absence of any particularisation giving meaning to those allegations.
An affidavit was filed at the same time by the solicitor, signed by the applicant and witnessed by Mr Bharati. The circumstances of its preparation was a matter explored in the course of cross-examination of the applicant today. The applicant said on oath that Mr Bharati drafted the document. At first he said that he could read English and that he had read and understood the affidavit before he signed it, as well as appreciating the importance that the affidavit should be true and complete. The applicant was then confronted with the fact that a significant portion of the affidavit makes the following astonishing complaints:
I did not get justice from the Refugee Review Tribunal when it did not consider my medical reasons to extend the date of hearing.
I was pregnant, and having complications because of that. My mental lapse situation was mentioned to the Tribunal also about my medical situation but the Tribunal member said there is a rule that they can make judgment without hearing.
I could not believe that how they would not give me the chance to appear for the hearing after knowing my medical conditions.

I told them that my memory would not work. They took in a different way and made decision without conducting hearings.
I am still in the critical medical condition. I am expecting baby in few months.
The applicant then claimed that he did not understand legal words, and that he had been confused and did not look at the document in detail before signing it.
For the purposes of deciding this matter, I do not need to make any findings as to the circumstances in which this affidavit was made and presented to the Court, except to note that it does not reflect well on the applicant's credibility. However, I also have concerns about how a solicitor could prepare, witness and file this affidavit in support of an application which, in other respects, was also devoid of any apparent merit. I shall return to this concern at the end of these reasons.
The remainder of the affidavit does not support any ground of jurisdictional error, but merely asserts further facts concerning the refugee claims made to the Tribunal.
Mr Bharati signed a Notice of Ceasing to Act dated 8 October 2004, which was filed by the applicant on 11 October 2004. Attached is a statement by Mr Bharati that he has given his client advice about “the limits of the Judicial Review” and “the prospects of success”. The applicant then filed a notice of intention to act “in person”, and no legal representative has subsequently filed an appearance.
The applicant filed an amended application on 12 October 2004, which asserts two grounds for review. The first is:
1. The Refugee Review Tribunal made a jurisdictional error when it failed to take account applicant's evidence to the effect that he would not be safe because of his martial (sic) relations with a Muslim girl.
The particulars given under this heading refer to the Tribunal's finding about relocation, and claim:
The Tribunal failed to afford sufficient weight to the evidence given by the applicant in relation to treatment by his wife's brother and his Muslim friends.
This complaint does not raise a jurisdictional error, but attempts to re-agitate the factual finding made by the Tribunal.
The second ground for review in the amended application is:
2. The Tribunal failed to invite the applicant to make comments on the adverse material used to reach its decision and therefore breached the rules of procedural fairness.
No particulars are given as to what the suggested “adverse material used to reach its decision” is, and it is impossible for me to give meaningful consideration to this allegation. If it is to be read as a reference to the country information relied upon by the Tribunal, then a clear answer to the complaint is found in the provisions of ss.422B(1) and 424A(3) of the Migration Act.
The applicant's matter came before me for directions on 28 January 2005, and I directed the applicant to file any written submissions fourteen days before a hearing which I appointed for today. On

15 February 2005 he filed a two page document with annexures headed “Applicant's submissions”.
The applicant today gave evidence on oath that this document was prepared for him by Mr Bharati pursuant to a retainer under which he had been paid $1000. He said that Mr Bharati gave him the document in the course of visits he has made to Mr Bharati to obtain assistance since October 2004. If this is true it causes me concern, since this Court is troubled by documents filed by applicants appearing in person which show unacknowledged contributions by persons with a legal background and which raise spurious grounds for review. As I shall indicate below, the arguments made in the present document lack substance. If indeed Mr Bharati's withdrawal from the proceedings purportedly after giving certain advice was a sham, and if he has assisted the applicant to present unmeritorious arguments, then this is a matter of concern. I shall return to this aspect further at the end of these reasons.
The applicant’s written submission makes five points, which I shall deal with one by one. The first point was:
1. The applicant claims that the Tribunal made a jurisdictional error when it failed to take account of applicant's evidence to the effect that he would not be safe of his marriage to a Muslim girl.
There is then reference to the Tribunal's doubts about whether the applicant's wife was a Muslim before their marriage. This allegation does not raise a jurisdictional error, but is a complaint merely about fact finding. Moreover, it is clear that the Tribunal’s doubts were not a material element in its reasoning, since it said: “However, for the purposes of this decision I will accept that the applicant's wife was a Muslim, and that she converted to Hinduism before marriage.”
The second point made in the written submission was:
2. The applicant claims that he submitted a fax copy of Memorandum of Marriage to the Tribunal to confirm that his wife was Muslim before marriage.
In support of this argument, the applicant said “please find attached a Copy of the Memorandum of Marriage”. Since this allegation seemed to suggest a failure by the Tribunal to address a relevant piece of evidence tendered by the applicant, I invited the applicant to give evidence under oath as to the circumstances in which he claimed to have tendered this document to the Tribunal. He indicated that he wished to take that opportunity and gave evidence and was cross-examined upon it.
The applicant identified the 4 page document which is now exhibit A as a photo copy of the official memorandum of his marriage. It would appear that page 2 is the back of page 1, and that page 3 is the second page of the document. But the actual format of the original is not clear. The applicant said in his evidence in chief that he “gave” this document to the Tribunal, and “showed it” to the Tribunal and “gave oral evidence about it too”.

Under cross-examination, the applicant initially said that he had shown the document to the Tribunal in support of his evidence that he had been married in a registry office. This indeed was how the Tribunal has recorded his evidence: “the couple were married at the registry office” (CB65). However, under further cross-examination it was pointed out to the applicant that the document he had produced purports to be signed by an officiating priest on the day of marriage, and to certify that “this marriage has been performed by Hindu Vedic rights”. The document is signed by the person claiming to be a priest on 11 February 1995, and is stamped as being registered on

13 February 1995. Confronted with these aspects of the document the applicant agreed that he had not been married in a registry office.
The applicant was then questioned about when he obtained the document. He said that he had obtained it shortly after attending my directions hearing in February this year. Plainly, his earlier evidence that this was a document he had tendered to the Tribunal cannot be accepted. He also suggested that he had submitted a different copy to the Tribunal earlier, but did not give detail about that. He was then cross-examined on how he came to swear a patently false affidavit for use in these proceedings as I have described above. Ultimately, as I have indicated, giving the excuse that he did not look at the document before signing it.
For obvious reasons, I was unimpressed by the applicant's evidence as to what he told and showed the Tribunal, and I regard it as unreliable. I do not accept that the applicant at any point tendered to the Tribunal a copy of this document or a similar document.
In any event, as I have indicated in my response to the first submission, a dispute about whether in fact the applicant's wife was ever a Muslim was not material to the conclusion reached by the Tribunal, since it reasoned on the assumption that it accepted that the applicant’s wife had been a Muslim before marriage.
The third point made in the written submissions was:
3. The applicant claims that the Tribunal member ignored any evidence of the applicant's claim and made decision before the hearing. The applicant claims that he was denied procedural fairness when the member made up his mind before the hearing.
No evidence whatsoever has been tendered in support of this allegation, and it would have been severely condemned if it were made by a legal practitioner without supporting evidence. An allegation of bias is not one to be made lightly, and I reject it in this case. There is nothing in the material before me to show the Tribunal ignoring relevant evidence of the applicant's claim or did not give proper consideration to the applicant’s evidence given at the hearing.
The fourth point in the written submission is:
4. The applicant claims that the member failed to account and relevant and current information about the inter-religious marriages, specially between Hindu and Muslims.
This submission is then elaborated in terms that I don't understand, but the criticism appears to be that the Tribunal member should have conducted further investigations on the question of persecution due to inter-religious marriages, and that there was a denial of procedural fairness “when the member made decision without having full knowledge of the issue of inter-religious marriages in India”.
I don't accept that it is established that there was any relevant investigation which the Tribunal did not conduct, and which it was bound to conduct. It has a discretion as to the extent of its investigation of country information, and it has recently been held that “the Tribunal is under no duty to inquire” (seeMinister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
The applicant illustrated this submission by attaching an internet news report of something which happened subsequent to the Tribunal decision, but clearly this cannot help to locate jurisdictional error by the Tribunal. I cannot identify any jurisdictional error arising from this submission.
The fifth and final point made in the written submission was:
5. The applicant claims that he has genuine fear of persecution from the Muslims. The applicant fears if he will go back he will be killed.
This was the only submission which the applicant sought to elaborate to me orally today. He claimed that circumstances were “still worse in India”. Unfortunately, I cannot give effect to the applicant's current concerns as a reason for setting aside the Tribunal decision. They do not give rise to jurisdictional error.
For the above reasons, I must dismiss the application.
I have above identified two points at which, on the material before me, and without having heard explanations from the applicant's former solicitor, I think there might be grounds for an investigation by the appropriate professional body into his conduct in relation to these proceedings. For this purpose, I shall direct that a copy of these reasons be forwarded to the Legal Services Commissioner of New South Wales.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 16 March 2005